Mere factum of recovery of some money from the house of the accused by itself would not be sufficient for conviction

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
[UDAY UMESH LALIT, J.] [AJAY RASTOGI, J.] [ANIRUDDHA BOSE, J.]
July 09, 2021
CRIMINAL APPEAL NO. 579 OF 2021
(Arising out of SLP (Crl.) No. 2009 of 2021)

RAJJAN KHAN

vs.

THE STATE OF MADHYA PRADESH

For Appellant(s) Mr. Shishir Kumar Saxena, Adv. Mr. R. N. Pareek, Adv. Mr. Chirag Sharma, Adv. Ms. Payal Swarup, Adv. Ms. Pooja Sharma, Adv. Mr. Praveen Swarup, AOR

For Respondent(s) Mr. Gopal Jha, AOR Mr. Nishant Verma, Adv. Mr. Shreyash Bhardwaj, Adv. Mr. Akhilesh Kr. Pandey, Adv.

O R D E R

Leave granted.

This appeal challenges the judgment and order dated 09.08.2019 passed by the High Court of Madhya Pradesh at Gwalior in Criminal Appeal No. 983 of 2015.

Seven persons were tried in Special Sessions Trial No. (Robbery)-45/15 in the Court of Additional Session Judge and Special Judge (Robbery), Bhind. By its judgment and order dated 05.10.2015 the trial court found original accused Nos. 1, 4, 6 7 viz., Awadh Kishore, Rajjan Khan, Jeetu alias Jitendra and Rakesh Khatik guilty of the offences punishable under Sections 397 and 392 of the Indian Penal Code (‘the IPC’, for short) and under the provisions of The Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 (hereinafter referred to as ‘M.P.D.V.P.K. Act 1981’). They were sentenced to suffer Rigorous Imprisonment of 10 years for the offences under the IPC and for two years under the M.P.D.V.P.K. Act 1981. The appeals preferred by them were dismissed by the High Court which decision is presently under challenge at the instance of appellant Rajjan Khan.

It is submitted on behalf of the appellant that unlike the other three convicted accused viz., Awadh Kishore, Rakesh Khatik and Jeetu alias Jitendra, no test identification parade was undertaken with respect to the appellant.

It must be stated here that the names of the accused or marks of identification were not spelt out in the First Information Report. The informant, who was examined as PW-1 admitted in his cross examination as under:

“17. On the day of the incident I was not knowing the name of Rajjan. It is true that the day on which the sub inspector had taken my statement, on that day he had not told the name of Rajjan. When last time I had come to give statement, on that day I knew the name of the accused, since the accused had covered his face therefore I had not taken his name. The accused had covered his face on that day therefore I could not recognize him, my wish was to give statement after identifying him in front of him.

Since on that day the time of the court got finished therefore I was not able to say my matter.”

We have heard Mr. Shishir Kumar Saxena, learned Advocate for the appellant, and Mr. Gopal Jha, learned Advocate for the State.

It is accepted fairly by Mr. Jha that apart from the evidence of the informant, who was examined as PW-1, there is no other evidence regarding identification of the appellant. The admission given by the concerned witness in the cross examination raises considerable doubts about the capacity of the witness to sufficiently identify the appellant.

Another feature highlighted by Mr. Gopal Jha, learned Advocate for the State, was to the effect that pursuant to the statement of the appellant recorded under Section 27 of the Indian Evidence Act, 1872 an amount of Rs.5,000/- was recovered. Since the money was recovered pursuant to such statement, the statement to that effect would certainly be relevant.

However, considering the entirety of the material on record, mere factum of recovery of some money from the house of the appellant by itself, in our view, would not be sufficient to sustain the order of conviction and sentence recorded against the appellant. We, therefore, allow this appeal giving benefit of doubt to the appellant and acquit him of all the charges leveled against him.

The appellant be set at liberty forthwith unless his custody is required in connection with any other crime.

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