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2023 Supreme(Online)(MP) 5855
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Cr. A. Nos.3229/2020, 3259/2020 & 6434/2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 21ST DAY OF DECEMBER, 2023
CRIMINAL APPEAL No. 3229 of 2020
BETWEEN:-
AKASH S/O RAJU RATNAKAR
AGED ABOUT 24 YEARS, OCCUPATION: DRIVER
ABOVE JOSHI SWEETS, NAVLAKHA
OPP. ROBIN GYM
INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI MANISH KUMAR SHARMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH P.S. PARDESHIPURA
INDORE (MADHYA PRADESH)
.....RESPONDENT/STATE
(MS. BHAGYASHREE GUPTA, GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 3259 of 2020
BETWEEN:-
PIYUSH @ ROHIT S/O SURESH PARETA
AGED ABOUT 23 YEARS, OCCUPATION: LABOUR
35/2 KUSHWAH SHRINAGAR, SHIV MANDIR WALI GALI
BANGANGA
INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI GAJENDRA SHARMA, ADVOCATE)
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Cr. A. Nos.3229/2020, 3259/2020 & 6434/2020
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH P.S. PARDESHIPURA
INDORE (MADHYA PRADESH)
.....RESPONDENT/STATE
(MS. BHAGYASHREE GUPTA, GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 6434 of 2020
BETWEEN:-
VIJAY S/O SITARAM PARMAR
AGED ABOUT 20 YEARS, OCCUPATION: LIGHT FITTING
GRAM RAJDHARA, COMPEL ROAD
DISTRICT INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI MAHENDRA SINGH GURJAR, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THR. P.S. PARDESHIPURA
DISTRICT INDORE (MADHYA PRADESH)
.....RESPONDENT/STATE
(MS. BHAGYASHREE GUPTA, GOVERNMENT ADVOCATE)
Reserved on :
23.11.2023
Pronounced on :
21.12.2023
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These appeals having been heard and reserved for judgement,
coming on for pronouncement this day, Hon'ble Shri Prakash Chandra
Gupta pronounced the following:
,Advocate General
Admissibility of electronic records and the procedure for conducting Test Identification Parade (TIP).
Headnote:
[KEYWORD] - [SUBJECT] - [SUMMARY]
Fact of the Case:
On 07.01.2018, Mridul (PW/2) went missing. His family filed a missing person report on 09.01.2018. On 12.01.2018, Mridul (PW/2) was found in a 350 feet deep trench, near left side of Sati Gate, Pedmi - Udaipur road, in half-dead state. He was taken to Index Medical College, Indore for treatment. During investigation, ASI P.S. Bariya (PW/12) checked the CCTV footages of nearby, and recorded statement of Rakesh @ Monu, Sourabh Sen (PW/5) Anjali and Mohit. It was found that Anjali and appellant Akash were already friends and Akash was in love with Anjali for 03 years and despite of that, Anjali was building friendship with Mridul. Because of the aforesaid, appellant Akash alongwith Vijay and Piyush had kidnapped Mridul in a car bearing registration No.MP-09-CU-5956, which was owned by Rahul Ratnakar (PW/9). Therefore, ASI P.S. Bariya (PW/12) lodged an FIR (Ex.P/18) against the appellants on 11.01.2018.
Finding of the Court:
The prosecution has succeeded to prove its case beyond reasonable doubt against the appellants. Learned Trial Court has rightly appreciated the evidence available on record and has convicted and sentenced the appellants. Learned Trial Court has not committed any error in convicting and sentencing the appellants for the offence.
Issues: 1. Whether the CCTV footage is admissible in evidence? 2. Whether the Test Identification Parade (TIP) was conducted properly? 3. Whether the delay in recording the case diary statement of the injured witness affects the credibility of the witness?
Ratio Decidendi: 1. Certificate u/S 65B of the Evidence Act is mandatory to prove electronic record and such certificate shall be issued by authorized person, as prescribed u/S 65B(4). 2. The identification by the witness to the accused persons appears to be reliable. 3. The delay in recording case diary statement is not fatal for the prosecution.
Final Decision: The appeals are dismissed. The impugned judgement of conviction and sentence, passed by the learned Trial Court is affirmed.
These appeals have been filed by the appellants/accused persons
u/S 374 (2) of the Code of Criminal Procedure, 1973, arising out of
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common judgement dated 02.03.2020 passed by the Additional Sessions
Judge (Special Court, Electricity Act), Indore, in S.T. No.178/2018,
whereby the appellants/accused persons have been convicted u/S
364/34, 307/34 and 201/34 of IPC and sentenced each of them to
undergo RI for 10 years with fine of Rs.1,000/-, RI for 10 years with fine
of Rs.1,000/- and RI for 03 years with fine of Rs.1,000/- respectively
with default stipulations.
2.
Facts of the prosecution case in brief are that Mohit (PW/1) has
two sons, injured Mridul (PW/2) is elder and Gurvinder (PW/3) is the
younger. Mridul (PW/2) and Gurvinder (PW/3) used to study and live in
208, Clerk Colony, Indore in a rented room. Their room partner was
Sourabh Sen (PW/5). There was friendship between Anjali and injured
Mridul (PW/2). Rahul Ratnakar (PW/9) is the elder brother of appellant
Akash. Appellant Piyush @ Rohit Pareta is relative and appellant Vijay
is friend of appellant Akash. Gurvinder (PW/3) had gone back to his
house as his exams were over. On 07.01.2018 at around 11 AM, Mridul
told Sourabh Sen (PW/5) that he was going out for breakfast, but he did
not return back. His phone could not be reached. Even after searching for
a while, he could not be found. Then Mohit (PW/1) filed a written
complaint (Ex.P/2) to the SHO Pardeshipura, Indore. On the basis of
written complaint (Ex.P/2), a missing person report was lodged by S.I.
Kamal Kishore on 09.01.2018. During inquiry, ASI P.S. Bariya (PW/12)
checked the CCTV footages of nearby, and recorded statement of Rakesh
@ Monu, Sourabh Sen (PW/5) Anjali and Mohit. It was found that Anjali
and appellant Akash were already friends and Akash was in love with
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Anjali for 03 years and despite of that, Anjali was building friendship
with Mridul. Because of the aforesaid, appellant Akash alongwith Vijay
and Piyush had kidnapped Mridul in a car bearing registration No.MP-
09-CU-5956, which was owned by Rahul Ratnakar (PW/9). Therefore,
ASI P.S. Bariya (PW/12) lodged an FIR (Ex.P/18) against the appellants
on 11.01.2018.
3.
During investigation, SI Kamal Kishore (PW/11) on 12.01.2018,
found injured Mridul (PW/2) in 350 feet deep trench, near left side of
Sati Gate, Pedmi - Udaipur road, in half-dead state. He was taken
forthwith to Index Medical College, Indore for treatment. Dr. Vinod
Kumar Sethi (PW/13) on 12.01.2018 at 10:00 AM examined Mridul
(PW/2). He gave his report (Ex.P/19). On the same day, he was referred
thereafter admitted for further treatment in Bombay Hospital, Indore. He
was admitted there till 05.02.2018.
4.
On 12.01.2018, SI Kamal Kishore (PW/11) prepared spot map
(Ex.P/14) at the instance of Raj Kumar. He seized a lower (Article A-1)
of injured Mridul (PW/2), Aadhar Card of accused Akash (Article A-6),
blood stained soil (Article A-2), plain soil (Article A-3) and blood
stained stone (Article A-4 & A-5), used to inflict injury upon Mridul
(PW/2), from the place of incident vide seizure memo (Ex.P/15). He
pasted seizure slip on Article A-4 and A-5 (Ex.P/16 & 17 respectively).
On 12.01.2018, he arrested the appellants Piyush @ Rohit, Akash and
Vijay and prepared arrest memo (Ex.P/4, P/5 & P/6, respectively).
During custody, he interrogated the appellant Akash and recorded his
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memorandum statements (Ex.P/7) u/S 27 of the Indian Evidence Act,
1872. He seized the aforementioned car and the tape kept inside, at the
instance of appellant Akash vide seizure memo (Ex.P/10). On
13.01.2018, during interrogation, appellant Vijay disclosed that he had
thrown phone of injured Mridul (PW/2) in a sewer, but the phone could
not be found at the place stated, SI Kamal Kishore (PW/11) prepared
search memo (Ex.P/9). On 13.01.2018, SI Kamal Kishore (PW/11)
seized CCTV footage from Hero Vinayak Motors, clerk colony vide
seizure memo (Ex.P/19). On the same day, he also saw CCTV footage of
electronics shop of Deepak Vi
