Rajasthan High Court - Jaipur
Jahid Khan vs State on 18 September, 2009
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT JAHID KHAN VS. STATE OF RAJ. S.B.Criminal Appeal No. 690 of 2009 under Section 374 Cr.P.C. against the judgment dated May 26, 2009 of Addl. Sessions Judge (Fast Track) No.1 Alwar in Sessions Case No. 119 of 2003 whereby the accused appellant was convicted and sentenced under Section 395 IPC, to suffer 7 years RI with fine of Rs. 2,000/- in default of payment of fine to further suffer one year additional imprisonment and under Section 397 IPC to suffer 10 years RI and fine of Rs.5000/- and in default of payment of fine to further suffer two years additional imprisonment. Date of Order : September 18 , 2009 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA REPORTABLE Mr. S.S. Hasan for the accused appellant Jahid Khan. Mr. Peeyush Kumar, Public Prosecutor for the State. BY THE COURT :
This appeal has been filed by the appellant Jahid Khan against the judgment dated May 26, 2009 of Addl. Sessions Judge (Fast Track) No.1 Alwar in Sessions Case No. 119 of 2003 whereby the accused appellant was convicted and sentenced under Section 395 IPC, to suffer 7 years RI with fine of Rs. 2,000/- in default of payment of fine to further suffer one year additional imprisonment and under Section 397 IPC to suffer 10 years RI and fine of Rs.5000/- and in default of payment of fine to further suffer two years additional imprisonment.
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.
3. From the order sheets of trial court , it appears that accused appellant Jahid khan and co-accused Ashram were absconded on 23.9.2004, but till the time the statements of the prosecution witnesses were recorded, both were present.
It may be mentioned that vide judgment and order dated 30.11.2004, co-accused persons were convicted and in case of co-accused 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. Accused Ashram was convicted and sentenced vide judgment dated December 13, 2004. Accused appellant Jahid Khan appeared before the trial court on 19.3.2009 and on his appearance the record of this case was called for trial and his statement under section 313 Cr.P.C. was recorded on 4.4.2009 and thereafter the trial court heard the arguments and fixed the matter for pronouncement of judgment on May 26, 2009 and on 26.5.2009 he was convicted and sentenced as mentioned above.
4. Mr. S.S.Hasan, learned counsel appearing for the accused appellant Jahid Khan, argued that the prosecution failed to establish its case beyond the reasonable doubt. The trial court has not properly appreciated the prosecution evidence while convicting the accused appellant. The trial court has not appreciated this aspect of the matter that there is no evidence against the accused appellant. From the evidence of prosecution it is not proved that the appellant was present at the place of occurrence. The appellant has falsely been implicated in the present case due to enmity as the complainant and the appellant are known to each other prior to the incident. This fact was also stated by the appellant in his statement recorded before the trial court under section 313 Cr.P.C. wherein he had stated that there was some money dispute between the appellant and the complainant and it is for that reasons that the complainant has falsely implicated the appellant in the present case. In the FIR and also in the statement of the complainant recorded before the trial court that the accused persons took away the ornaments of the wife of the complainant. It is submitted that the alleged incident took place at about 1.30 in the night and it is highly improbable that a lady shall wear ornaments in the night at about 1.30. The injury sustained by the injured persons are simple in nature and superficial which may be self inflicted. No reliance can be placed on the alleged injuries sustained by the wife and son of the complainant. No identification parade was held by the investigating agency. The complainant and the witnesses for the first time identified the accused appellant in the court when they came for giving statement in the court. There is no recovery from the appellant. No identification parade has been held and the alleged recovery is also doubtful. There is no evidence against the appellant to convict him for the alleged charges. In these circumstances the learned counsel argued that the accused appellant may be acquitted and atleast his 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 Lallu khan, 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, Mehboob 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 wjere 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 Meena, 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 Banshilal 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 29.7.2003 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. 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 impressison 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 ? ?? ??? ?? ? ?? ?? ???? ????????? ?? "
8. The accused appellants Jahid Khan was amongst others accused, who committed dacoity at the residence of Lallukhan and looted property from his house. Thus the prosecution has been able to prove case beyond reasonable doubt against the accused appellant. 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, and Ex.P.8 recovery memo of articles Silver Payjeb, from accused Jahid s/o Ramjani. 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. 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 that the accused who are present in court were arrested from forest in his presence. 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, stated about the injuries received by them. PW.10 Lallukhan was the main eye witness, injured at the time of incident. He specifically implicated Jahid. Jahid shown knife to him. In his statement he stated that he knows by name Asram, Teyab, Mehboob, Jahid, Ramjani. Mehboob and Asram pointed Katta at him and at that time Rajak, Ramjan and Jahid gave beating to him by lathis and thereafter Jahid Khan taken out knife from his shoes and stated where they have the ornaments and inflicted knife blow on back side. Jahid on the point of knife taken away Payjeb from his wife. PW.11 Janno wife of Lallukhan, stated in her statement that Jahid taken away Payjeb from her. She identified accused Mehboob, Jahid and Razak by name and by face. 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 the accused present in court were caught in Lalchandi Forest. PW.15 Subedin son of Lallu, who was injured during dacoity committed by the accused appellants, implicated all the accused persons, who are present in the court. PW.16 Kailash Chand Meena, 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 Banshilal 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 29.7.2003 he prepared the site map of the incident place Ex. P.23 where he put his signature E to F and C to 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 memos 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 accused 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 impressison of accused was obtained. I am in agreement with the findings recorded by the trial court for the offences under sections 395 and 397 IPC against the accused appellant Jahid Khan The findings arrived at by the trial court cannot be said to be perverse. There is no question of lodging false case by the complainant on account of any enmity with the appellant.
9. The argument of the learned counsel for the accused appellants that the sentence awarded to the accused appellant for section 397 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 May 26, 2009 of Addl. Sessions Judge (Fast Track) No.1 Alwar in Sessions Case No. 119/2003(135/03) is confirmed for the offences under sections 395 and 397 of the accused appellant Jahid Khan but the sentence awarded to him for the offence under section 397 IPC from 10 years RI is reduced to 7 years RI looking to the facts and circumstances of the case. 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/