(SHRI RAJESH JOSHI – GOVT. ADVOCATE ) v. BETWEEN

(SHRI ANSHUL SHRIVASTAVA - ADVOCATE ) ----------------------------------------------------------------------------------------------------- Reserved on - 08.11.2023 .....RESPONDENTS Delivered on - 28.11.2023 ---------------------------------------------------------------------------------------------------- These appeals having been heard finally on consent of the parties and reserved for judgment, coming on for pronouncement this day and the Court passed the following JUDGMENT This judgment shall govern the disposal of these appeals as they are arisen out of same crime of the police station, hence, they are heard analogously and are being decided by this common judgment.

2. Appellants have preferred these appeals under Section 374 of Criminal Procedure Code, being aggrieved by the judgment delivered by Second Additional Sessions Judge, Mandsaur, on 01.11.2022 in S.T. No.700044/2013, wherein learned Judge convicted appellants/accused persons for offence under Sections 395/397, 365 of IPC, 1860 and sentenced to undergo 10 years, 5 years R.I and fine of Rs.2000/- Rs.2000/- for each injured u/S.395/397 and Rs.1000/-, Rs.1000/- u/S.365 of IPC with usual default stipulations.

3. As per prosecution case, on 23.09.2013 complainant were returning to Ujjain after purchasing Marble from Rajasthan and when they reached near Lokmakhedi Bridge one scorpio vehicle came from behind, and forcibly stopped the complainant’s vehicle by overtaking their car. Signature Not Verified Signed by: SUMATHI Signing time: 02-12- 2023 16:07:14 3 Thereafter two persons alighted from the Scorpio car, came to complainant’s car and forcefully took complainant’s two associate to Scorpio vehicle on being stopped; they assaulted the complainant’s party by wooden sticks. It is further alleged the accused persons looted golden chain, ring, cash of Rs.10,000/- from the complainant and fled away in the Scorpio vehicle. Complainant lodged a report at Police Station Bhavgarh. On the basis of which FIR bearing Crime No.336/2013 has been registered against the accused persons for offence under Section 341, 395, 365 of IPC, 1860.

4. During investigation, injured persons were sent for medical examination, spot map was prepared, and statements of the witnesses were recorded. After completion of investigation, charge-sheet was filed before CJM, Mandsaur against the accused persons, who committed the case to the Court of Sessions and thereafter the trial was conducted by Second Additional Sessions Judge, Mandsaur.

5. The prosecution has examined total 8 witnesses namely the Someshwar Rawal, (PW-1), Ashish Rawal (PW-2), Anil Sharma (PW-3), Om Prakash (PW-4), Devilal (PW-5), Kailash (PW-6), B.L. Nagar (PW- 7), Navneet Swami (PW-8). No witness has been examined in support of the defence by the appellants. The appellants abjured their guilt and took a plea that they are innocent.

6. The appellants were tried and charged under Sections 395/397, 365 of IPC. The learned trial Court, after considering the evidence and material available on record has convicted the appellants, as stated above in para no.1 of this order.

7. Learned counsel for the appellants submitted that the trial Court has not properly appreciated the evidence available on record, the said Signature Not Verified Signed by: SUMATHI Signing time: 02-12- 2023 16:07:14 4 looted property has not been recovered from the possession of the present applicant. There are some injuries found on the person of appellants, which was ignored by learned trial Court. There is no connecting evidence to prove the fact that appellants have committed loot. So far as the investigation is concerned there are lots of irregularities in the process of identification parade of looted items, conducted by the prosecution. It is also submitted that there are material contradictions and omissions in the statement of prosecution witnesses, but the trial Court has glazed over these irregularities. The appellants are falsely implicated in the present case due to personal vendetta as there is dispute between one of the appellant and complainant. In addition to that learned counsel has alternatively prayed for reduction of the sentence of the appellants for the period already undergone by them, as the appellants have already suffered more than 5 years and they are facing the trial for more than 10 years.

8. Learned counsel for the State on the other hand supports the impugned judgment and prays for dismissal of this appeal. It is further submitted that the learned trial Court has passed the impugned judgment after considering each and every circumstances of the case and convicted the appellants rightly.

9. In the back drop of the rival submissions the point of determination is as to whether the finding of learned trial Court regarding convicting and sentencing the appellants is incorrect in the eyes of law.

10. In this regard the statement of Someshwar Rawal (P.W.1) is taken up for consideration, wherein by supporting the prosecution case, this witness has submitted that in the date of the incident at about 10.30 pm he along with Ashish Rawal (P.W.2), Anil Sharma (P.W.3) and Kailash (P.W.6) had gone to Chittorgarh for purchasing marble and when they Signature Not Verified Signed by: SUMATHI Signing time: 02-12- 2023 16:07:14 5 were returning back after purchasing marble on the next day at 7.00 pm they have taken food at Hotel (Dhaba), thereafter when they proceeded a Scorpio Vehicle bearing Registration No.RJ 30 UB 0888 has over taken them and thwarted their vehicle. Four persons have alighten from the vehicle and they compelled the complainants to come out of the vehicle, took them to their Scorpio car and looted cash, Samsung mobiles, golden chain and ring, ATM card, driving license and fled away from the spot.

11. The statement of Someshwar Rawal (P.W.1) has been found corroborated by the statement of other prosecution witnesses namely Ashish Rawal (P.W.2), Anil Sharma (P.W.3), in their Examination-in- Chief. It is pertinent to mention here that there is no specific contradiction in the cross examination and they have almost supported their statement recorded during Examination-in-Chief. Someshwar Rawal (P.W.1) is the person who has also identified the seized articles and he has also supported the proceedings of identification memo (Ex.P/4). Devilal (P.W.5) is the witness of Memo of statement and seizure, but he has not supported the prosecution case. B.L. Nagar, (P.W.7) Sub Inspector of Police has supported the contents of FIR, which was lodged on ‘Dehati Nalisi’(Ex.P/1). This witness has also supported the memo Statement and concerning seizures. The testimony of this witness has not been rebutted in his cross-examination. The statement of Navneet Swami (P.W.8) Sub Inspector of Police has also been placed in support of prosecution case and his testimony has also not been properly rebutted in his cross-examination.

12. In this way the finding of learned trial Court regarding conviction of appellant under Section 395/397 and Section 365 of IPC, has no infirmity or illegality. The whole prosecution case is not only supported Signature Not Verified Signed by: SUMATHI Signing time: 02-12- 2023 16:07:14 6 by injured witness, but also by the testimony of police personnel. The Court below has well considered the material available on record, hence, no infirmity is found in the impugned judgment of conviction passed by the Court below, and accordingly, the same is upheld. With regard to accused Irfan and Sharif is concerned, since no appeal has been filed by those accused persons against their conviction, nothing is required to be ruminated on this aspect.

13. Now coming to the point of sentence, looking to the fact that appellants are in custody, learned counsel for both the appellants requested to reduce the imprisonment to the period already undergone by them. It is further submitted that the appellants are facing trial for more than 10 years and appellants have already suffered more than five years in jail incarceration, therefore, their sentence may be reduced to the period they have already suffered.

14. On the contrary learned Govt. Advocate controverted submissions regarding the quantum of punishment and submitted that since the offence is heinous appellants should be punished with minimum punishment as prescribed under Section 397 of IPC.

15. In view of the aforesaid submissions matter has been considered. Appellants are convicted for offence under Section 395/397 and Section 365 of IPC. A minimum sentence of 7 years is prescribed under Section 397 of IPC and in view of the said provision; appellants are required to be sentenced. Accordingly, partly allowing the appeal, sentence of appellants are modified to the period of 7 years.

16. In the upshot of aforesaid discussions in entirety both the appeals are partly allowed. Affirming the conviction under Section 395/397 and Section 365 of IPC, sentence for offence punishable under Section Signature Not Verified Signed by: SUMATHI Signing time: 02-12- 2023 16:07:14 7 395/397 of IPC is reduced from 10 years to 7 years. The fine amount is hereby affirmed. If the appellants fail to deposit the fine amount, they shall suffer 06 months of simple imprisonment in default.

17. On completion of 7 years of sentence, the appellants are set at liberty to release forthwith if not required in other case.

18. With the aforesaid observations and directions, the appeal stands disposed of.

19. A copy of this order be sent to the concerned Court for necessary information.

20. The order of the trial Court regarding disposal of the seized article stands confirmed. Certified copy, as per rules. sumathi (PREM NARAYAN SINGH) JUDGE Signature Not Verified Signed by: SUMATHI Signing time: 02-12- 2023 16:07:14