(01/08/2019) By a common order, all the three appeals shall be decided as they arise out of the same incident.Since, Ghanshyam and Preetam Dhakad were absconding and were arrested at a later stage, therefore, they have been convicted by separate judgments and sentences.These Criminal Appeals have been filed under Section 372 of Cr.P.C.All the appellants have been convicted for the following offences :3 Cr.A. Nos.552/2015, 607/2015 and 1297/2017The prosecution story in short is that on 7-11-2013, the complainant Gendi bai lodged a report that she was all alone and was sleeping in the porch of her house.At about 2 A.M. in the night, four persons came there and gagged her mouth by tying a cloth and took out her silver Kade, Silver Khangwari, Gold Tops, Gold ring and also took away Rs. 6000/-.Since the tops were pulled from her ears, therefore, her pinna got injured.The appellant Purshottam assaulted on her face, therefore, her teeth have broken.On this report, the police registered crime No. 280/2013 for offence under Sections 394,452,325 of I.P.C.The police arrested the appellant Purshottam, Ghanshyam, Preetam as well as one Laxminarayan and recovered one gold tops from the possession of the appellant Purshottam, Rs. 6000 from Laxminarayan, Silver Khangwari from Ghanshyam and two silver Kade from Preetam.The appellants abjured their guilt and pleaded not guilty.The prosecution in order to prove its case, examined Gendibai (P.W.1), Balram (P.W.2), Govind Prasad Sharma (P.W.3), Dr. A.P. Singh (P.W.4), Madanlal (P.W.5), Sunil Verma (P.W.6), Dr. Vinod Chourasia (P.W.7), Hazarilal (P.W.8), Ramcharan (P.W.9), and Santosh Bhargava 4 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 (P.W.10).The appellants didnot examine any witness in their defence.Challenging the conviction and sentence recorded by the Court below, the Counsel for the appellant Purshottam submitted that although in the F.I.R., the name of the appellant was mentioned but in the Test Identification Parade, the complainant Gendibai (P.W.1) could not identify the appellant Purshottam, although again in dock identification, She has identified the appellant Purshottam, thus identification is doubtful.She has stated that the appellants came inside the house and broke her teeth.Her mouth was gagged by tying a cloth.The tops were pulled from her ear.Her hands were tied.Her box was broken and silver Kade, silver Khangwari, gold tops and a cash of Rs. 7000 was taken away.After the miscreants left the house, the complainant started screaming as a result of which her neighbour Madan came who was followed by Balram and Jairam.They went to police outpost at about 3-4 A.M. She was sent for medical examination.The spot map Ex. P.2 was prepared.She had identified Purshottam in jail and had also identified Ghanshyam in jail.In cross examination she stated that she had lost her husband about 15 years back.Prior to incident, her eye vision was good, but after the cloth was tied, her eye vision has dropped.She further admitted that She does not have any watch but had narrated 6 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 the time as per her assessment.She denied that the name of Purshottam was informed by the neighbours.On her own, this witness said that Purshottam is her Samadhi.She admitted that Madan untied the cloth from her mouth.She further admitted that when she went to police outpost, the appellant Purshottam and Ghanshyam were shown by the police.The stolen articles were also shown in the outpost Jhagar.She further admitted that identification memo Ex. P.3 was got signed by Daroga.6 Cr.A. Nos.552/2015, 607/2015 and 1297/2017Balram (P.W.2) has stated that he was informed by Madan on phone and when he went to the house of the complainant who is the mother, he found that She was tied and her teeth were broken and ear pinnas were teared and the assailants had taken away gold tops, silver Khangwari, Silver Kade, and about Rs. 6000/-.The complainant had informed that Purshottam and Laxminarayan were amongst the assailants.In cross examination, this witness denied the suggestion that some unknown persons had committed the offence.Govind Prasad Sharma (P.W3) had recorded the F.I.R. on the basis of report which was brought by constable Damodar from Police outpost Jhagar.Dr. A.P. Singh (P.W.4) had examined the complainant Gendibai and found empty socket of left and right Lateral Inciser and left central Inciser were filled with blood cot and was exfoliated due to injury.Madan (P.W.5) has also supported the prosecution story and stated 7 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 that after hearing the screaming of the complainant Gendibai (P.W.1), he went to the spot and found that the ears of Gendibai were injured and her teeth were broken and hands were tied and one towel and rope was tied around her neck.He also informed Balram, the son of the complainant.Gendibai had disclosed the name of the appellant Purshottam and Laxminarayan.The appellant Preetam Dhakad is on bail.His bail bonds are discharged.The appellant Ghanshyam is in jail.The police after completing the investigation, filed the charge sheet against four persons for offence under Sections 394,452 and 325 of I.P.C..The Trial Court by order dated 23-1-2014 framed charges under Sections 452,394 read with Section 397 of I.P.C.4 Cr.A. Nos.552/2015, 607/2015 and 1297/2017The accused statement of Purshottam was recorded on the same day.The Trial Court by judgment dated 27-3-2015 convicted the appellant Purshottam, by judgment dated 29-7-2017 convicted the appellant Preetam Dhakad and by judgment dated 12-5-2015 convicted the appellant Ghanshyam for the above mentioned offences.Thereafter they went to Police outpost and lodged the F.I.R. This witness turned hostile against the appellant Ghanshyam and Preetam and accordingly he was declared hostile.7 Cr.A. Nos.552/2015, 607/2015 and 1297/2017Sunil Verma (P.W.6) had conducted the Test Identification Parade of the accused persons, and stated that the complainant had identified Laxminarayan only.Dr. Vinod Chourasia, (P.W.7) had medically examined the complainant and found the following injuries :"1. Lacerated wound, Cm.X Cm.X deep upto muscular on left ear labret.Lacerated wound, Cm. X CM.X deep upto muscular on right ear labret.Abrasion, Cm.X Cm., on frontal part of neck.Abrasion, Cm.X Cm., on left forearm.Diffused swelling, 4 X 3 CM., on left hand.Abrasion, Cm.X Cm., on right hand."8 Cr.A. Nos.552/2015, 607/2015 and 1297/2017Appellants Preetam Dhakad and GhanshyamThese appellants were put for Identification, and the complainant in the Test Identification Parade, Ex. P. 4, could not identify these appellants.Therefore, it is held that the prosecution has proved the seizure of Silver Khangwari and Silver Kade from the possession of Ghanshyam and Preetam Dhakad 9 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 respectively.9 Cr.A. Nos.552/2015, 607/2015 and 1297/2017Now the pivotal question for determination is that whether the prosecution has established the identification of these articles.The complainant Gendibai (P.W.1), has stated that the articles were shown by Daroga in the Police Station and identification memo Ex. P.3 was prepared, whereas according to the prosecution case, the test identification parade for identification of seized articles was conducted by Ramcharan, Sarpanch Gram Panchayat Sujakhedi (P.W. 9).Ramcharan (P.W. 9) has not supported the prosecution case, and has stated that he was called in Police Outpost Jhagar, where the articles were handed over to the complainant by police and identification memo, Ex. P.3 was prepared by the police in the police station itself and his signatures were obtained.Thus, it is clear that the prosecution has failed to establish that the articles seized from the possession of the appellants Ghanshyam and Preetam were that of the complainant Gendi bai (P.W.1).There is no other evidence against the appellants Ghanshyam and Preetam.10 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 P.4, but again identified the appellant Purshottam in the dock.But the prosecution has failed to prove the identification of the Gold Tops for the reasons already mentioned while considering 23 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 the case of appellants Ghanshyam and Preetam Dhakad.Accordingly, it is held that although Gold Tops were seized from the possession of appellant Purshottam, but since, its identification could not be established by the prosecution, therefore, the seizure of gold tops loses its importance.However, in view of the fact that Purshottam was specifically named by the complainant Gendibai (P.W.1) in the F.I.R., Ex. P.1 which was lodged within a period of 4 hours, because the incident took place at about 3 A.M. in the night and the F.I.R. was lodged at 7:00 A.M., as well as that he was identified by the complainant in the Court, coupled with the fact that the ocular evidence of complainant Gendi bai (P.W.1) is supported by medical evidence, Ex. P.6 and P.8, it is held that the prosecution has succeeded in establishing the guilt of the appellant Purshottam beyond reasonable doubt.The Trial Court has convicted the appellant Purshottam for offence under Section 394/397 of I.P.C. Since, the complainant Gendibai (P.W.1) had suffered dismemberment of her teeth, therefore, the conviction of the appellant Purshottam for offence under Section 397 of I.P.C. is affirmed.Accordingly, the appellant Purshottam is held guilty of committing offence under Section 452 and 397 of I.P.C.So far as the question of sentence is concerned, the minimum sentence for offence under Section 397 of I.P.C. is seven years.In default, the appellant Purshottam shall undergo the rigorous imprisonment of 6 months.The appellant Purshottam is on bail.His bail bonds are hereby cancelled.He is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.He be released if not required in any other case.Accordingly, the judgment and sentence judgment and sentence dated 27-3-2015 passed by IVth Additional Sessions Judge, Guna in S.T. No. 26/2014 is hereby affirmed with above mentioned modifications.The judgment and sentence dated 29-7-2017 passed by 3rd Additional Sessions Judge, Guna in S.T. No. 26/2014 and dated 12-5- 2015 passed by IVth Additional Sessions Judge, Guna in S.T. No. 26/2014 are hereby set aside.The appeal filed by appellant Ghanshyam and Preetam Dhakad are allowed and appeal filed by appellant Purshottam is partially allowed.(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2019.08.02 09:47:54 +05'30'

Cited provisions: Section 397 in The Indian Penal Code; Section 394 in The Indian Penal Code; Section 325 in The Indian Penal Code; Section 452 in The Indian Penal Code