IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ATUL SREEDHARAN nd ON THE 2 OF MARCH, 2023 CRIMINAL REVISION No. 459 of 2023 BETWEEN:-

BHEEMA S/O SHRI RAMESH HARIJAN, AGED 30 YEARS, OCCUPATION AT PRESENT NONE R/O VILLAGE BHADORE POLICE STATION ARON DISTRICT GUNA (MADHYA PRADESH)

.....PETITIONER (BY SHRI GIRISH SHARMA- ADVOCATE)

AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION AARON DISTRICT GUNA (MADHYA PRADESH)

.....RESPONDENT (BY SHRI B.P.S. CHAUHAN- PUBLIC PROSECUTRO)

This revision coming on for motion hearing this day, the court passed the following:

ORDER

The present Criminal Revision has been filed by the petitioner who is aggrieved by the order dated 29.04.2022 passed in CRA No. 251/2019 whereby the Criminal Appeal filed by the petitioner was rejected thereby confirming the judgement and order dated 17.09.2029 passed by the Court of the Judicial Magistrate First Class, Tehsil Aron, District Guna in RCT No. 200/2013. The petitioner was convicted for the offence under Section 457 of the IPC and sentenced to suffer six months' rigorous imprisonment and fine of Rs.500/- and under Section 380 of IPC for six months' imprisonment with fine of Rs. 500/-.

The facts of the case are that on 18.01.2013, the complainant in this case Signature Not Verified Signed by: VISHAL (PW-3) Khoob Singh registered an FIR relating to an incident that took place in the intervening night of 17-18th of January, 2013 whereby it was alleged that the petitioner herein broke into the house of the complainant at night and committed the theft of an empty cooking gas cylinder. On the basis of the said complaint, FIR bearing Crime No. 18/2013 was registered on 18.01.2013 at Police Station Aron, District Guna for offences under Section 457 and 380 of the IPC. The petitioner was named in the said FIR (Ex.P-1). Undisputedly, the offending gas cylinder was not recovered from the petitioner herein but from the co-accused Chhotu while seizure memo which is Exhibit P-4. Thereafter, the memorandum of Chhotu, under Section 27 of the Evidence Act was recorded on 06.04.2013 at 13.20 hrs, immediately after his arrest. The arrest memo of chhotu is Exhibit P-6 and his memorandum under Section 27 with is Exhibit P-5. In the memorandum, the co-accused Chhotu states that he had purchased the said gas cylinder from the petitioner herein for Rs. 500/-. The witnesses to the memorandum are PW-5 and 6 who are the employees of the Police Department and PW-7 who is an independent witness. PW-5 and 6 have supported the the case of the prosecution and have stated that in their presence, the co-accused Chhotu has made a statement to the effect that he had purchased a cylinder allegedly stolen by the petitioner from the complainant for Rs. 500/-. The independent witness to the memoradum PW-7 has turned hostile and he has stated that no such statement was ever made by the co-accused Chhotu in his presence. Even otherwise, the incriminating part of the said memorandum under Section 27 of the Evidence, alleging that the petitioner had sold the cylinder to co-accused Chhotu is inadmissible in lieu of Section 25 of the Evidence Act. The two independent witnesses to the seizure memo of the gas cylinder form Signature Not Verified Signed by: VISHAL the co-accused Chhotu are PW-4 who has turned completely hostile and has not supported the case of the prosecution and is denying that the seizure of the said gas cylinder was made from the co-accused Chhotu in his presence. Likewise PW-7 who was also the witness to the Section 27 memorandum is also a witness to the seizure memorandum and he has also turned hostile and stated that no such cylinder was seized from the co-accused Chhotu in his presence. The two eye witnesses in this case are Devendra and Raghvendra. Devendra has been examined as PW-1 and he says that on the date of incident he saw from his house, the petitioner coming out of the channel gate of the house belonging to the complainant, carrying a gas cylinder