Sanjay @ Kalu @ Sanju vs State of M.P.

This criminal appeal has been filed under Section 374 (2) of CrPC against the judgment dated 29.12.2011 passed by XIIth Additional Sessions

Judge, Bhopal in Sessions Trial No. 490/2011, whereby learned A.S.J. found appellant guilty for the offence punishable under Section 392 of the

IPC and sentenced him to undergo five years rigorous imprisonment with fine of Rs.200/-, in default of payment of fine amount further two months

rigorous imprisonment.

Brief facts of the case are that on 10.11.2010 at 06:20 AM when complainant Seema Mishra (PW/1) was returning to her house after taking

milk from dairy, on the way, at Anil Ratore''s house, Quarter No.Y-60 situated at 58 Tulsi Nagar, Near DEO Office, Bhopal, a miscreant (whom

she later identified as the appellant) came on bike and snatched her gold chain weighing 12-13 grams from her neck and fled away from the spot.

Thereafter, Smt. Seema Mishra (PW/1) lodged the report (Ex.P/1) at Police Station T.T. Nagar, Bhopal which was written by Umesh Singh

Chauhan (PW/9) the then ASI P.S. T.T. Nagar and registered Crime No.1011/2010 for the offence punishable under Section 392 of IPC which

was further investigated by Subodh Kumar Singh Tomar (PW/5). During investigation, he went to spot and prepared spot map (Ex.P/2) and also

recorded the statement of Seema Mishra (PW/1), Kalpana Sarse (PW/2), Swati Tripathi, Prakash Rathore and Anil Singh Rathore. On

03.06.2011, C.P Dwivedi (PW/11), the then SHO, Police Station Bagh Sewaniya, on the information of the informant that some miscreants

indulged in chain snatching and other crimes were residing at Kamal Balai''s Jhuggi, situated at Durga Nagar. He then, along with other members of

police force raided Kamal Balai''s Jhuggi and arrested appellant Sanjay @ Kalu @ Sanju and other co-accused Kamal and prepared arrest memo

(Ex.P/10 & Ex.P/12) respectively. During interrogation, appellant gave information regarding concealment of ornaments relating to various crimes.

On that information of appellant Sanjay @ Kalu @ Sanju, he seized one gold chain, jewellery and other articles and prepared information memo

(Ex.P/6) and seizure memo (Ex.P/8). During investigation, it was found that one of the chain seized from the possession of the appellant was looted

by the appellant from complainant Seema Mishra. On that information C.K.Sirame (PW/10) the then Sub- Inspector P.S. T.T. Nagar arrested

appellant and co-accused Girish Verma and Kamal in the crime. Police also got said chain identified by Seema Mishra and identification

proceedings were conducted by Manish Shrivastava (PW/7), Executive Magistrate who prepared identification memo (Ex.P/3) in which

complainant identified her chain and police also got appellant identified by the complainant Seema Mishra. The test identification parade was

conducted by Brajesh Saxena (PW/3) Executive Magistrate in Central Jail, Bhopal. In the test identification, complainant also identified the

appellant as an accused who had snatched her gold chain in the incident. After completion of investigation, police filed charge-sheet against

appellant before JMFC, Bhopal who committed the case to the Court of Sessions on which S.T. No.490/2011 was registered.

Learned XIIth Additional Sessions Judge framed the charge against the appellant for the offence punishable under Section 392 of IPC and

against other co-accused Kamal and Girish Verma for the offence punishable under Section 392 r/w 120B & 216A of IPC and tried the case. The

appellant and other coaccused abjured their guilt and took the defence that they were innocent and have been falsely implicated in the crime.

Prosecution produced as many as 11 witnesses for proving his case. However, after trial learned A.S.J. acquitted the co-accused Kamal and

Girish from the charge under Sections 392 r/w 120B & 216A of IPC but found the appellant guilty for the offence punishable under Section 392

of the IPC and sentenced him as aforesaid. Being aggrieved from that judgment, appellant filed this criminal appeal.

Learned counsel for the appellant submitted that there are many contradictions and omission in the statement of prosecution witnesses. Eye

witnesses of the incident Kalpana Sarse (PW/2) and Bharat Singh (PW/6) and Mangilal (PW/8) who are independent witnesses of memorandum

and seizure memo turned hostile. They did not support the prosecution story. Even complainant Seema Mishra (PW/1) admitted in her cross-

examination that she had seen the appellant in police station before identifying him in jail. Learned Trial Court without appreciating all these facts

wrongly found the appellant guilty for the aforesaid offence. Alternatively, he submits that the Trial Court has not framed proper charge and the

evidence on record is insufficient to attract the provisions of Section 392 IPC. He submits that at the most, it could be an offence under Section

379 IPC.

On the other hand, learned counsel for the State submitted that from the prosecution evidence guilt of the appellant is clearly proved so learned

Trial Court did not commit any mistake in finding the appellant guilty for the aforesaid offence.

This court has gone through the record and arguments put forth by the learned counsels of both the parties. On the point that on 10.11.2010 at

06:20 AM at Anil Ratore''s house Quarter No.Y-60 situated at 58 Tulsi Nagar, Near DEO Office Bhopal, a miscreant snatched chain from the

possession of Seema Mishra, which she was wearing in her neck, Seema Mishra (PW/1) clearly deposed that on 10.11.2010 at 07:30 am when

she was returning to her house from milk dairy, on the way, at Anil Rathor''s house No.Y-158 situated at Tulsi Nagar, Near DEO Office, one

unknown person (whom she later identified as the appellant) wearing black coloured jacket came there on bike and snatched her chain and fled

away. Her statement is also corroborated from the report (Ex.P/1) lodged by her in Police Station T.T. Nagar, which was also proved by Umesh

Singh Chauhan (PW/9), who wrote that report. Appellant did not challenge her statement in cross-examination on that point so there is no reason

to disbelieve her statement in this regard. So it is clearly proved that on 10.11.2010 at 07:30 AM some miscreant snatched the chain from the

possession of complainant Seema Mishra (PW/1).

On the point whether appellant snatched that chain from the possession of complainant Seema Mishra, although, it is not mentioned in the FIR

that appellant had snatched that chain. There it is mentioned that some unidentified person had snatched her chain. But in this regard, C.P. Dwivedi

(PW/11) deposed that on the information of informant, he went to Kamal''s Jhuggi and arrested appellant and on interrogation appellant informed

that he concealed the chain in Kamal Balai''s Jhuggi situated at Sector 3, Durga Nagar. On that, he prepared memo (Ex.P/6). Thereafter, on his

information on 03.06.2011, he seized that chain from Kamal Balai''s Jhuggi and prepared information memo (Ex.P/6) and seizure memo (Ex.P/8)

and also arrested appellant and prepared arrest memo (Ex.P/10). Although, the independent witnesses of that memo and seizure memo (Ex.P/6 to

Ex.P/10), Kailash Saleja (PW/4) and Bharat Singh (PW/6) did not support the prosecution story and turned hostile and denied from the fact that

on the information of appellant, police seized gold chain from his possession. But only on the ground that independent witnesses of memo and

seizure memo did not support the prosecution story, the statement of C.P. Dwivedi (PW/11) cannot be disbelieved. There is no important

contradiction in his cross-examination in this regard so there is no reason to disbelieve his statement. From his statement, it is clearly proved that on

the information of appellant, he seized one gold chain from the possession of appellant and Manish Shrivastava (PW/7) clearly deposed that on

19.7.2011 he was posted as Executive Magistrate, Circle MP Nagar, Bhopal and on that day he conducted identification proceeding of a gold

chain seized by the police T.T. Nagar in Crime No.1011/2010 for the offence punishable under Section 392 of IPC. In the identification

proceeding, Seema Mishra identified her gold chain after which he prepared identification memo (Ex.P/3). His statement is also corroborated from

the statement of Seema Mishra, who also deposed that after incident, she in the identification proceeding had identified her chain after which

identification memo (Ex.P/3) was prepared. On that point there is no contradiction in the statement of Seema Mishra (PW/1) and Manish

Shrivastava (PW/7) so it is also proved that the chain which was snatched by the miscreant from Seema Mishra (PW/1) was seized from the

possession of appellant on 03.06.2011 by C.P. Dwivedi (PW/11). Brajesh Saxena (PW/3) also deposed that on 30.07.2011, he was posted as

Executive Magistrate, T.T. Nagar, on that day, he conducted test identification parade in Central Jail, Bhopal in which complainant Seema Mishra

identified appellant Sanjay @ Kalu @ Sanju as an accused, on that, he prepared identification memo (Ex.P/4). In this regard his statement is also

corroborated from the statement of Seema Mishra (PW/1) who also clearly deposed that after the incident, in test identification parade conducted

in the jail, she identified the appellant as the miscreant who had snatched her chain. There is no important contradiction in her crossexamination. In

this regard, although Seema Mishra (PW/1) deposed in her cross-examination that she saw the accused persons in the police station when she

went to the police station on the information about the seizure of her chain by the police. But from her cross-examination, it does not appear that

she had already seen the appellant at police station before identifying him at Central Jail. So only on that basis it cannot be assumed that Seema

Mishra had already seen the appellant at police station before identifying him in Central Jail. Seema Mishra had no ulterior motive for implicating

appellant. Nothing has come on record that Seema Mishra had any prior animosity with him. In the absence of previous animosity or ill-will, Seema

Mishra had no reason to identify an innocent one. The appellant did not put any suggestions as to where else he was present on the relevant date.

The trial court has dealt with all these aspects minutely and has given cogent reasons to arrive at the finding that the appellant had snached the chain

from Seema Mishra in the incident. This court do not find any valid reason to deviate from the said findings. So from the prosecution evidence it is

clearly proved that appellant snatched the said chain from the possession of Seema Mishra (PW/1).

As to the question whether the act of the appellant is a theft or robbery, Section 392 IPC is an aggravated form of theft. According to Section

390 of IPC, Theft is ""robbery"" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away

property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint,

or fear of instant death or of instant hurt, or of instant wrongful restraint. This shows that to apply the provisions of Section 392 IPC, the

prosecution has to establish that during the course of commission of the offence of theft, the offender had caused or had intended to cause threat of

death or hurt or to wrongful restraint. But from the statement of Seema Mishra (PW/1) it does not appear that in committing the theft, of a chain

from her possession, the appellant, during the course of commission of the offence of theft had caused or had intended to cause threat of death or

hurt or to wrongful restraint of Seema Mishra.

So in the considered opinion of this court learned trial court committed mistake in finding appellant Sanjay @ Kalu @ Sanju guilty for the

offence punishable under section 392 of IPC instead of section 379 of IPC and hence the appeal of appellant Sanjay @ Kalu @ Sanju is partly

allowed and his conviction is altered from Section 392 of IPC to Section 379 of IPC and in these circumstances his jail sentence is also reduced

from 5 years R.I. to 3 years R.I and accordingly appellant appellant Sanjay @ Kalu @ Sanju is convicted for the offence punishable under section

379 of IPC and sentenced to 3 years R.I. and fine of Rs.500 and in default of fine further R.I. of six month. He is directed to serve out the

sentence accordingly. The period already undergone shall be set off from the period of substantive jail sentence. Appeal is disposed off

accordingly.