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2002 DIGILAW 1956 (RAJ)

Lajua @ Lajja Ram v. State of Rajasthan

2002-12-16

KHEM CHAND SHARMA

body2002
JUDGMENT 1. - This appeal under Section 374 of the Criminal Procedure Code is directed against the judgment of conviction and order of sentence dated 26.11.2001 passed by the learned Special Judge, Dacoity Affected Area Court, Dholpur convicting the accused appellant for offence under Sections 395 and 398 IPC and sentencing him to undergo seven years' rigorous imprisonment on each count with fine. 2. Briefly stated the facts giving rise to the instant appeal are that on 31.10.1993 at about 3.00 A.M. Radhey Shyam Sharma PW. 10 submitted a written report Ex.R3 at police station Rajakheda, District Dholpur regarding the incident alleged to have taken place in the same night at 12.00/1.00. In the written report, the complainant has mentioned that he is a resident of Shekhpur and on the fateful day, in the night at about 12.00/1.00, 8-9 miscreants came in the police dress and got opened the door from Holi Ram. Soon the door was opened, the miscreants entered into the house and committed dacoity in four houses one by one. The four houses where dacoity was committed belonged to Holi Ram, Ramji Lai, Ram Khiladi and Jagannath. It was mentioned that the inhabitants of the houses suffered injuries by lathi. As per the report the miscreants were armed with lathi, axe and guns. They could identify the leader of the gang and one Lajua. The complainant mentioned that he can identify the others also, if confronted. Lastly, it was mentioned that he will submit the list of the looted articles at the site. The miscreants ran away firing guns in the air. On the basis of this written report, the police registered a case for offence under Section 395-397 IPC wide FIR No. 218/93 (Ex.R4) and proceeded with the investigation. 3. During investigation, the police prepared site plan Ex.R5. Seized one Ballam allegedly left by the miscreants at the place of occurrence vide memo Ex.R6. The accused appellant was arrested on 18.2.1994 vide Ex.R1. On the information (Ex.P9) furnished by the accused, one Kondhani of Silver of 235.00 grams, one golden chain of 11 grams 550 mg., one golden ring of 3 gram 700 mg. and one golden ring of 4 gram 550 mg were recovered from the Jewellers of Murena Sarrafa Bazar, which were allegedly pledged by the accused appellant for consideration of Rs. 4000/-, vide recovery memo Ex.R2. and one golden ring of 4 gram 550 mg were recovered from the Jewellers of Murena Sarrafa Bazar, which were allegedly pledged by the accused appellant for consideration of Rs. 4000/-, vide recovery memo Ex.R2. Injured Shir Dei and Adal Singh were examined for their injuries and the injury reports are Ex.R7 and Ex.P8 respectively. Identification of the recovered articles was held and Guddi (RW.2) and Machhla (RW.5) identified the same as belonging to them. 4. After usual investigation the police filed challan against, the accused appellant and investigation was kept pending against the other accused persons under Section 173(8) Cr.RC. 5. A perusal of the order dated 28.4.1994, it appears that the learned trial court ordered to frame charges against the appellant for offence under Sections 395 and 307 IPC, but the charge framed under Section 307 IPC was altered to that of Section 398 IPC without passing any order altering the charge as is evident from the charge itself. 6. During trial, in order to prove its case, the prosecution examined as many as 17 witnesses and also exhibited some documents. Thereafter the accused was examined under Section 313 Cr.RC. 7. The learned trial court after recording evidence and hearing both the parties recorded finding that the accused is guilty of having committed offence under Sections 395, 397 and 398 IPC but has convicted the accused appellant for offence under Sections 398 and 395 IPC and sentenced him as mentioned above vide impugned judgment and order dated 26.11.2001. 8. In assailing the conviction of the accused appellant under Section 398 IPC. Mr. Vivek Goyal, learned counsel has contended with vehemence that in the facts and circumstances of the case and in view of the evidence available on record, no offence under Section 398 IPC is made out against the appellant. He argued that the finding of the trial court as to the guilt of the accused appellant does not stand to the ingredients of section 398 IPC and, therefore, the conviction of appellant under Section 398 IPC cannot be sustained and is liable to be set aside. 9. As regards conviction of the appellant under Section 395 IPC. Mr. Goyal, counsel for the appellant has not seriously challenged the finding arrived at by the learned trial Judge and has confined his argument only to the extent of awarding sentence under Section 395 IPC. 9. As regards conviction of the appellant under Section 395 IPC. Mr. Goyal, counsel for the appellant has not seriously challenged the finding arrived at by the learned trial Judge and has confined his argument only to the extent of awarding sentence under Section 395 IPC. Learned counsel submitted that the appellant has already served out major part of the sentence awarded to him. According to him, the accused appellant was a labourer and was not a known dacoit. In this back ground, it is submitted that some leniency may be extended to the appellant while awarding sentence and he should be sentenced to the period already undergone by him. 10. Per contra, the learned Public prosecutor, has supported the finding arrived at by the trial court and has contended that the impugned judgment of the learned trial court is based on proper appreciation of evidence and material available on record and it does not call for any interference. 11. 1 have given my anxious consideration to the rival submissions and gone through the judgment impugned in this appeal, the evidence and material on record. 12. At the very out set, it may be stated that the learned trial Judge has recorded finding of guilt under section 397 IPC, for which there was no charge against the appellant. That being so, the learned trial Judge could not have convicted the appellant for offence under Section 397 IPC. 13. As regards conviction of the appellant under Section 398 IPC, I find much substance in the argument advanced by the counsel for the appellant. Section 398 deals with attempt to commit robbery or dacoity when armed with deadly weapon. This section provides that if, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than 7 years. It is thus clear that this section comes into play wen the offender is found duly armed with any deadly weapon at the time of attempt to commit robbery or dacoity. Section 398 IPC does not by itself create a substantive offence, but it only regulates the measure of punishment when certain facts are found to exist in the commission of the substantive offence of robbery. Section 398 IPC does not by itself create a substantive offence, but it only regulates the measure of punishment when certain facts are found to exist in the commission of the substantive offence of robbery. Section 398 IPC has no application to a case in which the robbery or dacoity has actually been committed. It is applicable only to a case of an attempt to commit robbery. 14. In the case at hand, having scrutinised the evidence on record, it is fully established that the appellant was apprehended after commission of robbery/dacoity and since the robbery has actually been committed, Section 398 IPC has no application. Secondly, there is no order to frame charge under Section 398 IPC. Therefore, the conviction of the appellant under Section 398 IPC cannot at all be sustained and deserves to be set aside. 15. As regards conviction of the appellant under Section 395 IPC, the prosecution has relied upon the evidence of PW.1 Harpyari, PW.2 Guddi, PW.3 Narmada, PW.4 Shivdei, PW.5 Machhla, PW.6 Bhagwandei, PW.7 Holiram, RW.10 Radhey Shyam and RW.11 Aidal Singh. The trial court having considered the evidence of these witnesses came to the conclusion that the accused appellant alongwith 8-10 other persons entered into the houses of four persons, threatened the members of their families and looted ornaments, clothes and cash amount. 16. I have scanned the relevant evidence on record. The 9 prosecution witnesses named above have categorically stated that the accused appellant alongwith others committed the offence. It appears that the recoveries of the looted property having been made on the information and at the instance of the accused appellant have been proved by the witnesses. On the information of accused, the investigating officer recovered one `silver Karodhani', two golden rings and one golden chain from one Om Prakash Saraff of Murena in the presence of PW 8 Vijay Singh and PW9 Ram Chandra and prepared seizure memo Ex.P2. Both the witnesses have admitted their signatures on the memo from A to B and C to D, respectively. Likewise, PW 2 Guddi and PW 5 Machhla have identified the above articles as belonging to them. In this view of the matter, I am firmly of the opinion that the finding of guilt under Section 395 IPC against the appellant as recorded by the learned trial Judge deserves to be maintained as being based on proper appreciation of evidence. 17. In this view of the matter, I am firmly of the opinion that the finding of guilt under Section 395 IPC against the appellant as recorded by the learned trial Judge deserves to be maintained as being based on proper appreciation of evidence. 17. The only question which now remains to be considered is as to what sentence should be awarded to the accused. It is stated at the bar that the accused appellant was engaged as Labourer and he was neither a habitual offender nor was a known dacoit. It appears from the record that appellant has remained in custody from 18.2.1994 to 21.3.1996 (i.e. for 2 years, 1 month and 4vdays), then from 13.4.1998 to 15.4.2000 (i.e. 2 years and 3 days) and thereafter he has been in jail since the day of impugned judgment i.e. from 26.11.2001 (i.e. more than one year). As such the appellant has already served out major part of the sentence i.e. more than 5 years as against the maximum term of sentence of 7 years. Keeping in view the facts and circumstances of the case, the fact that he was not a known dacoite, including the fact the he has already served out major part of the sentence. I find that the ends of justice would be met if he is sentenced to the period already undergone by him. 18. As a result of the discussions aforesaid, the appeal of the appellant is partly allowed. His conviction under Section 398 IPC and the sentence awarded thereunder are set aside and while maintaining the conviction under Section 395 IPC, the accused appellant is sentenced to the period already undergone by him. The accused is in jail and be set at liberty forthwith if not required in any other case.Appeal partly allowed. *******