Hon''ble Shri Justice N.K. Gupta
1. The appellant has preferred this appeal against the judgment dated 19.7.2012 passed by the 4th Additional Sessions Judge, Tikamgarh in S.T. No. 62/11, whereby the appellant was convicted for the offence punishable u/s 392 of IPC and sentenced for five years'' R.I. with fine of Rs. 1,000/- and in default of payment of fine, three months'' R.I. was directed. The prosecution''s story in short is that, on 3.9.2010 at about 10:15 p.m. in the night, the complainant Deepchand (PW-1) was going from Raath to Tikamgarh on his motorcycle. He was accompanied with his brother-in-law Babulal (PW-6). From the direction of Mauranipur, one motorcycle overtook the motorcycle of the complainant. Three persons were riding on that motorcycle and they stopped the motorcycle of the complainant. One person, who was travelling on that motorcycle, remained on the motorcycle, whereas other two persons came to the complainant. They had a hand made pistols with them and thereafter, they snatched a sum of Rs. 10,000/- from the complainant. They also robbed a mobile phone of the complainant and thereafter, they went away with their motorcycle. Number plate of that motorcycle was not clear. The complainant Deepchand had lodged an FIR Ex.P/1 at outpost Bamhorikalan of Police Station, Tikamgarh in which he had mentioned about appearance of the accused persons. After sometime, the appellant Rohit was arrested. On interrogation, he gave the name of other accused persons and also one mobile was seized from the accused Sheelu Khangale. In the test identification parade, the complainant Deepchand identified the appellant. After due investigation, a charge sheet was filed before the J.M.F.C. Jatara, who committed the case to the Sessions Court, Tikamgarh and ultimately, it was transferred to the 4th Additional Sessions Judge, Tikamgarh.
2. The appellant abjured his guilt. He did not take any specific plea in the case and therefore, no defence evidence was adduced.
3. The learned 4th Additional Sessions Judge after considering the prosecution''s evidence convicted the appellant for the offence punishable u/s 392 of IPC and sentenced as mentioned above.
4. I have heard the learned counsel for the parties.
5. The learned counsel for the appellant has submitted that the appellant was a youth of 23 years of age at the time of the incident. No criminal past has been shown against the appellant, whereas he remained in the custody for 1 year''s, 11 months'' and 12 days''. Looking to his custody period, it was sufficient sentence for his crime and therefore, it is prayed that his jail sentence may be reduced to the period, which he has already undergone in the custody.
6. On the other hand, the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be appropriate. There is no basis by which any interference can be done at this stage.
7. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether, the appeal filed by the appellants can be accepted? and whether the sentence can be reduced?
8. Deepchand (PW-1) and Babulal (PW-6) have stated about the incident. The complainant Deepchand has also proved the FIR Ex.P/1 lodged by him, which was lodged within a reasonable time. Under such circumstances, it is proved that a robbery was committed with the complainant Deepchand and a sum of Rs. 10,000/-, one mobile phone and key of his motorcycle were also robbed from the complainant. The complainant Deepchand has identified the appellant in the test identification parade conducted by Shri Gulab Singh Baghel (PW-9), Tahsildar Palera. A memo of identification Ex.P/3 is duly proved by Shri Gulab Singh and Deepchand. In their cross-examinations, nothing could be brought by which it can be said that the identification was fictitious or it was not a genuine. The complainant Deepchand did not accept that the accused was shown to him at the police outpost and therefore, identification done by the complainant Deepchand appears to be trustworthy.
9. Some suggestions were given to the complainant that the incident took place in the night and therefore, the complainant could not see the face of actual culprits. It is true that there was no street lights at the spot but looking at the version given by the complainant in the FIR, it is apparent that the complainant could see the face of culprits and he had mentioned their appearance in the FIR. He has also mentioned in the FIR that in the tale light of the motorcycle, he saw that no number was written on the number plate of the motorcycle used by the culprits therefore, there was a possibility that he could see the culprits in the light of the motorcycle or light of various houses situated nearby the spot. Since the complainant mentioned the description of various culprits in the FIR itself, which indicates that there was sufficient light by which the complainant could identify the culprits. Hence, the identification done by the complainant before the Tahsildar appears to be acceptable and therefore, it is duly established that the appellant was the culprit, who had participated in the robbery. The trial Court has rightly convicted the appellant for the offence punishable u/s 392 of IPC.
10. So far as the sentence is concerned, the appellant was a youth of 23-24 years of age at the time of the incident. No criminal past has been shown against the appellant. Under such circumstances, considering the future of the appellant and his age, two years jail sentence appears to be an appropriate sentence for his offence. The appellant remained in the custody for almost two years and therefore, it is a fit case in which his sentence may be reduced to the period, which he has already undergone in the custody.
11. On the basis of aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction directed against the appellant for the offence punishable u/s 392 of IPC is hereby affirmed but his jail sentence is reduced to the period, which he has already undergone in the custody but there is no change in the fine amount.
12. The appellant is in jail and therefore, the Registry is directed to arrange for issuance of supper-session warrant accordingly so that the appellant may be released, if he has deposited the fine amount. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.
