Puppal alias Mohd. Sajid vs State of Madhya Pradesh

N.K. Gupta, J.—These are two revisions that arose from two different judgments passed by the Additional Sessions Judge, Katni, but such appeals were preferred against the common judgment passed by the Chief Judicial Magistrate, Katni on 4.2.2000, and therefore since the facts are the same and the trial was the same, both the revisions are decided by this common order. The applicant Chandra Prabha has moved the present revision against the judgment dated 11.5.2005 passed by the Additional Sessions Judge, Katni in Criminal Appeal No. 25/2000 whereby the appeal of the applicant Chandra Prabha was partly allowed. Her conviction was maintained, but sentence was reduced to the fine of Rs. 2000/- only. Whereas the applicant Puppal alias Mohd. Sajid has preferred the present revision against the judgment dated 11.5.2005 passed by the First Additional Sessions Judge, Katni in Criminal Appeal No. 29/2000 whereby his appeal was dismissed and the judgment dated 4.2.2000 passed by the Chief Judicial Magistrate, Katni in Criminal Case No. 482/1995 was confirmed in which the applicant was convicted for the offence punishable under Sections 457 and 380 of IPC and sentenced for three years'' RI with fine of Rs. 1500/- on each count.

The prosecution case, in short, is that in the night between 16.17-1-1995 a burglary took place in the house of the complainant Nathuram Jain at Katni and various ornaments were stolen by the thieves. The complainant lodged an FIR before the police and thereafter investigation was started. Some accused persons were arrested and they informed that the information about the articles was given by the applicant Chandra Prabha and thereafter they committed burglary and theft in the house of the complainant Nathuram Jain. Various ornaments were seized from the accused persons including the accused Chandra Prabha. After identification of such articles, a trial was initiated before the Chief Judicial Magistrate, Katni. The applicants Puppal @ Mohd. Sajid and Chandra Prabha did not take any specific plea in the defence. They have stated that they were falsely implicated in the matter. Applicant Chandra Prabha has stated that the complainant Nathuram Jain desired to get his house vacated from the applicant Chandra Prabha, and therefore a false case was prepared against her. The various ornaments seized by the police were the ornaments of her daughter-in-law Sunita. Sunita (DW-1), Rajendra Swami (DW-2) and Sandhya Soni (DW-3) were examined in defence.

The learned Chief Judicial Magistrate Katni vide judgment dated 4.2.2000 convicted the various accused persons for the various crimes. The applicant Chandra Prabha was convicted for the offence punishable u/s 411 of IPC, whereas the applicant Puppal @ Mohd. Sajid was convicted for the offence punishable under Sections 457 and 380 of IPC and sentenced as mentioned above. Initially the trial Court sentenced the applicant Chandra Prabha with a sentence of one year''s RI with fine of Rs. 2,000/-, but in appeal the learned Additional Sessions Judge reduced the sentence directed against the applicant Chandra Prabha. The appeal filed by the applicant Puppal @ Mohd. Sajid was dismissed.

I have heard the learned Counsel for the parties.

Shri A.K. Tiwari, learned Counsel for the applicant Chandra Prabha has stated that no offence u/s 411 of IPC is made out against her. The various ornaments seized by the police were of her daughter-in-law Sunita and she was falsely implicated in the matter. However, she is working in a Cooperative Society, and therefore if she is not released on probation, then she may lose her job.

Shri S.P. Singh, learned Counsel for the applicant Puppal @ Mohd. Sajid has submitted that the police examined Hari Prasad (PW-2) as a witness of seizure and memo u/s 27 of the Evidence Act. He was a patent witness of the police, whereas another witness Sanjay was not examined, and therefore seizure was not proved. No specific identification mark was shown on the ornaments by the complainant in the FIR, and therefore the identification was not satisfactory. Raj an @ Rajkumar (PW-5) has turned hostile. He could not prove the various documents as prepared by the police. Under such circumstances, the entire matter was doubtful. It is submitted that the applicant Puppal @ Mohd. Sajid may be acquitted. On the other hand, it is submitted that he has faced the trial, appeal and revision since the year 1995, and therefore he may not be sent to the jail again.

The learned Counsel for the State has submitted that looking to the evidence where it was trustworthy, no interference can be done in the concurrent findings of both the Courts below, and therefore there is no reason by which any interference can be done in the conviction directed by both the Courts below. Similarly, the sentence of the applicant Chandra Prabha has already been reduced by the learned Appellate Court. Looking to her guilt, no further dilution can be done in the sentence. Similarly, the sentence granted against the applicant Puppal @ Mohd. Sajid may not be reduced.

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 concurrent findings given by both the Courts below can be disturbed? And whether the sentence passed against the applicants can be reduced.

The entire matter was dependent upon the circumstantial evidence. There was no eye witness in the case. The Investigation Officer Rachpal Singh (PW-7) has categorically stated about the various memos u/s 27 of the Evidence Act and consequent seizure. The learned Counsel for the applicant Puppal @ Mohd. Sajid has raised an objection that witness Hari Prasad (PW-2) was a patent witness, because he was specifically called and he raised objection that he wanted to go home during the entire seizure etc., and therefore he should be disbelieved, whereas the witness Sanjay was not examined. It is not necessary for the prosecution to examine all the witnesses relating to a particular procedure of the seizure etc., and therefore non-examination of the witness Sanjay makes no effect in the present case. Hari Prasad (PW-2) has stated that he got an information that some thieves were arrested, and therefore he went to the Police Station where so many persons were standing in front of the Police Station, then a Constable came towards the crowd and called the witness Hari Prasad, and therefore Hari Prasad went inside the Police Station and participated in the proceedings of the memos and seizure. Under such circumstances, it is nowhere established that Hari Prasad (PW-2) was involved with any police officer or he was selected due to any specific reason. He was a person, who was present in the crowd and he was called by the police. Under such circumstances, it cannot be said that he was a patent witness. Similarly, if the proceedings took place for the entire day, then certainly he could have told the concerned Investigation Officer that he may be permitted to go, but the Investigation Officer was also bound not to release him, because he was the witness for various memos and various seizures were to be done according to the information given by the various accused persons. Under such circumstances, the conduct of the witness Hari Prasad appears to be natural and reply given by the Investigation Officer appears to be natural. There is no reason as to why the testimony of the witness Hari Prasad cannot be believed. Due to the testimony of the witness Hari Prasad and Investigation Officer, it is proved beyond doubt that the applicants gave their statements u/s 27 of the Evidence Act and consequently the various ornaments were seized from them.

Similarly, the Naib Tahsildar R.K. Bohat (PW-4) has proved the identification in detail. The learned Counsel for the applicants have submitted that there were no identification marks on the ornaments shown in the FIR, but looking to the number of ornaments, which were stolen, it was not possible for any complainant to give specific identification of each and every ornament. However, the complainant had identified all the ornaments in the identification proceeding, and therefore he should be believed on this count. Under such circumstances, it was proved beyond doubt that the stolen property was found with the applicants.

The various accused persons including the applicant Puppal @ Mohd. Sajid had stated in their memos u/s 27 of the Evidence Act that they committed that crime due to information given by the applicant Chandra Prabha. Applicant Chandra Prabha tried to prove by the defence witnesses that the ornaments which were seized from her were of her daughter-in-law Sunita and those were not the stolen property. However, if the ornaments of Sunita, daughter-in-law of the applicant Chandra Prabha were seized in such a manner, then Sunita must have lodged an FIR before the Superintendent of Police concerned against that forceful seizure, but no steps were taken by the Sunita, daughter-in-law of the applicant Chandra Prabha, and therefore it appears that the baseless defence was taken by the applicant Chandra Prabha, though she was the kingpin of the entire burglary and theft. Under such circumstances, the trial Court as well the appellate Court have rightly convicted the applicant Chandra Prabha for the offence u/s 411 of IPC.

As discussed above, it is apparent that so many ornaments and cash was found with the applicant Puppal @ Mohd. Sajid, and therefore by presumption u/s 114A of the Evidence Act he was to be presumed as a thief and a person, who entered into the house to commit theft, therefore he also committed house breaking. Under such circumstances, both the Courts below have rightly convicted the applicant Puppal @ Mohd. Sajid for the offence under Sections 457 and 380 of IPC. Hence there is no basis by which any interference can be done in the concurrent findings of both the Courts below regarding the conviction.

So far as the sentence is concerned, it is possible that the applicant Chandra Prabha is working in some Cooperative society, but looking to her guilt where she was the kingpin of the crime, the Appellate Court has already diluted her sentence. Looking to the gravity of the offence, there is no basis to enlarge the applicant Chandra Prabha on probation. Looking to her crime, she was to be sent to the jail for sometime. However, there is no counter appeal lodged by the State for enhancement of the sentence. Therefore, nothing can be done in that respect. However, the sentence directed against the applicant Chandra Prabha cannot be reduced further.

So far as the sentence passed against the applicant Puppal alias Mohd. Sajid is concerned, he is sentenced for three years'' RI with fine of Rs. 1500/- for each count of the offence. He has faced the trial, appeal and revision for 17 years, and therefore his sentence may be reduced due to that reason. However, looking to the gravity of the offence, it is not possible that he may be released on imposition of fine only. He did not remain in the custody for a longer period. Under such circumstances, it would be proper that his sentence may be reduced from the period of three years'' RI to the period of two years'' RI without changing the fine imposed upon him.

On the basis of the aforesaid discussion, the revision filed by the applicant Chandra Prabha cannot be accepted, and therefore it is hereby dismissed by maintaining her conviction and sentence directed by the appellate Court. Whereas the revision filed by the applicant Puppal alias Mohd. Sajid is hereby partly allowed. The conviction directed against him for commission of offence punishable under Sections 457 and 380 of IPC is maintained, but his sentence is reduced to the period of two years'' RI for each count instead of three years'' RI. The sentences shall run concurrently. The period in which the applicant Puppal alias Mohd. Sajid remained in the custody shall be adjusted to his sentence.

At present both the applicants are on bail, their presence is no more required, and therefore it is directed that the bail bonds of the applicant Chandra Prabha shall stand discharged, whereas the applicant Puppal alias Mohd. Sajid is directed to surrender before the trial Court within a week so that he shall be sent for execution of remaining jail sentence. A copy of this order be sent to the trial Court as well as the appellate Court with their records for information and compliance.