JAIRAM Vs. STATE OF M P

JUDGEMENT

(1.) This criminal appeal is arising out of conviction and sentence passed by the learned II Additional Sessions Judge, Badwani in Session Trial No.116/2009 dated 27.09.2010 by which the learned Additional Sessions Judge found the present appellants guilty under section 394 r/w section 397 IPC, section 394 IPC and section 323/34 IPC and convicted them for rigorous imprisonment of 7 years, 5 years and 3 months respectively and also fine of Rs. 1,000/- and Rs. 500/- under section 394 r/w section 397 IPC and 394 IPC respectively with default clause.

(2.) Prosecution case in brief is that the complainants Dhannalal S/o Maganlal along with Sunil S/o Pannalal and Bhagirath S/o Nyadar were coming back to their residence on motorcycle bearing registration No.MP46-MA-7645, the motorcycle was being driven by Dhannalal. At about 08:30 p.m. near Bhairwan Temple, 3 to 4 unknown person tried to stop them by giving on them lathi blows, due to which the motorcycle lost balance and they fell down. They sustained injuries while the complainant Dhannalal suffered fracture in his left radius bone. It is further alleged that the miscreants looted mobile phone and cash from Bhagirath, a wrist watch and cash from Dhannalal and cash from Sunil. They were shifted Hospital by the villagers nearby including Sunil (PW-1) who immediately fled away from the spot and then came back with help of villagers. On their report, Crime No.290/2008 under section 394 IPC was registered by Police Station Rajpur, District Badwani. During the investigation, the present appellants were arrested by the Police. On their information, memorandum under section 27 of Evidence Act were prepared and mobile phone, wrist watch, cash and lathi, that were allegedly used in the crime, were seized from their possession. After investigation, charge sheet was filed before the concerning Court of Magistrate which was committed to Court of Sessions and made over to II Additional Sessions Judge who after recording evidence for both sides, passed the impugned orders and sentenced present appellants as aforesaid. The learned Additional Sessions Judge gave benefit of doubt to co-accused Luxman S/o Dhan singh on the ground that no property was recovered from his possession and also no other evidence was available against him and, therefore, giving benefit of doubt, co-accused Luxman was acquitted.

(3.) Aggrieved by the conviction and sentence passed on them, this criminal appeal is filed on the grounds, inter-alia, that there was no convincing evidence available against the present appellants for convicting them under the sections as mentioned above; that no independent witness supported the case of prosecution; that no Test Identification Parade was conducted on the present appellants; that the complainant Bhagirath (PW-4), Sunil (PW-1) and Dhannalal (PW-2) failed to identify the accused during the trial. Another witness of arrest and seizure memo Sanjay was not examined by the prosecution and the witness who was examined turn hostile and did not support the case of prosecution.