DEEPAK LUDELE Vs. STATE OF M.P.

JUDGEMENT

(1.) The applicant/accused has filed the present criminal revision under Section 397 read with Section 401 of the Cr.P.C against the judgment dated 10.03.2018, passed by the Judicial Magistrate, Second Class, Indore whereby he has been acquitted under Section 379 but convicted under Section 411 of IPC and sentenced accordingly and also against the judgment dated 31.05.2018, passed by the Additional Sessions Judge, whereby his criminal appeal has been dismissed.

(2.) That Ms.Neetu Singh, Daughter of Prahlad Singh lodged an FIR in Police Station, Sanyogitaganj, Indore on 11.04.2012 alleging that on 11.04.2012 near about 18:00 hours while she was going to Apollo Hospital from her hostel by walk, then near Rukmani Motors, Geeta Bhawan two persons came in the motorcycle and out of 2 one who was sitting on the rear seat has snatched her mobile phone from her hand and both fled away. She purchased the mobile of Nokia Company double sim (Nokia C2) ten days back in Rs.2,700/- and she could not note the number of the motorcycle and identified the two persons. The FIR was registered under Section 379 of IPC against two unknown persons. On 24.09.2012 at around 10:30 hours the Police has arrested the present applicant from Jai Hind Nagar, Indore (Exhibit P/2). A mobile of Nokia Company white color containing a sim of Idea and one sim of Reliance Smart was seized from his possession vide Exhibit P/3. After completing the investigation the challan was filed under Section 379 and 411 of IPC against him. After examining the material available in the final report vide order dated 29.12.2012 learned Magistrate has framed the charges vide under Section 379 and in alternate framed the charge under Section 411 of IPC. In support of the case prosecution examine Aparbal Yadav (Seizure witness) as PW1, Ram Murti Pandey (Sub Inspector) who lodged the report as PW2 and B.L. Sharma, Sub Inspector (Investigating Officer) as PW3 and independent witness Babu Khan as PW4. PW1 & PW4 have turned hostile and did not support the case of the prosecution in respect of seizure of mobile from the applicant. The PW3 has deposed in the Court that after registration of the FIR on the basis of call details he arrested the applicant and interrogate him in the presence of witness and thereafter he disclosed that the stole mobile is lying on the table in his house and which was recovered. In cross-examination he admitted that he could not arrest the other accused involved in the offence. The present applicant in his statement under Section 313 has denied his involvement and pleaded that he has been falsely implicated in the present case. Learned Magistrate after appreciating the evidence came on record as acquitted the applicant under Section 379 of IPC but convicted under Section 411 of IPC and sentenced him to undergo 6 months RI with fine of Rs.1,000/- and 10 days additional RI in default of payment.

(3.) Being aggrieved by the aforesaid judgment, the applicant preferred an appeal but same has been dismissed vide judgment dated 31.05.2018, hence, present criminal revision before this Court. I have heard learned counsel for the parties.