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2011 DIGILAW 359 (RAJ)

Siradin v. State of Rajasthan

2011-02-17

KAILASH CHANDRA JOSHI

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JUDGMENT 1. - The prosecution on the basis of the evidence of the injured eye witnesses as well as recovery of the articles made on the basis of disclosure statements of all the three petitioners said to have been made by the petitioners was able to secure the conviction of all the three petitioners under section 458 and 394 IPC by the trial court as well as by the appellate court. 2. The learned Munsif and Judicial Magistrate Phalodi, vide its judgment dated 29.08.1983 held all the accused petitioners guilty for the offence under section 458 and 394 IPC and sentenced them for the offence under section 458 PC to undergo three years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo three months' imprisonment and for offence under section 394 IPC, to three years' rigorous imprisonment and a fine of Rs. 2,000/- , and in default of payment of fine, to further undergo six months, imprisonment. 3. The above conviction was upheld by the learned Addl. District and Sessions Judge, Phalodi, in criminal appeal No.01/1993, vide judgment dated 24.02.1994. 4. It is against this order that the present revision petition has been filed. 5. The questions that need determination are - (1) Whether in the facts and circumstances of the case, reliance could be placed on the test identification memos Ex. P/24, P/25 and P/26, which was conducted by the then Tehsildar (Executive Magistrate), Phalodi, which does not bear the signature of the witnesses who have made the identification ? and (2) Whether the offence committed by the petitioners, comes within the purview of section 458 and 394 IPC ?. 6. The bear minimum facts that need necessary mention for commending and deciding as to whether the petitioners could be convicted on the basis of above evidence, reveal that the occurrence leading to the lurking house trespass at night and voluntarily causing or committing the robbery took place on the intervening night of 21st and 22nd February 1979 at village Mikheri in the dhani of complainant Meghraj. The matter with regard to the commission of the offence was reported by Meghraj complainant, (PW/1), on 22.02.1979 at about 09.30PM. Meghraj filed this report orally to the Station House Officer, Police Station Phalodi and a formal FIR was registered bearing No.12/22.02.1979. The matter with regard to the commission of the offence was reported by Meghraj complainant, (PW/1), on 22.02.1979 at about 09.30PM. Meghraj filed this report orally to the Station House Officer, Police Station Phalodi and a formal FIR was registered bearing No.12/22.02.1979. In the said report the complainant reported that on 21.02.1979 he was out of his village and on 22.02.1979 in the morning his neighbour Ramakishan came and informed that in the intervening night of 21st and 22nd February, 1979 three persons, namely,Siradin , Hasamdin and Taje Khan duly armed with lathis, entered the house of the complainant and after inflicting injuries to Roopa ,Sita and Birju, forcibly took the gold and silver ornaments from a locked box and ran way. 7. On the basis of above report, police commenced the investigation and after due investigation, a charge sheet was filed in the court of Munsif and Judicial Magistrate , Phalodi, against all the three accused petitioners. In his endeavour to bring home the offence against the petitioners , the prosecution examined as many as 16 witnesses and after examination of the accused under section 313 Cr.P.C., the accused petitioners got examined 7 witnesses in defence. The learned trial court, after hearing both the parties, convicted all the accused petitioners for the above offence and vide judgment dated 29.08.1983 sentenced them as indicated above, which was further affirmed by the learned Addl.District & Sessions Judge, Phalodi vide judgment dated 24.02.1994. 8. The learned counsel for the accused petitioners contended that the order of the learned trial court, as well as affirmed by the learned Addl.District & Sessions Judge, Phalodi, suffers from illegality, impropriety and it is perverse and against the law. The learned counsel for the petitioners further contended that identification parade conducted by the Tehsildar (Executive Magistrate), Phalodi could not be relied upon by the learned trial court and if the specification of the stolen articles, or articles looted, were not given in the first information report then the identification made in the court by the witnesses could not be relied upon and, therefore, it could not be the basis of the conviction. The learned counsel for the petitioners in support of his arguments relied on the following judgments:- 1. Kailash v. State of Rajasthan [2000 (2) RCC 1395 ] . 2 Ram Kishan alias Kishan & another v. State of Rajasthan and Mst. Junj Bai & Anr. The learned counsel for the petitioners in support of his arguments relied on the following judgments:- 1. Kailash v. State of Rajasthan [2000 (2) RCC 1395 ] . 2 Ram Kishan alias Kishan & another v. State of Rajasthan and Mst. Junj Bai & Anr. v. The State of Rajasthan. [RCC May- June 1985, 191] . 9. Per contra, the learned counsel for the complainant and the learned Public Prosecutor vehemently defended the judgment of the learned trial court, as affirmed by the learned Addl. District and Sessions Judge, Phalodi and further argued that there was no delay in lodging the FIR and further in the first information report the names of all the three accused petitioners were there. Further, the articles were recovered at the instance of the accused petitioners,in pursuance to the information recorded under section 27 of the Indian Evidence Act and further all the articles recovered were put to Identification parade by the Executive Magistrate and all the witnesses identified above articles correctly and further the complainant,as well as the witnesses identified the subject matter of the property in the court. Therefore, the judgment of the conviction and the order of sentence passed by the learned trial court and affirmed by the learned Addl. District & Sessions Judge, Phalodi does not require any interference and it cannot be said to be illegal , perverse or improper. Therefore, interference is not warranted at this stage. 10. I have perused the judgments as cited by the learned counsel for the accused petitioners. 11. In Kailash's case (supra) the Hon'ble Supreme Court held that where the identification memo was not exhibited and the Tehsildar who conducted the identification parade was not examined , a glaring defect in the procedure and manifest error on the point of law was noticed and the learned Single Bench held that flagrant miscarriage of justice resulted . 12. Therefore, while exercising the powers under section 397 and 401 Cr.P.C. the learned Judge set aside the impugned judgment. 13. In Ram Kishan's case (supra), the Division Bench of this Court, disbelieved the identification parade conducted by the Panchayat when the Magistrate could be available. 14. The facts of the present case are totally different from the above case cited , because in this case, Vijay Singh, Tehsildar who conducted the identification parade was examined as PW/16 and he corroborated the prosecution story in toto. 14. The facts of the present case are totally different from the above case cited , because in this case, Vijay Singh, Tehsildar who conducted the identification parade was examined as PW/16 and he corroborated the prosecution story in toto. His evidence could not be shattered even in cross-examination. Therefore, the arguments as advanced by the learned counsel for the accused petitioners, are not sustainable. 15. I have perused the judgment of the learned trial court as well as the appellate court and also perused the evidence available on record. 16. All the three injured Roopa, Sita and Birju corroborated the story of the prosecution and further their injuries have been proved by PW/12 Dr. 17. Kedarmal Purohit. There was no delay in lodging the FIR in the police and further the duration of the injury co-inside with the time of the occurrence of the offence. The presence of all the witnesses were natural in their house and after arrest the recovery was made at the instance of the accused petitioners in pursuance to the information recorded under section 27 of the Indian Evidence Act and the recovery was proved by the Investigating Officer. 18. Accordingly, in view of the aforementioned discussions, the order of the learned trial court as well as the appellate court cannot be said to be illegal perverse or improper and in my view, it does not warrant any interference while exercising the powers under section 397 and 401 IPC. 19. Coming to the point of sentence the learned counsel for the accused petitioners contended that the occurrence took place on 21.02.1979 and accused were arrested on 23.02.1979. About 32 years have passed after the occurrence and out of the three petitioners Hassam Din , Siradin, have remained for about 5 months in jail and Tajekhan remained for more than six months in jail and no fruitful purpose will be served by sending them again behind the bars. Therefore, he prayed that accused petitioners may be sentenced to the period already undergone. 20. The learned counsel for the petitioners relied on the judgment of this Court in Parmanand v. State of Rajasthan, [RCC August 1989 , 360] , in which case the accused was held guilty for the offence under section 394 IPC and was punished for 8 months' rigorous imprisonment and a fine of Rs. 200/-. 21. 20. The learned counsel for the petitioners relied on the judgment of this Court in Parmanand v. State of Rajasthan, [RCC August 1989 , 360] , in which case the accused was held guilty for the offence under section 394 IPC and was punished for 8 months' rigorous imprisonment and a fine of Rs. 200/-. 21. The learned public Prosecutor left the matter to the discretion of this Court. 22. I have perused the judgment. 23. Looking to the over all circumstances, this court is of opinion that no useful purpose could be served with further imprisonment of the petitioners at this length of time and the interest of justice shall be served if the total sentence for imprisonment for the offence aforesaid be reduced to that of the period of imprisonment already undergone, with imposing of fine as imposed by the learned trial court and further affirmed by the learned appellate court. 24. Accordingly, this revision petition is partly allowed and the accused petitioners are sentenced to the period already undergone with a fine of Rs. 1,000/- for offence under section 458 IPC and a fine of Rs. 2,000/- for the offence under section 394 IPC and further to undergo sentences in default of payment of fine, as awarded by the trial court. 25. The petitioners have to deposit this amount within three months from the date of the order, and in case of failure to deposit the fine, the trial court shall take appropriate steps as per law.The revision petition is disposed of as indicated above.Petition Partly Allowed. *******