SARMAN SHIVHARE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant has filed the present appeal being aggrieved by the judgment dtd. 25/5/2013 passed by the Additional Sessions Judge, Indore in S.T. No. 856/2012 whereby he has been convicted u/s. 394/397 and 302 of the IPC and sentenced to undergo 10 years' RI and life imprisonment and to pay a fine of Rs.500.00 - 500/- respectively with default stipulation.

(2.) The facts of the case, in short, are as under :

(3.) The prosecution examined Manoj Bafna as P.W.1 who deals with the business of diamond jewelry in the name of Krishna Diamond. According to him on 5/2/2010 Kuldeep Jain came to his jewelry shop and took the jewelry worth Rs.1.00 150 Lakhs. The police opened the bag in his presence in which he found imitation jewelry. He is the owner of Kalakriti Jewelers He identified the driver's license and the diary. In the cross-examination, he admitted that he did not issue any bill or receipt to the deceased Kuldeep Jain in respect of jewelry and he has no proof of it. But according to him, he gave original gold and diamond jewelry to the deceased Kuldeep Jain and not the artificial jewelry. On the date of the incident, he was called by the Police Station Tukoganj and he came to know about the death of Kuldeep Jain. According to this evidence, the jewelry that was recovered on disclosure of the appellant did not belong to P.W.1 as he gave original jewelry. Therefore, the recovery of imitation jewelry as a looted article is doubtful. Likewise, P.W.2 - Jaideep, the brother of the deceased, according to, his brother used to visit every shop in Sarafa for marketing purposes. He identified the dead body and 'Lash Panchayatnama', postmortem report, etc. He identified the bag of the deceased, diary, etc. but he was not aware of the jewelry being original or imitated recovered from the bag. In the presence of P.W.3 - Bharat Mathurawala the test identification of the bag, plastic bag, ring, and imitation jewelry was conducted, but the prosecution has failed to prove for what purpose the test identification was conducted and why the ex-corporator was called for this purpose. The test identification was done by Kiran Jain, Manoj Bafna, and Jaideep, they identified that they did not say that the articles belonged to them and they did not apply for 'Supurdiginama' of the said articles. P.W.4- Rajmani is the police witness who collected the material in Cr. No. 263/2011. P.W.5 - Ashok Tiwari is the witness to the seizure of the bag from the bus parked at Vijay Nagar Bus Depot of MPSRTC. He has verified the seizure of imitation jewelry, registers, etc. He, however, admitted that he did not get permission to enter the Bus Depot before and seizure. He did not note the registration number and seat number of the bus. According to him, he did not seize the original gold and diamond jewelry. He is the witness to the seizure of articles from the spot.