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2011 DIGILAW 407 (RAJ)

Ramji Alias Ramjilal v. State of Rajasthan

2011-02-22

R.S.CHAUHAN

body2011
JUDGMENT (1) THIS appeal has been filed by three appellants, namely Ramji alias Ramjilal - appellant No.l, Roshan -appellant No.2, and Ranvir Singh - appellant No.3. However, during the pendency of this appeal, Roshan -appellant No.2 and Ranvir Singh - appellant No.3 have expired. Therefore, this appeal abates qua them. Hence, the appeal on behalf of Ramji alias Ramjilal - appellant No.l needs to be decided by this Court. (2) THE appellant has challenged the judgment dated 23.12.1983 passed by the Additional Sessions Judge No.l, Bharatpur, whereby the learned Judge has convicted the appellant for offence under Section 399 IPC and has sentenced him to three years rigorous imprisonment and has imposed a fine of Rs. 1,000/-, and has directed him to further undergo a period of six months of rigorous imprisonment in default thereof. He has also convicted the appellant for offence under Section 392 IPC and sentenced him to three years rigorous imprisonment and imposed a fine of Rs.500/-, and further to undergo three months rigorous imprisonment in default thereof. Furthermore, the appellant has been convicted for offence under Section 307 read with Section 149 IPC and has been sentenced to five years of rigorous imprisonment and imposed with a fine of Rs. 1,000/- and also directed to further undergo a period of six months of rigorous imprisonment in default thereof. THE appellant has also been convicted for offence under Section 148 IPC and has been sentenced to one year rigorous imprisonment. Lastly, he has been convicted for offence under Section 3/25 of the Arms Act and has been sentenced to two years rigorous imprisonment. It is the case of the prosecution that on 04.07.1982, at about 3:00 a.m. one Lekhraj (P.W.4) reported to the A.S.I., Mr. Dhan Singh (P.W.13), that an incident had taken place around 9:30 p.m., on 03.07.1982. According to the complainant, one Govind (P.W.I) had gone to answer the call of nature. While he was answering the call of nature near village Banji, he noticed eight to ten persons who were carrying guns and country-made pistol and were planning to commit dacoity in the village. Govind (P.W.1) came back to the village and informed the villagers that those eight to ten persons were planning to commit dacoity in the village. While he was informing the villagers, the culprits entered into the village and started firing at the villagers. Govind (P.W.1) came back to the village and informed the villagers that those eight to ten persons were planning to commit dacoity in the village. While he was informing the villagers, the culprits entered into the village and started firing at the villagers. According to him, the complainant and his brother Rajendra bravely confronted the dacoits. When the dacoits were busy in loading the revolver and guns, they were attacked by the complainant and his brother and were caught hold of by them. During the affray, a bullet hit Rajendra. However, subsequently other villagers also gathered and attacked the dacoits. In order to retaliate, the dacoits fired at the villagers. Maharaj Singh was injured. The complainant claims that he snatched a gun from one of the dacoits. Due to the attack made by the villagers, the dacoits fled. He further claims that Rajendra and Maharaj Singh were taken to the hospital. However, on the way, Rajendra succumbed to his injuries. He further claims that both live bullets and used cartridges were discovered. While, they were going to the police station to report the matter to the police, they were again attacked by the dacoits. He further claims that the dacoits who were caught, were killed and their corps were left in the village. He further claims that when the police reached the village, the dacoits fled away. Lastly, he states that the dacoits were seen in full moon light. On the basis of the report, the police had chalked out a FIR for offence under Sections 399, 402 and 307 IPC and started investigation. Subsequently, the appellants were arrested and charge-sheets were filed against them. The charges for offences under Sections 148,307, 149, 399 and 395 were read against them. In order to substantiate its case, the prosecution examined eighteen witnesses and submitted forty-three documents. The defence, neither examined any witness, nor submitted any documents. After going through the oral and documentary evidence, the learned trial Court convicted and sentenced the appellant No.1, Ramji alias Ramjilal, as aforementioned. Hence, this appeal before this Court. (3) MR. S.K. Jain, the learned counsel for the appellant has raised the following contentions before this Court : firstly, the conviction under Section 399 IPC is unsustainable. For, once the dacoity was committed, the appellant could not have been convicted for making the preparation for the commission of crime of dacoity. Hence, this appeal before this Court. (3) MR. S.K. Jain, the learned counsel for the appellant has raised the following contentions before this Court : firstly, the conviction under Section 399 IPC is unsustainable. For, once the dacoity was committed, the appellant could not have been convicted for making the preparation for the commission of crime of dacoity. After all, a distinction has to be made between preparation, attempt of an offence, and commission of the crime. Since the appellant along with other co-accused persons had allegedly committed dacoity, he could not be convicted for making preparation thereof. Secondly, the only evidence against the present appellant is that allegedly he was identified by four witnesses. However, the said identification is replete with doubts. For, none of these witnesses, namely, Govind (P.W.I), Manik Chand (P.W.2), Mangi (P.W.3) and Lekhraj (P.W.4) had described the appellant, in their statements under Section 161 Cr.P.C, or before the Magistrate prior to holding of the T.I. Parade. According to the prosecution, although the incident occurred on 03.07.1982, the appellant Ramji Lal was not arrested till 06.09.1982. Since the appellant's description was never revealed, his identification becomes gravely doubtful. Moreover, although the test identification parade was held, yet there is no evidence to prove that the precautions which are necessary for holding the T.I. Parade were observed by the Magistrate. It is the duty of the prosecution to prove before the learned trial Court that it had taken all the precautions necessary for holding the T.I. Parade. However, this aspect has not been proven by the prosecution; the T.I. Parade collapses. Lastly, the learned counsel has argued that the appellant had already undergone a period of one year and three months as an under-trial and had undergone one year and one month of actual sentence. Therefore, he has completed two years and four months of the sentence. In case the remission period is added, he has completed at least three years and four months of his sentence. Therefore, he has completed fifty per cent, of his sentence of five years. Moreover, ever since 1985, when the appellant was released on bail by this Court, the appellant has been living peacefully within the society as a contributory member of the society. Therefore, no purpose would be served by putting him behind the bars for undergoing the remaining sentence. Therefore, he has completed fifty per cent, of his sentence of five years. Moreover, ever since 1985, when the appellant was released on bail by this Court, the appellant has been living peacefully within the society as a contributory member of the society. Therefore, no purpose would be served by putting him behind the bars for undergoing the remaining sentence. Hence, in the interest of justice, his sentence should be reduced to as already undergone. (4) ON the other hand, the learned Public Prosecutor has vehemently contended that according to Manik Chand (P.W.2), the appellant along with other co-accused persons, had stopped him and his brother Mangi while they were returning to their village. Moreover, the appellant had held Manik Chand, on the point of gun, and had committed a theft of Rs.150/- from him and Rs.40/-from his brother, Mangi. Moreover, the appellant along with other co-accused persons had deprived both of them of their watches. Subsequently, the appellant had joined the other members of the gang when the dacoits had attacked the village. Both these actions were committed in the course of the same transaction. Therefore, the appellant has rightly been convicted for offence under Section 392 IPC. Moreover, the appellant was arrested on 06.09.1982 and was subjected to T.I. Parade on 14.09.1982 i.e., within a period of one week from the date of his arrest. Therefore, there was no delay in holding the T.I. Parade. Most importantly, he has been identified by four witnesses, Govind (P.W.I), Manik Chand (P.W.2), Mangi (P.W.3) and Lekhraj (P.W.4). The testimonies of these witnesses, on the point of identification, had not been demolished. Therefore, there is no reason to disbelieve the testimonies of these witnesses. Although, it was suggested to these witnesses that the appellant was shown to them in the police station, but they have denied this fact. Furthermore, there is no requirement in law that the description of the appellant should have been given by these witnesses either in their statements recorded under Section 161 Cr.P.C. or before the Magistrate prior to holding of the T.I. Parade. Lastly, in case the conviction were to be upheld, the appellant should be directed to serve out the rest of his sentence. The offence of robbery is a serious offence and society needs to be protected from such culprits. In rejoinder, Mr. Lastly, in case the conviction were to be upheld, the appellant should be directed to serve out the rest of his sentence. The offence of robbery is a serious offence and society needs to be protected from such culprits. In rejoinder, Mr. S.K. Jain, the learned counsel for the appellant, has pleaded that although it was claimed by Manik Chand (P.W.2) that he and his brother were deprived by their watches, but no watch were ever recovered from the appellant. Moreover, the country-made pistol (Katta), which was allegedly recovered was never subjected to any ballistic examination done by the FSL. Therefore, there is no evidence to connect the appellant to the alleged incident. (5) HEARD the learned counsel for the parties, perused the impugned judgment and examined the record. (6) IN the case of Rajesh Govind Jagehsa v. State of Maharashtra, [ (1999) 8 SCC 428 ] : (2000 Cri LJ 380), the Hon'ble Supreme Court dealt with, in detail, about the precautions which need to be observed for holding a T.I. Parade. Firstly, it has been observed that it is the duty of the prosecution to prove that it has held the T.I. Parade in accordance with the requirement laid down by law. It is not the burden of the accused to plead and to prove that the T.I. Parade was suffering from any lacunae. IN the present case, admittedly, none of the eye-witnesses, namely, Govind (P.W.I), Manik Chand (P.W.2), Mangi (P.W.3) and Lekhraj (P.W.4) do not describe the appellant either in their statement recorded under Section 161 Cr.P.C. or prior to holding of T.I. Parade before the Magistrate. Although, they claim, in their testimonies, that they had seen the appellant in the full moon light, but this fact was not mentioned by them in their statements recorded under Section 161 Cr.P.C. Therefore, it seems that it is an after-thought. Furthermore, the lack of description on their part raises a doubt as to the basis on which they have identified the appellant in the T.L Parade. Moreover, in the T.I. Parade (Ex.P/1) there is nothing to show that the persons of similar description i.e., complexion or age were mixed with the appellant. Even in the T.I. Parade, the witnesses have not described the appellant. Moreover, in the T.I. Parade (Ex.P/1) there is nothing to show that the persons of similar description i.e., complexion or age were mixed with the appellant. Even in the T.I. Parade, the witnesses have not described the appellant. Since the precautions which are necessary to be taken by the INvestigating Agency have not been followed, and considering the fact that the appellant was arrested after three months from the date of incident, his identification in the T.I. Parade becomes highly doubtful. But, for the identification parade there is nothing to connect the appellant to the alleged incident. For, although it is alleged that the appellant had taken away watches from Manik Chand and from his brother, Mangi, no watch was ever recovered from the appellant. Moreover, the recovery of the country-made pistol (Katta) was never subject to a FSL examination. Therefore, the recovery of the "Katta" does not connect the appellant to the alleged incident. (7) FOR the reasons stated above, this appeal is hereby allowed and the judgment dated 23.12.1983 is quashed and set aside. Since the appellant is already on bail, his bail bonds need not be forfeited. Order accordingly.