Madhya Pradesh High Court
Pratap vs State Of M.P. on 7 February, 2017
Bench: N.K. Gupta, Anand Pathak
1 Criminal Appeal No.750/2005
&
Criminal Appeal No.786/2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT:
HON'BLE SHRI JUSTICE N.K. GUPTA
&
HON'BLE SHRI JUSTICE ANAND PATHAK
CRIMINAL APPEAL NO. 750 of 2005
Dashrath
Vs.
State of Madhya Pradesh
For the appellant : Shri A.K. Jain, Advocate
For the respondent/State : Shri BPS Chouhan, Public
Prosecutor
&
CRIMINAL APPEAL NO. 786 of 2005
Pratap & Another
Vs.
State of Madhya Pradesh
For appellant Pratap : None appeared.
For appellant Charnu @ Shri Anoop Nigam,
Ramcharan Advocate
For the respondent/State : Shri BPS Chouhan, Public
Prosecutor
2 Criminal Appeal No.750/2005
&
Criminal Appeal No.786/2005
JUDGMENT
(07/02/2017) Per Justice N.K. Gupta:
Since both appeals are connected and arise out of the common judgment dated 01.10.2005 passed by the Additional Sessions Judge, Sheopur (M.P.) in Sessions Trial No.308/2000, these appeals are being decided by the present common judgment.
(2) The appellants have challenged the aforesaid judgment being aggrieved with the conviction and sentence passed by the trial court. Each of the appellants has been convicted of offence under Section 395 read with Section 397, 398, 307, on two count charges of offence Section 324, two count charges of offence under Section 323 of IPC and sentenced to undergo imprisonment for life with a fine of Rs.100/- for offence under Section 395 read with Section 397 and under Section 398 of IPC, seven years' rigorous imprisonment with a fine of Rs.100/- under Section 307 of IPC, six months' rigorous imprisonment with a fine of Rs.100/- on each count charges under Section 324 of IPC and six months' rigorous imprisonment with a fine of Rs.100/- on each count charges under Section 323 of IPC. Appellant Dashrath has also been convicted under Section 25(1-B) (a) of the Arms Act and sentenced to undergo RI for one year with a fine of Rs.100/-. All the sentences have been directed to run concurrently.
(3) The prosecution's case, in short, is that complainant Ratan Gujar (PW-1) was the resident of village Morai. He has four brothers who were residing in the same house, 3 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 but in separate portions. On 8.6.2000 at about 9.30 to 10.30 p.m. Ratan Gujar (PW-1) and his family members, namely Lakhan (PW-5), Kamri Bai (PW-2), Raghuveer (PW-3), Shibbu (PW-8) were taking dinner in the house. Suddenly 6-7 armed persons having guns, Lathis (sticks), Farsa and Gandasi entered into the house and closed the doors of the house from inside. Thereafter, one culprit having gun exhorted others to rob the property of complainant Ratan (PW-1). Ratan, Prabhu (PW-6), Lakhan (PW-5) etc. were directed to stand in a line and their hands were tied. One culprit who had gun fired from it. He tried to climb on the first floor but due to slip of his foot, he fell down in the courtyard. The appellant Pratap assaulted victim Prabhu (PW-6) on his head with a Farsa. When Kamri (PW-2) rushed to rescue her sons, then a culprit having a gun fired with it and therefore one pellet injured the cheek of Kamri (PW-2). The appellant Charnu @ Ramcharan assaulted victim Lakhan (PW-5) and Raghuveer Gujar (PW-3) with a Luhangi Lathi. Due to fire done by the culprit, Complainant Ratan Gujar (PW-1) sustained an injury on his wrist. One culprit exploded a hand-grenade. They assaulted various persons of family. Ultimately, complainant Ratan Gujar (PW-1) held the main culprit who had the gun and thereafter all the culprits ran away from the spot. On screams of Ratan Gujar (PW-1), villagers came inside the house and held one culprit who having a gun. He told his name to be Dashrath.
(4) On intimation given to the police, Station House Officer Ramvachan Singh Yadav went to the spot and recorded Dehati Nalishi, Ex.P/1 (Ex.P/1 and P/16 is the 4 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 same document). Dehati Nalishi was sent for registration of crime. Head Constable Rambharosi (PW-12) registered the crime with FIR (Ex.P/15). Various injured persons were sent for medico-legal examination. Dr. R.K. Mishra (PW-4) examined the victims Smt. Kamri (PW-2), Raghuveer (PW-3), Lakhan (PW-5), Prabhu (PW-6) and Ratan Gujar (PW-1) and gave his reports (Ex.P/2 to P/6 respectively). He found various simple injuries to various victims. He found one incised wound on left cheek of Smt. Kamri Gujar (PW-2) and one incised wound to Ratan Gujar (PW-1) on his left forearm whereas remaining injures were caused to the victims by hard and blunt object. He referred Ratan Gujar (PW-1) and Kamri Bai (PW-2) for x-ray examination and thereafter he himself examined them radiologically. In the reports Ex.P/7 and Ex.P/9 he found a fracture on index finger of complainant Ratan Gujar (PW-1) and left ulna of victim Smt. Kamri Bai (PW-2). SHO Ramvachan Singh arrested the appellant Dashrath in the hospital whereas one gun and various live cartridges etc. have been recovered by him at the spot. Various accused persons have been arrested and on their intimation various arms were recovered. Ultimately, the charge-sheet was filed before the JMFC, Sheopur, who committed the case to the Court of Session and thereafter it was transferred to the Additional Sessions Judge, Sheopur (MP). (5) Appellants abjured their guilt. They did not take any specific plea. They have stated that they were falsely implicated in the matter, however, no defence evidence was adduced.
(6) The Additional Sessions Judge, Sheopur, after 5 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 considering the prosecution's evidence acquitted the accused Karan, Channu Gadariya @ Charnu and Ranga @ Ranglal from all the charges, whereas the appellants have been convicted and sentenced as mentioned above. (7) The present matter was an old matter in which the appellant Dashrath is in jail because after getting the order of suspension of sentence, he could not furnish the bail bonds and therefore, it was for the court to consider this matter at the earliest. However, no-one was appearing for the appellant Pratap. Hence, Ms. Neeraj More, Advocate from the panel of High Court Legal Services Committee who has a vast experience in dealing the criminal cases was appointed to argue the matter on behalf of appellant Pratap. Thereafter, we have heard the learned counsel for the parties at length. (8) In the present matter, if the evidence adduced by the prosecution is considered then it is apparent from the very beginning that all the eyewitnesses are of one family and their evidence was to be considered after strict scrutiny. The trial court has discussed the evidence by accepting that all of the culprits were in the gang who entered into the house of complainant Ratan Gujar (PW-
1). There is a lot of contradiction between the evidence of eyewitnesses and medical reports proved by Dr. R.K. Mishra (PW-4). According to witnesses, complainant Ratan (PW-1), Smt. Kamri Bai (PW-2), Raghuveer (PW-3), Lakhan (PW-5), Shibbu (PW-8) and Badrilal (PW-9), one of the culprits fired with a gun who was later on identified as appellant Dashrath and therefore, one pellet struck on the left cheek of Smt. Kamri (PW-2) and one pellet injured Ratan Gujar's forearm. Dr. R.K. Mishra 6 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 (PW-4) examined Smt. Kamri (PW-2) and gave a report Ex.P-2. He found four injuries. Out of them, one incised wound was found on her left cheek. There was no other injury on the cheek and he clearly opined that injury on the left cheek of Smt. Kamri Bai (PW-2) was caused by sharp cutting object. He did not accept it to be caused by firearm. Similarly, he gave an MLC report Ex.P-6 of complainant Ratan Gujar (PW-1). He found as many as three injuries to him. Out of them one injury was incised wound found on his left forearm. Dr. R.K. Mishra (PW-4) has denied that such injury could be caused for firearm. Hence, it appears that allegation made by the eyewitnesses that appellant Dashrath fired with the gun and one pellet injured Smt. Kamri Bai (PW-2) on her left cheek and one pellet injured complainant Ratan Gujar (PW-1) on his left forearm appears to be incorrect. When a fire is made by 12 bore gun then so many pellets should have been discharged and if one pellet struck on the left cheek of Smt. Kamri Bai (PW-2) and one pellet struck on left forearm of complainant Ratan Gujar (PW-1) then a few other pellets should have been struck to these two persons on their other parts of the body. Dr. R.K. Mishra (PW-4) found such injuries of victims Smt. Kamri Bai (PW-2) and complainant Ratan Gujar (PW-1) to be caused by sharp cutting object. Hence, it cannot be accepted that appellant Dashrath fired with a gun at the time of incident and therefore he could not be convicted of offence under Section 397 of IPC. The trial court has committed an error in convicting appellant Dashrath for offence under Section 397 of IPC. Similarly, if evidence of complainant Ratan Gujar (PW-1), Raghuveer (PW-3), 7 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 Lakhan (PW-5), Shibbu (PW-8) and Badrilal (PW-9) along with Smt. Kamri (PW-2) is considered against appellant Pratap and Charnu @ Ramcharan then none of the witnesses has specifically allocated the overt acts with respect to each individual victim and therefore the trial court has committed an error in convicting the appellants Pratap and Charnu @ Ramcharan for offence under Section 397 of IPC.
(9) Similarly, if evidence of these witnesses is considered then there is an inherent drawback in the evidence given by these persons that they shifted one part of the story that witness Prabhu (PW-6) was beaten when he was working on his field and thereafter he was confined in a room on that field. Prabhu (PW-6) has stated that at about 12 o'clock in the night his family members opened the doors, however, such story was not mentioned in Dehati Nalisi Ex.P-16 or P-1 that witness Prabhu (PW-6) was confined in a room at the field. On the other hand, it was mentioned in Dehanti Nalisi Ex.P- 16 that he was also directed by the culprits to stand in a line in which complainant Ratan Gujar (PW-1) was standing and therefore the story that Prabhu (PW-6) was beaten and confined in a room at the field cannot be accepted. It is an afterthought story and hence it is not proved beyond doubt as to who assaulted the victim Prabhu (PW-6). Under these circumstances, none of the appellants could be convicted on one count charge of offence under Section 323 of IPC relating to victim Prabhu (PW-6). The Additional Sessions Judge has committed an error in convicting the appellants on second count charge of offence under Section 323 of IPC 8 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 relating to victim Prabhu (PW-6).
(10) If evidence of complainant Ratan Gujar (PW-1), Smt. Kamri Bai (PW-2), Raghuveer (PW-3), Lakhan (PW-5), Prabhu (PW-6), Shibbu (PW-8) and Badrilal (PW-9) is considered then these witnesses have stated in an omnibus manner that culprits have done such an act with them but when they knew the names of true culprits specially Pratap and Charnu @ Ramcharan and the named FIR Ex.P-16 was lodged against these two appellants then it was for the witnesses to state the overt acts of these appellants specifically, however, except witness Lakhan (PW-5) no-one has stated about the overt act of any particular accused. Lakhan (PW-5) has stated that the culprits Dashrath, Chunnu Gadariya, Pratap, Ranglal Adiwasi and Channa entered into the house. Chunnu Gadariya tied his hands with the rope. Thereafter, complainant Ratan Gujar (PW-1) snatched the Kutya from Chunnu Gadariya and gave a blow of the said Kutya on him due to which he fell down. So many victims like Smt. Kamri Bai (PW-2), Raghuveer (PW-3), Lakhan (PW-5) and Ratan Gujar (PW-1) sustained injuries in the incident. Out of them Ratan Gujar (PW-1) and Smt. Kamri Bai (PW-2) sustained fractures but no specific allegation was made against any of the appellants that he caused such injuries. The allegation of fire was made against appellant Dashrath but due to contradiction with the medical report such allegation was not proved. Hence, it is not established by the prosecution witnesses as to who assaulted the aforesaid four victims who have sustained injuries. Looking to the facts and circumstances of the incident, when four to five culprits 9 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 entered into the house and two culprits were standing outside of the house, each of them shall be responsible for the crime done by anyone of them under Section 34 of IPC. Hence, if it is presumed that the unknown culprits voluntarily caused hurt to these four victims then all of the culprits shall be liable for such offence under Section 324 of IPC [two counts] and under Section 323 of IPC for victim Lakhan (PW-5) but for such conviction presence and participation of a particular culprit should be specifically established. (11) Various victims have stated that Dashrath, Pratap, Charnu @ Ramcharan have participated in the gang and they were present in the house. Some of the witnesses have stated that they did not know appellants Pratap or Charnu @ Ramcharan. Hence, it was for the investigating officer to arrange a Test Identification Parade of these appellants after their arrest but it is unfortunate that no TIP was arranged against appellants Pratap and Charnu @ Ramcharan. Witness Ratan Gujar (PW-1) has accepted that appellant Pratap was a forest guard. He also accepted that a report was lodged against him that he had stolen an idol. After lodging of the FIR, idol was placed at its original place but he denied that he had any enmity with Pratap though such report of theft was allegedly lodged by appellant Pratap. When complainant Ratan Gujar (PW-1) knew Pratap and Charnu @ Ramcharan then he would have told the other family members and witnesses that those culprits were appellants Pratap and Charnu @ Ramcharan but he has mentioned in the Dehati Nalisi Ex.P-16 that when appellant Dashrath was held he told the names of 10 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 appellant Pratap and Charnu @ Ramcharan. Except Ratan Gujar (PW-1), Badrilal (PW-9) none of the eyewitnesses has claimed that he knew the appellants Pratap and Charnu @ Ramcharan. According to the witness Badrilal (PW-9), he also knew Pratap who was the neighbour of complainant Ratan Gujar (PW-1) and Charnu @ Ramcharan who was the resident of village Bhontupura, an adjacent village to village Morai. Raghuveer (PW-3) has also accepted that names of the appellants Pratap and Charnu @ Ramcharan were told by appellant Dashrath when Dehati Nalisi was lodged. Hence, in absence of TIP evidence of other witnesses is not against Pratap and Charnu @ Ramcharan, it cannot be said that the name of Pratap and Charu @ Ramcharan was given in Dehati Nalisi Ex.P-16 because they were identified by the complainant Ratan Gujar (PW-11). When the witnesses were examined in the court and the appellants were present there, then the witnesses could state a particular act of appellants Pratap and Charnu @ Ramcharan but they did not state anything specifically against appellant Pratap and Charnu @ Ramcharan which indicates that appellants Pratap and Charnu @ Ramcharan were not present at the spot otherwise witnesses would have stated the specific overt act of these two appellants done at the time of incident. Witness Lakhan (PW-5) has stated that Chunnu Gadariya tied his hands with a rope but his evidence was not corroborated by any other witness including complainant Ratan Gujar (PW-1). The appellant Charnu @ Ramcharan is Kacchi by caste and it appears that alleged Chunnu Gadariya has been acquitted by the trial court. All other 11 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 witnesses have stated in an omnibus manner against the culprits that they entered into the house. When the accused persons were present in the court at the time of recording of evidence of these witnesses then there was no problem to these witnesses to speak about the specific overt act of particular accused person. Hence, when the witnesses could not state about any particular overt act of appellants Pratap and Charnu @ Ramcharan then their presence appears to be doubtful. (12) The trial court has convicted appellants Pratap and Charnu @ Ramcharan because there was a named FIR Ex.P-16 against them, however, it is mentioned in Dehati Nalisi Ex.P-16 that names of the culprits Pratap and Charnu @ Ramcharan were mentioned in Dehati Nalisi as told by Dashrath and hence even in Dehati Nalisi the allegations are made against unknown culprits. If Pratap and Charnu @ Ramcharan were known to complainant Ratan Gujar (PW-1) and Badrilal (PW-9) prior to the incident then there was no difficulty to complainant Ratan Gujar (PW-1) to mention the overt acts of appellants Pratap and Charnu @ Ramcharan in Dehati Nalisi Ex.P-16 also. Since no overt act of the appellants Pratap and Charnu @ Ramcharan is specifically mentioned in Dehati Nalisi Ex.P-16 whereas complainant Ratan Gujar (PW-1) knew these appellants prior to the date of incident then it would be clear that these two appellants were not present at the spot and they did not participate in the crime.
(13) It is true that complainant Ratan Gujar (PW-1) had lodged Dehati Nalisi soon after the incident but it would be apparent from the factual position that the incident 12 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 took place at about 09:30 pm on 08 th June, 2000. Within half an hour the incident was over and appellant Dashrath was held by villagers. According to complainant Ratan Gujar (PW-1), an intimation was given to the Station House Officer, Police Station Karahal and thereafter SHO Mr. Ramvachan Singh came to the spot and he recorded the Dehati Nalisi Ex.P-16. However, Badrilal (PW-9) has stated that when appellant Dashrath was held, he and complainant Ratan Gujar (PW-1) etc went to the police station Karahal on a tractor and thereafter SHO Mr. Ramvachan Singh went to the spot and then Dehati Nalisi was lodged. Under these circumstances, Dehati Nalisi Ex.P-16 was lodged after three hours and 40 minutes. Looking to the density of offence, in natural course, such time would have been required to lodge the FIR but it appears that SHO, Karahal Mr. Ramvachan Singh had an opportunity to record the FIR at police station Karahal but he did not register the FIR at Police Karahal but he went to the spot and thereafter Dehati Nalisi was recorded. The act of SHO Ramvachan Singh indicates that complainant Ratan Gujar (PW-1) went to the police station very late and to record the FIR ante-time he preferred to record the Dehati Nalisi instead of registering the crime directly at police station Karahal, hence, a sufficient time was available to complainant Ratan Gujar (PW-1) and his companions to lodge the named FIR against appellants Pratap and Charnu @ Ramcharan.
(14) When witness Raghuveer (PW-3) has stated that names of appellants Pratap and Charnu @ Ramcharan were added as told by appellant Dashrath whereas 13 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 complainant Ratan Gujar (PW-1) and witness Badrilal (PW-9) have claimed that they knew appellants Pratap and Charnu @ Ramcharan prior to the incident, then names of Pratap and Charnu @ Ramcharan could not be added on the information given by Dashrath but such names could be mentioned by complainant Ratan Gujar (PW-1) because he knew the appellants Pratap and Charnu @ Ramcharan. In that case, he would have mentioned the overt acts of these appellants in Dehati Nalisi Ex.P-16 but unfortunately no specific overt act of these appellants is mentioned. The police when did not arrange any TIP against the appellants Pratap and Charnu @ Ramcharan after their arrest, then a doubt is created that appellants Pratap Charnu @ Ramcharan were not present at the time of incident and the complainant Ratan Gujar (PW-1) included their names on the basis of either enmity or information given by appellant Dashrath. Under these circumstances, where no specific overt act of these appellants is stated by any of the eye-witnesses, then it is highly doubtful that appellants Pratap or Charnu @ Ramcharan had participated in the crime along with other culprits. When a doubt is created, then the benefit of doubt is to be received by the accused. Hence, the trial Court had committed an error in convicting the appellants Pratap and Charnu @ Ramcharan for the aforesaid offences. The trial Court had to acquit these appellants on parity on similar grounds by which the remaining accused persons have been acquitted.
(15) Under these circumstances, the case of Dashrath should be considered separately. Looking to the injuries 14 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 caused to various victims like Smt. Kamri Bai (PW-2), Raghuveer (PW-3), Lakhan (PW-5) and Ratan Gujar (PW-
1) which were proved by Dr. R.K. Mishra (PW-4) and also the fact that Dashrath was held by complainant Ratan Gujar (PW-1), it is apparent that incident took place at the house of Ratan Gujar and at least appellant Dashrath had participated in the crime along with other unknown persons.
(16) Learned counsel for the appellant Dashrath has submitted that if appellant Dashrath was caught red handed on the spot, then he would have shown to be arrested, simultaneously, when the SHO Ramvachan Singh had recorded Dehati Nalisi (Ex.P/16), whereas in arrest memo (Ex.P/19) the appellant Dashrath was arrested on 9.6.2000 at about 11.05 a.m., however, the contention advanced by the learned counsel for the appellant cannot be accepted. If arrest memo (Ex.P/19) is minutely examined, then it would be apparent that the appellant Dashrath was arrested when he was in the hospital. It appears that when appellant Dashrath was held by the complainant Ratan Gujar (PW-1), he was beaten by various villagers, and therefore, before his arrest it was for the SHO Ramvachan Singh to admit him to the hospital so that he could survive, and thereafter, his arrest was done. Hence, evidence of the witnesses can be accepted that the appellant Dashrath was caught red handed at the spot, and hence, he participated in the crime. SHO had prepared the seizure memo (Ex.P/17) in which a gun and six live rounds were shown to be recovered from the appellant Dashrath, however, complainant Ratan Gujar (PW-1) has accepted in his 15 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 cross-examination that gun of the appellant was snatched and when he lodged the FIR the gun and rounds were lying in the courtyard and appellant was in custody of villagers, hence, the preparation of document (Ex.P/17) as prepared by SHO Ramvachan Singh was not correct. When gun and rounds were snatched by the complainant Ratan Gujar (PW-1) and those were lying at the spot, then it was for the SHO Ramvachan Singh to recover such property from the spot as per the contention of the complainant Ratan Gujar (PW-1) that he snatched the gun and rounds from the appellant Dashrath. Since Ramvachan Singh could not be examined before the trial Court and various documents were proved by Head Constable Rambharosi (PW-12) who knew the signatures and writing of SHO Ramvachan Singh, hence, no explanation could be obtained from SHO. Though a technical mistake was done by SHO, but it is apparent that from the evidence of various eye- witnesses that appellant Dashrath had a gun with some live cartridges, however, in absence of any injury etc. it was not proved beyond doubt that the appellant Dashrath fired with the gun or he caused any injury to anyone. Hence, participation of appellant Dashrath in the crime is duly proved as he was caught red handed. (17) When the appellant Dashrath had participated in the crime and he had a gun with six live cartridges and a proper sanction (Ex.P/11) was given by the concerned District Magistrate, then appellant Dashrath was guilty of crime under Section 25(1-B)(a) of the Arms Act as he had a firearm and ammunition without any valid licence and the trial Court has rightly held him guilty of that 16 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 offence.
(18) The trial Court has framed a charge under Section 307 of IPC against the appellant Dashrath for causing injuries to complainant Ratan Gujar (PW-1), however, neither it is proved that appellant Dashrath fired with a gun causing any injuries to complainant Ratan Gujar (PW-1) nor it is proved by Dr. R.K. Mishra (PW-4) that any of the injuries caused to complainant Ratan Gujar (PW-1) was fatal in nature. According to Dr. R.K. Mishra (PW-4), he proved the injuries of complainant Ratan Gujar (PW-1) by MLC report (Ex.P/6) and x-ray report (Ex.P/7). According to him, three injuries were found to the victim Ratan and out of them one was an incised wound on his forehand, second was an abrasion on his forehead and third was a contusion on the right index finger below which one fracture was found in the x-ray report (Ex.P/7), hence, complainant Ratan Gujar (PW-1) sustained an injury caused by sharp cutting weapon and a grievous injury was caused by hard and blunt object, but a finger is not a vital part of the body and therefore, his injury cannot be considered as fatal injury. Under these circumstances, the ingredients of Section 300 of IPC are not attracted in the present case looking to its factual position. Hence, the trial Court has committed an error in convicting appellant Dashrath of an offence under Section 307 of IPC, but under the same head appellant Dashrath can be convicted of offence under Section 325 of IPC read with Section 34 of IPC because though there is no specific allegation that he caused fracture to complainant Ratan Gujar (PW-1) on his finger by himself, but if any of his companions caused it, then 17 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 under the provisions of Section 34 of IPC, appellant Dashrath is also liable for that offence, and therefore, instead of offence under Section 307 of IPC, appellant Dashrath should have been convicted of offence under Section 325 read with Section 34 of IPC under the same charge.
(19) The witnesses including complainant Ratan Gujar (PW-1), Smt. Kamri Bai (PW-2), Raghuveer (PW-3), Lakhan (PW-5), Shibbu (PW-8) and Badrilal (PW-8) alleged that the culprits were making a demand for ransom of Rs.4,00,000/-. Some of the witnesses have stated that they were demanding a ransom, whereas ransom could be demanded, if any of the witnesses was abducted and the same could be demanded for his release. In the present case, there is no allegation of these witnesses that any of the culprits snatched any ornaments of Smt. Kamri Bai etc. or they had tried to take any article of the house at the time of incident, and therefore, it would be apparent that no offence of dacoity was completed. When a band of five persons entered into the house armed with guns and various deadly weapons who have no enmity with the residents of that house, then it would be presumed that they entered to commit robbery and when five or more persons were involved in the robbery, with their object was to commit robbery then such offence would be dacoity. When they did not take any article from any of the witnesses or the house during the incident, then offence of dacoity was not complete, and hence, appellant Dashrath could not be convicted of offence under Section 395 of IPC. Looking to the circumstances, his overt act falls within the 18 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 purview to attempt to commit dacoity, and therefore, he was liable for offence under Section 395 read with Section 511 of IPC. Since it is proved beyond doubt that he had firearm with him and in the absence of any proof that he used the firearm, he could not be liable for offence under Section 397 of IPC, but by having a firearm with him which was a deadly weapon he was liable for offence under Section 398 of IPC. Hence, it was for the trial Court to convict appellant Dashrath for the offence under Section 395 read with Section 511 and Section 398 of IPC.
(20) It is true that none of the eye-witnesses had alleged against appellant Dashrath that he assaulted any of the victims. Allegation was made that he fired with a gun and due to one pellet each complainant Ratan Gujar (PW-
1) and Smt. Kamri Bai (PW-2) sustained injuries, however, Dr. R.K. Mishra (PW-4) did not find any injury of gunshot, and therefore, it was not proved beyond doubt that appellant Dashrath used the gun kept by him during the incident, but as discussed above, he was responsible for the crime committed by others under the provisions of Section 34 of IPC, then he had to be convicted of offence under Section 323 read with Section 34 of IPC (two count charges relating to victims Raghuveer and Lakhan). The appellant Dashrath has been convicted of the offence under Section 324 of IPC relating to victim Smt. Kamri Bai. Smt. Kamri Bai (PW-2) has sustained one incised wound one her left cheek, but there is no allegation of any of the witnesses amongst any of the assailants that he assaulted her with any sharp cutting object, whereas it is found that injury on 19 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 her left cheek was not due to gunshot, and therefore, none of the culprits could be convicted of offence under Section 324 of IPC for victim Smt. Kamri Bai (PW-2). Similarly, none of the culprits could be convicted of offfence under Section 324 of IPC for complainant Ratan Gujar (PW-1). However, for the injuries of complainant Ratan Gujar (PW-1), it is alleged that the appellant is liable for offence under Section 325 read with Section 34 of IPC whereas for injuries of victim Smt. Kamri Bai appellant Dashrath shall be liable for offence under Section 323 read with Section 34 of IPC.
(21) So far as the sentence is concerned, for offence under Section 395 of IPC, the trial court has sentenced the appellant Dashrath for imprisonment for life whereas now it is proved that it was an attempt to commit dacoity and offence of dacoity was not completed, therefore, as per the provisions contained under Section 511 of IPC, half of the sentence for the main offence can be recorded against the accused. However, according to the provisions under Section 398 of IPC, minimum sentence of seven years rigorous imprisonment was required to be prescribed against such culprit,hence, looking to the circumstances where appellant Dashrath has already undergone 16 years' in the present case it would be appropriate to record the sentence of offence under Section 395 read with Section 511 and under Section 398 of IPC to be seven years rigorous imprisonment. Since the trial court has recorded the same sentence of offence under Section 324 of IPC and under Section 323 of IPC then when the offence under Section 324 of IPC is reduced to Section 323 of IPC for victim Smt. Kamri Bai 20 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 (PW-2) then there is no reason to dilute the sentence passed by the trial court for offence under Section 324 or 323 of IPC separately. Similarly, there is no reason to dilute the sentence passed by the trial court for offence under Section 25(1-B)(a) of the Arms Act. For offence under Section 325 read with Section 34 of IPC, the appellant Dashrath can be sentenced for one year's rigorous imprisonment without any fine. (22) On the basis of the aforesaid discussion, the appeal filed by the appellants Pratap and Charnu @ Ramcharan is acceptable. It was not proved beyond doubt that they were present at the spot or they participated in the crime. Hence, the conviction and sentence recorded against appellants Pratap and Charnu @ Ramcharan for offences under Sections 395, 397, 398, 307, 324 and under Section 323 of IPC is hereby set aside. These appellants are acquitted from all the charges. But the appeal filed by appellant Dashrath is hereby partly allowed. His conviction as well as sentence of offence under Section 395, 397, 307 and 324 of IPC is hereby set aside, however, he is convicted of offence under Section 395 read with Section 511 and 398 of IPC and under Sections 325 and 323 of IPC. There is no change in the sentence on two count charges of Section 323 of IPC for victims Raghuveer and Lakhan and no change in sentence for offence under Section 25 (1-B)(a) of Arms Act whereas he is sentenced for offence under Section 395 read with Section 511 and under Section 398 of IPC and sentenced to undergo rigorous imprisonment for seven years. For offence under Section 325 of IPC [for victim Ratan Gujar (PW-1)] he is sentenced to undergo 21 Criminal Appeal No.750/2005 & Criminal Appeal No.786/2005 rigorous imprisonment of one year. Also for offence under Section 323 read with Section 34 of IPC for the victim Smt. Kamri Bai he is sentenced to undergo rigorous imprisonment for six months. All the sentences shall run concurrently. The custody period of the appellant Dashrath shall be set off from the main sentence prescribed for him.
(23) The Principal Registrar of Gwalior Bench of this Court is directed to arrange for issuance of the super- session warrant so that appellant Dashrath may be released without any delay because he has already undergone more term in jail than prescribed for his sentence including the default sentence. Appellants Pratap and Charnu @ Ramcharan are on bail. There presence is no more required before this Court and hence it is directed that the bail bonds of the appellants Pratap and Charnu @ Ramcharan stand discharged. (24) A copy of the judgment be sent to the trial court for information and necessary compliance.
(N.K. Gupta) (Anand Pathak)
Judge Judge
(07/02/2017) (07/02/2017)
pd