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2018 DIGILAW 1880 (JHR)

Sk. Kudus, s/o Sk. Satrati v. State of Jharkhand

2018-08-16

KAILASH PRASAD DEO

body2018
JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction, dated 09.12.2004 and order of sentence, dated 14.12.2004, passed by learned Additional Sessions Judge, Fast Track Court, Sahibganj, in Sessions Case No. 97 of 2002/Sessions Trial No. 19 of 2002, whereby out of six accused persons, facing trial, only two accused/appellants have been convicted by the learned Trial Court for offence committed and punishable under Sections 399 and 402 of the of the Indian Penal Code and rest of the accused persons have been acquitted by the learned Trial Court as the prosecution has failed to prove the case against those accused persons namely Md. Ahemad, Md. Kalim, Md. Bhaddu and Md. Khushroo, as such they have been acquitted of the charges under Sections 399 and 402 of the Indian Penal Code. The present two appellants have been awarded rigorous imprisonment for four years and rigorous imprisonment for three years under Sections 399 and 402 of the Indian Penal Code, each, respectively. Both the sentences are directed to run concurrently. The period already undergone in custody during trial by these appellants will be set off under Section 428 Cr.P.C. 2. The prosecution case is based upon written report submitted by Sardendu Sarat (P.W. 3), being the Officer-in-Charge of Mirza chowki Police Station, on 13.10.1999, before the Chief Judicial Magistrate, Sahibganj, alleging therein, that during patrolling in the evening, he got a secret information, that some accused persons have assembled near the Crusher Machine of Ram Vyas Tiwari for committing some crime. The informant, on the basis of such information, accompanied with the police party at around 20.10 hours. The informant along with police party reached near the Crusher machine of Ram Vyas Tiwari and after flashing the torch light, they saw that some accused persons were sitting there and after realizing, that the police party came, the accused persons started fleeing away. Two accused persons were apprehended on the spot, they are Md. Kasim, appellant no. 2 and Sk. Kudus, appellant no. 1. On search, in presence of independent witnesses, from possession of Md. Kasim, a country made pistol with live cartridge was recovered from the left side of his waist and from his right pocket, one fired cartridge was recovered. From the possession of Sk. Kudus, two live cartridges were found from his lungi, having mentioned BMM-KF-93 and BMM KI 93 along with a khukri. Kasim, a country made pistol with live cartridge was recovered from the left side of his waist and from his right pocket, one fired cartridge was recovered. From the possession of Sk. Kudus, two live cartridges were found from his lungi, having mentioned BMM-KF-93 and BMM KI 93 along with a khukri. A separate case has been instituted with regard to the illegal possession of arms and cartridges. The apprehended accused disclosed the names of the other accused persons as Md. Shamsad, Md. Khusroo, Sk. Bhaddu, Sk. Kalim and Sk. Ahemad and they were planning to commit dacoity in the super train. In the meantime, police came and thereafter, they fled away. The apprehended accused also disclosed, that Md. Shamshad and Md. Khusro were having pistols. The informant has further alleged, that two persons were apprehended with the fire arm and cartridges and other accused persons fled away, taking benefit of darkness. 3. On the basis of the fardbeyan, police has registered Borio P.S. Case No. 134 of 1999, dated 14.10.1999, under Sections 399 and 402 of the Indian Penal Code. 4. After investigation, the police submitted charge sheet against four accused persons namely Md. Kasim, Md. Kuddus, Sk. Ahemad and Md. Samshad vide charge sheet no. 01 of 2000, dated 12.01.2000, under Sections 399 and 402 of the Indian Penal Code and against three accused persons namely Sk. Bhaddu, Sk. Khusroo and Md. Kalim vide charge sheet no. 16 of 2000 dated 30.04.2000, under Sections 399/402 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 30.09.2000 and the case has been committed to the court of sessions vide order dated 16.08.2002. 6. The charge has been framed against the appellants under Sections 399 and 402 of the Indian Penal Code, on 17.12.2003, to which the appellants have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether four witnesses. Dilip Kumar Paswan, chowkidar, has been examined as P.W. 1, Raj Kumar Mahto, has been examined as P.W. 2, Sardendu Sarat, Sub-Inspector of Police and informant of the case, has been examined as P.W. 3, Shiv Narain Kamath, investigating officer of the case, has been examined as P.W. 4. 8. Dilip Kumar Paswan, chowkidar, has been examined as P.W. 1, Raj Kumar Mahto, has been examined as P.W. 2, Sardendu Sarat, Sub-Inspector of Police and informant of the case, has been examined as P.W. 3, Shiv Narain Kamath, investigating officer of the case, has been examined as P.W. 4. 8. Apart from the oral evidence, the prosecution has proved a number of documentary evidences, which have been proved and marked as exhibits in this case. The seizure list has been proved and marked as Exhibit- 1, written report has been proved and marked as Exhibit- 2 and the formal F.I.R. has been proved and marked as Exhibit- 3. 9. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C., on 23.09.2004, to which the appellants have denied the allegations levelled against them. 10. After hearing the parties and on perusal of the record, learned Trial Court has passed the impugned judgment of conviction and order of sentence, convicting the present two appellants under Sections 399 and 402 of the Indian Penal Code. Being aggrieved at and dissatisfied with the judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned counsel for the appellant, Mr. Aman Shekhar assisted by Mr. Sudhanshu Shekhar Choudhary, Advocates. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that in absence of five accused persons appellants cannot be convicted under Section 399 and 402 of the Indian Penal Code. Learned counsel for the appellants has further submitted, that in preparation of committing dacoity, the appellants cannot be convicted under Section 399 of the Indian Penal Code, as four of the accused persons, who were jointly tried with these two appellants, have been acquitted by the learned Trial Court, as there were no evidence against them laid by the prosecution witnesses. Learned counsel for the appellants has further submitted, that no other accused persons can be implicated in this case as the informant has categorically mentioned the name of those four persons, as culprits of the case and as such, in absence of guilt of those four persons, these two appellants cannot be convicted under Section 399 of the Indian Penal Code, as the basic ingredient to constitute an offence under Section 395 of the Indian Penal Code, is five or more persons. As per the prosecution case, the prosecution has only alleged against two persons and as such, the appellants cannot be convicted under Section 399 of the Indian Penal Code. Learned counsel for the appellants has further submitted, that conviction under Section 402 of the Indian Penal Code, also cannot be passed against the appellants, as the basic requirement of assembly, shall be five or more persons, assembled for the purpose of committing dacoity, but in the present case, the basic ingredients of committing dacoity has not been established by the prosecution and as such, it cannot be said, that these two appellants are the persons, who assembled there for committing dacoity. Learned counsel for the appellants has further submitted, that P.W. 1, is the chowkidar, who has admitted in paragraph-4 of his cross-examination, that neither the seized cartridges nor the bhujali, which was alleged to have been recovered during raid, has been produced before him in the Court. This witness (P.W. 1) has categorically stated, that the seizure list was prepared but he has not put his signature on the seizure list. This witness has categorically stated, that he cannot identify the other accused persons, who are present in the Court. From perusal of the evidence of P.W. 1, it seems that, he has supported the prosecution case, being a chowkidar but neither he is a witness to the seizure list nor he could claim to identify the other accused persons. Furthermore, this witness has alleged, that alleged persons have assembled to commit dacoity but from the impugned judgment, it appears that only two persons have been convicted for commission of dacoity, but for the offence of dacoity, there must be five or more than five persons, as such the conviction of the appellants under Sections 399 and 402 of the Indian Penal Code, is not based on factual materials by the learned Trial Court. Learned counsel for the appellants has further submitted, that Raj Kumar Mahto (P.W. 2) has been declared hostile by the prosecution, though this witness has proved his signature on the seizure list, which has been marked as Exhibit- 1, but subsequently, this witness has stated that, nothing was done in his presence nor he has knowledge of anything. Sardendu Sarat, informant of the case, has been examined as P.W. 3. This witness has proved the seizure list without mentioning the P.S. Case No., which has been marked as Exhibit-1. This witness has further stated, in his cross-examination, that seizure list was given to the accused but the same has not been mentioned in the seizure list. This witness has further stated, that he has not mentioned about the size and shape of the seized article. Learned counsel for the appellants has further submitted, that a forged and fabricated case has been instituted against the appellants under the Arms Act without disclosing the size and shape of the weapon. A separate case has been instituted under the Arms Act but merely by instituting a case under Arms Act, the appellants cannot be convicted under Sections 399 and 402 of the Indian Penal Code, unless and until, it is proved by the prosecution that the five or more persons are sitting and planning to commit dacoity. In absence of five persons as accused, allegations cannot be levelled against other persons, who have been acquitted by the learned Trial Court, as such, the conviction of the appellants under Sections 399 and 402 of the Indian Penal Code cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that Shiv Narain Kamat, investigating officer of the case (P.W. 4), who has stated, that he is one of the police personnel, who were with the Officer-in-Charge in evening patrolling party, but the search was not made by him of the accused persons. This witness (Shiv Narain Kamath- P.W. 4) has further stated, that the seizure list does not bears the P.S. Case no., nor he has sent the seizure list along with the First Information Report to the Court till the charge sheet was submitted. The initial investigation was made by A.S.I., Subodh Ekka, who is alive and in service and the supplementary investigation was done by himself. The initial investigation was made by A.S.I., Subodh Ekka, who is alive and in service and the supplementary investigation was done by himself. Learned counsel for the appellants has further submitted, that from the evidence of P.W. 4, it appears that the seizure list was never sent along with the First Information Report before the learned Trial Court and that was sent at the time of submission of the charge sheet. From the evidence of Sardendu Sarat (P.W. 3), it appears that the copy of the seizure list has not been served upon the accused persons nor the P.S. case no., was mentioned. The initial investigation was done by A.S. I. Subodh Ekka, who has not been examined in this case, as such the defence has not been given any opportunity to cross-examine him, to elucidate the fact, to disbelieve the prosecution case, rather in a mechanical manner the learned Trial Court, relying upon the evidence of police personnels, has convicted the appellants under Sections 399 and 402 of the Indian Penal Code and acquitted four of the accused persons from the same trial, who were only be alleged to have committed the offence as per police, but the learned Trial Court has found half of the prosecution case, based on the statement of the police, is false and as such, the appellants cannot be convicted under Sections 399 and 402 of the Indian Penal Code. Learned counsel for the appellant has relied upon a judgment as reported in AIR 1979 SC 1412 , in the case of Chaturi Yadav and others Vs. State of Bihar, where the Hon’ble Supreme Court has held: “that mere presence of person having arm does not itself prove that accused have assembled for purpose of committing dacoity or for making preparations to accomplish that object. State of Bihar, where the Hon’ble Supreme Court has held: “that mere presence of person having arm does not itself prove that accused have assembled for purpose of committing dacoity or for making preparations to accomplish that object. Even though some of the appellants who were caught hold by the Head constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration and in absence of any legal evidence to support the charge under Sections 399 and 402 of the Indian Penal Code, against the appellants, the possibility that appellants may have collected for the purpose of murdering somebody or committing some other offence, cannot be safely eliminated.” Under the aforesaid circumstances, learned counsel for the appellants has submitted, that this Court may acquit the appellants of the charge and conviction under Sections 399 and 402 of the Indian Penal Code. 12. Heard, Mr. Mukesh Kumar, Additional Public Prosecutor on behalf of the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is, well-founded, on the basis of material available on record and the learned trial court has rightly convicted the appellants under Sections 399 and 402 of the Indian Penal Code and this Court may not interfere at this stage. 13. Heard, learned counsel for the appellant, Mr. Aman Shekhar assisted by Mr. Sudhanshu Shekhar Choudhary, Advocates and Mr. Mukesh Kumar, Additional Public Prosecutor on behalf of the State. This Court has perused the records, including the formal F.I.R., charge, evidence of four witnesses, seizure list, exhibits, the statement of the appellants recorded under Section 313 Cr.P.C. and the judgment cited by the learned counsel for the appellants as reported in AIR 1979 SC 142, in the case of Chaturi Yadav and others Vs. State of Bihar (supra), this Court is of the opinion, that in absence of any evidence to constitute an offence of committing dacoity, the appellants cannot be convicted under Sections 399 and 402 of the Indian Penal Code. State of Bihar (supra), this Court is of the opinion, that in absence of any evidence to constitute an offence of committing dacoity, the appellants cannot be convicted under Sections 399 and 402 of the Indian Penal Code. Six accused persons were put under trial, one of the accused persons was absconder, thus, total accused was originally seven in numbers but six were put under trial and out of six, four have been acquitted by the learned Trial Court, meaning thereby, that even though, these two appellants are added with the absconding accused, the number will come to three. For constituting an offence under Section 395 of the Indian Penal Code, the number of accused must be five or more than five. In absence of such evidence, the appellants cannot be convicted under Sections 399 and 402 of the Indian Penal Code. The seizure list which has been proved and marked as Exhibit- 1 in this case, is of no help for the prosecution, as the informant Sardendu Sarat (P.W. 3) has admitted, that for recovery of illegal arms and ammunitions from the appellants, a separate case has been instituted. The seizure list may have some legal value with regard to that Arms Act, but so far, in absence of any legal material for commission of dacoity by these two appellants, appellants cannot be convicted under Sections 399 and 402 of the Indian Penal Code and the appellants are acquitted of the charge and conviction under Sections 399 and 402 of the Indian Penal Code, by giving benefit of doubt. 14. In the result, the impugned judgment of conviction, dated 09.12.2004 and order of sentence, dated 14.12.2004, passed by learned Additional Sessions Judge, Fast Track Court, Sahebganj in Sessions Case No. 97 of 2002/Sessions Trial No. 19 of 2002, in connection with Borio P.S. Case No. 134 of 1999, corresponding to G.R. No. 361 of 1999, is hereby set-aside and the appellants Sk. Kudus and Md. Kasim are acquitted of the charges and conviction under Sections 399 and 402 of the Indian Penal Code, by giving benefit of doubt. 15. The appellants, who are on bail, are discharged from liability of their bail bonds. 16. Accordingly, the present criminal appeal stands allowed. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.