Banti alias Jitendra Sharma vs State Of Madhya Pradesh

Present revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner

against the judgment dated 27.02.2020 passed by Sessions Judge, Guna whereby the appeal preferred by the petitioner against the judgment dated

13.11.2018 has been dismissed and conviction recorded by the trial Court under Section 379 of IPC and award of rigorous of imprisonment for 8

months with fine of Rs.1,000/- has been affirmed.

Record retrieved and with the consent of the parties, matter is heard finally.

Brief facts of prosecution is that a complaint was registered by the complainant Gyan Prakash Bhargawa (PW-1) with the allegation that on

26.07.2017 around 9 am, he alongwith his son Vidyansh went to Alap Academy at Guna over a motorcycle Hero Honda CD Deluxe bearing

registration No.MP-08-MH-4428 and when he left the motorcycle outside the premises of academy to drop his son and went inside, meanwhile

somebody committed theft and took the motorcycle away. When he came out from the academy he found the said fact and therefore, registered a

complaint on which FIR has been lodged and matter has been taken into investigation. During investigation, petitioner was arrested and statement of

witnesses taken. Motorcycle was seized and thereafter, charge-sheet was filed.

Petitioner/revisionist abjured his guilt and sought trial. Prosecution examined as many as 6 witnesses and defence produce none.

Statement under Section 313 of Cr.P.C. of accused was taken.

After considering the documentary and oral evidence, trial Court convicted the appellant and awarded jail sentence for 8 months RI with fine of

Rs.1,000/- with default stipulation.

Being aggrieved by the said judgment, petitioner preferred the appeal before the Sessions Court but suffered. Sessions Court confirmed the

judgment of conviction. Therefore, this revision has been preferred.

Learned counsel for the petitioner pressed for hearing at motion stage because of the fact and circumstances of the case. Learned counsel for the

respondent had no objection. Therefore, matter heard finally.

It is the submission of counsel for the petitioner that trial Court as well as appellate Court erred in convicting the appellant and confirming the same

whereas prosecution did not prove the case beyond reasonable doubt. Source of implication is memo under Section 27 of the Evidence Act and

seizure memo creates doubt. No seizure witness supported the story of prosecution. Only on the basis of testimony of complainant Gyan Prakash

Bhargawa (PW-1) and testimony of Investigating Officer- Kanti Prasad Diwakar (PW-6) and he has been convicted. He is resident of District

Ashoknagar and incident is of District Guna and he has been falsely implicated. All other witnesses did not support the story of prosecution. Out of 8

months, he already suffered more than 6 months in confinement. Therefore, he prayed for setting aside of impugned judgment.

Counsel for the respondent opposed the prayer and submitted that trial Court rightly convicted the appellant and appellate Court rightly confirmed

the same. He supported both the judgments and prayed for dismissal of revision.

Heard counsel for the parties and perused the record.

This is the case of theft and petitioner is convicted for the offence under Section 379 of IPC. As per the complaint, the complainant Gyan Prakash

Bhargawa (PW-1) never saw the person who committed theft of motorcycle because as per his statement when he came out of the academy, he

found his motorcycle missing. Therefore, no eyewitness exists in the case to depose before the Court about the role of petitioner regarding lifting the

motorcycle from the spot. Only source of implication as pointed out by the counsel for the petitioner, is memo under Section 27 of the Evidence Act.

Although, memo under Section 27 of the Evidence Act is in respect of information received from the accused and the extent of its evidenciary value

and Section 27 is to be pressed into service only to make admissibility of statement to police, which is otherwise in admissible leading to certain

discovery relating to the offence. In other words, statement which is admissible under Section 27 of the Act is the one which is information leading to

discovery. (See Bodh Raj @ Bodha And Ors vs State Of Jammu And Kashmir, (2002) 8 SCC 45).

Broadly speaking, there are 4 conditions before the Section 27 of the Act is applied:-

First, that the accused must be in the custody of a police officer,

Secondly, the accused must have given an information to the police (the exception contemplated by Section 27 of the Act is that even though this

information may amount to a confession),

Thirdly, there must be discovery of an instrument and,

Fourthly, information must relate directly to the fact discovered (See:- Ramua Vs. State of U.P., 1992 CRLJ 3972).

Here the memo of under Section 27 of the Evidence Act is in respect of discovery of fact regarding recovery of motorcycle which was retrieved

from Bajrang Road Pathar, Guna. The memo under Section 27 of the Act is placed as Ex.P-5. Seizure memo refers the case of recovery as near

Hasti Mill Pathar, Guna. Investigating Officer-Kanti Prasad (PW-6) admitted in his cross-examination that the place which has been referred in

Seizure Memo (Ex.P-6) is an open place and there is regular traffic movement and people move regularly. According to said witness, the motorcycle

was found while concealed in bush. The said story appears improbable because if any person commits theft of a motorcycle, either he would try to

sale it to somebody else by taking money or try to dismantle it and sale the body parts of motorcycle to different customers or confine it to some

conspicuous place like garage, shade, or any house. Keeping a motorcycle in bush at public place where regular movement of public takes place

would not be a thief's disposition. Theft committed on 26.07.2017 and he was arrested on 30.07.2017 and motorcycle retrieved on same day.

Therefore, it is highly improbable that for four days motorcycle kept in such condition in bush.

Complainant-Gyan Prakash Bhargawa (PW-1) never saw the person who took the vehicle from Alap Academy therefore, no eyewitness is

available in the case. Police did not explain the fact that how they approached to the conclusion about the role of petitioner because of chain of

circumstances are not connected properly because vehicle was lying in the bush and was not being used by the petitioner thereafter, how the police

came to the conclusion about the role of petitioner, is doubtful whereas, prosecution had to prove his case beyond reasonable doubt.

Minor contradictions exist even in the seizure memo where address of place of retrieval of motorcycle is bit different from the place mentioned in

memo under Section 27 of the Evidence Act.

Seizure witness Anil (PW-3) did not support the story of prosecution and declared hostile. Even the testimony of another seizure witness Police

Constable-Ram Naresh Raghuvanshi (PW-4) also admits that he singed the memo under Section 27 of Evidence Act just because he is in department

and no written intimation was given.

If the evidence is seen cumulatively then it appears that prosecution did not prove the case beyond reasonable doubt and only on the basis of

memo under Section 27 of the Evidence Act that too with the doubtful location of motorcycle for four days further takes the prosecution case into the

realm of doubt.

In the considered opinion of this Court trial Court as well as appellate Court erred in convicting the petitioner and awarding jail sentence.

Appreciation of judgments suffer from illegality and perversity and cannot be allowed to sustain.

After considering the rival submissions as well as considering the peculiar fact situation, this Court is of the considered opinion that revision

preferred by the petitioner deserves to be allowed and thus allowed and both the judgments of the trial Court as well as appellate Court are hereby set

aside. Petitioner is set free if he is not required in other case.

In view of the COVID-19, jail authorities are directed that before releasing the petitioner, preliminary medical examination of petitioner shall be

undertaken by the jail doctor and on prima facie, if it is found that he is having the symptoms of COVID-19, then consequential follow up action

including the isolation/quarantine or any test if required, be ensured, otherwise petitioner shall be released immediately and shall be given a pass or

permit for movement to reach his place of residence. He shall have to install Arogya Setu App in his mobile.

E- copy of this order be provided to the petitioner and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear

that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.

Fine amount if deposited, be returned back to the petitioner within one month from the date of instant judgment.

Resultantly, this criminal revision stands allowed and disposed of.

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