Brijendra Sisodiya vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 25.4.2011 passed by the learned Fourth Additional Sessions Judge, Sagar in S.T. No. 261/2010, whereby the appellant was convicted for the offence punishable u/s 411 of IPC and sentenced for 1 year''s rigorous imprisonment with fine of Rs. 4,000/- and in default of payment of fine, 3 months'' additional rigorous imprisonment was directed. The prosecution''s case, in short, is that, on 19.1.2011, at about 7.45 p.m. in the evening, the victim Laxmi Bai was sitting in her house, situated at Sindhi camp, Subhas Nagar, District Sagar. One unknown person went inside the house and put a dagger on the neck of the victim Laxmi Bai and snatched her golden chain. Janki Bai (P.W. 1) was also present in the house, at the time of the incident. Janki Bai informed her son Deepak (P.W. 2) by telephone and therefore, he came to his house from the shop. After getting information from his grandmother, Laxmi Bai, he went to the Police Station Motinagar and lodged an FIR, Ex. P/2. After sometime, the appellant was arrested. On interrogation, he confessed that he had robbed that golden chain and kept that chain behind the house of one Chittar Lodhi. On his information, a golden chain was seized from the appellant under seizure memo Ex. P/8. The seized chain was duly identified by the witness Janki Bai and a memo of identification, Ex. P/1 was prepared. Chain was also identified by Laxmi Bai and a memo, Ex. P/1-A was prepared. After due investigation, a charge-sheet was filed before the Chief Judicial Magistrate, Sagar, who committed the case to the Sessions Court, Sagar and ultimately, it was transferred to the learned Fourth Additional Sessions Judge, Sagar.

The appellant abjured his guilt. He did not take any specific plea but, he has stated that he was falsely implicated in the matter. No golden chain was seized from the appellant.

After considering the evidence adduced by the parties, the learned Fourth Additional Sessions Judge, acquitted the appellant for the offence punishable under sections 392 and 397 of IPC but, convicted him for the offence punishable u/s 411 of IPC and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that the complainant of the case was not examined from whom the golden chain was snatched. It was told that she was a handicapped person, who could not move out of her house. On the contrary, Janki Bai and Deepak have stated that she visited to Tehsil office to identify the chain. In the identification memos, Ex. P/1 and Ex. P/1-A, it is no where mentioned that the other chains were mixed alongwith the pendant having photo of a particular Guru and therefore, it was not difficult to pick up a chain by the victim which had pendant of that description and therefore, identification of the property was not according to the law. Nothing has been seized from the appellant and therefore, he was convicted for the offence punishable u/s 411 of IPC without any basis. It is further submitted that the appellant remained in the custody for more than 118 days during the trial and again due to bail jump, he is in the custody at present and therefore, looking to the age of the appellant, his sentence may be reduced to the period, which he has already undergone in the custody.

On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be appropriate.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted? And whether the sentence imposed upon the appellant can be reduced?

Out of two eye witnesses, Laxmi Bai and Janki Bai, only Janki Bai (P.W. 1) was examined before the trial Court because the victim Laxmi Bai was handicapped and she could not go to the trial Court. The trial Court has acquitted the appellant from the charges of offence punishable under sections 392 and 397 of IPC because there was no named FIR against the appellant and he could not be identified by the victim and the eye witnesses. For the offence punishable u/s 411 of IPC, it was sufficient for the prosecution to prove that a chain was seized from the appellant and it was a robbed property. In this context, the investigation officer Vinod Kumar Sharma (P.W. 5) has stated that the appellant informed him that one chain was kept by him behind the house of Chittar Lodhi by keeping it under the Earth. However, the witnesses to the memo Ex. P/4 were examined in the trial Court. Out of them, it was found that Virendra (P.W. 3) was a constable in the police, whereas the witness Bharat Singh was not examined. Even name of the witness Bharat Singh was not given in the list of witnesses given with the charge-sheet. No reason has been shown by the then, SHO Shri Vinod Kumar Sharma as to why he did not take the independent witnesses. It is very strange that the memo was recorded by Shri Vinod Kumar Sharma, whereas seizure was done by Shri Amit Soni (P.W. 7). No reason has been given as to why the SHO Shri Vinod Kumar Sharma did not go to the spot to get the chain seized.

Shri Amit Soni (P.W. 7), Sub Inspector has stated that behind the house of Chittar Lodhi, the appellant dug a hole and removed the golden chain from that hole and provided it to him and therefore, he prepared a seizure memo, Ex. P/8. If the seizure memo, Ex. P/8 is perused then, it would be clear that out of the witnesses of the seizure memo, Rajendra Singh Thakur (P.W. 5) was examined, who was a Home-guard Sainik deputed at Police station Motinagar. Name of the another witness Kailash Sahu was mentioned in the list of witnesses but, he was not examined before the trial Court. Shri Amit Soni could not mention any reason as to why he did not take independent witnesses in the case. Why a Home-guard Sainik was taken as a witness in the present case. Under such circumstances, looking to the conduct of Shri Vinod Kumar Sharma, SHO and Sub-Inspector Shri Amit Soni, their proceeding of seizure does not inspire any confidence and it is not proved beyond doubt that a golden chain was seized from the appellant. The learned Additional Sessions Judge over-looked the conduct of these police officers, which are tinted.

So far as the identification of golden chain is concerned, witness Janki Bai (P.W. 1) and Deepak (P.W. 2) have stated that Janki Bai and Laxmi Bai were taken to the office of Tahsildar, where identification was arranged and therefore, Janki Bai as well as Laxmi Bai identified the golden chain seized from the appellant. If identification memos, Ex. P/1 and Ex. P/1-A are examined then, it would be clear that identification of Ex. P/1 was made on 25.3.2010, whereas identification of memo Ex. P/1-A took place on 15.3.2010. If the victim Laxmi Bai and the eye witness Janki Bai went to the office of Tahsildar on the same day then, what was the difficulty to Tahsildar Vineeta Jain (P.W. 6) to prepare a single identification memo for them. There is a difference of 10 days in both the identifications. Vineeta Jain (P.W. 6) has stated that the victim Laxmi Bai was handicapped and therefore, identification was done by the victim Laxmi Bai in her house and Vineeta Jain took the entire property to her house and thereafter, the identification proceeding was arranged. The version of Vineeta Jain is no where corroborated by the victim or by the witnesses Janki Bai or Deepak. If identification proceedings were arranged in the house of the victim Laxmi Bai then, it was not possible for the witness Janki Bai and Deepak to show that they had taken the victim Laxmi Bai to the office of Tahsildar. It is no where established that any identification was done in the house of the victim Laxmi Bai. If identification was arranged in the house of the victim Laxmi Bai then, there was no necessity to arrange a separate identification proceeding for the victim Janki Bai. She could identify the chain in her house itself when identification was arranged for the victim Laxmi Bai. Looking to the material contradictions arose in both the identification memos and the version given by Naib Tahsildar Vineeta Jain and version given by the witnesses Janki Bai and Deepak, it appears that identification memo, Ex. P/1-A was simply prepared and signature of the victim Laxmi Bai was obtained on that memo and no such identification was arranged at the residence of the victim Laxmi Bai. Therefore, identification as mentioned in the memo Ex. P/1-A appears to be doubtful.

Similarly, the witness Janki Bai has accepted that after recovery of the chain, it was shown by the police to her and thereafter, identification proceeding was arranged in which she went to identify the chain alongwith the victim Laxmi Bai. If she visited alongwith the victim Laxmi Bai then, in memo Ex. P/1 why it is not mentioned that the chain was identified by the victim Laxmi Bai even. Under such circumstances, it appears that memo, Ex. P/1 was prepared without any arrangement of identification proceeding. Secondly, it is no where mentioned that the other chains which were mixed along with the seized chain were similar for the specific pendant. The victim had a golden chain with a pendant in which the photo of her Guru was affixed and it was difficult for arranging such chains along with such pendants by the Naib Tahsildar unless such chains were obtained from the persons belonging to the same community having the same Guru. It is no where mentioned that the photo of the pendant in the seized chain was the same as of the photos in the pendant of the chains mixed at the time of identification. Thirdly, the witness Janki Bai saw the seized chain at Police station and therefore, it was easy for her to identify that chain before the Naib Tahsildar Vineeta Jain. Under such circumstances, identification of chain by memo Ex. P/1 appears to be doubtful.

In the aforesaid circumstances, it is not proved beyond doubt that any golden chain was seized from the appellant. It is not proved beyond doubt that the chain was the same which was robbed from the victim Laxmi Bai. Under such circumstances, no presumption u/s 114A of Evidence Act could be drawn against the appellant and therefore, the appellant could neither be convicted for the offence punishable u/s 392 of IPC nor he could be convicted for the offence punishable u/s 411 of IPC. The trial Court has committed an error in convicting the appellant for the offence punishable under punishable u/s 411 of IPC. If any doubt is created then, benefit of doubt is to be given to the accused.

On the basis of the aforesaid discussion, the appeal filed by the appellant appears to be acceptable and therefore, it is hereby accepted. The conviction as well the sentence directed against the appellant for the offence punishable u/s 411 of IPC is hereby set aside. The appellant is acquitted from the charges of offence punishable u/s 411 of IPC. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

At present, the appellant is in jail and therefore, Registry is directed to issue a release warrant forthwith. A copy of the judgment be sent to the trial Court with its record for information.