Vijay S/o Shyamkumar Raikwar vs State Of M.P

Today the appeal is listed on an application (IA No.3550/2020) filed by the appellant seeking suspension of sentence.

With the consent of parties instead of hearing the argument on the above application, the appeal itself is heard finally.

Appellant has filed the present appeal under section 374 of the Cr.P.C against the judgment dated 31.01.2020 passed by learned VIth Additional Session Judge, Indore in S.T.No.340/2017 whereby the appellant has been convicted under section 392 IPC and sentenced to undergo RI for 5 years with fine of Rs.1000/-; in default of payment of fine 3 months SI.

As per the prosecution story on 21.4.2017 near about 4.30 P.M complainant Sunil Shrivastava (PW-1) along with his wife Rinku (PW-2) was returning on his two-wheeler (MP13 D 9135) from his college and going to the house then one person came on a motorcycle and snatched the handbag from the shoulder of Rinku (PW-2) and tried fled away. Smt. Rinku shouted and (PW-1) dashed his motorcycle and tried to catch him but he fled away from his white colour bike (MP 13 DP 5321). (PW-1) and (PW-2) lodged the FIR in PS Nanakheda which was registered as (Exb.P-2) at Crime No.184/17 under sections 392 of the IPC against unknown persons. Later on, the appellant was arrested on 22.4.2017 and from his possession, a bag ( Brand FOSTELO) containing Adhar card, ID card, cash and other documents belonging to (PW-2) and Motorcycle were recovered. After investigation, it was found that the appellant No.1 did snatch the gold chain and gave it to his wife who is appellant No.2. After completing the investigation the police filed Challan against the appellant. Learned Additional Session Judge framed the charges under section 392 IPC against the appellant. The appellant abjured the guilt and prayed for trial.

In order to prove the above charge against the appellant, the prosecution examined as many as 6 witnesses. After appreciating the evidence came on record vide judgment dated 31.01.2020 the appellant has been convicted and sentenced as mentioned hereinabove.

Learned counsel for the appellant submits that the appellant is in custody since last more than 1 year. He was in jail sometime during the trial also. Learned counsel further submits that learned trial Court has wrongly framed the charge under section 392 IPC against the appellant. At the most, he has committed the offence under section 379 IPC. According to him section 392 is made out only if the offender of the theft commits the offence voluntarily and causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or instant hurt otherwise it is a simple case of theft punishable under section 379 IPC. In the present case, as per the version of the complainant (PW-2) an unknown person came and simply snatched the bag from her shoulder without causing any hurt, wrongful detention, or threat. Under section 379 IPC the maximum punishment is only 3 years and he has already undergone 9 months, therefore, this appeal may be finally disposed of by altering the charge from section 392 to section 379 of the IPC and reducing the sentence from 5 years to the period already undergone.

Learned Govt. Advocate opposes the above arguments, argued in support of the judgment and prays for dismissal of the appeal.

I find substance in the ground raised by the learned counsel appearing for the appellant who did commit the theft and not the robbery, therefore, he has wrongly been tried under section 392 of IPC instead of section 379 IPC. (PW-1) and (PW-2) lodged an FIR in the police station narrating the incident that an unknown person came on a white Motorcycle, snatched the bag from her shoulder and fled away. In courts' statements also (PW-1) and (PW-2) did not depose that the appellant while snatching the bag voluntarily has caused the hurt or attempted to cause death or hurt or wrongful restraint or fear of instant death etc. Section 392 IPC is an aggravated form of theft. In order to charge the accused under section 392, the prosecution is required to establish that while committing the theft the offender has voluntarily caused the hurt or attempted to cause death or hurt or wrongful restraint or fear of instant death etc. In the present case, there are no such allegations against the appellant, therefore, at most he is liable to be convicted under section 379 of the IPC. Since the appellant is not challenging the finding of the theft of the bag, therefore, the same is not liable to be re-appreciated, hence the same is hereby affirmed. Hence, the trial Court has committed a mistake in finding the appellant guilty for the offence under section 392 instead of section 379 IPC. The appellant is the first offender. He is a youth of 25 years and facing the agony of the trial for the last 3 years. Hence, the appeal is partly allowed and the conviction of the appellant is altered from section 392 to section 379 IPC and while maintaining the conviction the jail sentence is reduced from 5 years to the period already undergone with an enhanced amount of fine of from Rs. 3000/- to Rs.5000/-. The appellant be released from the custody upon depositing the fine amount and if not required in any other case.

The appeal is partly allowed. Trail court records be sent back.