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2012 DIGILAW 744 (ALL)

IMTYAZ v. STATE

2012-03-28

SURENDRA KUMAR

body2012
Surendra Kumar, J.;- 1.The two appellants Imtyaz and Mumtaz have filed the aforesaid appeals challenging their conviction and sentence recorded by the Additional Special Judge ( D.A.A.) Jalaun at Orai in S.T. No. 82 of 2002-State Vs. Iqbal and others, relating to Crime No. 30 of 2002, under Sections 395/397 I.P.C., Police Station Kuthaund, District Jalaun, vide judgment and order dated 5.2.2007. Both these appellants have been convicted under Section 395 read with Section 397 I.P.C. by the impugned judgment and each of them has been sentenced to 10 years Rigorous Imprisonment with fine of Rs.10,000/- and in default of payment of fine, each of them has been sentenced to two years additional Rigorous Imprisonment. These two appeals are taken together and being decided by the common judgment as they relate to same offence. 2.As per the prosecution case, in the intervening night of 20/21.2.2002, both these appellants and one Iqbal had entered the house of the complainant Rameshwar Dayal Gupta @ Kallu, PW-2, after breaking open the door of the house had woken up the family members sleeping inside the house and snatched the keys of the almirah from the sons of the complainant and looted VCP, gold ornaments weighing around 200 grams, jewellery and other utensils from the house and caused the injuries to the first informant PW-2 and his son Neeraj Kumar PW-1. Both these appellants were identified by Neeraj Kumar, PW-1 and his brother Akhilesh at the time of alleged dacoity in the light of electricity, which was available inside the house and in the courtyard also. The F.I.R. of the incident of dacoity was lodged on 21.2.2002 at 2.30 A.M. within two and half hours under the aforesaid sections by PW-2, naming both the appellants and one Iqbal as dacoits in the F.I.R. The F.I.R. clearly depicts that these appellants were fully identified while they were abusing in filthy language to the family members of the complainant. 3.Ex. Ka-3 is the recovery memo of articles looted by the appellants. Ex. Ka-2 is the memo of recovery of iron rods used by the appellants at the time of occurrence and in causing the injuries to the complainant and other family members. The complainant Rameshwar Dayal Gupta, PW-2 and his son Neeraj Gupta PW-1 had sustained injuries in the said incident and the injury reports were prepared and proved by the doctor before the trial court. The complainant Rameshwar Dayal Gupta, PW-2 and his son Neeraj Gupta PW-1 had sustained injuries in the said incident and the injury reports were prepared and proved by the doctor before the trial court. 4.The appellants were charged under Section 395 I.P.C. read with Section 12/14, Dacoity Affected Areas Act and also under Section 397 I.P.C. by the trial court. The appellants pleaded not guilty to the charge and claimed to be tried the said charge. 5.The prosecution examined Neeraj Gupta, PW-1, who is the injured witness and son of the complainant, and Rameshwar Dayal Gupta, PW-2 who is complainant and injured witness in the eye witness account. 6.The Investigating Officer Amar Singh Yadav, PW-3 has been examined by the prosecution to prove the investigation and Ex. Ka-3, who recorded the statements of the witnesses including the injured witnesses and made most part of the investigation. It is apparent from the testimony of PW-3 that in the said dacoity, looted articles were recovered from the appellants and the injured Neeraj Gupta was unconscious at the relevant time. 7.The second Investigating Officer Sangam Lal Yadav has been examined as PW-4, who completed the investigation and submitted the charge sheet, Ex. Ka-5, against the appellants. 8.The iron rods used as weapon of the offence are alleged to have been recovered from the third accused Saleem, who was acquitted by the same judgment. 9.Dr. A.K. Singh, PW-5 has been examined to prove the injury reports of the two injured persons as Ex. Ka-6 and Ex. Ka-7. 10.Constable Rajendra Sharma, PW-6 has been examined to prove the chik F.I.R., Ex. Ka-8 and G.D. Ex. Ka-9. 11.The appellants were examined under Section 313 Cr.P.C. in which they denied the whole prosecution story saying that no item of the said loot was recovered from them and the witnesses have given false evidence against them on account of old enmity. 12.The trial court after recording evidence and hearing the arguments of both sides, recorded conviction of the appellants vide aforesaid judgment, which is being assailed before this Court through the aforesaid two appeals. 13.The prosecution examined Neeraj Kumar Gupta, who is the injured and son of the complainant as PW-1 and Rameshwar Dayal Gupta @ Kallu ( complainant of the case) as PW-2 in the eye witness account. 14. 13.The prosecution examined Neeraj Kumar Gupta, who is the injured and son of the complainant as PW-1 and Rameshwar Dayal Gupta @ Kallu ( complainant of the case) as PW-2 in the eye witness account. 14. It emerges from the testimony of witness Neeraj, PW-1 that in the mid night of 20/21.2.2002, the witness and other family members were sleeping in the rooms of the house. About one dozen dacoits came inside the house by climbing upon the roof, opened the door and then entered the room of the witness where the witness, his wife Smt. Rashmi and six months daughter were sleeping. In the adjoining room, his parents, sister and brother Akhilesh were sleeping. The dacoits after opening the door of the room of the witness, went inside the room, thrashed him, gave threat to the witness and snatched the keys of the almirah. The dacoits looted 200 grams of gold, other ornaments, clothes, VCP etc. from the room. The light of electricity was available inside the room and also in the courtyard of the house at the time of incident and in that light the witness identified the dacoits as the accused persons Iqbal, Imtyaz ( appellant), Mumtaz ( appellant) and Saleem. After committing loot in the house of the witness, the dacoits called the father of the witness in the room, struck blows with sharp edged iron rods, made him unconscious and then these appellants, whose faces were not covered, committed this dacoity. The other dacoits could not be identified or recognized at the time of dacoity. One accused Iqbal is carpenter and Iqbal had fitted the frames of windows and doors in the house of the witness prior to the occurrence. When the dacoits came out from the house, the neighbours rushed to the spot hearing cries of the wife of the witness and others and opened the door of the house from outside. The witness and his father went to the Police Station Kuthaund from where they were taken to P.H.C. Kuthund by the police and they were medically examined and medical reports were prepared. 15. Rameshwar Dayal Gupta, complainant of the case, PW-2 as well as injured has reiterated and supported the prosecution story. The witness and his father went to the Police Station Kuthaund from where they were taken to P.H.C. Kuthund by the police and they were medically examined and medical reports were prepared. 15. Rameshwar Dayal Gupta, complainant of the case, PW-2 as well as injured has reiterated and supported the prosecution story. It is evident from his evidence that at the time of occurrence around mid night, the dacoits climbed upon the roof of the house, found entry in to the room through staircase after breaking the door of the room. In one room his son Neeraj along with family was sleeping and in another room, this witness along with wife and others was sleeping. The dacoits had made him injured by striking iron rods and also beaten to the wife and daughter of the witness after terrorising the family members. The dacoitsppellants and others looted the gold and silver ornaments of the value of Rs. 2.5 lacs. The witness claims to have recognized or identified four accused persons Iqbal, Imtyaz, Mumtaz and Saleem while they were committing dacoity in the house. The witness knew Iqbal who had worked as carpenter and fitted the door in the house of the witness. Written report of the incident was prepared by one Akhilesh, son of the witness, at the dictation of the witness, which has been proved by the witness as Ex. Ka-1. Ex.Ka-1 was given to the police station Kuthaund. According to the evidence of this witness, light of electricity was available at the house and in that light, the dacoitsppellants were recognized and the dacoits while leaving the house of the witness, suddenly left two iron rods used in the said dacoity. The iron rods were taken into possession by the police and its memo Ex. Ka-2 was prepared by the police under signature of the witness. The witness had also given the list of looted articles which was proved by him as Ex. Ka-3. The witness had sustained injuries in the said incident and he and his son were examined at P.H.C. Kuthaund. The witness proved the two iron rods as Ex-1 and Ex-2. 16. I have heard Dr. Abida Syed, learned Amicus Curiae on behalf of the appellants, learned A.G.A. and perused the evidence on record with the help of learned counsel for both the parties. 17. The witness proved the two iron rods as Ex-1 and Ex-2. 16. I have heard Dr. Abida Syed, learned Amicus Curiae on behalf of the appellants, learned A.G.A. and perused the evidence on record with the help of learned counsel for both the parties. 17. Learned counsel for the appellants has contended that there was no legal evidence warranting commission of offence by the appellants. 18. Learned A.G.A. refuted the submission of the learned counsel for the appellants and has submitted that from the testimony of the injured Neeraj Kumar, PW-1 and his father Rameshwar Dayal Gupta, injured, complainant, PW-2, it is clearly established that both PW-1 and PW-2 were present in their house where dacoity was committed by the appellants and they sustained injuries during course of dacoity, when keys of the almirah were snatched by the appellants from PW-1 and presence of injuries on the person of PW-1 and PW-2 itself proves their presence on the place of occurrence of dacoity and at the time of incident, leaving no room of doubt about their presence. It means that the presence of injuries on the person of PW-1 and PW-2 itself is the guarantee of their presence at their house in the mid night when the said dacoity was committed by the appellants and others. The witnesses were made injured by the appellants and others in order to terrorise them for the purpose of snatching the keys of the almirah from where gold, silver and other ornaments were looted by the appellants. The appellants were fully recognized by the witnesses when they abused the witnesses using filthy language, warning them to handover the keys of the almirah. Since the appellants and others were known to the witnesses prior to the said dacoity and the appellants in a challenging way entered in the house through roof without covering their faces and then committed the said dacoity, it was not difficult for the witnesses to identify the appellants in the light of electricity available at the time of occurrence on the place of dacoity. One accused Iqbal, whose appeal is before me at the time of hearing of these appeals but not argued, completed the wooden work of the windows and doors of the house of the witness as he was a carpenter. Thus, the accused Iqbal was completely aware of the presence of the items like almirah etc. One accused Iqbal, whose appeal is before me at the time of hearing of these appeals but not argued, completed the wooden work of the windows and doors of the house of the witness as he was a carpenter. Thus, the accused Iqbal was completely aware of the presence of the items like almirah etc. placed in the rooms of the house. Since I am not dealing with the appeal of Iqbal, it is not proper to enter into merits of evidence regarding appeal of Iqbal. 19. According to testimony of PW-1, the appellants forcibly snatched the earrings and Mangalsutra worn by his wife at the time of occurrence and the witnesses were not allowed to go out of the house and the witnesses were kept silent as they were terrorised by the appellants by inflicting injuries. The accused Iqbal did the work of fitting of wooden frames of doors and windows in the year 2001 for about one and half months prior to the incident of dacoity. 20. Rameshwar Dayal Gupta, PW-2 was cross examined at length by the learned defence counsel. 21. It is evident from the testimony of PW-2 that the neighbours from the nearby houses could not witness the incident of dacoity as the dacoity was committed by the appellants inside the house of the witness and the witness became unconscious as a result of sustaining injuries, which were caused by the appellants and he could not raise alarm. This PW-2 has candidly deposed in his evidence before the trial court that he could not recognize or identify the appellants and his sons fully recognized the appellants as dacoits just at the time of incident. No other witness in eye witness account was examined by the prosecution in the trial court. 22. It is evident from the evidence on record that no looted article was recovered from the appellants and even during the raid at their houses, no article of loot was recovered. A suggestion to the Investigating Officer-PW-3 was given by the defence side that impartial and complete investigation was not made due to pressure of some Sri Babu Ram, M.L.A. The witness denied the suggestion. 23. The injured PW-2 sustained as many as six injuries including incised wound near nose and two other bleeding wounds were present on his right palm. This injury report is Ex. Ka-6. 23. The injured PW-2 sustained as many as six injuries including incised wound near nose and two other bleeding wounds were present on his right palm. This injury report is Ex. Ka-6. The injured Neeraj Kumar, PW-1, as per injury report dated 22.2.2002, which is Ex. Ka-7, in all sustained four injuries, one on chest and others on his knee portion. These injury reports were proved by Dr. A.K. Singh, PW-5 in his evidence before the trial court. According to the evidence of the doctor, these injuries could possibly be caused to the injured persons around mid night of 20/21.2.2002 by inflicting blows with iron rods and none of the injures was fatal. 24. Learned Amicus Curiae, who has argued on behalf of the appellants, has not been able to point out any kind of contradiction or discrepancy in the evidence of both the injured witnesses examined in this case. The injured witnesses were cross examined at length by the learned counsel for the appellants in the trial court but nothing could be extracted so as to give any benefit to the appellants. The testimony of both the injured witnesses is consistent, natural and trustworthy and nothing is on record to create any doubt in the reliability of the testimony of the two injured eye witnesses. Thus, there is no evidence on record to discredit the prosecution case. The appellants were named in the promptly lodged F.I.R. The F.I.R. was lodged within two and half hours of the said occurrence by one of the injured witness PW-2, naming both the appellants and one Iqbal involved in the said offence of dacoity. The F.I.R. appears to have been lodged without any consultation or deliberation. The testimony of the injured witnesses has further been corroborated by medical evidence that further supported the prosecution story of dacoity. 25. Learned counsel for the appellants has further contended that the appellants have been falsely implicated due to enmity but no suggestion regarding any kind of enmity was given to the injured witnesses namely PW-1 and PW-2 when their evidence was being recorded in the trial court. There is no material on record to depict any kind of enmity of the appellants with the complainant side or his family members. There is no material on record to depict any kind of enmity of the appellants with the complainant side or his family members. Even otherwise also, there appears to be no possibility, even remotely for false implication of the appellants in the offence of dacoity and there appears to be no reason for false implication of the appellants in this case at the hands of the complainant, PW-2. The evidence on record completely establishes and proves that the appellants have been correctly convicted by the impugned judgment. The conviction of the appellants by the impugned judgment dated 5.2.2007 under Section 395 read with Section 397 I.P.C. is upheld. 26. The last submission of the learned counsel for the appellants is that both the appellants namely Imtyaz and Mumtaz are in jail since 20.2.2002 in this case and they have completed full terms of sentence awarded to them. Each of the appellants was awarded fine to the tune of Rs. 10,000/- by the impugned judgment and order dated 5.2.2007 and in default of payment of fine, each of the appellants was directed to undergo additional rigorous imprisonment for two years. 27. On this point, learned counsel for the appellants has submitted that after completing the substantive sentence of ten years in jail, they are at present undergoing sentence in default of payment of fine. 28.The incident in question had taken place in the year 2002. The appellants came at the place of occurrence without covering their faces in order to enable the injured witnesses to identify or recognize the appellants. The appellants have already served substantial part of sentence viz ten years each awarded to them. 29. Learned counsel for the appellants has further submitted that in the facts and circumstances of the case and keeping in view the nature of evidence against the appellants, this Court should take a lenient view with regard to the sentence awarded to the appellants since the appellants have already served the sentence awarded to them and are undergoing sentence in default of payment of fine. The sentence awarded to them should in the interest of justice be modified and since the parties were resident of the same village at the time of incident, the sentence should be reduced to the period undergone by the appellants. The sentence awarded to them should in the interest of justice be modified and since the parties were resident of the same village at the time of incident, the sentence should be reduced to the period undergone by the appellants. Apart from it, there are other circumstances to persuade this Court to interfere on the question of sentence awarded to the appellants. This modification of sentence will benefit the parties, give quietus to the controversy and rehabilitate and normalise the relationship between them. 30. In the result, while upholding the order of conviction recorded by the trial court, this Court reduces the sentence awarded to the appellants to the sentence already undergone by them. The appeal is to that extent allowed and the impugned order modified. The appellants shall be set free forthwith if not otherwise required in any other case.