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2005 DIGILAW 2635 (RAJ)

Babu Bhai v. State of Rajasthan

2005-09-30

S.P.PATHAK

body2005
Judgment S.P. Pathak, J.-This appeal has been directed against the Judgment of conviction and order of sentence dated 18.06.2004 passed by learned Addl. Sessions Judge (Fast Track) No.2, Banswara in Sessions Case No.83/2003 State vs. Babu Bhai, whereby the accused-appellant has been convicted and sentenced as under:- Under Section 450 IPC Five years’ rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months’ simple imprisonment. Under Secection 395 IPC Five years’ rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months’ simple imprisonment. Under Section 397 IPC Seven years’ rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months’ simple imprisonment. The sentences were ordered to run concurrently. 2. Briefly stated, the prosecution case is that PW.6 Kalu lodged an oral information on 23.05.2003 Exhibit-P/4 in the Police Station, Anandpuri, District Banswara with the averments that on the day of incident he alongwith his family members had gone to attend 12th day ceremony of his mother in village Cheekly-Teja, Tehsil Bagidora, District Banswara and from there returned back in the evening to their house situate in village Sarda and after taking meals, the family members and the relatives, who were there, slept in the house. He was sleeping in the Courtyard a little away from them. In the mid-night, at about 2 O’Clock, four unknown persons entered in the house and committed dacoity. It was also stated that gold and silver ornaments were snatched by the accused persons and they also took a sum of Rs.34,000/-. It was also stated that the accused gave beating to them. 3. On the basis of above oral report, regular FIR Exhibit-P/5 was chalked and after investigation, challan was submitted and ultimately the trial was conducted by the learned Addl. Sessions Judge (Fast Track) No.2, Banswara. The accused faced trial under Sections 450, 395 and 397 of the IPC. 4. The prosecution examined in all 9 witnesses and tendered 11 documents in documentary evidence. In the statement recorded under Section 313 CrPC, accused denied the prosecution case and claimed to be innocent. No evidence in defence was produced. 5. After hearing both sides, the learned Addl. Sessions Judge convicted and sentenced the accused appellant as stated hereinabove. 6. 4. The prosecution examined in all 9 witnesses and tendered 11 documents in documentary evidence. In the statement recorded under Section 313 CrPC, accused denied the prosecution case and claimed to be innocent. No evidence in defence was produced. 5. After hearing both sides, the learned Addl. Sessions Judge convicted and sentenced the accused appellant as stated hereinabove. 6. Aggrieved by the aforesaid Judgment of conviction and order of sentence, the present appeal has been filed. 7. Heard learned Counsel for the appellant as well as the learned Public Prosecutor and carefully perused the material available on record. 8. It has been contended by learned counsel for appellant that in the instant case, conviction has been recorded for the reason that recovery of one silver Kandora (ornament of waist) was made on the basis of disclosure statement of the accused. It has also been contended that the incident is alleged to have taken place in the mid-night and it was pitch dark, therefore it was necessary to have conducted identification test of the accused but that has not been done in the present case. The learned counsel submits that there is no evidence whatsoever on record to prove that the accused-appellant was responsible for the alleged incident. 9. The learned Public Prosecutor contends that on account of recovery and the identification having been made of the accused in the Court, the trial Court has correctly convicted and sentenced the accused appellant. 10. I have considered the submissions made before me. 11. It is to be seen that in relation to recovery, the witnesses are PW.1 Doongar, PW.2 Kantilal, PW.3 Rampratap, PW.6 Kalu and PW.8 Smt. Shanti. PW.1 Doongar has stated in the cross-examination that no silver Kandora was recovered in his presence. This witness has not been declared hostile. PW.2 Kantilal has stated in the cross-examination that police persons brought one silver Kandora from the house of accused but he did not go inside the house and the police persons got his signatures on recovery memo Exhibit-P/1. PW.6 is Kalu, who in his cross-examination, regarding recovery of silver Kandora, states that he identified silver Kandora before Tehsildar and the Tehsildar has shown him only one silver Kandora. He has also stated in the cross-examination that the silver Kandora which was shown to him was generally available in the market. PW.6 is Kalu, who in his cross-examination, regarding recovery of silver Kandora, states that he identified silver Kandora before Tehsildar and the Tehsildar has shown him only one silver Kandora. He has also stated in the cross-examination that the silver Kandora which was shown to him was generally available in the market. PW.8 Smt. Shanti has stated in the cross-examination that police persons showed her one silver Kandora and told her that it was her Kandora. She has also stated that at the time of identification of silver Kandora, there was only one silver Kandora and that was shown to her. PW.3 Rampratap is Tehsildar. He has stated that on police requisition, on 02.04.2004, he after mixing 3 other silver Kandoras with one silver Kandora got conducted the test identification and the witnesses PW.6 Kalu and PW.8 Smt. Shanti have correctly identified the silver Kandora. The witness has proved the test identification memo Exhibit-P/2. In the cross-examination, he has admitted that the weight and design of the other silver Kandora, which was mixed with the recovered silver Kandora, has not been mentioned in Exhibit-P/2. 12. In view of above statements of the witnesses, it appears that the two witnesses PW.6 Kalu and PW.8 Smt. Shanti, who have identified the silver Kandora, have stated that no other silver Kandora was mixed at the time of identification though PW.3 Rampratap has stated that silver Kandoras were mixed three in number with the recovered silver Kandora. In the test identification memo, no descriptions of the mixed silver Kandoras have been mentioned. 13. In view of above statements, the recovery effected on the basis of disclosure statement of accused is not trustworthy and on the basis of such recovery conviction cannot be based. 14. It is further to be seen that accused has been charged with offence under Sections 395, 397 and 450 of the IPC. The prosecution was to adduce evidence to the effect that the accused were armed with deadly weapons. There appears no evidence available on the record. Exhibit-P/4, the oral report lodged in the case, clearly states that the incident had taken place in the mid-might at 2 O’ clock and it was pitch-dark. 15. PW.7 is Anil Meena, the investigating officer of the case. There appears no evidence available on the record. Exhibit-P/4, the oral report lodged in the case, clearly states that the incident had taken place in the mid-might at 2 O’ clock and it was pitch-dark. 15. PW.7 is Anil Meena, the investigating officer of the case. He has stated that accused was arrested through Exhibit-P/9 arrest memo and on the basis of his disclosure statement, recovery of silver Kandora was made and at the instance of accused the site-plan was made. In the cross-examination, he has stated that he did not make any enquiry about the ownership of the house of the accused and in the last line of the cross-examination he has stated that no identification test was conducted in relation to accused Babubhai. PW.6 Kalu and PW.8 Smt. Shanti, both have stated that while they were sleeping in their house, many persons came in their house and started beating them and committed robbery. They have also stated that they had taken away with them gold and silver ornaments. Kalu says that they were 15 to 20 in number but does not say that he had identified the accused persons. Exhibit-P/4, the oral report lodged, does not find description of the accused persons. It makes a mention that 3-4 unknown persons had committed dacoity in their house. 16. The above evidence is not sufficient to prove that it was the accused, who had committed dacoity in the house of PW .6 Kalu on the day of incident as PW .6 Kalu has stated that the persons were not known, it was mid-night and PW .7 the investigating officer says that identification test in relation to accused was not conducted. 17. In view of above, it can be said that prosecution has not sufficiently proved its case. The conviction has been recorded by the learned trial Court on the basis of recovery, which in my considered opinion is not based on proper appreciation of evidence because the witnesses of recovery have not stated that the articles were recovered at the instance of accused and that the silver Kandora was recovered at the instance of accused. Whatever evidence has been produced and particularly the evidence of PW .6 Kalu and PW .8 Smt. Shanti, when scrutinized, it appears that they were shown only one silver Kandora. Whatever evidence has been produced and particularly the evidence of PW .6 Kalu and PW .8 Smt. Shanti, when scrutinized, it appears that they were shown only one silver Kandora. If that is so, then the test identification of silver Kandora also looses its significance and is of no help to connect the accused with the crime. 18. In view of foregoing discussion, the appeal is liable to succeed and the Judgment of conviction and order of sentence is required to be set aside. In the result,- .(i) the appeal is allowed; .(ii) the Judgment of conviction and order of sentence dated 18.06.2004 passed by learned Addl. Sessions Judge (Fast Track) No.2, Banswara in Sessions Case No.83/2003 State vs. Babu Bhai, is set aside; and, (iii) theaccused is acquitted of the charges framed against him. He is in jail. He be released forthwith if not required in any other case.