HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR SINGLE BENCH PRESENT:

HON'BLE MR. JUSTICE G.S. AHLUWALIA Criminal Appeal No.165 of 2009 Babloo @ Bhoora -Vs-

State of M. P.

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Shri R.K.S. Kushwah, counsel for the appellant.

Shri R.D. Agarwal, Panel Lawyer for the respondent/State.

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J U D G M E N T

(17/01/2017)

This appeal under Section 374 of Cr.P.C. has been filed by appellant Bablu @ Bhura against the judgment and sentence dated 5-11-2008 passed by Special Judge, Datia in Special Case No. 70/2007, by which the appellant has been convicted under Section 397 of I.P.C. read with Section 13 of M.P.D.V.P.K. Act and has been sentenced to undergo the rigorous imprisonment of 7 years with fine of Rs. 5,000/- with default imprisonment. By the same judgment, two persons namely Ravikant and Hargovind, were acquitted by the Trial Court.

2. The undisputed fact is that the place of incident, i.e., Chirgaon-Bhander Road, bridge of Vichhodana Canal has been notified as Dacoity effected area by notification No. F-

12-1/2000/B(1) dated 24-1-2000.

3. The necessary facts for the disposal of the present appeal are that on 21-1-2007 at about 12 P.M., the complainant Ramprakash Gupta and Mohanlal Sharma were going to Jhansi by their Maruti Car for taking orders for silver ornaments. On the way, near the bridge, one Tractor Trolley which was loaded with food grains was parked in an out of order condition, and on the other side, two persons were standing. The moment, complainant Ramprakash Gupta tried to take his car by the side of the persons, they stopped the car. As soon as the car stopped, one person took out a country made pistol and forced the complainant to get down from the car. They took out an amount of Rs. 7,000 which was kept in his pocket, driving license and also took away Nokia Mobile Model 3315, which was having Airtel Sim. The remaining two persons took the search of Mohanlal Sharma who was sitting in the car, and took away near about 7 kg of silver which was kept in the blue colored bag. Thereafter the three accused persons after taking the entire cash amount, driving license, Mobile Phone and the silver escaped on their motor cycles.

4. A F.I.R. was lodged by Ramprakash Gupta in Police Station Bhander. On the basis of said F.I.R., the police started investigation. Spot map was prepared. The statements of Ramprakash Gupta and Mohanlal Sharma were recorded. The accused persons were arrested. On the basis of discloser statement of Bablu @ Bhura, Nokia Mobile handset of 3315 model, Driving license of Ramprakash Gupta were seized by seizure memo Ex. P/7. Thereafter, a charge sheet against three persons namely, the appellant Bablu @ Bhura, Ravikant and Hargovind was filed for offences punishable under Sections 392,120B of I.P.C. read with Section 11,13 of M.P.D.V.P.K.

5. The Trial Court framed charges under Sections 397 of I.P.C. read with Section 13 of M.P.D.V.P.K. Act. The accused persons abjured their guilt and pleaded not guilty.

6. The prosecution in order to prove its case, examined Onkar (P.W.1), Mohan Sharma (P.W.2), Ramprakash Gupta (P.W.3), Ahiwaran Singh (P.W. 4), Anaadi Mishra (P.W. 5), Mahendra Singh Yadav (P.W. 6), K.L. Magraiya (P.W. 7), Janaki Prasad (P.W. 8), Anurudh Singh (P.W. 9), and K.S. Gurjar (P.W. 10). The appellant did not examine any witness in his defence.

7. Onkar (P.W.1) has not supported the prosecution case and was declared hostile. He was cross examined by the Public Prosecutor however, nothing could be elicited in favor of the prosecution from his cross examination.

8. Mohan Sharma (P.W. 2) has narrated the entire incident, but he has stated that at the time of the incident, the accused persons had covered their cases and did not indentify the accused persons including the appellant in the Court. He was declared hostile on the question of identity of the accused persons. In cross examination, this witness specifically stated that