Jharkhand High Court
Dilip Verma Alias Dilip Kumar Verma vs The State Of Jharkhand on 18 August, 2017
Equivalent citations: 2018 (2) AJR 199, (2017) 4 JLJR 397
Author: H.C. Mishra
Bench: H. C. Mishra, Ananda Sen
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 625 of 2013
(And I.A. No. 6423 of 2016)
With
Cr. Appeal (D.B.) No. 618 of 2013
(And I.A. No. 6424 of 2016)
(And I.A. No. 532 of 2017)
With
Cr. Appeal (D.B.) No. 757 of 2013
With
Cr. Appeal (D.B.) No. 96 of 2014
(And I.A. No. 5457 of 2016)
--------
(Against the Judgement of conviction dated 27.07.2013 and Order of sentence
dated 06.08.2013, passed by the Additional Sessions Judge-1, Giridih, in S.T.
No. 292 of 2011 + S.T. No. 48 of 2012)
--------
Dilip Verma
@ Dilip Kumar Verma ... ... Appellant
(In Cr. App. No. 625 / 2013)
1. Raju Mandal
2. Badri Mandal ... ... Appellants
(In Cr. App. No. 618 / 2013)
Birendra Choudhary
@ Birendra Kumar Choudhary ... ... Appellant
(In Cr. App. No. 757 / 2013)
Bijay Singh ... ... Appellant
(In Cr. App. No. 96 / 2014)
Versus
The State of Jharkhand ... ... Respondent
(In all the appeals)
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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellants : M/s. Pankaj Kumar Mishra,
Anjani Kumar Singh,
Pradeep Kumar Deomani,
Sudhir Kumar Roy, Advocates.
For the State : M/s. Shekhar Sinha, Arun Kr. Pandey,
Krishna Shankar, A.P.Ps.
--------
C.A.V. on 01.08.2017 Pronounced on 18.08.2017
H.C. Mishra,J.:- All these four appeals arise out of the same impugned Judgement and
accordingly, they were heard together and are being disposed of by this common
Judgement.
2. Heard learned counsels for the appellants and the learned counsels for
the State, in their respective appeals.
3. The appellants are aggrieved by the impugned Judgement of
conviction dated 27.07.2013 and Order of sentence dated 06.08.2013, passed by
the learned Additional Sessions Judge-1, Giridih, in S.T. No. 292 of 2011 + S.T.
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No. 48 of 2012, whereby all these appellants have been found guilty and
convicted for the offences under Sections 395, 397 and 412 of the Indian Penal
Code. Upon hearing on the point of sentence, the appellants have been sentenced
to undergo rigorous imprisonment for ten years each for the offences under
Sections 395, 397 and 412 of the Indian Penal Code and also fine of Rs.3000/-
each for the offences under Sections 395 and 412 of the Indian Penal Code, and
all the sentences were directed to run concurrently.
4. According to the prosecution story, a dacoity was committed in the
house of the informant Laxmikant Rajgarhia on 03.06.2011 at about 9:00 P.M.
The informant is a Mica factory owner and he had returned back from his
factory along with his brother at about 9:00 P.M., by his TATA Safari vehicle.
When the vehicle stopped in the portico of his house, suddenly five culprits
came and opened the doors of both the sides of the vehicle and they pointed
pistols on the heads of the informant and his brother. The culprits were also
having a bottle of some chemical, which they poured on the pieces of cloths and
put them on the noses of the informant and his brother. The chemical had not
much effect on the informant, but the informant pretended to become
unconscious to see the activities of the culprits. The culprits assaulted the
informant by the butt of pistol on his head causing bleeding injury and he pulled
him down from the vehicle and took away the gold chain and Rudraksha Mala
and his Blackberry mobile set. The other culprit also assaulted his brother by the
butt of the pistol and he was also pulled down from the vehicle and the culprits
took his mobile and gold chain also. In the meantime, the mother and the
daughter of the informant came to portico upon hearing the noise, and the
culprits took their gold chain also and all of them were brought in a room, where
they were confined, which was guarded by one culprit. The other four culprits
took the daughter of the informant to the upper floor of the house and they
committed dacoity of gold and silver articles, some of which are detailed in the
F.I.R., including one idol of Laxmiji made of silver, and cash about Rs.50,000/-.
They also took away seven mobile phones from the house. The value of the
looted articles was about Rs.3,25,000/-. The informant has given the description
of the get-ups of the culprits in his fardbeyan, which was recorded at his house
on the same day at about 9:30 P.M., by the police. He has also stated that the
servants of the house were also locked in a room. The culprits had cut the
land-line telephone connection and they committed dacoity for about 25-30
minutes. Thereafter the nephew of the informant Mayank Rajgarhia came and
when his vehicle entered through the main gate, the culprits fled away with the
booty. The informant has stated in the fardbeyan that at the time of occurrence
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the house was lighted by electricity and he identified all the culprits by face. On
the basis of the fardbeyan of the informant, Giridih (Town) P.S. Case
No. 105 of 2011, corresponding to G.R. No. 990 of 2011, was instituted for the
offence under Sections 395 and 397 of the Indian Penal Code and investigation
was taken up. During investigation the looted articles were recovered. After
investigation the police submitted the charge-sheet against the accused persons
for the offences under Sections 395, 397 and 412 of the Indian Penal Code.
5. After the commitment of the case to the Court of Session, charge was
framed against all the accused persons for the offence under Sections 395 and
397 of the Indian Penal Code and except the accused Badri Mandal, charge was
framed against the other accused persons also for the offence under Section 412
of the Indian Panel Code, and upon the accused persons' pleading not guilty and
claiming to be tried, they were put to trial. In the course of trial 13 witnesses
were examined on behalf of the prosecution. The defence is the denial of the
charge and two witnesses were examined on behalf of the defence also.
6. P.W.-12 Laxmikant Rajgarhia is the informant in the case. He has
stated that he runs a Mica factory. The occurrence had taken place on
03.06.2011at about 9:000 P.M., when he along with his brother Rajiv Rajgarhia had returned from Mica factory on their TATA Safari vehicle. At the gate they blew the horn whereupon the gate keeper opened the gate and the vehicle was brought to the portico and as soon as the vehicle stopped, five culprits came there and they opened the gates of the vehicle. One of them put the revolver on his head and another put the pistol on the head of his brother. They also poured some chemical from a bottle on cloths and put them on their noses. The informant did not become unconscious, but he pretended to become unconscious. The culprit pulled him down from the vehicle and assaulted him by the butt of his revolver causing injury on his head and the other culprit also assaulted his brother by the butt of his revolver and also pulled him down from the vehicle. They snatched away the gold chain and Rudraksha Mala from his neck and they also snatched the gold chain of his brother. They also took away their mobile phones. Upon the noise, the mother of the informant and his daughter Anubha came to the portico and the accused persons took their gold chains also. Thereafter, they were confined in a room adjacent to veranda. One culprit remained there as guard and the other four culprits took the daughter of the informant to the first floor and they committed dacoity in which they took away 15 silver coins, gold ornaments including ear tops, kangan, chain, one silver idol of Ganeshji and Laxmiji and cash about Rs.50,000/-. This witness has given the details of the get-ups of the culprits. He has also stated that they also 4 took the mobile phones of the other family members and servants and they committed dacoity for about 25-30 minutes. He has stated that during the occurrence there was light in the house and inverter was also there. In the meantime his nephew Mayank Rajgarhia came and as soon as he entered the main gate, the accused persons fled away. They had committed the dacoity of the articles valued about Rs.3,25,000/- and cash Rs.50,000/- to Rs.60,000/-. He has stated that he had identified the accused persons. The police came at about 9:30 P.M. and recorded his fardbeyan, which on finding true, he put his signature, which he has identified and the same was marked Exhibit-7. He has also stated that he had identified the accused persons in the T.I.P., and the T.I.P. of the recovered articles was also done, in which also he had identified the articles. He has identified the accused persons in the Court. This witness was put to lengthy cross-examination and he has stated that after eight to ten days of the occurrence, the news of apprehension of the accused persons was there in the newspaper. He had no occasion to see the T.V., and as such he could not get any such information from T.V. He has denied the suggestion that in the Police Station he was made to identify the accused persons by the police and he had also taken their photographs in his mobile. He has stated that he had identified the gold chain, Rudraksha Mala, gold kara, ear rings etc., in the T.I.P. He has denied the suggestion to have identified the articles which were not even looted away. He has stated that more than one Rudraksha Malas were kept at the T.I.P., but he does not remember their number. Similarly he did not remember the numbers of the other similar articles kept in the T.I.P. He has denied the suggestion to have given false evidence and to have falsely identified the accused persons and the looted articles.
7. P.W.-3 Rajiv Rajgarhia is the brother of the informant, who was accompanying the informant at the time of the occurrence. He has also supported the prosecution case and has stated that on 03.06.2011 at about 9:00 P.M., he returned with his brother from the factory. Upon hearing the horn of the vehicle the gate keeper opened the gate and they came to the portico of the house. As soon as the vehicle stopped the culprits surrounded the vehicle and they opened the gates of the vehicle, they put the pistols on their heads and they also poured some chemical in cloths and put them on their noses which had only light effect and they were still in their senses. The culprits assaulted them with the butt of pistol on their head and they snatched the gold chain and their mobiles. His brother suffered bleeding injury whereas he had suffered only a swelling injury. Both of them were pulled down from the vehicle. In the meantime the mother and the niece of this witness came to the portico and their 5 gold chains were also taken by the culprits and thereafter all of them were confined in a room and one of them remained there as a guard. The other culprits took the niece of the informant, on the point of pistol, to the upper floor and they committed dacoity in the house in which the silver coins and gold ornaments and cash about Rs.50,000/- were taken away by the culprits. In the meantime, his son Mayank Rajgarhia returned to his house and when he learnt that dacoity was going on in the house he raised the alarm. The accused persons had taken all the mobiles and had also disconnected the land line connection and thereafter they fled away. He identified all the accused persons in the electrical light and he has identified the accused persons in the Court. He has stated that he had identified the accused persons in the T.I.P. held in the jail also, and had also identified the looted articles in the T.I.P. in Giridih Block Office. This witness was also put to extensive cross-examination and he has stated that after seven to eight days of the occurrence, he learnt from the newspaper and the T.V. news that the accused persons had been apprehended. The photographs were also published in the newspaper and they were also shown in the T.V. news, but with covered faces. He has denied the suggestion that the accused persons were identified to him by the police and he had also taken their photographs in mobile. He was also cross-examined on the point of T.I.P. of articles and there is nothing of much importance therein. He has given details of some of the articles identified by him in the T.I.P. This witness has admitted that the house of one Suresh Jalan is near his house, who runs a factory of Carbon Resources. He had no knowledge whether the accused Bijay Singh was his driver. He had stated that he had not seen any of the accused earlier and has denied the suggestion to have falsely identified the accused persons and the looted articles.
8. P.W.-5 Arwind Rajgarhia is the brother of the informant, who was not present on the date of occurrence, as he was at Kolkata in connection with his business. He was only informed about the occurrence, which he has deposed.
9. P.W.-7 Mayank Rajgarhia is the nephew of the informant, who reached his house after the dacoity, and he was informed about the occurrence and he also saw his father and uncle injured. He had also seen the culprits fleeing away, but he has not identified any accused in the Court.
10. P.W.-1 Ashok Turi and P.W.-2 Raju Rawani are the seizure list witnesses. P.W.-1 has proved the three seizure lists which relate to the recovery of some cash from the accused persons Bijay Singh, Birendra Choudhary and Raju Mandal, which were marked Exhibits-1, 1/1 and 1/2 respectively, and he is also witness to the arrest memo of these accused persons, which he has proved as Exhibit-2 Series. In his cross-examination, he has stated that nothing was 6 recovered in his presence, nor the accused persons were arrested in his presence. P.W.-2, Raju Rawani, has also turned hostile.
11. P.W.-4 Prakash Yadav, and P.W.-6 Amrit Mahto are the two servants of the informant, and they have stated about the occurrence, but they stated that they could not identify any accused and they turned hostile on this point. Both these witnesses have stated that at the time of occurrence there was no electricity and it was dark and P.W.-4 has also stated that after the occurrence he was shown the photographs of the accused in the mobile of his employer.
12. P.W.-9 Nirupam Kumar and P.W.-11 Koushik Mishra are the Judicial Magistrates before whom T.I.P. of the accused persons were done on two dates. P.W.-9 Nirupam Kumar has stated that T.I.P. of the accused Raju Mandal, Birendra Choudhary and Bijay Singh was done in his presence, in which they were identified by the witnesses, and similarly P.W.-11 Koushik Mishra has stated that T.I.P. of Dilip Kumar Verma and Badri Mandal were done in his presence separately, in which the witnesses had identified them. They have proved the T.I.P. charts, which were marked Exhibits-4 and 6 respectively, and they have stated that the T.I.P. was conducted in accordance with law.
13. P.W.-10 Sandhya Mundu was posted as Block Development Officer, before whom the T.I.P. of the recovered articles, namely, the gold bangles with pearls, one kara, gold chain, Rudraksha Mala, golden ear rings etc., was done in her presence, in accordance with law, in which the articles were identified by the witnesses. She has also proved the T.I.P. chart, which was marked Exhibit-5.
14. P.W.-8 is Dr. Balanand Jha, who had examined the injuries of the informant Laxmikant Rajgarhia on 04.06.2011 and had found the following injuries on him:-
(i) Right forehead lacerated wound 2" x ¼" x ¼"
(ii) Left foot bruise 1" x ¼" x ¼"
On the same day he had examined Rajiv Rajgarhia and had found following injury on him:-
(i) Hematoma over occipital area size 1" x ¼" x ¼"
He has identified the injury reports to be in his pen and signature which were marked Exhibits-3 and 3/1 respectively, and has stated that the injuries on both the injured were simple in nature and caused by hard and blunt substance.
15. P.W.-13 Ranjeet Kumar Sinha is the I.O. of the case. He has stated that on 03.06.2011 he was posted as Officer In-charge in Giridih Town Police Station. At about 21.20 hours he got the information about the dacoity in the house of the informant, about which he made the Sanha entry No. 115 and proceeded to the place of occurrence. At the place of occurrence he recorded the 7 fardbeyan of Laxmikant Rajgarhia, which he has proved and the same was marked Exhibit-8. He recorded the restatement of the informant and he has given the details of the place of occurrence. He has stated that in the upper floor the Almirahs were open and the articles were scattered. He recorded the statements of the other witnesses and he proceeded for investigation. On the basis of the tips given by the spy, he apprehended Raju Mandal, Birendra Choudhary and Bijay Singh, and from their possession he recovered in all, Rs.2,000/- from Raju Mandal, Rs.1,500/- from Bijay Singh and Rs.2,200/- from Birendra Choudhary and he prepared the seizure lists which he has also proved and the same were marked Exhibit-1 Series. He recorded the confessional statements of all the three accused persons which he has proved and the same were marked Exhibit-9 Series. Thereafter he went to Gidhour and raided the house of Dilip Verma, from where he recovered the looted articles and he prepared the seizure list. He has identified the seizure list which was marked Exhibit-1/3. Accused Dilip Verma was not found in his house. He got the T.I.P. of the three apprehended accused persons, as also the recovered articles, coducted. On 11.09.2011 he got the information that accused Dilip Verma was apprehended by Jhajha police. He made the Sanha entry of this information and brought the accused Dilip Verma and recorded his confessional statement, which he proved and the same was marked Exhibit-9/3. On 12.09.2011 he apprehended Badri Mandal and recorded his confessional statement also, which on his identification was marked Exhibit-9/4. Both these accused persons were also put to T.I.P., in which they were identified. After completing the investigation he submitted the charge-sheet in the case. He has proved the formal F.I.R., which was marked Exhibit-10 and he has also identified the endorsement on the fardbeyan which was marked Exhibit-11.The Sanha entries were also proved by this witness. In his cross-examination, this witness has stated that there was no specific mark on the currency notes recovered from the accused persons and he had not written the numbers of the currency notes in the seizure lists. He has denied the suggestion that he had shown the accused persons to the informant and other witnesses and they had also taken their photographs on mobile, and since the other witnesses had denied to identify the accused persons, they were not called in T.I.P. He has also denied the suggestion to have shown the accused persons to the witnesses while they were sent for their remand in the case. He has stated that kara or bala are the same thing. He has denied the suggestion to have made faulty investigation.
16. In their statements recorded under Section 313 of the Cr.P.C., the accused persons have denied the circumstances appearing against them in the 8 evidence and they claimed to adduce defence evidence. Two defence witnesses were examined on their behalf. D.W.-1 Biddya Bhushan Singh has come to depose that the accused Bijay Singh is his brother, who was a driver of Suresh Jalan, the owner of the Carbon Resources factory. He has proved two certificates relating to the service of this accused which were marked Exhibit-A and A/1. D.W.-2 is the accused Raju Mandal himself, and he has stated that he was apprehended on 09.06.2011 and he was kept in the Police Station for about three days. In the meantime the witnesses were called in the Police Station and the accused Bijay Singh, Birendra Choudhary and he himself were shown to the witnesses and they also took their photographs in their mobiles. On 12.06.2011 they were sent to the Court for their remand on their foot and they tried to conceal their faces, but they were not allowed to conceal their faces by the police. He also gave a petition to that effect from jail, which he has identified and the same was marked Exhibit-B.
17. On the basis of the evidence on record, the accused persons were convicted and sentenced as aforesaid by the Trial Court below.
18. Learned counsels for the appellants have submitted that the appellants have been falsely implicated in this case and their identification by the witnesses was due to the fact that they were shown to the witnesses in the Police Station prior to the T.I.P., during which they had also taken their photographs in their mobile phones, which fact is also admitted by P.W.-4 Prakash Yadav. Learned counsel also submitted that there are discrepancies in the details of the looted articles and the articles put on T.I.P., and as such the identification of the articles is also doubtful. It is also submitted by learned counsels that nothing was recovered from the house of accused Dilip Verma and it is a false recovery that has been shown by the police in absence of the accused. Learned counsels also submitted that the cash recovered from the accused persons are not the looted property, and none of the witnesses have identified the same to be the looted property, and on that basis the three accused persons namely, Bijay Singh, Raju Mandal and Birendra Choudhary could not be convicted and sentenced for the offence under Section 412 of the Indian Penal Code. It is also submitted that no offence can be said to be made out against the appellants for the offence under Section 397 of the Indian Penal Code, as no grievous injury was caused to any of the inmates and no deadly weapon was used, as they were allegedly assaulted only by the butt of the revolver. It is also submitted that it has not been identified as to which of the appellants had assaulted and injured the informant and his brother, and accordingly, the offence under Section 397 of the Indian Penal Code cannot be said to be made out. In support of their contention learned 9 counsels have placed reliance upon the decision of the Hon'ble Supreme Court in Dilawar Singh Vs. State of Delhi, reported in 2008(1) East Cr C 43 (SC), wherein the law has been laid down as follows:-
"22. The essential ingredients of Section 397, IPC are as follows:
1. Accused committed robbery.
2. While committing robbery or dacoity (i) accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397, IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But other accused are not vicariously liable under that Section for acts of co- accused.
23. As noted by this Court in Phool Kumar v. Delhi Administration, AIR 1975 SC 905, the term "offender" under Section 397, IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397, IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between 'uses' as used in Sections 397, IPC and 398, IPC. Section 397, IPC connotes something more than merely being armed with deadly weapon."
(Emphasis supplied).
In this connection learned counsels have also placed reliance upon an un-reported decision of Delhi High Court in Cr. App. No. 1411 of 2011 [Mustaq Vs. The State (Nct of Delhi)], decided on 11th July, 2013, as also upon a decision of this Court in Laltu Sardar & Ors., Vs. State of Jharkhand, reported in 2010 (1) JLJR 591.
19. Reliance has also been placed upon the decision of Bombay High Court in Rejeshkumar Babulal Sharma Vs. State of Maharashtra, reported in 2002 Cri.L.J. 1162, wherein it has been held that when the incident of robbery had happened suddenly in a surprising way and the victims were frightened, it was impossible that they could impress features of culprits in their memory, so as to allow them to recollect it at the time of identification parade and thereafter, to identify the culprits in the Court, when the witnesses were giving evidence. Learned counsels lastly relied upon a decision of this Court in Chandrai Pahariya & Ors., Vs. The State of Bihar (Now Jharkhand), reported in 2007(4) JLJR 427, wherein it has been held that the prosecution 10 version regarding the appellants committing the dacoity, without concealing their identify or faces appeared to be improbable, as no dacoit would like to be identified and as such the identification of the accused becomes doubtful.
20. Placing reliance on these decisions learned counsels submitted that the prosecution has failed to bring home the charges against the appellants beyond all reasonable doubts and it is a fit case in which the appellants ought to have been acquitted by the Trial Court. It is also submitted that the other inmates of the house have not been examined by the prosecution, which also makes the prosecution case doubtful.
21. Learned counsels for the State on the other hand, have opposed the prayer and they have submitted that the witnesses P.W.-3 Rajiv Rajgarhia and P.W.-12 Laxmikant Rajgarhia have fully supported the prosecution case and they have given in detail the manner in which the dacoity was committed, in which they were also assaulted and injured by the culprits. It is submitted that these witnesses have stated that at the time of occurrence there was electricity in their house in which they had identified the accused persons. The dacoity was committed in the house of an industrialist and the defence version that at the time of occurrence there was no electricity in the house, just cannot be believed. Even if the electric supply would have been disrupted, there was inverter in the house, which is stated by P.W.12 Laxmikant Rajgarhia. Learned counsels also submitted that these witnesses have identified the accused persons in the T.I.P., as also in the Court, and they have also identified the looted articles in the T.I.P., and accordingly, the offence is clearly made out against the accused persons under Section 395, 412 of the Indian Penal Code.
22. It is further submitted by the learned counsels for the State that both the witnesses were also assaulted and injured by deadly weapon, i.e., the butt of the revolver and there was an attempt to cause grievous injury on them and it was only per-chance, that they suffered only simple injury, and accordingly, the offence is also made out against the accused persons under Section 397 of the Indian Penal Code. Learned counsels accordingly, submitted that the prosecution has been able to bring home the charges against all the accused appellants beyond all reasonable doubts.
23. Having heard learned counsels for both the sides and upon going through the record, we find that occurrence of dacoity has not only been proved by P.W.-3 Rajiv Rajgarhia and P.W.-12 Laxmikant Rajgarhia, rather it is also proved by P.W.-4 Prakash Yadva and P.W.-6 Amrit Mahto, who were the servants in the house, thought these witnesses have turned hostile on the point of the identification of the accused persons. P.W.-3 Rajiv Rajgarhia and P.W.-12 11 Laxmikant Rajgarhia have given the vivid details of the manner of occurrence. They have also stated that they were assaulted and injured by the accused persons by the butt of the revolver and they sustained injuries on their head. However, the fact remains that they have not identified as to which of the accused had assaulted and injured them. In Dilarwar Singh's case (supra), the law has been laid down by the Apex Court that Section 397 of the Indian Penal Code is attracted only against the particular accused who uses the deadly weapon and does any of the acts mentioned in the provision. The other accused are not vicariously liable under that Section for the act of the co-accused. We find from the record that the accused who had threatened these witnesses with pistol or assaulted and injured them, have not been identified, and accordingly, the conviction and sentence of the accused appellants cannot be sustained under Section 397 of the Indian Penal Code.
24. We also find from the record that no charge under Section 412 of the Indian Penal Code had been framed against the accused Badri Mandal. Though recovery of some currency notes have been shown from the appellants, Bijay Singh, Raju Mandal and Birendra Choudhary, but there is no evidence on record to show that they were the looted property. There is no recovery of any looted property from these appellants. Accordingly, in our considered view, the conviction and sentence of the appellants Bijay Singh, Raju Mandal, Birendra Choudhary and Badri Mandal for the offence under Section 412 of the Indian Penal Code also, cannot be sustained in the eyes of law.
25. As regards the accused Dilip Kumar Verma, there is recovery of the looted articles from his house and those articles have also been identified in T.I.P. We find no illegality in the identification of these articles. Though there may be some small discrepancies here and there, but we find no illegality in the conviction and sentence of the accused Dilip Kumar Verma for the offence under Section 412 of the Indian Penal Code.
26. As regards the offence under Section 395 of the Indian Penal Code, we find from the evidence on record, that the dacoity in the house of P.W.-12 Laxmikant Rajgarhia is a proved fact. All the accused persons have also been identified by P.W.-12 Laxmikant Rajgarhia and is brother P.W.-3 Rajiv Rajgarhia, to have taken active part in the commission of dacoity. Though the defence has tried to create doubt about the T.I.P., of these accused persons, but we are of the considered view that they are only lame excuses and the identification of the accused persons in the T.I.P. cannot be doubted. We are of the considered view that the prosecution has been able to bring home the charge against all the five accused persons for the offence under Section 395 of the 12 Indian Penal Code, beyond all reasonable doubts, and there is no illegality in their conviction and sentence for the said offence.
27. For the foregoing reasons, the impugned Judgement of conviction dated 27.07.2013 and Order of sentence dated 06.08.2013, passed by the learned Additional Sessions Judge-1, Giridih, in S.T. No. 292 of 2011 + S.T. No. 48 of 2012, so far as they relate to the conviction and sentence of all the accused appellants for the offence under Section 397 of the Indian Penal Code, and the appellants Raju Mandal, Badri Mandal, Birendra Choudhary and Bijay Singh, for the offence under Section 412 of the Indian Penal Code, are hereby, set aside. The conviction and sentence of all the accused appellants, Dilip Kr. Verma, Raju Mandal, Badri Mandal, Birendra Choudhary and Bijay Singh, for the offence under Section 395 of the Indian Penal Code and of the accused appellant Dilip Kr. Verma also for the offence under Section 412 of the Indian Penal Code, are hereby, affirmed and upheld. All the aforesaid appellants are acquitted from the charge under Section 397 of the Indian Penal Code and the appellants Raju Mandal, Badri Mandal, Birendra Choudhary and Bijay Singh, are also acquitted of the charge under Section 412 of the Indian Penal Code.
28. All these four appeals are accordingly, allowed in part. The appellants are in custody and serving out the sentence, which all of them shall now serve only for the offence under Section 395 of the Indian Penal Code and the accused Dilip Kr. Verma shall also serve the sentence for the offence under Section 412 of the Indian Penal Code concurrently. Consequently, all the aforesaid four I.As. filed in these appeals for bail, stand dismissed.
29. Let the Lower Court Records be sent back forthwith along with the copy of this Judgement.
(H.C. Mishra, J.) Ananda Sen, J.:-
(Ananda Sen, J.) Jharkhand High Court, Ranchi. Dated the 18th of August, 2017. D.S./N.A.F.R.