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2018 DIGILAW 182 (ALL)

RAMESH CHANDRA v. STATE OF U. P.

2018-01-23

ARVIND KUMAR MISHRA I

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JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 14.01.1986 passed by the Special Judge, Anti Dacoity Etawah, in Special Case No.84 of 1984 State Vs. Ramesh and others, arising out of Case Crime No.146 of 1983 under Section 394 IPC, Police Station- Bharthana, District- Etawah, whereby the appellants have been sentenced to undergo four years rigorous imprisonment. 2. Heard Sri K.M. Misra, learned counsel for the appellants, learned AGA for the State and perused the record. 3. Facts giving to rise this appeal appear to be that the informant Lakhan Singh lodged the report on 19.09.1983 at 7:45 a.m. against the present appellants whereby it was stated that they committed robbery around 12:00 midnight intervening 18/19.09.1983 and also caused injuries on the informant side and as many as three persons including the informant sustained injuries. It was also alleged that certain articles/clothes were also looted and list of articles was given in the report itself. This report being Ext. Ka-1 was lodged at Case Crime No.146 of 1983 under Section 394 IPC, Police Station Bharthana, District Etawah. 4. After lodging of the first information report, the injured Ramesh, Chhadami Lal and Lakhan Singh were medically examined by the doctor at PHC Bharthana, District Etawah, on 19.09.1983 at 8:15 a.m., 9:00 a.m. and 8:40 a.m. respectively, Injury reports are Ext. Ka-4, Ext. Ka-5 and Ext. Ka-6. 5. The relevant formalities were gone into at the police station and the investigation ensued and the same was taken over by S.I. Maqsood Ahmad Khan PW-7. He recorded statement of the witnesses and prepared site plan of the incident as Ext. Ka-7 and also prepared memo of lantern Ext. Ka-8. After completing the investigation, he filed charge sheet Ext Ka-9 against the appellants under Section 394 IPC. 6. Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the aforesaid trial court of Special Judge, Anti Dacoity, Etawah who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the appellants, accordingly, framed charges under Section 394 IPC. Charge was read over and explained to the appellants who abjured charges and opted for trial. 7. Charge was read over and explained to the appellants who abjured charges and opted for trial. 7. The prosecution, in order to prove guilt of the accused examined as many as seven witnesses namely Lakhan Singh is the informant and injured. He has proved the written report Ext. Ka-1. Meera Devi PW-2 is eyewitness of the incident. Chhidami Lal PW-3 is the injured eyewitness of the occurrence. Brij Bihari PW-4 is independent witness but he has not supported the prosecution case. Maheshwar Dayal PW-5 has made relevant entry in the concerned Check FIR of date 19.09.1983 at Police Station Bharthana and general diary entry and has proved both papers Ext. Ka-2 and Ext. Ka-3. Shambhu Dayal PW-6 is another independent witness of the same village. However, he has turned hostile. S.I. Maqsood Ahmad Khan is the Investigating Officer, he has proved the investigation and filing of charge sheet Ext. Ka-9. Except as above, no other testimony was adduced by the prosecution. 8. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, accused Ramesh has stated that he has been falsely implicated by the police in this case. His father being Gram Pradhan has dispossessed the informant from the Abadi land so possessed. Consequently, he was inimical towards the appellants. No evidence, whatsoever, was led by the defence. 9. The learned Special Judge, Anti Dacoity, Etawah, after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction under Section 394 IPC and sentenced the appellants to undergo four years rigorous imprisonment. 10. Resultantly, this appeal. 11. While cutting short argument, learned counsel for the appellants has submitted that the incident as alleged cannot be said to be, in fact, commission of any robbery because the two appellants are residents of the same village and they without covering their face cannot be expected to commit any such crime. Assuming it to be that any crime was committed even then they must have come prepared covering their faces and hiding their identity and they will not commit crime with their faces opened so as to make their identification easy and convenient. 12. Assuming it to be that any crime was committed even then they must have come prepared covering their faces and hiding their identity and they will not commit crime with their faces opened so as to make their identification easy and convenient. 12. It has been claimed that there was no source of light and story of recovery of lantern from the spot by the Investigating Officer is nothing but an afterthought of the Investigating Officer in collusion with the informant. Obviously, the appellants have no criminal history and, therefore, their involvement in such crime like the present one under Section 394 IPC cannot be accepted of them. The incident of robbery is absolutely false. However, it is simplicitor a case of injury being caused on the informant side which injuries are simple in nature. 13. Lastly it has been added that assuming it to be that even offence under Section 394 IPC has been committed then looking to the long span of time which has elapsed from the date of the incident which took place on 19.09.1983, approximately 35 years have gone by and during this period the appellants never entered into violation of law and they are good citizens and they should be afforded one chance to contribute their might to the betterment of the society and the sentence so awarded by the trial Court under Section 394 IPC may be reduced to the minimum possible as no useful purpose will be served by sentencing them to four years rigorous imprisonment in their old age. 14. Per contra, learned AGA has opposed the prayer so made for reducing the sentence. However, he has submitted that the prosecution has been able to prove its case beyond reasonable doubt. Learned trial court while acting upon the evidence on record has rightly convicted the appellants and passed just sentence. 15. Considered the submissions. 16. Bare perusal of the first information report itself is indicative of fact that some incident took place around midnight intervening 18/19.09.1983 in the house of the informant Lakhan Singh wherein some injuries have been caused on the side of the informant and as many as three persons sustained injuries although nature of the injuries on the whole appears to be simple and no supplementary report has been brought on record which may show that injuries were of grievous nature. But the first information report also describes list of the articles which were looted in the incident. 17. No doubt, except from the two appellants, no other miscreant was apprehended by the police though number of miscreants was stated to be more than the two. Insofar as the incident is concerned, it cannot be said that the incident did not take place in the manner and style described in the first information report which has been corroborated by the testimony of the prosecution witnesses and particularly, the injured persons. 18. However, it is surprising that the two appellants belonged to the same village and they did not make any effort to cover their faces while committing robbery. Under the normal circumstances, they were expected to hide their identity but evidence on record shows that they were present on the spot and they committed robbery and looted certain articles. 19. In view of above testimony of the prosecution witnesses, it is established against the appellants that they were involved in commission of the offence. The contention has been raised to the extent that the incident has not been corroborated by any independent piece of testimony and the two witnesses of the same village who are independent witnesses, have not supported the prosecution story and particularly, involvement of the present appellants. However, conviction recorded under Section 394 IPC cannot be faulted with at this stage and charge under Section 394 IPC has been satisfactorily proved by the prosecution beyond all reasonable doubt. 20. However, in the prevailing facts and circumstances of the case, it is obvious that though list of articles that has been looted in the incident has been mentioned with specific particular in the first information report but not a single recovery of any concerned article has been brought on record. Obviously, no recovery has been made by the police. 21. The law is well settled on the point that in the absence of any recovery, the claim so made cannot be set aside. Therefore, it cannot be said that on account of non-recovery of the looted articles, no robbery was committed by the appellants. However, this particular aspect of the case, gives credence to the contention raised that no robbery, whatsoever, was committed by the appellants though some incident of Marpit took place. Therefore, it cannot be said that on account of non-recovery of the looted articles, no robbery was committed by the appellants. However, this particular aspect of the case, gives credence to the contention raised that no robbery, whatsoever, was committed by the appellants though some incident of Marpit took place. The contention so raised cannot be accepted, for the reason that list of articles looted is still contained in the first information report itself and there is no such inordinate delay in lodging the first information report which may render the factum of commission of robbery dubious. The trial Court has taken note of the factual aspect and passed a detailed and reasoned order based on material on record which needs no interference by this Court. Consequently, the conviction recorded by the trial Court is justified. 22. Now coming to the sentencing part of the impugned judgment, obviously 35 years have elapsed since the incident took place and looking to the fact that there is no criminal history against the appellants and they have not indulged in criminal activity during this span of time and nothing adverse has been brought on record, under facts and circumstances of the case, it would be better that the total sentence is reduced from four years rigorous imprisonment to six months imprisonment coupled with fine Rs.5,000/- each, in default of payment of fine, each of the concerned appellants will have to suffer additional imprisonment for one month. In case the amount of fine is realized, half of the same shall be given to all the injured in equal proportion. 23. Accordingly, sentencing part of the impugned judgment and order of conviction dated 14.01.1986 passed by the Special Judge, Anti Dacoity Etawah, in Special Case No.84 of 1984 State Vs. Ramesh and others, arising out of Case Crime No.146 of 1983 under Section 394 IPC, Police Station- Bharthana, District- Etawah, is hereby modified to the aforesaid extent while conviction is maintained. 24. The instant appeal is allowed, partly in aforesaid terms. 25. In this case, the appellants are on bail. They need not surrender before the court concerned. Their bail bonds are cancelled and sureties are discharged. They shall be taken into custody for serving out the aforesaid sentence. 26. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.