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2004 DIGILAW 1347 (RAJ)

Mannu S/o Bhura v. State of Rajasthan

2004-09-16

KHEM CHAND SHARMA

body2004
JUDGMENT 1. - This Criminal Appeal under Section 374 Cr.RC. arises out of the judgment and order dated 1.11.2001 passed by the learned Additional Sessions Judge, Ramganj Mandi, Kota, thereby convicting accused appellant for offence under Sections 395, 397 and 398 IPC and sentencing him in the following terms:Under Section 395 IPC: Ten years R.l. With a fine of Rs. 500/-, in default thereof, to further undergo 3 months simple imprisonment. Under Section 397 IPC: Seven years R.l. Under Section 398 IPC: Seven years R.l. 2. Briefly stated the facts of the case are that on 8 3.98 at 11.30 AM, Hardayal Singh, Assistant Sub Inspector of Police Station Kotwali, Jhalawar recorded Parcha Bayan of injured Sandeep Kumar at SRG Hospital, Jhalawar, wherein the injured stated that he had gone to Suket for collecting sale price of goods sold on credit to the shop-keepers. At about 6.45 PM he collected Rs. 29,000/- from the shop of one Lalit Kumar Ramesh Chand and then he went to the shop of Sohal Lal in a Jeep. When he alighted from the jeep, one thin and dark coloured person of 5'6" height who was wearing a shawl, took out a revolver and pointed it towards him. Thereafter another person from behind struck on his head with some object, as a result of which he fell down. The person carrying revolver snatched away the bag containing about Rs. One lac from his hands. Thereafter, the complainant became unconscious. The shopkeepers then removed him to the hospital. It was further stated in the Parcha Bayan that when complainant was busy in collection from the shop of Lalit Kumar Ramesh Chand, at that point of time the person carrying revolver had come to that shop to purchase Bidi and he had seen him there. 3. On the above Parcha Bayan, Police registered a criminal case vide FIR No. 39/98 for offence under sections 395 and 397 IPC and proceeded with the investigation. In the course of investigation, the police inspected the site and prepared site plan. The appellant was arrested on 15 6.98 and after his arrest, identification parade was held. On the information of appellant, the police recovered a bag which contained currency notes. Having completed entire formalities as to the investigation, the police submitted a charge sheet against the appellant and co-accused Mun Singh and Jam Singh. 4. The appellant was arrested on 15 6.98 and after his arrest, identification parade was held. On the information of appellant, the police recovered a bag which contained currency notes. Having completed entire formalities as to the investigation, the police submitted a charge sheet against the appellant and co-accused Mun Singh and Jam Singh. 4. The learned trial court on the basis of evidence and material collected during investigation and placed before it, framed charges against the appellant for offence under Sections 395, 397 and 398 IPC and Sections 3/25 and 5/27 of the Arms Act. The appellant denied the charges and claimed trial. The prosecution, in order to prove its case, examined as many as 24 witnesses and got exhibited some documents. Thereafter, the appellant was examined under Section 313 Cr.PC. He did not examine any witness in defence. 5. At the. conclusion of trial, the learned trial court convicted and sentenced the appellant in the manner stated herein above. Hence this appeal against conviction. 6. In assailing the conviction, Mr. Bajwa learned counsel for the appellant has strenuously contended that the identification of the appellant in the test identification parade is highly doubtful as it was conducted after an inordinate delay of 12 days of the arrest of appellant. The prosecution has failed to offer any explanation for this inordinate delay and, therefore, the possibility of the appellant having been shown to the witnesses before the identification parade was held cannot be ruled out. On this strength, learned counsel argued that the trial court has committed serious error in relying upon the evidence with respect to identification of the appellant. 7. I have given my anxious consideration to the above argument. As per the prosecution, the incident occurred at 6.45 PM in a busy market, where number of shop-keepers were present. Ram Karan, driver of complainant was also present. PW 3 Lalit Kumar could not identify the appellant in the test identification parade held on 27.6.98 in the presence of PW18 Surendra Singh vide identification memo Ex.P8. PW 4 Gajendra Singh, PW 7 Ajij, PW 9 Ramesh, PW 10 Ram Kalyan, PW 11 Gopal, PW 12 Radhey Shyam Sharma and PW 13 Hemant Kumar could not identify the miscreants of dacoity including the appellant. PW 4 Gajendra Singh, PW 7 Ajij, PW 9 Ramesh, PW 10 Ram Kalyan, PW 11 Gopal, PW 12 Radhey Shyam Sharma and PW 13 Hemant Kumar could not identify the miscreants of dacoity including the appellant. However, PW 1 victim Sandeep and his driver PW 2 Ram Karan only have identified the present appellant in the test identification parade held by PW 18 Surendra Singh, Judicial Magistrate vide Ex.P2. PW5 Sohan Lal also identified the present appellant and put his signatures on Ex.P8, but in the court statement he categorically stated that the person whom he identified in jail was riot the appellant. It is evident that Sandeep and his ddver Ramkaran reached the place of incident after Sandeep collected money from the shop keepers who had purchased goods on credit from him. Prior to the identification of appellant in Jail, complainant Sandeep had seen the appellant in the police Station. Therefore, the identification of appellant in the test identification of appellant in the test identification parade by complainant Sandeep has little value. However, Ram Karan, driver also identified the appellant and he categorically denied to have seen the appellant in the police station prior to the identification parade was held in jail. He had ample opportunity to see the appellant at the place of incident itself. He identified the appellant in jail and thereafter identified him in court as well. Therefore, I see not reason to disbelieve his testimony, by which it stands proved that appellant also committed dacoity. Complainant Sandeep also sustained injury on his head during incident and this fact is further corroborated by the testimony of PW 20 Dr. C.S. Vyas. Thus, it must safely be concluded that appellant was one of the miscreants who committed dacoity and the delay of 12 days in conducting identification after the arrest of appellant in these circumstances cannot be said to be fatal to the prosecution case. 8. Learned counsel then argued that the recovery of bag having been made on the information of appellant is doubtful. 8. Learned counsel then argued that the recovery of bag having been made on the information of appellant is doubtful. He argued that as per the complainant, the bag containing amount which he had with him-and which the appellant snatched away was to catechu colour (Kathai colour), whereas the police has recovered a red colour bag and therefore, the recovery of bag is of no help to the prosecution and the accused appellant cannot be held guilty on the basis of such recovery. 9. I have considered the above argument. The appellant furnished information Ex.P34. In respect of recovery of a bag to PW 21 Kailash Chand SHO and pursuant to this information, a bag was recovered vide memo Ex.R12. It is true that in Parcha Bayan, Ex.P1, the injured has stated the bag to be of Kathai colour, but the bag recovered by the police happened to be of red colour. However, injured Sandeep has identified the bag to be belonging to him, in the presence of PW 14 Gul Mohd, who prepared memo Ex.P3 to this effect. It appears that no suggestion was put to this witnesses to the effect that recovered bag did not belong to him. In this view of the matter, the recovery of bag cannot be disbelieved and it must be held that the recovered bag belonged to injured Sandeep in which he kept currency notes which he collected from the shop keepers and the dacoit took away the said bag containing currency notes. 10. The prosecution in my considered view has been able to establish its case beyond doubt on both the counts, (i) the identification of the appellant and (ii) the recovery of bag from the possession of appellant. It must, therefore, be held that appellant was one of the members of dacoity who conjointly with other accused committed robbery. 11. The learned trial court vide its impugned judgment has convicted the appellant for offence under Section 395 read with Sections 397 and 398 IPC and passed sentence under all the above three sections. However, the sentences were ordered to run concurrently. At the very out set it may be mentioned that Section 397 IPC merely regulates the punishment already provided for dacoity. This section does not provide for any act of offence independently. However, the sentences were ordered to run concurrently. At the very out set it may be mentioned that Section 397 IPC merely regulates the punishment already provided for dacoity. This section does not provide for any act of offence independently. Therefore, the trial court, in my considered view, has committed an error in passing separate sentence for offence under Section 397 IPC. It may further be noted that to attract the provisions of Section 397 IPC it is necessary to establish that at the time of committing robbery or dacoity the offender had used any deadly weapon or had caused grievous injury to any person or had attempted to cause death or grievous hurt to any person. In the case at hand, there is no iota of evidence to prove that at the time of committing dacoity the appellant had used any deadly weapon or had caused grievous hurt or had attempted to cause death or grievous hurt to any person. Therefore, while attracting the provisions of Section 397 IPC, minimum sentence could not have been passed under Section 395 IPC. 12. Section 398 IPC punishes an offender for being merely armed with a deadly weapon at the time of attempting to commit robbery of dacoity. Therefore, the appellant could not have been convicted for offence under Section 398 IPC. The trial court has thus committed error in convicting the appellant for offence under Section 397 and 398 IPC. 13. For the reasons aforesaid, the conviction of appellant under Section 395 IPC simplicitor deserves to be maintained and his conviction read with sections 397 and 398 IPC cannot be sustained and deserves to be set-aside. 14. The appellant is in custody since 15.6.1998 and thus he has already under gone the imprisonment for 6 years and 3 months. In the facts and circumstances of the case, I feel that ends of justice would be met if the sentence awarded to the appellant is reduced to the period already under gone by him. 15. In the result, this appeal is partly allowed. While maintaining conviction of appellant Mannu under Section 395 IPC, he is acquitted of the charges under Sections 397 and 398 IPC. Considering the facts and circumstances of the case, he is sentenced to the period already undergone by him. 15. In the result, this appeal is partly allowed. While maintaining conviction of appellant Mannu under Section 395 IPC, he is acquitted of the charges under Sections 397 and 398 IPC. Considering the facts and circumstances of the case, he is sentenced to the period already undergone by him. The appellant is in jail and he shall be set at liberty if not required to be detained in any other case case.Appeal partly allowed. *******