Mukesh Vs State Of Chhattisgarh

Santoolal Banjare S/o Late Khullu Banjare, Aged About 45 Years, R/o - S. B. R. College, Jarhabhatha, Bilaspur, Police Station - Civil Line Bilaspur, District Revenue and Civil – Bilaspur, Chhattisgarh,

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--- Applicant

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Versus

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State of Chhattisgarh Through District Magistrate Bilaspur, District (Revenue and Civil) – Bilaspur, Chhattisgarh,

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--- Respondent

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For Applicant	(CRR :	Mr. Ajay Ayachi, Advocate
No.502/2016)
For Applicant	(CRR :	Mr. Anand Kesharwani, Advocate
No.626/2016)
For Applicant	(CRR :	Mr. Ajay Ayachi, Advocate on behalf of Mr.
No.718/2016)		Ravi Maheshwari, Advocate

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Hon’ble Shri Justice Radhakishan Agrawal

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Order on Board

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15/07/2025

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1. The above captioned revisions arise out of a common judgment, therefore, they are being heard together and disposed of by this common judgment.

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2. The presents revisions are filed under Section 397/401 of Code of Criminal Procedure against the judgment dated 13.05.2016 passed by the 4^th Additional Sessions Judge, Bilaspur, (C.G.) in Criminal Appeal Nos.84/2016 (Raj @ Bade Sidar), 36/2016 (Santoolal Banjare) and 14/2016 (Mukesh), whereby the judgment dated 13.01.2016 passed by the Judicial Magistrate First Class, Bilaspur (C.G.) in Criminal Case No.8928/2015 convicting the applicants - Raj @ Bade Sidar and Mukesh under Sections 457 and 380/34 IPC and sentencing them to undergo rigorous imprisonment for 2 years and fine of Rs.200/- each under Section 457 of IPC and rigorous imprisonment for 1 year and fine of Rs.100/- each under Section 380/34 of IPC, and in default of payment of fine, to further undergo S.I. for 15 days each, was affirmed while directing to run the sentences concurrently. As regards the applicant - Santoolal Banjare, both the Trial Court and Appellate Court affirmed the conviction under Section 411 of the IPC and released him after undergoing period of 5 months and 27 days imprisonment by him.

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3. Case of the prosecution, in brief, is that, old office of Haribhoomi Press situated at Rajendra Nagar Chowk, Bilaspur was lying locked for some time. On 20.06.2015, when one electrician was sent to remove/shift the fans and other items of the said office, then he came to the knowledge that water taps, water cooler, spare parts of printing press and other items were stolen. Thereafter, a report (Ex.P-6) was lodged to the concerned Police Station by complainant Priyank Singh Parihar (PW-04). Based on the report, Crime No. 305/2015 was registered against unknown person. During investigation, on the basis of memorandum statements of the applicant Raj @ Bade Sidar and applicant Mukesh vide Ex.P-1 and Ex.P-2 respectively, some of the stolen items were recovered from their possession vide seizure memo Ex.P-4 and Ex.P-3 respectively. Further, from the possession of applicant - Santoolal Banjare, 5 aluminium pipes and 15 Kg iron nuts and bolts were recovered vide seizure memo Ex.P-5. After completion of investigation, charge-sheet was submitted for alleged commission of offences under Section 457, 380, 411 and 34 of the Indian Penal Code. The applicants abjured the charges and pleaded non-guilty.

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4. Learned Court of JMFC, after appreciation of oral and documentary evidence, convicted and sentenced the applicants as mentioned in paragraph 2 of this judgment. The said judgment was challenged by the applicants before the Appellate Court, however, the Appellate Court vide judgment dated 13.05.2016, dismissed the appeal upholding the judgment of conviction and sentence passed by the learned JMFC. Hence, this revision.

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5. Mr. Ajay Ayachi, learned Counsel appearing for the applicants in CRR

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No.502/2016 and CRR No.718/2016 submits that he does not want to challenge the conviction of the applicants but is challenging the sentence part only, which, according to him, is on higher side. He further submits that the applicant - Raj @ Bade Sidar has remained in jail from 16.07.2015 to 13.01.2016 and from 13.05.2016 to 01.06.2016 and applicant Mukesh has remained in jail from 16.07.2015 to 13.01.2016 and from 13.05.2016 to 06.09.2016 i.e. for more than 6 months and 10 days, they are facing the lis since June, 2015 i.e. for more than 10 years, and they are not previously convicted persons. He further submits that fine amount has already been deposited before the concerned Court. Therefore, the jail sentence awarded to the applicants - Raj @ Bade Sidar and Mukesh may be reduced to the period already undergone by them.

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6. However, Mr. Anand Kesharwani, learned counsel appearing for applicant Santoolal Banjare (CRR No.626/2016) submits that conviction of the applicant – Santoolal Banjare is not based on any legally admissible evidence and is erroneous. He further submits that the applicant is a scrap vendor. He further submits that as per the alleged seizure memo (Ex.P-5), aluminium pipes (total 5) and 15 Kg iron nuts and bolts were seized but such items are not specifically mentioned in the FIR (Ex.P-6). Thus, there is no evidence available on record which shows that the said seized items are the stolen items which belongs to the complainant. This apart, the independent witnesses, namely, Mehboob Khan (PW-01) and Chhotu Khan (PW02) have not supported the case of the prosecution and have turned hostile. Further, no test identification parade of the materials have

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been conducted by the prosecution. Thus, the prosecution has failed to prove its case beyond reasonable doubt and therefore, the applicant – Santoolal Banjare is entitled to be acquitted of the charges levelled against him giving him benefit of doubt.

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7. On the contrary, learned State Counsel supports the impugned judgment passed by the learned JMFC and Appellate Court.

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8. I have heard learned counsel appearing on behalf of the applicants and perused the record.

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9. Firstly, I shall deal with the revisions filed by the applicants i.e. CRR No.502/2016 and CRR No.718/2016.

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10. Perusal of the statements of Sahettar Kurre (PW-05) and T.P. Soni (PW-06), supported with the other evidence available on record, this Court is of the opinion that the finding recorded by the learned Trial Court as well as the Appellate Court regarding conviction of the accused/applicants Raj @ Bade Sidar and Mukesh under Section 457 and 380/34 of the IPC, being based on the evidence available on record is correct finding. Thus, I hereby affirm the conviction of the applicants – Raj @ Bade Sidar and Mukesh.

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11. As regards the sentence part of the applicants – Raj @ Bade Sidar and Mukesh, considering the facts and circumstances of the case and further considering the facts that the applicants have remained in jail for more than 6 months and 10 days, they are facing the lis since June, 2015, i.e. for more than 10 years, they are not previously convicted persons and that, the fine amount has already been deposited by them, I am of the view that no fruitful purpose would be served to send the

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applicants back to jail again, and ends of justice would be met if, while upholding the conviction imposed upon applicants, the jail sentence awarded to them is reduced to the period already undergone by them i.e. 6 months and 10 days. Both the sentences are directed to run concurrently.

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12. Consequently, the CRR No.502/2016 and CRR No.718/2016 are partly allowed. The conviction of applicants under the aforementioned Sections is affirmed and they are sentenced to the period already undergone by them. Their fine sentence is hereby affirmed.

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13. Since the applicant is reported to be on bail, therefore, their bail bond shall remain in force for a period of six months from today in view of provision of Section 437-A of Cr.P.C.

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14. Now, I shall deal with the revision (CRR No.626/2016) filed by the applicant – Santoolal Banjare.

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15. Priyank Singh Parihar (PW-04), Unit Head, Haribhoomi, in his Court statement has stated that on the date of incident, when the employee of the printing press visited the Haribhoomi Press, situated at Rajendra Nagar, he found that the window of the account department and the lock of the machine room were broken. When the said employee entered inside, he found that 4-5 water taps, spare parts of water cooler and wires were stolen by the thief. Subsequently, he reported the matter to the police station vide Ex.P-6, FIR was registered.

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16. Reji Luis (PW-03), who is the employee of the Haribhoomi Press, in his testimony has deposed that on the date of incident at about 12:00 noon, when he had gone to Haribhoomi Press to bring some

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documents, he found that the spare parts of water cooler, printing press and 4-5 water taps were stolen by the thief from the said office. This witness in his cross-examination has admitted that he has not seen anybody stealing the said articles and he did not know about the person who has stolen the said articles.

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17. Sahettar Kurre (PW-05), Head Constable in his cross-examination, has admitted that though aluminium pipes and 15 Kg iron nuts and bolts were seized from the possession of the applicant - Santoolal Banjare vide seizure memo Ex.P-5 but the details of said articles are not specifically mentioned in the FIR as stolen articles. This witness further admitted that he has not done any test identification parade of the seized articles, further not got any expert opinion done regarding the seized articles on the basis of which it can be proved that the said articles belongs to the printing press.

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18. Mehboob Khan (PW-01) and Chhotu Khan (PW-02) are cited to be the seizure witnesses of the articles seized by the prosecution. Both these witnesses in their statements have not supported the case of the prosecution and have turned hostile.

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19. Thus, considering the facts and circumstances of the case and particularly considering the facts that there are material contradictions and omissions occurred in the statements of the witnesses and that of the contents of the FIR with regard to the stolen articles, as the details of the articles which were alleged to be seized from the applicant - Santoolal Banjare, are not specifically mentioned in the FIR, further, it has not been proved by the prosecution that such articles are the stolen property, this apart, the seizure witnesses, namely, Mehboob

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Khan (PW-01) and Chhotu Khan (PW-02) have turned hostile and not supported the case of prosecution, I am of the view that the prosecution has failed to bring on record any cogent and clinching evidence to show the complicity of the applicant - Santoolal Banjare and also failed to prove its case beyond reasonable doubt. As such, applicant – Santoolal Banjare (CRR No.626/2016) is entitled to be acquitted giving him benefit of doubt.

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20. In view of foregoing analysis, the impugned judgment passed by the learned JMFC and the Appellate Court is set aside with respect to applicant – Santoolal Banjare (CRR No.626/2016). He is acquitted of the charge framed against him giving him benefit of doubt. It is reported that he is on bail. However, his bail bonds shall remain in force for a period of six months in view of provisions contained under Section 437-A of CrPC.

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21. Accordingly, CRR No.626/2016 is hereby allowed.

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22. Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the concerned Superintendent of Jail for necessary information and action, if any.

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Sd/-

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(Radhakishan Agrawal)

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JUDGE

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Prakash

Mukesh v. State Of Chhattisgarh

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Mukesh v. State Of Chhattisgarh

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