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Madhya Pradesh High Court · body

2004 DIGILAW 474 (MP)

MAINUL SHEIKH v. STATE OF MADHYA PRA\desh

2004-05-13

S.L.JAIN

body2004
( 1 ) THIS judgment shall govern disposal of this appeal as well as Cr. A. Nos. 1295/2002, (Samser All v. State), 1937/2002, Samsul Haq v. State and 1320/2002, Mohimuddin v. State. ( 2 ) ALL the aforesaid appeals under Section 374 (2) of the Code of Criminal Procedure, 1973 are directed against the common judgment and order dated 8-8-2002, passed by IVth Additional Sessions Judge (Fast track Court), Satna in S. T. No. 48/98, whereby appellants have been convicted for offence punishable under Section 395 read with Section 397 IPC and sentenced to R. I. for 10 years each and fine of Rs. 1,000. 00 each, in default whereof, further R. I. for three months each. BW/ew/mp247/2004/gsd-RK/rtt/4150/2005 ( 3 ) PROSECUTION case as portrayed during the trial is that on 5-12-1997, Bus No. MP 07-F-0541 of M. P. State Road Corporation was going from Allahabad to Nagpur. Kaml a nath (PW-4) was the driver and Shivnath singh (PW-5) was the conductor. When the bus reached near village Nadan, appellant abul Sheikh and other miscreants reached near the driver and on the point of country made pistol, asked him to move slow. All the appellants were sitting in the bus. On the point of country made pistols and knives, the appellants looted different articles and cash from the passengers of the bus. They also looted Rs. 8,653, bills of diesel, receipt of toll tax, receipt of Nagar Palika and duly pass were snatched from the conductor. When Shiv Shankar Kol (PW-6), Jail warden tried to protest, he was assaulted by the appellants near village Bhenda. The accused persons asked the driver of the vehicle to stop the bus. The appellants got off the bus. The driver of the bus took the same to police station, Maihar where the conductor lodged FIR Ex. P-3. ( 4 ) ON receiving the information regarding the incident B. D. Pandey (PW-16), SH. Police station, Maihar reached the spot. During the search of the area, the appellants were arrested near a village and they were interrogated. At the instance of appellant samu Sheikh, a knife, two wrist watches and cash amount of Rs. 3,000/- was recovered as per seizure memo, Ex. P-4. At the instance of appellant Faizudin Sheikh, a wrist watch and a knife as per seizure memo Ex. P-6 was recovered. At the instance of appellant samu Sheikh, a knife, two wrist watches and cash amount of Rs. 3,000/- was recovered as per seizure memo, Ex. P-4. At the instance of appellant Faizudin Sheikh, a wrist watch and a knife as per seizure memo Ex. P-6 was recovered. At the instance of appellant samser one wrist watch and a knife was recovered as per seizure memo Ex. P-8. At the instance of appellant Uday Mandal. a wrist watch, a country made pistol and three cartridges were recovered as per seizure memo Ex. P-10. At the instance of appellant Abul Sheikh, three wrist watches and a cash amount of Rs. 8,000/- and some ornaments were recovered as per seizure memo Ex. P-12. At the instance of appellant Mainul Sheikh, a wrist watch and cash amount of Rs. 3,000/- and a knife was recovered as per seizure memo Ex. P-4. ( 5 ) AT the instance of appellant mohimuddin, a wrist watch and a cash amount of Rs. 3,000/- and a knife was recovered as per Ex. P-16. As per seizure memos Ex. P-17, P-18, P-19, P-20, P-21 and p-22 certain articles were recovered from the possession of appellant Abul Sheikh. ( 6 ) SOME of the passengers who were looted, sustained injuries. Shiv Shankar, surendra Chaturvedi and Jaisingh who suffered injuries during the incident were sent for medical examination and were examined by doctor concerned. ( 7 ) AN identification parade for identification of appellants was held by Naib tehsildar/executive Magistrate T. D. Singh, (PW-7 ). G. Singh (PW-11), Shiv Shankar (PW-6 ). Dr. Y. S. Tiwari (PW-2) and Upendra bhatt (PW-4) identified the appellants. Ex. P-36 is the memorandum of identification proceedings. G. Singh identified his brief case, bag, pant, pagadi, jurkin and handbag and Shiv Shankar identified wrist watch, cloth and bed sheet. Dr. Y. S. Tiwari identified his wrist watch and brief case. Upendra bhatt identified his mother's tops and his mother, Smt. Shama Devi Bhatt identified her tops as well in the identification parade held by Naib Tahsildar T. D. Singh as per ex. P-31. ( 8 ) AFTER investigation, a challan was filed against the appellants. ( 9 ) LEARNED Additional Sessions Judge, satna framed charges against the appellants for the offence punishable under Section 395 read with Section 397 IPC. P-31. ( 8 ) AFTER investigation, a challan was filed against the appellants. ( 9 ) LEARNED Additional Sessions Judge, satna framed charges against the appellants for the offence punishable under Section 395 read with Section 397 IPC. ( 10 ) THE appellants abjured the guilt and pleaded that they have been falsely implicated in the case. ( 11 ) AFTER concluding the trial, the learned additional Sessions Judge found the appellants guilty of the offence punishable under sections 395 and 397 and accordingly convicted and sentenced them as indicated above. ( 12 ) AGGRIEVED by the conviction and sentence aforesaid recorded by the learned a. D. J. , appellants have filed this appeal. ( 13 ) I have heard Shri K. S. Lodhi, learned counsel for the appellant Samser Ali in criminal Appeal No. 1295/2002. None appeared for other appellants. In view of the apex Court's decision in Bani Singh v. State of U. P. , AIR 1996 SC 2439 : 1996 Cri LJ 3491, the case was closed for judgment. ( 14 ) SHRI Tamrakar, learned counsel for the State was heard in all the cases. Since the appellants in Cr. A. Nos. 1932/2002, 1320/2002 and 1537/2002 were not represented, I have made a most thorough examination of the record. ( 15 ) PROSECUTION examined Dr. Y. S. Tiwari (PW-2), Kamta Nath (PW-4), Shivnath Singh baghel (PW-5), Shiv Shankar Kol (PW-6), upendra Bhatt (PW-8), Ram Charit Patel (PW-9), Ajay Kumar Gautam (PW-10), G. Singh (PW-11), Laxmi Narayan Patel (PW-12) and America Yadav (PW-14) as eye-witnesses. Gurmeet Singh (PW-11) has not supported the prosecution case and he has been declared hostile. ( 16 ) RAM Charit Patel (PW-9) has stated that on the date of incident, he was traveling in ill-fated bus. When the bus reached near village Nadan, some miscreants started looting the passengers of the bus. His wrist watch and cash amount of Rs. 600/-, attache and clothes were looted by appellants. Though this witness has stated that he cannot identify any of the miscreants, he has supported the prosecution story to the extent of incident of robbery in the bus. ( 17 ) KAMTA Nath (PW-6) who was driver of the bus has stated that appellant Abul sheikh on the point of country made pistol asked him to move slow and other miscreants looted the passengers. Thereafter, appellant Abul Sheikh asked him to stop the bus. ( 17 ) KAMTA Nath (PW-6) who was driver of the bus has stated that appellant Abul sheikh on the point of country made pistol asked him to move slow and other miscreants looted the passengers. Thereafter, appellant Abul Sheikh asked him to stop the bus. When he stopped the bus, robbers got off the bus. ( 18 ) SHIV Nath Singh, the conductor of the bus has stated that on the point of country made pistol and knife, he was threatened by appellant Samser Ali. Another miscreants appellant Uday Mandal looted cash amount of Rs. 8,753/-, diesel bills, toll tax receipts, Municipality receipts and duty card. Shiv Nath Singh also identified appellant Abul Sheikh and Mannual Sheikh. ( 19 ) SHIV Shankar Kol (PW-6), Warden of maihar Sub Jail has stated that on the date of incident, he was travelling in the bus concerned. Some miscreants about 8 in number looted the passengers of the bus. Appellant Faizuddin looted a cash amount of Rs. 400/- from him. Appellant Mainul Sheikh dealt a knife blow on his head. The witness has stated that all the appellants had committed robbery. ( 20 ) UPENDRA Bhatt (PW-8) has stated that he was travelling in the bus in question, certain robbers committed robbery in the bus. Appellant Uday Mandal was armed with a dagger, appellant Mainul Singh was armed with a Katta. His mother was also sitting by the side of appellant Uday Mandal and mansukh snatched the ornaments from his mother and cash amount of Rs. 300/- from him. ( 21 ) AJAY Kumar Gautam (PW-10) who was also one of the travellers in the bus has stated that all the appellants looted the passengers of the bus. Appellant Samsul snatched his wrist watch and goggle. Appellant Samser was standing near the door of the bus who asked other appellants to snatch the articles from all the passengers. The witness has also stated that appellant abul Sheikh was armed with a knife. ( 22 ) LAXMI Narayan Patel (PW-12) has also supported the prosecution story. He claims to have identified Samser All who was armed with a knife. He has also stated that appellant Samser Ali snatched his Titan watch Model No. B-73 and cash amount of rs. 400/- and also picked up his attache. ( 22 ) LAXMI Narayan Patel (PW-12) has also supported the prosecution story. He claims to have identified Samser All who was armed with a knife. He has also stated that appellant Samser Ali snatched his Titan watch Model No. B-73 and cash amount of rs. 400/- and also picked up his attache. ( 23 ) AMERICA Yadav was also a passenger in the relevant bus and has stated that one of the miscreants snatched his HMT watch. This witness could not identify the person who snatched his wrist watch. ( 24 ) DEVESH Kumar Pathak (PW-15) has stated that on receiving the information of the incident of dacoity by wireless, he along with the police force rushed for the spot. SH, maihar B. D. Pandey (PW-16) also reached there. During the search of the area, appellants were arrested. During the operation, he was assaulted by appellant Abul Sheikh. ( 25 ) FROM the evidence of the above witnesses, it is clear that incident of dacoity took place in the bus of M. P. State Transport Corporation plying between Allahabad and Nagpur. The appellants do not say that they had enmity with any of these witnesses. All of them are independent witnesses. Nothing has been elicited in the cross-examination of these witnesses to discredit their testimony. From the evidence of these witnesses, it is proved beyond shadow of doubt that the dacoity was committed in the bus. ( 26 ) KAMTA Prasad (PW-4), the driver of the bus has identified appellant Abul sheikh. Shivnath Singh Baghel and the conductor of the bus identified Abul Sheikh, samser Ali, Uday Mandal and Mainul sheikh: ( 27 ) SHIV Shankar K61 (PW-6) has identified all the appellants as miscreants. Upendra Bhatt (PW-8j has identified appellants Uday Mandal and Mainul Sheikh. Ajay kumar Gautam (PW-10) has identified appellant Mainul Sheikh, Samser, Abul Sheikh and Shamsul. Laxmi Narayan identified appellant Samser Ali. ( 28 ) AMERICA Yadav (PW-14) has identified all the appellants as miscreants. Thus, the appellants have been identified as persons who committed the dacoity. ( 29 ) IDENTIFICATION of the accused persons by the witnesses in the Court is further corroborated by their identification in the fest identification parade held by Naib Tehsildar t. D. Singh (PW-7 ). He has stated that on 11-12-1997, he conducted identification proceedings for the identification of appellants. ( 29 ) IDENTIFICATION of the accused persons by the witnesses in the Court is further corroborated by their identification in the fest identification parade held by Naib Tehsildar t. D. Singh (PW-7 ). He has stated that on 11-12-1997, he conducted identification proceedings for the identification of appellants. 25 persons were mingled in the parade along with the appellants. Witness Shiv shankar Kol identified all the appellants. Dr. Y. S. Tiwari identified appellants Abul and faizuddin Sheikh. Upendra Bhatt identified appellants Samsul Haq. Uday Mandal, faizuddin Sheikh, Samser Ali, Abul Sheikh, mainul Sheikh and Samu Sheikh. ( 30 ) SHIV Shankar Kol (PW-6) in his statement during the trial has stated that appellant Faizuddin snatched cash money from him and picked up his attache. Appellant mohimuddin dealt knife blow on his head. This witness identified all the appellants as miscreants. He has also stated that he identified the appellants in identification parade. ( 31 ) UPENDRA Bhatt (PW-8) has stated that he identified appellant Uday Mandal, Mainul sheikh and 2-3 more persons in the identification parade. ( 32 ) FROM the evidence of B. D. Pandey (PW-16) which is supported by the evidence of Mahendra Prasad Tiwari (PW-1) and vishwanath Patel (PW-13), it is proved that at the instance of Samsul a knife, stolen article and wrist watch were recovered. At the instance of appellant Samsul Sheikh a knife, stolen articles and two wrist watches were recovered. At the instance of appellant faizuddin one knife and a stolen Titan watch was recovered. At the instance of appellant samser a knife, stolen article and wrist watch was recovered. At the instance of appellant Uday Mandal, country made pistol, three cartridges, stolen article and wrist watch was recovered. At the instance of Abul sheikh, three wrist watches and certain ornaments were recovered. At the instance of mainulsheikh, one knife, stolen articles, a wrist watch along with the cash amount of rs. 3,000/- were recovered. At the instance of Mohimudin, a knife and stolen article a wrist watch and cash amount was recovered. ( 33 ) FROM the evidence of the witnesses, it is also proved that suitcases, clothes, tiffin, torch, purse, sweater, muffler and many other articles were recovered as per Ex. P-17 to Ex. P-22. 3,000/- were recovered. At the instance of Mohimudin, a knife and stolen article a wrist watch and cash amount was recovered. ( 33 ) FROM the evidence of the witnesses, it is also proved that suitcases, clothes, tiffin, torch, purse, sweater, muffler and many other articles were recovered as per Ex. P-17 to Ex. P-22. From the evidence of T. D. Singh it is proved that witness Shiv Shankar identified the stolen articles, wrist watch, attache, shirt, pant, lungi, and bed sheet. Witness Y. S. Tiwari identified HMT wrist watch. Upendra Bhatt identified lops. Shyama Devi identified tops. The witnesses have also stated that Ex. P-33 is the identification memo prepared at the time of identification of articles. ( 34 ) UPENDRA Bhatt (PW-8) has stated that he identified the tops of his mother in the identification parade. ( 35 ) DR. Y. S. Tiwari (PW-2) has also stated that he identified his stolen articles in the identification parade but the articles have not been identified by the witness during the trial. In the absence of identification during the trial, the identification in the identification parade is of no value because that cannot be treated as substantive evidence and that can be used only to corroborate the identification in the Court. Even if the fact of recovery of stolen articles from the possession of appellants is not proved from the evidence of eye-witness stated above, it is established beyond doubt that appellants were identified as miscreants in the Court during trial. Shiv Shankar Kol and america Yadav identified all the appellants as miscreants. There was sufficient light in the bus and passengers sitting in the bus had ample time to see and identify the miscreants. Therefore, even in the absence of corroboration by identification in identification parade, the evidence of prosecution witnesses who identified the appellants cannot be doubted. ( 36 ) ABSENCE of test identification parade by itself is not a technical ground on which the Court must reject the identification by a witness even if it is otherwise found acceptable to Court. ( 37 ) THE trial Court properly and objectfully considered the evidence to reach the conclusion that the appellants are guilty of the offence charged. The approach of the trial Court as to the evidence adduced is legal, proper and reasonable. ( 37 ) THE trial Court properly and objectfully considered the evidence to reach the conclusion that the appellants are guilty of the offence charged. The approach of the trial Court as to the evidence adduced is legal, proper and reasonable. Therefore, the finding of the trial Court that 5 or more persons jointly committed robbery is correct. It has rightly convicted the appellants of the offence punishable under Section 395 of the ipc. ( 38 ) SO far as sentence with aid of Section 397 is concerned, it is only the robbers or dacoits who are actually armed with deadly weapons who can be charged and convicted under this Section. The word "offender" appearing in the section refers only to the person who is proved to have been armed with any deadly weapon and not to any other who, in combination with such person may have committed robbery or dacoity. ( 39 ) KAMTA Nath (PW-4) has stated that appellant Abul Sheikh was armed with pistol. Shiv Nath Singh Baghel (PW-5) has stated that appellant Samser Ali was armed with pistol and knife. Uday Mandal was armed with knife. Shiv Shankar Kol has stated that appellant Mohimuddin was armed with a knife. Dr. R. N. Sharma stated that appellant Mohimuddin was armed with a knife. Upendra Bhatt has stated that appellant Uday Mandal was armed with knife and Mainul Sheikh was armed with a Katta. ( 40 ) AJAY Kumar Gautam (PW-10) has stated that appellant Abul Sheikh was armed with a knife. Thus, only appellants abul Sheikh, Uday Mandal, Samser Ali, mohimuddin and Mainul Sheikh were armed with deadly weapons. Regarding other appellants, it has not been proved that they were armed with deadly weapons. Therefore, only these 5 appellants can be sentenced with aid of Section 397 IPC. The three appellants namely, Samsul Haq, Faizuddin sheikh and Samu Sheikh cannot be sentenced with the aid of Section 397 IPC. ( 41 ) ON the basis of above, I do not ftnd that the learned trial Court committed any error in convicting the appellants Abul sheikh, Mainul Sheikh, Samser Ali, mohimuddin and Uday Mandal of the offences punishable under Section 395 read with Section 397 of the IPC but the other three appellants could not have been convicted with the aid of Section 397. ( 42 ) IN the result, conviction of appellants Abul Sheikh, Mainul Sheikh, Samser ali, Mohimuddin and Uday Mandal under section 395 read with Section 397 is maintained. Conviction of other three appellants samsul Haq, Faizuddin Sheikh and Samu sheikh under Section 395 of the IPC is also maintained but their conviction with the aid of Section 397 is set aside. ( 43 ) SO far as the sentence is concerned, looking at the gravity of the offence, the sentence awarded by the trial court to appellants Abul Sheikh, Mainul Sheikh, Samser ali, Mohimuddin and Uday Mandal is just and proper and no interference is called for. Since other three appellants, namely, samsul Haq, Faizuddin Sheikh and Samu sheikh cannot be sentenced with the aid of section 397, R. I. for 7 years for the offence punishable under Section 395 IPC will meet the ends of justice. ( 44 ) FOR the foregoing reasons, the appeals filed by Samser Ali, (Cr. A. No. 1295/ 2002), Mohimuddin (Cr. A. No. 1320/2002)and Uday Mandal (Cr. A. No. 1937/2002) are devoid of merit and the same stand dismissed. The appeals filed by appellants mainul Sheikh and Abul Sheikh, both governed by Cr. A. No. 1537/2002 also stand dismissed. ( 45 ) THE appeals of appellants Samu sheikh and Faijuddin Sheikh, both governed by (Cr. A. No. 1537/2002), are hereby partly allowed. The appeal filed by appellant samsul Haq (Cr. A. No. 1937/2002) is also partly allowed. The conviction and sentence imposed on appellants Faizuddin Sheikh, samu Sheikh and Samsul Haq is modified as stated above. For the offence punishable under Section 395 IPC, they are sentenced to R. I. for 7 years instead of R. I. for 10 years as awarded by the trial Court. ( 46 ) APPELLANTS Samser Ali and mohimmudin are on bail, therefore they shall surrender before the trial Court on june 21, 2004 for undergoing remaining part of the sentence. Appeals allowed. .