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2023 DIGILAW 273 (UTT)

Sunil v. State of Uttarakhand

2023-04-24

ALOK KUMAR VERMA

body2023
JUDGMENT : ALOK KUMAR VERMA, J. 1. These four Criminal Appeals have been filed by the appellants against a common judgment dated 30.07.2008, passed by learned District and Sessions Judge, Champawat in Sessions Trial No. 06 of 2007, State vs. Haseeba and Others, Sessions Trial No. 11 of 2007, State vs. Akram Khan, Sessions Trial No. 10 of 2007, State vs. Madan Singh and Sessions Trial No. 09 of 2007, State vs. Sarwar. 2. Appellants Sunil, Sarwar, Akram Khan and Madan Singh have been convicted and sentenced to undergo rigorous imprisonment for a period of seven years for the offence under Sections 398, 401 of the Indian Penal Code, 1860 (in short ‘IPC’) in Sessions Trial No. 06 of 2007. Appellants Akram Khan, Madan Singh and Sarwar have been further convicted and sentenced to undergo rigorous imprisonment for a period of one year for the offence under Section 4/25 of the Arms Act, 1959 in Sessions Trial No. 11 of 2007, Sessions Trial No. 10 of 2007 and Sessions Trial No. 09 of 2007 respectively. All the sentences have been directed to run concurrently. 3. These Criminal Appeals are connected appeals, therefore, these appeals are being decided by this common judgment. Criminal Appeal No. 212 of 2008 will be treated as a leading case. 4. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that in the intervening night of 30.11.2006/ 01.12.2006, Sub-Inspector Bhagwati Prasad Bisht (PW1), Sub-Inspector Bhuwan Chandra Chandola (PW2), HCP Girish Chandra Bhatt (PW3) and other police personnel were on patrolling duty. When they reached near Deepak Tyre Works Shop, light was seen in the back gallery of that shop. Some persons were talking among themselves. The police party saw that six-seven persons were sitting in the gallery. One of them was saying that now everyone has gone to sleep, so they break the lock of the shop and take out the goods from the safe. A raid was conducted. Appellants-accused persons along with co-accused persons were apprehended at 02:15 hrs. Their personal search were conducted. Five different types of keys (Material Ext. 8) and a half burnt candle (Material Ext. 9) from the possession of appellant-accused Sunil, a knife (Material Ext. 4) from the possession of appellant-accused Sarwar, a khukri, a sharp edged weapon (Material Ext. 5) from the possession of appellant-accused Akram Khan and a knife (Material Ext. Their personal search were conducted. Five different types of keys (Material Ext. 8) and a half burnt candle (Material Ext. 9) from the possession of appellant-accused Sunil, a knife (Material Ext. 4) from the possession of appellant-accused Sarwar, a khukri, a sharp edged weapon (Material Ext. 5) from the possession of appellant-accused Akram Khan and a knife (Material Ext. 2) from the possession of appellant-accused Madan Singh were recovered. A knife each was recovered from the possession of co-accused Haseeba and Sachin Kumar and a iron rod was recovered from the possession of Rashid. The recovered articles were sealed. These articles were taken into possession vide Recovery Memo (Ext. Ka2). A Memo of Arrest of the accused persons (Ext. Ka1) was prepared. In spite of an endeavour, no public witness could be secured. An FIR (Ext. Ka4) was lodged by Sub-Inspector Bhagwati Prasad Bisht (PW1). Charge-sheets against accused persons Haseeba, Sachin Kumar, Sarwar, Madan Singh, Akram Khan and Sunil were filed after completion of investigation. 5. Charges under Sections 398, 401 IPC were framed against all the accused persons. Apart from these charges, charge under Section 4/25 of the Arms Act, 1959 was also framed against the accused Akram Khan, Madan Singh and Sarwar. Accused persons pleaded not guilty and claimed to be tried. 6. The prosecution examined four witnesses. 7. (PW1) Sub-Inspector Bhagwati Prasad Bisht, (PW2) Sub-Inspector Bhuwan Chandra Chandola, (PW3) HCP Girish Chandra Bhatt were members of the raiding party. (PW4) Sub-Inspector Harish Chandra Joshi is Investigating Officer. 8. Statements under Section 313 of the Code of Criminal Procedure, 1973 were recorded. Accused persons denied all the incriminating evidence, produced by the prosecution. 9. Appellant - Sunil has examined (DW1) Sharif Khan in his defence evidence. 10. Learned Trial Court heard the arguments, appreciated the evidence and passed the impugned judgment, by which, learned Trial Court has convicted all the accused persons. Aggrieved by the judgment of conviction and sentence, awarded by learned Trial Court, appellants appealed to this Court. 11. Mr. Bhuwnesh Joshi, learned Amicus Curiae, contended that the impugned judgment has been passed against the evidence on record. Police had illegally planted the alleged recovery. There are material contradictions in the statements of the prosecution’s witnesses. Therefore, their evidence do not inspire confidence. 11. Mr. Bhuwnesh Joshi, learned Amicus Curiae, contended that the impugned judgment has been passed against the evidence on record. Police had illegally planted the alleged recovery. There are material contradictions in the statements of the prosecution’s witnesses. Therefore, their evidence do not inspire confidence. The evidence, adduced by the prosecution, are not enough to establish the involvement of the appellants in the commission of the crime and the offence of Section 398 IPC and Section 401 IPC are not made out. 12. On the other hand, Mr. S.S. Adhikari, learned Deputy Advocate General, has supported the impugned judgment. 13. I heard learned counsel for both the parties and have carefully assessed the evidence, adduced by the prosecution. 14. Before I examine the contentions of both the parties, it is necessary to consider the provisions of Sections 398 and 401 IPC. These provisions are as under: “398. Attempt to commit robbery or dacoity when armed with deadly weapon - If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.” “401. Punishment for belonging to gang of thieves - Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.” 15. Section 398 IPC gets attraction if at the time of attempting to commit robbery or dacoity, the offender is armed with a deadly weapon which will attract an imprisonment not less than seven years. 16. To sustain a conviction on a charge under Section 401 IPC, it is necessary to prove by prosecution that there existed a gang of persons. These persons were associated for the purpose of committing theft or robbery. Theft or robbery was to be committed habitually, and the accused was a member of such a gang. 17. The question involved in the present case is whether the ingredients of Section 398 IPC and Section 401 IPC are satisfied in the present case. 18. These persons were associated for the purpose of committing theft or robbery. Theft or robbery was to be committed habitually, and the accused was a member of such a gang. 17. The question involved in the present case is whether the ingredients of Section 398 IPC and Section 401 IPC are satisfied in the present case. 18. (PW1) Bhagwati Prasad Bisht, (PW2) Bhuwan Chandra Chandola and (PW3) Girish Chandra Bhatt, members of raiding party, reiterated the statements as stated in the Recovery Memo (Ext. Ka2). According to them, in the night of 30.11.2006/01.12.2006, they were on patrolling duty. They saw that the accused persons were sitting in the gallery. They were talking among themselves that it is night. People must have slept. All the goods should be taken out by breaking the lock of Deepak Auto Parts Shop. Police party apprehended them and arms were recovered from their possession. 19. A perusal of the statements of these witnesses show that they nowhere alleged that the appellants attempted to commit robbery or dacoity. In every crime, there is first intention to commit it, secondly, preparation to commit it, and, thirdly, attempt to commit it. An attempt to commit a crime must be distinguished from an intention to commit it. In the present case, the offence is not attempt. Thus, the basic ingredient of Section 398 IPC i.e. an attempt to commit robbery or dacoity is not made out in the present case. 20. To sustain a conviction on a charge under Section 401 IPC, the prosecution has to prove that the appellants-accused persons belong to a gang of persons and that the gang of persons is associated for the purpose of habitually committing theft or robbery. 21. It would, therefore, not be sufficient for the prosecution merely to rely upon the fact that accused persons had associated themselves with the gang in the commission of only one offence. The prosecution must also prove that the members of the gang were associated for the purpose of habitually committing theft or robbery. In the present case, no such evidence has been produced by the prosecution. Therefore, the basic ingredient of Section 401 IPC is not made out in this case. 22. According to (PW1) Sub-Inspector Bhagwati Prasad Bisht, the recovery was sudden, hence, there was no personal search of the police party. In the present case, no such evidence has been produced by the prosecution. Therefore, the basic ingredient of Section 401 IPC is not made out in this case. 22. According to (PW1) Sub-Inspector Bhagwati Prasad Bisht, the recovery was sudden, hence, there was no personal search of the police party. (PW2) Bhuwan Chandra Chandola stated that the personal search of the police party was conducted before the arrest of the accused persons, while, (PW3) HCP Girish Chandra Bhatt stated that they had conducted their own search before the accused persons were searched. There is no signature of the accused persons on the Arrest Memo (Ext. Ka1). While, (PW2) Bhuwan Chandra Chandola has stated that it was signed by the accused persons. (PW2) Bhuwan Chandra Chandola stated that there was an electronic pole about five-six meters from the spot of the incident. While not supporting the said evidence of this witness, (PW4) Sub-Inspector Harish Chandra Joshi, Investigating Officer, has stated that if there was an electric pole near the spot, he would have definitely shown in the site map. 23. Therefore, in the present matter, there are material contradictions in the statements of the prosecution’s witnesses. Therefore, the statements of the prosecution’s witnesses do not inspire confidence. There is no positive, cogent and reliable evidence placed on record against the appellants by the prosecution to prove its case against them beyond all reasonable doubt. Therefore, appellants deserve benefit of doubt. 24. As a result, I accept the case of the appellants. Accordingly, all the four appeals are allowed. The impugned judgment of the conviction and sentence dated 30.07.2008, passed by learned District and Sessions Judge, Champawat in Sessions Trial No. 06 of 2007, State vs. Haseeba and Others, in Sessions Trial No. 11 of 2007, State vs. Akram Khan, in Sessions Trial No. 10 of 2007, State vs. Madan Singh and in Sessions Trial No. 09 of 2007, State vs. Sarwar are set aside. Appellants Sunil, Sarwar, Akram Khan and Madan Singh are acquitted of the charge under Section 398 and Section 401 IPC. Appellants Akram Khan, Madan Singh and Sarwar are also acquitted of the charge of Section 4/25 of the Arms Act, 1959. Appellants are on bail. Their bail bonds are cancelled and the sureties are discharged. 25. A copy of this judgment be placed in the connected Appeals.