Rajasthan High Court - Jaipur
Ashram vs State on 18 September, 2009
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT ASHRAM VS. STATE OF RAJ. S.B.Criminal Appeal No. 391 of 2005 under Section 374 Cr.P.C. against the judgment dated December 13, 2004 of Addl. Sessions Judge (Fast Track) No.1 Alwar in Sessions Case No. 112 of 2004 whereby the accused appellant was convicted and sentenced under Section 395 IPC, to suffer 10 years RI with fine of Rs. 2,000/- each in default of payment of fine to further suffer one year RI, under Section 397 IPC to suffer 7 years RI and fine of Rs.5000/- each and in default of payment of fine to further suffer one year RI, and was further convicted and sentenced under Section 3/25 of the Arms Act to suffer 3 years RI with fine of Rs. 1,000/- and in default of payment of fine to suffer six months RI. Date of Order : September 18 , 2009 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA REPORTABLE Mr. Ali Mohammed Khan for the accused appellant Jamil Khan. Mr. Peeyush Kumar, Public Prosecutor for the State. BY THE COURT :
This appeal has been filed by the appellant Ashram against the judgment dated December 13, 2004 of Addl. Sessions Judge (Fast Track) No.1 Alwar in Sessions Case No. 112 of 2004 whereby the accused appellant was convicted and sentenced under Section 395 IPC, to suffer 10 years RI with fine of Rs. 2,000/- each in default of payment of fine to further suffer one year RI, under Section 397 IPC to suffer 7 years RI and fine of Rs.5000/- each and in default of payment of fine to further suffer one year RI, and was further convicted and sentenced under Section 3/25 of the Arms Act to suffer 3 years RI with fine of Rs. 1,000/- and in default of payment of fine to suffer six months RI.
From the order sheets of Sessions Case No. 135 of 2003, it appears that accused appellant Ashram was released on bail on June 23, 2004 by the order of this Court and but till the time the statements of the accused persons were to be recorded he was present in court and on September 23, 2004 he was declared absconding and standing warrant of arrest was issued against him and accused Jahid Khan.
It may be mentioned that vide judgment and order dated 30.11.2004, co-accused persons were convicted and in case of accused appellant Ashram, who was called before the trial court by production warrant separate proceedings for trial were started against him vide order dated 30.11.2004. The trial court separately registered sessions case No.112 of 2004 on December 6, 2004. On Decmeber 9, 2004 statement of Ramswaroop,(PW.17) HC Police Station MIA was recorded. On December 10, 2004, statements of Saheb Khan, Police Constable (PW.18), and Bheem Singh, Police Constable (PW.19) were recorded. Statement of accused under Section 313 Cr.P.C. was also recorded on 10.12.2004. The arguments of the parties were heard on December 11, 2004 and vide judgment dated December 13, 2004, the accused appellant Ashram was convicted and sentenced as mentioned above.
2. Brief facts of the case are that on July 28, 2003 at 3.30 a.m. complainant Lallu Khan s/o Roopa submitted a written report (Ex. P.18) at P.S. M.I.A. Alwar Camp Thekda ka Bas alleging therein that in the night at around 1.30 'O' clock wife of the complainant went outside the house to answer the natural call then 7-8 persons forcefully entered in the house and started beating his wife and snatched the ornaments which she was wearing. They also snatched the wrist watch of the complainant and some money from his pocket. On hearing hues and cries his younger brother reached over there. The miscreants while started running one amongst them was caught who sustained injuries due to fall. The miscreant who was caught disclosed his identity as Razaq and informed that his other associates were 7 in number and their names are Mehboob, Ashram, Jameel, Taiyab, Zahid, Ramzan and Liyakat, who are having arms with them and looted articles are also with them. It is further alleged that the complainant and others tried to catch them, however, they opened fire and ran away. His son Subedin and wife have sustained injuries. On the aforesaid report, the police registered case against the accused persons for the offences under sections 395, 397 IPC and 3/25 Arms Act and the investigation was started. After concluding the investigation the police submitted charge sheet against the accused for the offences under sections 395 and 397 IPC and sections 3/25 of the Arms Act. On committal the trial court framed charge against the accused persons for the offences under sections 395 and 397 IPC and 3/25 Arms Act. In support of its case the prosecution examined as many as 16 witnesses and also exhibited 28 documents. Statements of three other witnesses in this case were recorded as mentioned above and vide judgment dated December 13, 2004, the accused appellant was convicted and sentenced as mentioned above.
4. Mr. Ali Mohd. Khan, learned counsel appearing for the accused appellant Ashram, argued that the prosecution failed to establish its case beyond the reasonable doubt. There are several infirmities and contradictions in the statements of witnesses, and therefore no reliance can be placed on the testimony of these witnesses. The conviction based on such evidence is not sustainable and the same is liable to be quashed and set aside. The sentence awarded by the trial court is excessive, keeping in view the facts and circumstances of the case and manner in which the incident is alleged to have taken place. There is no justification to award excessive sentence. The statements of accused appellant under section 313 Cr.P.c. is not recorded in accordance with the provisions of law, as all incriminating circumstances were not put to appellants and sufficient opportunity of defence is not afforded to appellant. No reliance can be placed on the statement of complainant because he has changed his version at different places. The incident had not taken place as stated by the complainant. The prosecution witnesses have made improvements in their statements and therefore no reliance can be placed on their testimony. The appellant was not previously known to the complainant and others. However, test identification parade is not conducted. Therefore, the accused cannot be connected with the crime and the learned trial court committed an illegality while recording the conviction. There was a dispute in between the complainant and Mehboob regarding some money transaction and when Mehboob went to the complainant and demanded money, some dispute started and stones were pelted amongst them. The complainant caught Razaq who was an associate of Mehboob and later on concocted the false story. In these circumstances the learned counsel argued that the accused appellant may be acquitted and atleast their sentence should be reduced.
5. The learned Public Prosecutor on the other hand supported the judgment of conviction against the accused appellant. The trial court rightly convicted the accused appellant. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced.
6. I have heard the learned counsel for the parties and gone through the entire record.
7. Before proceeding further a brief of the evidence produced by the prosecution is necessary.
PW.1 Takhat Singh, was one of the Motbir and independent witness to the memos of arrest and recoveries made from the accused persons. He put his signatures A to B on Ex. P.1 memo of arrest of accused Jahid Khan, Ex. P.2 arrest memo of accused Liyakat, Ex.P.3 arrest memo of accused Teyabkhan, Ex. P.4 arrest memo of accused Ramzan, Ex. P.5 arrest memo of accused Mehboob Khan, Ex.P.6 arrest memo of accused Ashram, Ex.P.7 arrest memo of Jamil khan, Ex.P.8 recovery memo of articles Silver Payjeb, from accused Jahid s/o Ramjani, Ex. P.9, recovery memo of wrist watch from accused Liyakat son of Alladin, Ex.P.10 recovery memo of live cartridge 315 Bore oriental and 4 hand made live cartridges from accused Ramjan, Ex. P.11 recovery memo of golden Hansali from accused Teyab son of Chhotelal, Ex.P.12 recovery memo of 12 bore Deshi Katta ( 12 bore country made gun)from accused Jamil, Ex. P.13, 12 bore Deshi Katta from accused Mehboob, Ex.P.14 Deshi Katta 12 bore ( 12 bore country made gun) from accused Asram and Ex. P.15 site map of place of incident. He stated in his statement as under :
??.28.7.03 ?? ??? ??? ????? ???? ?????? ???? ??? ??? ??????? ????? ?? ?? ?????? ?? ???? ??? ???? ? ??? ?? ?? ???? ????? ??? ??????? ????? ?? ???? ?????? ?? ?????? ?? ?? ?? ????? ???? ?? ??? ???? ??? ??? ????? ???? ?? ????? ???. ?? ???? ???? ??? ??? ??? ?? ???? ?? ?? ??????? ?? ?? ??? ??? ??? ????? ?? ????????? ?? ?? ???????, ????? ??? ???? ?? ???? ???? ??? ????? ???? ????? ????????? ?? ???????? ?? ???? ??? ????? ?? ??? ???????? ?? ???? ??? ????? ??? ?? ?? ???? ?? ????? ??? ?? ?? ???? ????? ????? ???? ??? ???"
PW.2 Moolchand, who was also witness to recoveries from the accused persons, amongst PW.1, but he has been declared hostile. But he admitted his signatures on Ex. P.1 to Ex. P.15 and also stated that Teyab and Jamil were arrested in his presence and he also stated that Hansli was recovered from accused Teyab pointing towards him. He stated in his statement as under:
???? ? ???? ?? ??? ????? ???? ??? ?? ?? ???? ?? ???? ????? ????? ??? ???? ?? ??? ????? ???? ????? ?? ????? ???? ????? ???? ??? ???? ? ???? ?? ??? ????? ??? ?????? ??? ?????? ??????? ??.1 ?????? ??????? ??. 15 ?? ?? ?? ?? ???? ????????? ???"
PW.3 Hajarilal, SI Police Station MIA Alwar stated in his statement as under :
"???? ?? ????? ???? ???? ???? ?????? ?????? ???? ?? ?? ?? ???? ???????? ??? ????. ??????? ????. ??????? ????. ?? ??? ???? ?????? ?? ??? ????? ???? ???? ???? ????? ?? ??? ?? ?? ??????? ?? ???? ??? ?? ???? ???? ??? ???? ?? ??? ???????? ? ???? ?????? ?? ?? ???? ??? ???? ??
?????? ?? ???? ??? ?????, ?????, ??????, ????, ?????, ???? ?? ???? ???? ???? ????? ?? ?? ?? ????? ???? ?? ???? ??. ??????? ? ???? ??????????? ?? ????? ???? ????? ??? ????? ???? ??????? , ????????? ?? ????? ???? ???? ???? ??? ?? ??? ?? ?? ?? ? ????? ????? ???????? ???????? ?? ???? ?? ??? ??? ?????? ???? ???? ????? ? ??? ?? ???? ?????? ?? ??? ????? ??? ???? ?? ???? ???? ?? ??????? ???? ?? ?? ?? ???? ???? ??? ????? ?? ???? ??? ?????? ?? ?? ???? ?? ??? ????? ?? ??????? ???? ?????? ???? ????? ???? ???? ????? ???? ??? ?? 315 ??? ?? ????? ??????, ??? ???? ??? ?? ????? ??? 315 ??? ?? ?????? ???? ???? ??? ??? ???? ?? ???? ???? ??? ????? ????? ??? ??????? ??? ??. ???????? ?? ???? ?????
??? ???? ??? ??? ???????? ???? ?? ?????? ?? ?????? ?? ?? ????? ?? ?? ????? ???? ??? ?? ?? ? ???? ?? ??? ?? ??????? ?? ???? ??? ???? ???? ???? ???. ?? ????? ?? ???? ?? ?? ????? ???? ?? ???? ??? ?? ???? ????? ???? ???? ?? ??? ?? ???? ??? ???????? ?? ???? ?? ??? ????? ?? ??? ?? ??? ???? ?? ???? ???? ??? ???? ???? ????? ???? ?? ?? ???? ????? 12 ??? ????? ? ?????? 12 ??? ???? ?? ?? ? ??. ?? ????? ? ????? ???. ???? ??? ?? ???? ?? ????? ???? ???? ???? ?? ???? ?? ??? ???? ???? ?? ???. ?????? ?? ????? ?? ????? ???????? ?? ???? ?? ??? ?????? ?? ???? ?? ????? ?? ??? ?? ???? ???? ????? ?? ? ??? ?????, ???????? ?????? ? ??? ?? ???? ???? ?? ???????? ?? ??????? ?????"
PW.4 Neksingh, Head Constable Armorer, Reserve Police Lines, Alwar, who examined the arms recovered from the accused persons. He stated in his statement as under :
??. 16.8.03 ?? ??? ??? ????. ?? ??????? ?? ?? ?? ????? ???? ??? ????? ??? ?? ??? ???? ????? ?? ?? ? ?? ????????? ?? ???????? ?? ???? ?? ??? ???? ??? ????? ????? ?????? ??? ??????? ??? ?? ?? ????. ??????? ? ??????? ???? ?? ??? ????? ??.??.??. ???.????? ??? ????? ?????? ???? ??? ???? ????? ?????? ? ?? ?? ??? ????? ??? ?? ?? ???? 12 ??? ?? ??? ???? ?? ???? ??? ???? ???????? ?? ??????? ??. ? ??? ?????? ???? ??? ???? ????? ?? ?????? ???????? ??? ??? ?? ??? ??? ???? ???? ?? ???? ???? ?? ???? ?? ???? ??? ???? ????? ???? ?????? ?? ????? ??? ??? ??? ???? ????? ?? ??????? ?? ??? ????? ????? ?? ?? ?? ?? ?, ?? ?? ??, ?? ?? ?? ????? ???? ?? ????? ????. ?? ?????? ????? ???? ?? ?? ? ??? ???? ???? ??????? ??????? ??.17 ?? ?? ???? ???? ?? ??? ?? ? ?? ?? ???? ????????? ???"
PW.5 Banbihari, HC No. 138 Police Station MIA Alwar stated that Sabudin came to him at Bagad Chowki at 2.55 a.m.who stated to him that Thekda Ka Bass at the resident of Lallu Khan some miscreants came and they fired at them and one of the miscreant has been caught by them. He stated in his statement as under :
"????? ?? ???? ?????? ???? ??????? ?? ????? ????? ??? ?? ???? ??? ??? ????? ?? ???? ???? ??? ?????? ????? ?? ????? ????? ???. ??? ?????? ?? ??? ???? ?? ??? ???? ?? ???? ?? ?? ???? ?? ?? ??????? ????? ?? ????? ?? ????? ???? ???? ??? ??? ???? ????? ??? ???? ?? ???? ???? ??? ???? ???? ?????? ?? ??????? ????
??? ?? ??????? ?? ???? ??? ?????? ?? ??? ???? ???????? ? ???????? ?? ????? ??? ?????? ?? ???? ?? ??? ???? ??? ??? ????? ??? ??? ????? ??? ???? ?????? ???? ?? ?????? ?? ???? ?? ??? ?? ? ?? ? ???? ? ?????? ?? ???? ?? ??? ????? ??? ?? ???? ??? ??? ??? . ????? ?? ? ???. ????? ?? ?? ?????? ????? 315 ??? ?? ??? ?????? ???? ??? ?? ??? ??? ????? ???, ???? ?? ????? ???? ??, ???? ?? ?? 12 ??? ?? ????? ?????, ????? ?? ?? 12 ??? ?? ????? ????? ? ?? ????? ??????, ????? ?? ?? 12 ??? ?? ????? ????? ???? ??? ??? ???????? ????? ???? ?? ????? ?? ?? ????? ????? ????? ???"
Pw.6 Banshilal, Constable No.345 Police Station M.I.A. Alwar stated about his posting at MIA Camp Dekda and receipt of report by him and thereafter handing over it to the Police Station MIA at 4.00 a.m. over which case No.259/03 was marked and return back to him for giving it to SHO. Report is Ex .P.18 which was chalked out as FIR Ex. P.19 where he has put his signatures at place A to B. PW.7 Dr. Amarsingh Rathore, who examined the injuries of Subdeen son of Lallu, Smt. Janti wife of Lallu and Lallu son of Roopa, on 29.7.20003. He stated thus :
???? ?????? ????? ????? ???? ??? ?? ???? ?? ?????? ?????? ???? ??? ????? ???? ?? ????? ??? ?? :-
1. ???? ??? ??? 1x1 ????. ???? ??? ?? ?????? ????
2.????? ??? ??? 3x3x1 ????. ?????? ??? ??? ?? ??? ?? ?? ??? ?? ??? ??? ??
???? ???? ???? ?????? ??????? ?? ??? ???? ?????? ?? ?? ??? ????? ???? 24 ???? ?? ???? ?? ??? ??? ????? ??????? ??. 20 ??? ?? ? ?? ?? ???? ????????? ??? ???? ????? ?? ????? ?? ?????? ?????? ? ?? ?? ?? ????? ?? ????? ????? ????? ???
??? ??? ??????? ????? ????? ????? ??? ?? ???? ?? ?????? ???? ????? ???? ?? ?? ??? ???????? ?? ? ????. ?? ?? ??? ??? ???? ???? ????? ?? ??? ??? ??????? ??? ?????? ? ???? ?????? ?? 24 ???? ?? ???? ?? ???
??? ??? ????? ????? ????? ???? ?? ???? ?? ?????? ???? ?? ????? ???? ?? ????? ???? ??? ?? ???
1.????? ??? ??? 6x4 ????. ?????? ???? ????
2.???? ??? ??? 2x1 ????. ????? ??? ??? ?? ????? ?????? ???
3. ????? 1x1 ????. ?????? ??? ?? ??? ?? ?????? ???
4.????? 1x1/2 ????. ???? ??? ?? ?????? ??
???? ??? ???? ?????? ? ??? ?????? ?? ?? ????? ??? ??? 24 ???? ?? ???? ?? ??? ??? ????????? ??????? ??.22 ?? ??? ?? ? ?? ?? ???? ????????? ?? ?? ?? ????? ?? ? ?? ?? ????? ?? ????? ????? ???"
PW.8 Panchya, villager stated about how he caught hold of accused Teyab and thereafter police came and he was arrested. In his statement he stated thus:
"??? 2003 ??? 15 ????? ?? ???? ?? ??? ?? ??? ???? ???? ?? ??? ????? ??? ??? ???? 10 ??? ?? ??? ??????? ???? ??? ?? ???? ??? ???? ?? ????? ???? ?? ???? ????? ?? ? ??? ??? ?? ???? ?? ???? ??? ?? ???? ??? ?? ?? ??? ?? ???? ??? ?? ???? ??? ??? ???? ????? ?? ????? ???? ????? ?? ???? ??? ?????? ??? ???? ?? ??? ?? ????? ???? ???? ??? ???? ???? ??? ??? ?? ?????? ???? ??? ??? ?? ?????? ???? ??? ?????? ??? ?? ?? ????? ??? ?? ??? ?? ?? ????? ??? ?? ????? ??? ??? ?? ?? ???? ????? ?????? ?? ??? ????? ????? ???? ?? ?? ?? ??? ? ???? ?? ????? ?? ? ???? ??? ???? ????? ?? ????? ?? ???? ? ???? ?? ????? ????? ???. ???? ?? ??? ??? ?? ??? ?? ??? ????? ????? ?? ?? ??? ?? ???? ?? ????? ?? ????? ???? ???"
PW.9 Asar Khan, stated about the incident took place at the residence of his brother Lallu. He put his signature A to B on the site map of the place of incident Ex. P.23. He also put his signature on Ex. P.24. In his statement he stated thus :
????? ???? ???? ?? ????? ??? ?? ?? ????-?: ????? ???? ??? ?? 1-1.30 ??? ?? ??? ??? ??? ?? ?? ?? ??? ??? ???? ??? ????? ?? ??? ???????? ??? ??? ???? ???? ????? ?? ??? ?? ????? ?? ?? ???? ? ??? ?????? ?? ?? ?? ???? ??? ??? ??? ??? ?????????? ????? ????? ???? ?? ???? ???? ??? ???????? ?? ????? ??? ? ???? ????? ?? ??? ?? ???? ??? ?? ????? ?? ??? ??? ??? ????? ???? ?? ?????????? ?? ???? ?? ???? ??? ??? ???? ?? ?? ??? ? ?? ??? ???? ?? ??? ?? ???? ??? ???? ????? ?? ??? ?????? ?? ?? ?? ????? ????? ???. ???"
"????? ??? ????? ?? ????? ?? ?? ?? ????? ???? ????? ??? ?? ??????? ??. ?? ?? ??? ?? ? ?? ?? ???? ????????? ??? ??????? ??.24 ?? ? ?? ?? ???? ????????? ?? ?"
PW.10 Lallukhan was the main eye witness, injured at the time of incident. He specifically implicated Ashram, Teyab, Mahboob, Jahid, Ramjani and Razak. Mehboob and Razak pointed Katta ( country made guns) at him. Jahid shown knife. Mehboob gave lathi blow on the head of his son. In his statement he stated thus :
??? ?? ??? ?????,????, ?????, ?????, ?????? ?? ????? ??? ?? ??? ?? ??? ???? ?? ????? ?? ?? ?? ????? ????? ??? ?????, ????? ? ???? ?? ????? ???? ??? ?? ?? ????? ?? ???? ??? ?? ???? ?? ??? ????? ???? ?? ???? ????? ? ????? ?? ???? ??? ?? ???? ????? ??? ???? ?? ???? ?? ??? ??? ???? ?? ???? ??? ?? ???? ??? ??? ??? ??? ?? ?? ??????, ????? ? ????? ?? ???? ???? ?? ????? ???? ?? ????? ???? ???, ????? ?? ????, ????? , ???? ?? ???? ??? ??? ??? ?? ???? ??? ?? ????? ?? ???? ?????? ?? ???? ??? ?????? ??? ?? ??? ??? ???? ?? ?? ?? ???? ?? ???? ?????? ??? ??? ?? ???? ?????? ??? ???? ??? ????? ?? ??? ?? ?? ?? ??? ?? ??? ?? ???? ????? ?? ???? ?????? ??? ???? ????? ????? ?? ???? ????? ?? ??? ??? ???? ???? ?? ???? ????? ?? ??? ?? ??? ????? ?? ????? ????? ????? ??? ???? ????? ?? ??? ??? ?? ?? ????? ???? ??? ??? ??? ????? ? ????? ????? ???. ???? ?? ??? ????? ???? ??? ?? ?? ??? ??????? ?? ??? ?????? ?? ?????? ??? ?????, ????, ????? ?? ????? ???? ??? ?? ?????? ?? ??? ?? ???? ??? ???? ??? ?? ?? ?? ??? ??? ????? ?? ???? ??? ??? ?? ?? ??? ?????? ?? ?? ???? ????? ??? ????, ?????, ????? ?? ?? ???? ?? ???? ??? ??????? ?? ????? ???? ?? ????? ?? ???? ??? ?? ?????? ??? ?? ?? ????? ?? ???? ????? ?? ???? ????? ???? ???? ?? ????? ??? ??? ??"
??? ?????? ?? ??? ????? ???? ??? ?? ???? ???? ??? ?? ???? ???? ?? ? ???? ??? ?? 2500 ????? ?????? ??? "
PW.11 Janno wife of Lallukhan, stated in her statement as under :
?? ???? ??? ??? ?? ?? ???? ???? ??? ?? ??? ???? ????? ??????? ???? ??? ???? ??? ?? ???? ??? ???? ?? ???? ???? ? ???? ??? ?? ??? ??? ?? ???? ??? ?? ??? ?????? ?? ??? ??? ????? ?? ?? ?? ???? ??? ????? ?? ? ????? ?? ???? ???? ?? ???? ??? ???? ? ???? ?? ???? ??? ?? ????? ???? ?? ????? ?? ???? ?????? ????? ??? ???? ???? ??? ?? ???? ????? ?? ???? ???? ?? ??????? ??? ??? ??? ?????? ?? ???? ??? ? ???? ?? ????? ???? ???? ???? ?? ??? ??? ???? ???? ??????? ???? ? ????? ????? ???
???? ?? ???. ?????, ?????, ?????? ?? ??? ? ???? ?? ????? ????? ?? ???0 ????? ?? ??? ?? ??? ??? ??? ?????? ????? ?????? ??? ???? ??? ??? ?? ???? ?? ???? ???? ?? ????? ????? ???? ??? ??? ????? ?? ??? ????? ???? ??? ?? ???? ??? ??? ?????? ???. ?? ?? ??? ????? ?? ?? ??? ?? ???? ???? ????? ?????"
PW.12 Jakir Hussain, stated about the dacoity took place at the residence of Lallu and about this brother of Lallu to him. Brother of Lallu and he informed about the dacoity to the police. He also informed about detaining of Razak. In his statement he stated thus :
?? ?? ???? ?? ??? ?? ????? ????? ?? ?????? ? ???? ????? ?? ??? ?? ??? ??? ???? ??? ????? ?? ????? ??????? ?? ??? ?? ??? ??? ?????? ?? ???? ??? ?????? ?? ??? ????? ???? ???? ?? ?? ????? ?? ?? ???? ??? ?????? ?? ???? ?? ????? ?? ?? ??? ???? ?? ????? ?? ???? ????? ??? ???? ??? ?????? ???? ?? ??? ????? ??? ?????? ?? ?????????, ??????, ??? ? ??? ?? ????? ??? ?? ??????? ??? ???? ??? ????? ???? ?? ?????? ?? ??? ??? ????? ??? ????? ????? ?? ????? ?? ?? ????? ??? ???? ??? ??? ???? ????? ??? ?? ?? ????? ????? ?? ????? ?? ?????? ?? ?? ??????? ??? ?? ?? ??? ??? ??? ?? ??? ??? ????????"
PW.13 Sabudin, one of the neighbour of complainant, who stated that in the night of 27 at 1.30 a.m. his wife wake up him and stated that at the residence of Lallu some thieves have come. On this he reached at the residence of Lallu. He stated in his statement thus :
"??? ??? ??? ??? ????? ???? ????? ???. ?? ???? ???? ??? ???? ??? ?? ????? ? ???? ????? ?? ??? ? ??? ?? ???? ????? ???? ?? ????? ?? ?? ???? ??? ???? ????? ?? ???? ??? ?? ???? ????? ?? ??? ??? ???? ?? ???? ?????? ?? ???? ???? ???? ?? ??? ????"
"??? ????? ??????? ?? ????? ?? ??? ??? ?? ??? ??? ?? ???? ????? ?? ????? ?? ????? ??? ????? ?? ?? ????? ????? ?? ?? ??? ?? ??????? ??? ?? ??? ?? ??? ????? ?? ????? ???? ?? ?? ?????? ?? ???"
"????? ????? ???????? ?? ????? ?? ??????? ?? ???? ?? ????? ???"
PW.14 Anand Singh, Arms Clerk, stated that on 7.10.03 he was posted as Arms Clerk in the office of Distt. Magistrate Alwar. On that day on a request of SP Alwar in case No. 250 of 2003 against Ramjan, Jamil, Mehbpoopb and Asram under section 3/25 of the Arms Act. He presented the said case report before the Distt. Magistrarte Shivjiram Pratihar, who as per the powers vested in him under sectionm 39 of the Arms Act, gave sanction for prosecuting the accused persons under section 3/25 of the Arms Act. The file after getting signature given to SP Alwar which is Ex. P.25 where A to B is signature of Distt. Magistrate Shivjiram Paratihar and as I worked under him and that is why I know his signatures.
PW.15 Subedin son of Lallu, who was injured during dacoity committed by the accused appellants, implicated all the accused persons including Mehboob, Razak and Ashram, who were present in the court. He stated thus:
???? ??? ??? ??? ??? ?? ?? ??? ?? ???? ??? ????? ?? ??? ??? ?? ??? ?? ??? ????? ?? ?? ?? ??? ?? ????????? ????? ????? ????? ????
???: ????????? ????? ?? ??? ????? ???? ??? ?? ??? ??? ????? ?? ??? ????? ????? ?? ???? ???? ??? ??? ???? ?? ??? ???? ???? ???? ??? ???? ? ????? ??? ?????? ?? ??? ????? ??? ?? ??? ???? ???? ???? ?? ??? ?? ?? ????? ??? ????? ?? ??? ????? ??? ?? ???? ???? ?? ????? ??? ?? ????? ?? ??? ????? ??? ?? ???? ?? ????? ????? ??? ?? ???? ???? ??? ?? ?? ???? ?? ???? ????? ????? ??? ???? ???? ?? ?? ???? ????? ?? ??? ??? ??? ???? ???? ?? ????? ? ????? ?? ???? ???"
PW.16 Kailash Chand Meen, Police Inspector stated that on 28.7.2003 he was posted as SHO MIA, Alwar. On that day Lallu submitted report over which he made endorsement and Constable Bansilal was sent to Police Station for registering the case and Santlal ASI sent the report back after registering FIR where G to H Santlal put his signature. FIR Ex. P.19 was chalked out. On 29.7.2003f he prepared the site map of the incident place Ex. P.23 where he put his signature E to F and Cto D and G to H are signatures of Motbirans. On 28.7.2003, accused Jahid, Liyakat, Teyab, Ramjan, Mehboob, Ashram and Jamil were arrested through arrest memo Ex. P.1 to Ex. P.7 where he put his signature E to F and A to B and C to D are the signatures of Motbirans. On 1.8.2003 by Ex. P.23 accused Rajjak was arrested. On 1.8.2003 accuserd Jahid gave information that he is prepared to give recovery of silver Payjeb, which is Ex. P.27 and recovery of Payjeb is vide Ex. P.8 and on it E to F he put his signature where A to B and C to D are the signatures of Motbiran and at place X thumb impression of accused was obtained. He further stated in his statement as under :
"????? ???? ??????? ??????? ??.15 ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ???????? ?? x ????? ?? ???. ?? ?????? ?? ??? ??? ???. ?????? ?? ????????? ?? ?????? ?? ?? ?? ???? ???????? ?????? ???? ?? ??? ????? ?? ????? ??? ???? ??? ???? ?????? ??????? ??.28 ?? ??? ?? ? ?? ?? ???? ????????? ?? x ????? ?? ???. ?? ?????? ??? ??????? ?????? ???. ?????? ?? ?? ???? ????? ????? ????? ???? ????? ??????? ??.9 ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? x ????? ?? ???. ?? ?????? ?? ????? ????? ???? ??.?? ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? x ????? ?? ???. ?? ?????? ??
??.28.7.03 ?? 9.20 ? ?? ?? ???. ????? ?? ?? ?????? ????? 319 ??? ?????? ? ??? ??? ?? ??? ?????? ????? 315 ??? ????? ???? ?? ????? ???? ????? ??????? ??.10 ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? x ????? ?? ???. ?? ?????? ?? ????? ????? ???? ??.?? ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? x ????? ?? ???. ?? ?????? ?? ??? ??? ???. ???? ?? ?? ????? ???? ?? ???? ????? ?? ????? ???? ??????? ??.11 ????? ?? ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? x ????? ?? ???. ?? ?????? ?? ??? ??? ???. ???? ?? ????? ?? ?? ???? ????? 12 ??? ????? ?????? ????? ???? ??????? ??.12 ???? ???? ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? x ????? ?? ???. ?? ?????? ?? ??? ??? ???. ????? ?? ????? ?? ?? ???? ????? 12 ??? ????? ????? ??????? ??.13 ???? ???? ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? x ????? ?? ???. ?? ?????? ?? ??? ??? ????? ?? ???? ????? ????? 12 ??? ? ????? ?????? 12 ??? ???. ????? ?? ????? ?? ????? ????
??????? ??.14 ???? ???? ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? x ????? ?? ???. ?? ?????? ?? ??????? ?? 15 ?. ????? ????? ???? ?? ??? ?? ? ?? ?? ???? ????????? ??? ??. 2.8.03 ?? ???? ???????? ?? ??????? ???? ???? ?????? ???????? ????? ???? ?? ?? ??????? ??. 14 ?? ??? ?? ? ?? ?? ???? ? ?? ?? ? ?? ?? ?? ???????? ?? ????????? ?? ??? ?? ???????? ?? ????????? ? ?????? ????? ??? ????? ???? ???????? ??????? ??. 14 ? ?? ??? ?? ? ?? ?? ???? ????????? ?? "
After the judgment pronounced in Sessions Case No. 135/2003, on 30.11.2004, statements of three more witnesses were recorded in Sessions Case No.112 of 2004. The evidence recorded in this case also required to be discussed.
PW. 17 Ramswaroop, Head Constable in his statement stated that Kailash Chand, SHO on 28.7.2003 in case No. 250 of 2003 deposited seized arms which were deposited in Malkhana vide register no. 464 of 2003. One payjeb and wrist watch was also handedover to him which has also been deposited in the Malkhana. On 16.8.2003 Three Kattas (country made guns) were sent to Police Lines Alwar for examination by Armourer which were after examination deposited back in the Malkhana. One Katta recovered from accused Ashram and three live cartridge marked A and A1 in sealed condition were given to constable Saheb Khan for examination by the FSL on 9.9.2003 for which receipt was received from FSL which is entered at No. 464 Ex. P.30. and copy of it is Ex. P.30A.
PW.18 Shahebkhan, Constable stated that on 9.9.2003 he received 5 packets in sealed condition for handing over to FSL Jaipur and the same were deposited in sealed condition to FSL for which he was given receipt Ex. P.31.
PW.19 Bheem Singh, Constable stated that on 16.8.2003 he received three packets in sealed condition from the Incharge which he handed over to Armorer Police Lines for examination. Over which he opened the seal before him and after examination given the Report Ex. P.17 and articles back to him, which he handed over to incharge malkhana.
8. The accused appellants Ashram was amongst others accused, who committed dacoity at the residence of Lallukhan and looted property from his house. From the evidence mentioned above it is clear that PW.1 Takhat Singh, was one of the Motbir and independent witness to the memos of arrest and recoveries made from the accused persons. He put his signature on Ex.P.6 arrest memo of accused Ashram and Ex.P.14 Deshi Katta 12 bore ( 12 bore country made gun) from accused Asram. He stated in his statement that all the accused were arrested before him and at that time Lallu Khan was also present. Lallu Khan at that time stated that all these three dacoits were members of that dacoity. PW.2 Moolchand, has been declared hostile, but he admitted his signatures on Ex. P.1 to Ex. P.15. PW.3 Hajarilal, SI Police Station MIA Alwar stated in his statement that Razak stated that Ashram, mehboob, Liyakat, Teyab, Ramzan and Jamil were with him. He further stated that Asram was caught after searching near Vilaspur Phatak with one Deshi Katta. PW.4 Neksingh, Head Constable Armorer, Reserve Police Lines, Alwar, who examined the arms recovered from the accused persons stated in his statement that all the three recovered arms action and mechanism were properly working, which are coming in the definition of fire arms. PW.5 Banbihari, HC No. 138 Police Station MIA Alwar stated that from accused Ashram 12 Bore Katta was recovered along with two live cartridge and he was caught along with other accused persons from the forest, who are present in court. PW.10 Lallukhan was the main eye witness, injured at the time of incident stated that he knows Asram by name. He further pointing towards Ashram, Mehboob, and Teyab, all the three got him standing near Neem Tree and Ashram and Mehboob pointed Katta and asked him to hand over belongings which are with him. Again he pointed towards accused appellant Ashram and accused Jamil, both of them stated they will look after him. PW.13 Sabudin, one of the neighbour of complainant, who stated that in the night of 27 at 1.30 a.m. his wife woke up him and stated that at the residence of Lallu some thieves have come. On this he reached at the residence of Lallu. He stated in his statement that when he reached there all the dacoits ran away, the accused who ran away are present today in court. PW.14 Anand Singh, Arms Clerk, gave statement about the sanction got prepared from the office of the District Magistrate for sanction for prosecuting the accused persons under section 3/25 of the Arms Act which is Ex. P.25 where A to B is signature of Distt. Magistrate Shivjiram Paratihar. PW.15 Subedin son of Lallu, who was injured during dacoity committed by the accused appellants, implicated all the accused persons including Ashram, who was present in the court. He stated pointing towards Ashram that he pointed Katta and fired it and gave beating to his father. PW.16 Kailash Chand Meena, Police Inspector stated that on 28.7.2003 he was posted as SHO MIA, Alwar and stated that on that day he recovered one Deshi Katta 12 bore from accused Ashram vide Ex. P.14 where he put his signature E to F. The katta was marked A and three live cartridge were marked A 1. In the FSL report dated 15.9.2004 the FSL reported that Four 12 bore cartridges ( L/1 to L/4) from packets A-1 and B1 (cartridges of Packet A/1 three in Nos. were recovered from accused appellant Ashram were in packet A-1) are fire worthy ammunition.
From bare perusal of the statements of the prosecution witnesses mentioned above and the recovered articles which were fire worthy ammunition and action and mechanism were worthy fire, it is clear that the prosecution has been able to prove the case against the accused appellant Ashram beyond reasonable doubt for the offences under sections 395, 397 IPC and for sections 3/25 Arms Act. The findings arrived at by the trial court cannot be said to be perverse.
9. The argument of the learned counsel for the accused appellant that the sentence awarded to the accused appellant for section 395 IPC is excessive. Looking to the facts and circumstances of the case, I reduce the sentence of 10 years to 7 years for offence under Section 395 IPC.
10. For these reasons the appeal filed by the accused appellant is partly allowed. The judgment of conviction dated December 13, 2004 of Addl. Sessions Judge (Fast Track) No.1 Alwar in Sessions Case No. 112/2004 of accused appellant Asharam is confirmed for the offences under sections 395 and 397 IPC and for offence under Sections 3/25 of the Arms Act, but the sentence awarded to the accused appellant Ashram for the offence under section 395 IPC from 10 years RI is reduced to 7 years RI. The State Government is directed to consider the case of the accused appellant for remission under section 432 IPC in accordance with law.
(Mahesh Chandra Sharma) J.
OPPareek/