Radhey Shyam vs The State of Madhya Pradesh

Hon''ble Shri M.A. Siddiqui, J.—This criminal revision has been preferred by petitioner Radhey Shyam u/s 397/401 of the Code of Criminal Procedure feeling aggrieved by the judgment dated 28.6.99 passed by JMFC, Chhindwara in Criminal Case No. 2268/96 whereby the petitioner has been convicted u/s 393 IPC and sentenced to R.I. for two years and fine of Rs. 200/-, in default of payment of fine to undergo further R.I.for one month. In Criminal Appeal No. 61/99, learned Ist ASJ, Chhindwara by judgment dated 18.2.2002 has confirmed the aforesaid judgment of conviction and sentence passed by JMFC, Chhindwara. The prosecution case, in brief is that on 15.10.84 at about 6.45 PM when complainant Sheikh Mahboob was going Parasiya to a grocery shop, it is alleged that near Bhansen village the petitioner met him and by pointing knife and by putting extortion he tried to commit robbery but at that time due to hue and cry of complainant at the relevant place, one Sabbo and Hariprasad came and they caught hold of petitioner and thereafter a report was lodged at the Police Chowki Neutan against the petitioner. The police registered a Criminal Case u/s 393 IPC against the petitioner and petitioner was tried for the offence punishable u/s 393 IPC and has been convicted and sentenced as aforesaid.

This revision has been filed on the following grounds :

A. That, the judgment and conviction dated 18.2.2002 passed by learned First ASJ, Chhindwara in Criminal Appeal No. 91/99 as well as the judgment dated 28.6.99 of learned JMFC, Chhindwara in Criminal Case No. 2268/96 is bad in law and facts because both the Courts below committed grave error in not considering properly the evidence of prosecution witnesses from which it is very well clear that petitioner is not guilty of the offence and deserves to be acquitted from the alleged charge;

B. That, the learned Courts below should have seen that there is material contradiction and omission in the evidence of prosecution witnesses, therefore, prosecution failed in proving its case against the petitioner, the learned Courts below committed error in not relying upon the defence witnesses;

C. That, both the Courts below committed perversity in not taking into consideration the evidence of complainant who in his evidence denied from the contents of FIR and FIR was not proved by him, even he denied to identify petitioner and his involvement in the offence. Therefore, on perusal of the sole evidence of complainant, petitioner deserves to be acquitted;

D. That, the learned trial Court as well as appellate Court ought to have held that evidence of other prosecution witnesses is not corroborated from the evidence of complainant, therefore, in view of non-corroboration of evidence the petitioner cannot be convicted for the alleged offence;

E. That, the learned trial Court as well as appellate Court must have seen that the seizure of alleged knife from the petitioner was not duly proved, even the amount which the petitioner attempted to rob was not proved, therefore, due to omission of said material evidence the conviction of petitioner for the alleged charges is against the law;

F. That, both the Courts below have also not seen that petitioner is facing trial since 1984 and he has already become harass, therefore, the petitioner deserves to be acquitted from the alleged charges by giving benefit of "Probation of Offenders'' Act.

G. That, the sentence imposed by both the Courts below is excessive and deserves to be reduced by passing a judgment to sentence him for the period already undergone by him in the interest of justice.

I have heard learned counsel for both the sides and perused the original record of trial Court as well as of appellate Court

Learned counsel for petitioner has vehemently argued that original record of trial Court as well as of appellate Court. complainant Shiekh Mehboob (PW. 1) though deposed against the petitioner in examination-in-chief, but in his cross-examination by defence, he stated that petitioner was not the author of the incident and he did not know the petitioner.

Learned counsel appearing for State submitted that as the examination of complainant was withheld on the request of petitioner after examination-in-chief, and subsequently complainant was won over, so he did not state in his cross-examination against the petitioner though he has deposed against the petitioner in examination-in-chief. Counsel submitted that learned appellate Court has rightly held guilty the petitioner by placing reliance on a decision of Apex Court in Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, in which it has been held that where examination of witness was withheld and subsequently the witness did not remain stick to his examination-in-chief, then his examination-in-chief may be taken into consideration.

Learned counsel for petitioner submits that for this other circumstances should be there to support the previous version of the witness. He submits that in this case, the other witness, namely, Hariprasad (PW. 2) has not uttered a single word about the incident. He simply stated that the knife was seized from complainant Sheikh Mehboob by the police, and further Shabbir Ahmed (PW. 6) did not support the prosecution case, though he was declared hostile, but nothing came out from his cross-examination. So, there remains only the shaky examination of complainant Sheikh Mehboob. Counsel submits that though learned trial Court and appellate Court sought corroboration from the statement of Sheikh Eklime (PW. 4) who has narrated that three boys came with the accused and narrated that accused at the point of knife snatched the money. But, in the cross-examination, the witness narrated that he did not know the accused and he has also not named the persons who have approached him.

Learned counsel for petitioner submits that according to prosecution case, petitioner was taken to the police station and he was arrested, but L.P. Tiwari (PW. 5) Asstt. Sub-Inspector of Police did not utter a single word about the arrest of the accused. No arrest memo has been filed, so this lacuna is also against prosecution. Had the petitioner taken to the police station with the knife, then knife should have been seized from him, but the knife has been stated to be seized from complainant not from the accused and arrest memo has not been prepared, so there seems to be some suspicion whether petitioner was caught by the complainant and was taken to the police station. Even in report (Ex. P/1) no name has been given of the petitioner and it has not been especially mentioned that he had been taken to the police station with the knife at the time of lodging the report.

Looking to the shaky evidence, I am of the considered view that case against the petitioner was not proved beyond reasonable doubt and case of prosecution was doubtful. It is the cardinal principle of criminal jurisprudence that where slightest doubt is there, then benefit should be given to the accused.

As per above discussion, I find that learned trial Court as well as appellate Court have not appreciated the evidence of prosecution in its true perspective, finding of conviction of petitioner is not sustainable, hence, by giving benefit of doubt and by allowing this petition, I hereby set aside both the above referred impugned judgments of the Courts below. Petitioner Radhe Shyam is acquitted of the aforesaid offence. Petitioner is on bail, his bail bonds shall stand discharged. Fine amount, if deposited by the petitioner, be returned back to him after due verification. Resultantly, this revision is allowed.