Madhya Pradesh High Court
Krishna @ Kishna vs The State Of Madhya Pradesh on 23 December, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2024:MPHC-IND:36919
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 23rd OF DECEMBER, 2024
CRIMINAL APPEAL No. 8013 of 2024
KRISHNA @ KISHNA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Nilesh Joshi - advocate for the petitioner.
Shri H.S.Rathore - Govt. Advocate for the respondent/State.
Heard on :05.12.2024
Delivered on: 23.12.2024
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JUDGMENT
This criminal appeal has been filed on behalf of the appellant under
Section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the
judgment dated 25.03.2022 delivered by the learned 2nd Additional Sessions
Judge, Barwaha, District-Mandleshwar, in Sessions Trial No.127/2015,
wherein learned Judge has convicted the appellant for the offence under
Sections 341, 394 of the Indian Penal Code, 1860 (in short ‘IPC‘) and
sentenced to undergo 1 month S.I. and 6 years R.I. with fine of Rs.500/- and
Rs.2,000/- with usual default stipulations.
2. Prosecution story in nutshell is that complainant Mukesh Rathore
lodged a report at Police Station Balwada, District Khargone that on
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28.12.2014 at about 7.00 pm he was going to village Ramana from Indore
and when he reached Lalpura crossing, three unknown persons came in a
motorcycle stopped their vehicle in front of his vehicle, assaulted him and
committed loot of Micromax Mobile, cash of Rs.5000/-, motor cycle along
with its documents. Thereafter complainant went to Umariya outpost, where
he informed about the incident to his relative Parashuram Yadav, from where
he went to Barwaha hospital for treatment. On that basis, FIR bearing Crime
No. 0/2014 for the offence punishable under Sections 394, 341 of IPC, 1860
was registered against unknown persons.
3. The police after following the due procedure, prepared the spot map,
recorded the statements of the witnesses, seized the articles and arrested the
accused persons and after due investigation filed the charge-sheet under
Section 394, 341 of IPC, 1860 before JMFC, Barwaha. The matter was
committed to the Court of Sessions where upon co-accused persons were
declared absconding and the charges were framed under Sections 394, 341
of IPC against appellant Krishna S/o Mohan. The appellant abjured his guilt
and took a plea that he has been falsely implicated and prayed for trial.
4. The prosecution on its behalf has examined as many as 9 witnesses
namely Mukesh Rathore (PW-1), Parasuram (PW-2), Jitendra (PW-3), Dr.
Ashish Sen (PW-4), Munna (PW-5), Paramjeet Singh (PW-6), Sanjay
Sharma (PW-7), Santosh Mishra (PW-8), Rajaram (PW-9). No. witness has
been adduced in defence by the appellant.
5. Learned trial Court, on appreciation of the evidence and arguments
adduced by the parties, pronounced the impugned judgment on 25.03.2022,
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convicted and sentenced the appellant as mentioned in para-1 of this
judgment. Other co-accused persons Malkhan and Lakhan were acquitted
from the aforesaid offence vide order dated 08.07.2022 passed in S.T.
No.100127/2015.
6. Learned counsel for the appellant submitted that appellant has
already completed jail sentence of 7 and 1/2 months. Other accused persons
have already been acquitted. Seizure witnesses have deposed in the Court
that they have put their signatures in Police Station and no seizure was made
in front of them. Police has disclosed that items have been seized from the
present applicant while independent witnesses have not supported the case in
this regard. Earlier complainant has stated in the FIR that Rs.5000/- was
looted from him, however, in his Court statement he has changed his version
and deposed that Rs.8000/- along with one gold ring was looted from him by
the accused persons. No identification parade was conducted, in which the
present appellant has been identified. Trial Court while acquitting the co-
accused persons has clearly stated in the order that the complainant has
deposed that the incident occurred in dark and he could not see the faces of
the accused persons and hence the report was lodged against unknown
persons. Seized articles have also been identified by the complainant. In the
same incident, two different orders have been passed wherein in one accused
has been convicted and two others have been acquitted. Hence the present
applicant is liable to be given the benefit of doubt as he is also in the same
footing as the co-accused persons.
7. During the course of arguments, learned counsel for the appellant
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alternatively advanced his arguments on the point of sentence. There are no
criminal antecedents against the appellant and the counsel assures that the
appellant will not involve in such criminal activities in future. He also
submitted that the appellant has suffered 7 and 1/2 months in custody out of
total 06 years. The appellant is having regard to all circumstances which
resulted in appellant’s conviction and further keeping in view the fact that the
appellant was facing the trial before the concerned Court for more than 10
years (since 2014), therefore, he prayed that the appeal be partly allowed and
the sentence awarded to the appellant be reduced to the period already
undergone.
8. Learned counsel for the State on the other hand supported the
impugned judgment and submitted that at the time of passing the judgment
by the trial Court, the appellant remained absconding and thereafter he has
been arrested approximately after two years, therefore, no leniency is called
for. 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 appellant rightly, hence prayed for dismissal of the
appeal.
9. Having considered the rival submissions, I have gone through the
record.
10. From the statement of complainant Mukesh Rathore (P.W.1) it is
evident that he has not identified anyone as the incident has happened in
night. However, the said stolen articles, a purse of chocolate colour,
registration certificate of motorcycle bearing registration no.MP 09 QC 7342
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and license of complainant have been seized from the possession of present
appellant. Now the question arises as to how this stolen articles have been
seized from the appellant?
11. It is also worth mentioning that the said articles were identified by
complainant Mukesh Rathore (P.W.1) and the fact of identification has been
corroborated by Sanjay Sharma (P.W.7), Executive Magistrate. Hence it is
evidently established that the stolen articles were seized from the appellant.
12. So far as the contention of learned counsel for the appellant that
witnesses of seizure – Munna (P.W.5) and Rajaram (P.W.9) have not
supported the prosecution case, actually Munna (P.W5) has supported the
prosecution case and the statement of Munna (P.W.5) also find support from
the statement of Santosh Mishra, I.O. So far as the reliability of Police and
Official witness is concerned, on this aspect, the following ratio laid down
by Hon’ble Supreme Court rendered in Karamjit Singh v. State (Delhi
Administration), AIR 2003 SC 1311 , is propitious to produce here:-
“8………The testimony of police personnel should be treated in
the same manner as testimony of any other witness and there is no
principle of law that without corroboration by independent
witnesses their testimony cannot be relied upon. The presumption
that a person acts honestly applies as much in favour of police
personnel as of other persons and it is not a proper judicial
approach to distrust and suspect them without good grounds……..”
13. In a full bench decision of Hon’ble Apex Court rendered in Rizwan
Khan v. State of Chhatisgarh, dated 10.09.2020 reported as (2020) 9 SCC
627, it is held as under:-
“……..It is true that all the aforesaid witnesses are police
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officials and two independent witnesses, who were panchnama
witnesses had turned hostile. However, all the aforesaid police
witnesses are found to be reliable and trustworthy. All of them
have been thoroughly cross-examined by the defence. There is no
allegation of any enmity between the police witnesses and the
accused. No such defence has been taken in the statement under
Section 313 of Cr.P.C. There is no law that the evidence of police
officials, unless supported by independent evidence, is to be
discarded and/or unworthy of acceptance.”
14. In another decision of Hon’ble Supreme Court rendered in Surinder
Kumar vs. State of Punjab, reported in 2020(2) SCC 563 , while considering
somewhat similar situation, it was observed that “The evidence of official
witnesses cannot be distrusted and disbelieved, merely on account of their
official status.”
15. In upshot of the aforesaid settled propositions of law, the statement
of investigating officer Santosh Mishra (PW-8) cannot be disbelieved only
on the basis of non-support of independent witnesses. It is also significant to
mention here that one of the independent witnesses Munna (P.W.5) has also
supported the said seizure from the applicant. It is also worth to mention that
the prosecution has successfully proved the facts that this appellant has
caused injuries on the person of injured. This circumstance would be taken
into account for believing the statement of sole police witness i.e.
investigating officer Santosh Mishra (PW-8).
16. That apart learned counsel also contended that on the same set of
evidence other co-accused persons have been acquitted by another Judge of
that Court, but only on that basis appellant cannot be acquitted because
specific identification of article has been established and since the appellant
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is unable to explain as to how the purse and documents of stolen motor cycle
including driving license of complainant Mukesh Rathore was seized from
him, the presumptions would be drawn against him with regard to committal
of offence.
17. Learned counsel for the appellant strenuously submitted that since
on the same set of evidence other accused persons namely Makhan and
Lakhan were acquitted by the learned trial Court, then, this appellant cannot
be convicted on the same. The law laid down by Hon’ble Supreme Court in
its Full Bench decision, rendered in the case of Gurcharan Singh Vs. State of
Punjab reported in AIR 1956 SC 460, is poignant in this regard. The relevant
part of the judgment is mentioned below :-
Be that as it may, we are no more concerned with
the case against those two accused persons who have
been acquitted by the High Court; but so far as the
appellants are concerned, the evidence of the four
eyewitnesses referred to above is consistent and has
not been shaken in cross-examination. That evidence
has been relied upon by the courts below and we do
not see any sufficient reasons to go behind that
finding. It is true that three out of those four
witnesses are closely related to the deceased Inder
Singh.
But that, it has again been repeatedly held, is no
ground for not acting upon that testimony if it is
otherwise reliable in the sense that the witnesses
were competent witnesses who could be expected to
be near about the place of occurrence and could
have seen what happened that afternoon. We need
not notice the other arguments sought to be
advanced in this Court bearing upon the
probabilities of the case because those are all
questions of fact which have been adverted to andSignature Not Verified
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discussed by the courts below.
18. Here, it has to be kept in mind that this Court is not testing the
legality of acquittal of two accused persons. In this appeal on the basis of
evidence available on record, this Court is satisfied that the judgment of
conviction passed by the learned trial Court is in accordance with law and
facts. It is also well settled principle that the maxim “falsus in uno falsus in
omnibus” has no application in India. Hon’ble Supreme Court in the case of
Shaktilal Afdul Gaffar Khan Vs. Basant Raghunath Gogle reported in (2005)
7 SCC 749 has held as under :-
It is the duty of Court to separate grain from
chaff. Falsity of particular material witness or
material particular would not ruin it from the
beginning to end. The maxim “falsus in uno
falsus in omnibus” has no application in India
and the witnesses cannot be branded as liar.
The maxim “falsus in uno falsus in omnibus”
has not received general acceptance nor has this
maxim come to occupy the status of rule of
law. It is merely a rule of caution. All that it
amounts to, is that in such cases testimony may
be disregarded, and not that it must be
disregarded. The doctrine merely involves the
question of weight of evidence which a Court
may apply in a given set of circumstances, but
it is not what may be called ‘a mandatory rule
of evidence’.”
19. In view of the finding of learned trial Court with regard to
conviction of appellant under Sections 341, 394 of IPC appears to be
correct. Nevertheless, the complainant has also received the following
wounds:
1. one lacerated wound on left side of mastoids of 1/2 x 4 mm
deep.
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2. 1 x 1 cm abrasion on the back side of the head.
3. Contusion of 3 x 3x 4 mm found just above the hip on the back.
4. Contusion of 3 x 3 x 2 inch on the right side of the back.
The aforesaid injuries has been found corroborated with the statement
of Dr Ashish Sen (P.W.4), therefore the finding of conviction under Section
394 of IPC, is found to be just and proper in accordance with law.
20. So far as the conviction for the offence of wrongful restraint of
complainant by applicant is concerned, in view of the aforesaid discussions
the findings of learned trial Court for punishment under Section 341 of IPC,
1860 is also found infallible in this regard. Therefore this Court is of the
view that no infirmity is found in the impugned order of conviction under
Sections 341, 394 of IPC, 1860 passed by the learned trial Court,
accordingly, the same is upheld.
2 1 . Now returning to the part of sentence the learned counsel has
vehemently submitted that the punishment of 06 years R.I. is excessive
punishment, appellant has faced ordeal of trial for more than 10 years, there
are no criminal antecedents against the appellant and considering the custody
period counsel prayed that the same be reduced to the period already
undergone by the appellant. That apart, the offence was committed without
pre-mediation, pre-planning and only on spur of movement. The prayer has
been rebutted by learned Govt. Advocate submitting that appellant remained
absconding for more than one and half years and thereafter he was arrested
and produced before the trial Court, hence he does not deserve any
leniency. On this aspect, the following excerpt of the judgment of Hon’ble
Apex Court rendered in the case of Bhagwan Narayan Gaikwad vs. State of
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Maharashtra; [2021 (4) Crimes 42 (SC) is worth mentioning here:-
“28. Giving punishment to the wrongdoer is the heart of the
criminal delivery system, but we do not find any legislative or
judicially laid down guidelines to assess the trial Court in meeting
out the just punishment to the accused facing trial before it after he
is held guilty of the charges. Nonetheless, if one goes through the
decisions of this Court, it would appear that this Court takes into
account a combination of different factors while exercising
discretion in sentencing, that is proportionality, deterrence,
rehabilitation, etc.”
22. On this facet, the law laid down by Hon’ble the Apex Court in
Jaswinder Singh (Dead) through Lrs Vs. Navjot Singh Sidhu and others
reported in AIR 2022 SC 2441 is also condign to quote here as under :-
“26. An important aspect to be kept in mind is that any undue
sympathy to impose inadequate sentence would do more harm to
justice system and undermine the public confidence in the efficacy
of law. The society can not long endure under serious threats and
if the courts do not protect the injured, the injured would then
resort to private vengeance and, therefore, it is the duty of every
court to award proper sentence having regard to the nature of the
offence and the manner in which it was executed or committed…..”
23. In upshot of the aforesaid law, I am not inclined to let off the
appellant only with a period of already undergone. In this case the
complainant has been looted and also been assaulted. However, considering the
fact that the appellant has suffered the ordeal of criminal case since 2014 and
he has suffered approximately 7 and 1/2 months in custody out of total 06
years, this Court finds it expedient to partly allow this criminal appeal by
affirming the conviction and sentence of the appellant under Section 341 of
IPC and sentence for offence under Section 394, of IPC is hereby reduced
from 6 years R.I. to 2 years R.I. by enhancing the fine amount from
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Rs.2,000/- to Rs.5000/-.
24. The appellant is in jail. On completion of 2 years in custody and on
depositing the enhanced fine amount, he shall be released from the jail, if not
required in any other case. The amount of fine if already deposited, shall be
adjusted.
25. If the appellant fails to deposit the fine amount, he will suffer 02
months of simple imprisonment in default and thereafter completion of the
same, he shall be released from jail, if not required in any other case.
26. The order of learned trial Court regarding disposal of the seized
property, if any, stands confirmed.
27. A copy of this order be sent to the trial Court for necessary
compliance.
28. Pending application, if any, stands closed.
Certified copy, as per rules.
sumathi
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