(1) HIGH COURT OF MADHYA PRADESH : JABALPUR Cr. A. No. 1701/1995 Bhura @ Vijay @ Swatantra Kumar Vs. State of M.P. Cr. A. No. 1671/1995 Deepak Soni Vs. State of M.P. As Per : G.S.Solanki, J. Ms. Jyoti Agnihotri, Advocate and Shri Harshpal Verma, Advocate for appellants. Shri P.C.Jain, PL for State. Judgment reserved on : 1.2.2011 Judgment delivered on : 25.4.2011 J U D G M E N T 1. These appeals arise out of the common impugned judgment dated 21.11.1995, hence, they are being decided by this common judgment. 2. The appellants preferred this appeal under section 374(2) of Cr.P.C. being aggrieved by judgment dated 21.11.1995 passed by First Additional Sessions Judge, Bhopal in S.T. No. 9/95 whereby the appellants have been convicted under section 392 read with Section 397 of IPC and sentenced to R.I. for 7 years. (2) 3. The prosecution case, in short, is that on 9.3.1994 at about 10:00 O'clock, when complainant Abhishek (PW-2) and his companion Sanjeev Dubey (PW-3) had gone to Agrawal Sweet House, TRT Market to take breakfast, at that time appellants came there and asked the complainant for lift on his two wheeler Hero Puch No. MP04B/7284. Complainant gave them lift and when they reached near Allahabad Bank, appellants looted Hero Puch of complainant on the point of knife, thereafter, both the appellants fled away on the looted vehicle. Complainant lodged report (Ex.P-5) along with Sanjeev Dubey (PW-3). 4. During investigation, vehicle of complainant Abhishek was seized at the instance of appellant Bhura and seizure memo (Ex.P-2) was prepared by G.L.Ahirwar (PW-4). Knife was also seized at the instance of appellant Bhura. Seizure memo (Ex.P-4) was prepared. Appellants were identified in test identification parade, which was conducted by Nayab Tehsildar, Nisar Ahmad Rizvi (PW-5). 5. After usual investigation, appellants were charge sheeted before JMFC, Bhopal, who committed the case to the Court of Sessions. 6. Appellants abjured the guilt and pleaded false implication. 7. Learned First Additional Sessions Judge, Bhopal framed charges under section 392 read with Section 397 (3) of IPC and on appraisal of evidence on record convicted and sentenced the appellants as mentioned hereinabove. 8. Learned counsel for the appellants has submitted that the trial Court committed error in not appreciating the evidence on record in its proper perspective. He has further submitted that the trial Court has failed to consider the important aspect of the case that memo under section 27 of Evidence Act was prepared before the arrest of appellants. He has further submitted that on the basis of aforementioned infirmity, the trial Court ought to have granted the benefit of doubt to the appellants, therefore, prayer has been made for setting aside the conviction and sentence recorded by the trial Court and for acquittal of appellants. 9. Learned counsel for the State has justified and supported the impugned judgment and findings recorded by the trial Court. 10. I have perused the impugned judgment, evidence and other material on record. Complainant Abhishek (PW-2) deposed that he and Sanjeev (PW-3) were taking breakfast at Agrawal Sweet House, TRT Market, at that time appellants came and asked for lift on his vehicle Hero Puch No. MP04/G-7284. He further stated that after going to some distance, appellant Bhura pointed a knife on his neck, told him to leave the vehicle and run away. Complainant further deposed that appellants told him not (4) to report the matter to the police, they will give back the vehicle tomorrow. Sanjeev Dubey (PW-3) partly supported the version of complainant and deposed after some hesitation (as his demeanour recorded by the trial Court) that two boys had gone along with Abhishek on his Hero Puch and thereafter Abhishek returned back and told him that those boys looted his vehicle on the point of knife. Nisar Ahmad Rizvi (PW-5) Nayab Tehsildar, deposed that he conducted Test Identification Parade on 16.3.1994 at Central Jail, Bhopal. Complainant rightly identified the appellants, proceedings of identification were prepared (Ex.P-7). Despite extensive cross-examination this witness remained undeviated. Complainant Abhishek also remained undeviated in his cross-examination regarding identification parade. In these circumstances, complainant Abhishek identified the appellants during trial and this fact has been duly corroborated by Test Identification Parade conducted by Nisar Ahmad Rizvi (PW-5), Nayab Tehsildar and proceedings prepared (Ex.P-7). It is not a case of belated identification because incident took place on 9.3.1994 and appellants were arrested on 10.3.1994 and identification parade was conducted on 16.3.1994. 11. G.L.Ahirwar, (PW-4), deposed that during investigation on 10.3.1994 he found appellants wandering on said Hero Puch No. MP04/G-7284, thereafter, appellants were arrested and arrest memo (Ex.P-3) was prepared. He (5) further deposed that at the instance of appellant Bhura he seized knife and prepared seizure memo (Ex.P-4). Despite extensive cross examination, defence remained unable to brought out anything in cross-examination of this witness, on the basis of which he can be disbelieved. Since Hero Puch No. MP04/G-7284 was seized at the time when appellants were wandering on it, which fact finds support from Ex.P-1 and Ex.P-2, in these circumstances, it is proved that vehicle was seized from joint possession of appellants. Appellants were properly identified by the complainant and version of complainant was partly corroborated by Sanjeev Dubey (PW-3). Though he turned hostile and deposed only that two boys had gone along with Abhishek but when the demeanour of this witness is considered, which has been recorded by the trial Court that this witness was continuously looking towards appellant Bhura and after some time told that he doesn't remember whether Bhura was present at the time of incident or not, it shows that witness Sanjeev (PW-3) was under fear and did not speak truth before the Court. But despite this fact he deposed that complainant and other two boys had gone on Hero Puch No. MP04/G-7284. In these circumstances, trial Court did not commit any illegality in appreciating the evidence on record. 12. It is proved that appellant Bhura looted the vehicle of complainant on the point of knife (a deadly weapon), (6) which amounted to an attempt to cause grievous hurt. Both the appellants the complainant for lift on his vehicle, looted the same on the point of knife and then fled away, thus they are jointly concerned in committing the robbery and ultimately they found in joint possession of the looted vehicle. Thus, in my opinion, the trial Court rightly recorded the conviction of the appellants under section 392/397 of IPC, same is hereby affirmed. 13. Learned counsel for appellant Deepak has submitted that during pendency of appeal complainant filed a compromise petition which was dismissed by this Court on 1.8.1996 because offence was not compoundable and liberty was granted to point out this fact at the time of final hearing/sentencing. 14. Learned counsel has submitted that Deepak is a student. At the time of incident he was 19 years old, he remained in jail for about 8 months, therefore, ends of justice would be met in case he is sentenced for the period already undergone. Learned counsel for appellant Bhura has also submitted that Bhura has also remained in jail for about 15 months. 15. Considering overall facts and circumstances of the case and the fact that complainant Abhishek himself stated that appellants told him not to report the matter to the police as they will give back his two wheeler tomorrow, which shows that at the time of incident both (7) these appellants were students and must have lust of enjoying the Motorcycle, hence they committed this offence. This fact further finds support from the fact that both the appellants were arrested next day when they were wandering on the looted vehicle. In my opinion, the two wheeler was not looted forever, but it was looted for the time being to enjoy it for sometime but at the same time its a heinous offence. 16. Resultantly, the appeals are partly allowed. Conviction of the appellants are hereby affirmed. Appellants are sentenced for the period already undergone. Appellant Bhura is in jail, he be set at liberty forthwith. Record of the trial Court be set back along with the copy of this judgment for compliance and necessary action. (G.S.Solanki) Judge PB