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2002 DIGILAW 1063 (RAJ)

Pappu v. State of Rajasthan

2002-05-23

KHEM CHAND SHARMA

body2002
Honble SHARMA, J.–Appellants Pappu and Chopya have filed this criminal appeal under Sec. 374 Cr.P.C. challenging the judgment and order dated 22.10.2001 passed by the learned Additional Sessions Judge (Fast Track), Tonk whereby he has convicted and sentenced the appellants for offence under Section 395 IPC and sentenced each of them to undergo rigorous imprisonment for 10 years with a fine of Rs. 2000/-, in default thereof, each to further undergo 3 months rigorous imprisonment. (2). Briefly stated the facts giving rise to this appeal are that on 30.1.2001 at 6.30 AM, PW.1 Girraj Kishore lodged a written report, Ex.P.1 at Police Station, Devli alleging therein that on 29.1.2001, under the orders of District Collector, Sawaimadhopur, he along with some officials were carrying various articles in Truck No. RCB 2004 for relief to the victims of earthquake in Gujrat. While on way near Devli, the tyre of the truck got punctured at about 4.30 AM, one person came there and demanded `biri from driver of the truck, but he refused to give biri. In the mean-time, 12-13 persons encircled them and attacked on them and started beating them. It was further alleged that the miscreants decamped with the articles looted from the complainant, Meghraj Katol, Hanuman Prasad Jangid and Sukhji, driver. On the above written report, police registered a case vide FIR, Ex.P.2 for offence under Sections 395 and 323 IPC and proceeded with the investigation. (3). In the course of investigation, police prepared site plan, Ex.P3, got the injured medically examined and collected injury reports Ex.P.4, P.14 and P.15 arrested the accused appellants Chopya and Pappu vide arrest memos Ex.P.8 and P.9, respectively, got conducted identification of the accused and effected recoveries of two wrist watches, purse and Rs. 3000/- on the information of the accused appellants Ex.P16 and P.17 and prepared recovery memos Ex.P.12 and P.13. (4). On completion of usual investigation, police submitted a charge sheet against the accused appellants in the court of Chief Judicial Magistrate, Tonk. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions. (5). The learned trial court after hearing the arguments of both the counsel and considering the evidence and material available before it, framed charges against the appellants under Sections 395 and 323 IPC. The appellants denied the charges and claimed trial. (5). The learned trial court after hearing the arguments of both the counsel and considering the evidence and material available before it, framed charges against the appellants under Sections 395 and 323 IPC. The appellants denied the charges and claimed trial. In the course of trial, the prosecution, in support of its case, examined as many as 14 witnesses and exhibited some documents. Thereafter, the accused were examined under Section 313 Cr.P.C. The accused did not examine any witness in their defence. (6). At the conclusion of trial, the learned trial court found the prosecution case, as alleged, proved and accordingly convicted and sentenced the appellants in the manner stated hereinabove. Hence the present appeal. (7). I have heard learned counsel for the parties and gone through the impugned judgment and the evidence and material on record. (8). In order to judge the correctness of the findings of guilt arrived at by the learned trial court, I have carefully gone through the prosecution evidence and the material available on record. (9). In the case of dacoity or robbery, the prosecution is obliged to prove beyond doubt the identification of the person accused of committing such offence. Secondly, it is required to establish the recoveries of the looted property by reliable and cogent evidence. The trial court has arrived at a conclusion that the accused appellants were correctly identified by the prosecution witnesses. including the eye witnesses of the incident as the persons involved in commission of dacoity. It has also concluded that the recovery of looted property stands established. (10). At the very out set, it may be mentioned that witnesses Sukhji, Hanuman Prasad and Jahid who were victims and had witnessed the incident have not been examined in evidence and therefore, I shall consider the question of identification of the appellants in the light of evidence available on record. (11). On scrutinizing the prosecution evidence, it appears that PW.1 complainant Girraj Kishore could not identify the accused appellants Pappu and Shopya as there was darkness at the time of incident. It further appears that he did not refer the identification memo Ex.P.10, in his statement recorded during trial. The identification was got conducted in the presence of PW.8 Ram Chandra Meena, Additional Chief Judicial Magistrate, Tonk and he prepared the identification memo. It further appears that he did not refer the identification memo Ex.P.10, in his statement recorded during trial. The identification was got conducted in the presence of PW.8 Ram Chandra Meena, Additional Chief Judicial Magistrate, Tonk and he prepared the identification memo. A perusal of identification memo shows that the complainant identified accused Chopya but he could not identify appellant Pappu. (12). PW.7 Meghraj also could not identify any of the accused in the court. It also appears from the record that no identification was got conducted to get the accused identified by this witness during investigation of the case. (13). PW. 14 Babu Lal, constable was on duty on the truck carrying articles for victims of Gujraj earthquake has deposed that on hearing some noise, he asked as to two was there, but he did not get any response. He got down from the truck, but did not find any body. According to this witness, he came to know about the alleged dacoity only when the persons accompanying him came there, raising an alarm that they have been looted. It is thus evident that PW.14 Babu Lal was not a witness to the incident. (14). From the evidence discussed above, it becomes crystal clear that none of the prosecution witnesses have been able to identify any of the appellants as the miscreants involved in the commission of alleged dacoity. Further, the prosecution did not consider it proper to examine in evidence three injured eye witnesses of the incident, namely, Hanuman Prasad, Jahid and Sukhji. Admittedly it was a dark night and there is no evidence to suggest about availability of road light or any source of light whatsoever so as to get the identity of the culprits. in these circumstances, it can be held that the identification of the appellants as the culprits involved in the commission of alleged dacoity stands unestablished. (15). Now I shall deal with the second aspect of the case, namely, the recovery of the looted property. The articles stolen away in the commission of dacoity and recovered from the possession and at the instance of the accused must be established, beyond all reasonable doubt, in a proper manner and by correct identification that the same were stolen away. In a case involving offence under Secs. The articles stolen away in the commission of dacoity and recovered from the possession and at the instance of the accused must be established, beyond all reasonable doubt, in a proper manner and by correct identification that the same were stolen away. In a case involving offence under Secs. 302 and 380 IPC, the Division Bench of this Court in Ramai alias Ramaiya vs. State of Rajasthan (1), while considering the question of identification of Langot, Towel and Shoes found at the temple and recovered therefrom by the investigating agency as belonging to the accused, noticed that these articles were never put for test identification by the prosecution witnesses, before they were made to identify them in the curt. In these circumstances, the Court held that in the absence of prior identification, it is difficult to accept the testimony of the witnesses to prove the recovered articles as belonging to the accused. (16). In Birbal & others vs. State of Rajasthan (2), the accused were charged inter-alia, for offence under Sections 395, 397 and 302 IPC. The Division Bench considering the question of recovery observed as under : ``Bhanwarlal PW.1 at whose house the dacoity took place was not present at the time of dacoity, but he returned to village subsequently. He has been examined as PW.11. He submitted a list of articles, which were stolen away. But that list has not been proved. No article as was stated by Bhanwarlal PW.11 has been recovered. Of course, a transistor has been recovered. But, no identification parade was conducted regarding the said transistor. In Court, Ram Gopal PW.4 stated that the transistor belonged to him and that the same was stolen away by the dacoits. It was very easy to say like this in the court. Had the said transistor belonged to Ramgopal and had it been recovered from the possession of the dacoits it was the duty of the police to have got an identification parade conducted for the transistor, in a proper way and they should have proved that the same belonged to Ram Gopal PW.4, which was stolen away by the accused persons and that could be a good evidence against the accused persons. But, this has not been done. But, this has not been done. Therefore, the recovered transistor, does not connect the accused persons with the occurrence and on the basis of the alleged recovery, they cannot be found guilty and convicted for dacoity and murder. (17). In the present case, a `purse containing Rs. 3000/- and a wrist watch `HMT were recovered from the possession and at the instance of accused appellant Pappu and recovery memo Ex.P.12 was prepared. Similarly, one wrist watch `Alwin was recovered from the possession of accused Chopya. The recovery was effected in the presence of one Vishnu Dutta Sharma and Farhatulla Khan. It appears from the record that these recovered articles were not got identified either during trial or during investigation of the case. Even PW.7 Meghraj could not identify the watch alleged to be taken away from him, either during investigation or during trial of the case. It may be stated that no independent witness was called while effecting recovery and the recovery has been effected in the presence of police personnels. PW.13 Radhey Shyam Sharma, who effected the recovery and prepared recovery memos has admitted in his cross examination that he did not summon any person from the village to witness the recovery. The explanation offered by the investigating officer for not procuring independent witness that none of the villagers come forward to become a witness against the accused, does not appear to be plausible. It does not appear from the record that he made any efforts to procure independent witnesses and the witnesses declined to come forward. As such, the evidence of investigating officer is worthy of rejection and no reliance can be placed on his testimony. In these circumstances, the accused appellants cannot be held guilty on the basis of the alleged recovery also. (18). Judged thus, the prosecution has not been able to bring home guilt against the appellants beyond reasonable doubt, inasmuch as it has failed on both the counts, namely, (i) identification of the appellants as the culprits being involved in the commission of alleged dacoity having not been established and (ii) the identification of the recovered articles having not been established as the same which were taken away by the culprits in the course of commission of dacoity. The finding of guilt arrived at by the learned trial court is held to be erroneous and contrary to the evidence on record. (19). The finding of guilt arrived at by the learned trial court is held to be erroneous and contrary to the evidence on record. (19). For the reasons aforesaid this appeal must succeed and it is hereby allowed. The conviction of the appellants under Section 395 IPC and the sentences awarded to them thereunder are set aside. The appellants are in jail and they be set at liberty if not required in any other case.