Allahabad High Court
Ranvir vs State on 24 February, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on : 12.02.2020 Delivered on : 24.02.2020
CRIMINAL APPEAL No. 2363 of 1983
Ranvir --------Appellant
Vs
State of Uttar Pradesh -------Respondent
_______________________________________________________
For Appellant : Sri N.I. Jafri, Senior Counsel, assisted by Sri Khalid Mahmood
For Respondent/State : Sri Amit Kumar Singh, AGA _______________________________________________________
Hon'ble Raj Beer Singh, J.
1. This criminal appeal has been preferred against the judgment and order dated 28.09.1983 passed by the VIIIth Additional Sessions Judge, Agra in S.T. No. 352 of 1980, under Section 395 IPC, P.S. Etmadpur, District Agra, whereby accused appellant Ranvir has been convicted under Section 395 IPC and sentenced to five years rigorous imprisonment along with fine of Rs. 1000. In default of payment of fine accused appellant has to undergo six months additional rigorous imprisonment. However, co-accused Rajvir was acquitted.
2. Prosecution version in brief is that on the intervening night of 29/30.09.1978, complainant/PW-1 Ativeer Singh and his son Suresh were sleeping in front of their house. At around 10/11:00 PM some bandits came at roof of their house and due to their commotion, complainant and his son awoke and started raising alarm. The said bandits have fired shots, however, hearing noise several villagers reached there and challenged the said miscreants. Villagers started pelting bricks and stones on the miscreants and resultantly said miscreants fled away from the spot.
3. Complainant Ativeer Singh reported the matter to police on next day morning at 10:00 AM and accordingly case was registered vide FIR Ex. Ka-5.
4. During investigation Investigating Officer prepared site plan of spot and three empty cartridges found at spot were taken into possession vide Ex. Ka-9. During course of investigation on 26.10.1978 co-accused Rajvir was arrested by the police and he has confessed his involvement in alleged incident and that he also disclosed that accused Ranvir was also involved in the incident. Thereafter on 16.11.1978 accused Ranvir was also arrested. During investigation, on 25.11.1978 test identification parade of accused Rajvir was conducted in District Jail by Magistrate vide Ex. Ka-5 and accused Rajvir was identified by complainant Ativeer Singh correctly. Similarly, on 06.12.1978 test identification parade of accused Ranvir was conducted and he was identified by three witnesses, namely, Ativeer Singh, Darshan Singh and Maharaj Singh correctly vide Ex. Ka- 4. After completion of investigation, both the accused Rajvir and Ranvir were charge-sheeted for the offence under Section 395 IPC.
5. Accused-appellant as well as co-accused Rajvir were charged u/s 395 IPC. They pleaded not guilty and claimed trial. In order to bring home the guilt of accused persons, prosecution has examined eight witnesses. After prosecution evidence, accused persons were examined under Section 313 of Cr.P.C., wherein, they have denied the prosecution evidence and claimed false implication. In their defence one Deputy Singh was examined as DW-1.
6. After hearing and analyzing the evidence on record, accused-appellant Ranvir was convicted under Section 395 IPC vide impugned judgment and order dated 28.09.1983 and sentenced as stated in paragraph no.1 of this judgment, whereas accused Rajveer was acquitted under Section 395 IPC.
7. Being aggrieved by the impugned judgment, accused-appellant has preferred the present appeal.
8. Heard Sri N.I Zafari, learned Senior Advocate, assisted by Sri Khalik Mahmood, learned counsel for the appellant and Sri Amit Kumar Singh, learned A.G.A. for the State and perused the record.
9. In evidence, PW-1 Ativeer Singh has stated that on the night of incident he was sleeping at the platform in front of his house and at around 10-11 PM he awoke by hearing some commotion and saw that some bandits were assaulting his son Suresh. PW-1 Ativeer Singh ran into village and raised alarm. Alleged bandits have also fired shots and hearing noise many villagers including Maharaj Singh, Kishan Lal reached there and they have also fired towards bandits by their licensed weapons. The alleged bandits could not succeed in committing any dacoity or robbery and they ran away from spot after leaving their 3-4 pairs of shoes and one paint there. PW-1 has also stated that in test identification parade, he has identified both the accused persons namely Ranvir and Rajvir.
10. PW-2 Maharaj Singh has stated that on night of incident, after hearing voice of firing, he reached towards house of Ativeer Singh and saw that two persons were making fire at roof of Ativeer Singh and that 10-11 more miscraents have entered into house of Ativeer Singh to commit dacoity and many villagers have reached there. They started pelting bricks and stones on miscreants and resultantly the alleged miscreants ran away from spot. PW-2 further stated that during test identification parade, he has identified accused Ranvir in District Jail.
11. PW-3 A.P. Srivastava, Special Executive Magistrate has proved test identification parade. PW-4 S.O. Mahaveer Singh has arrested accused persons. PW-5 constable Achche Ram has taken accused Ranveer to district jail, keeping his face covered. PW-6 Rama Bhajan Lal S.D.M. has proved test identification parade report Ex. Ka.4. PW-7 H.C. Bihari Ji Yadav has recorded FIR and G.D. Entry. PW-8 S.I. Lakhan Singh Parihar has conducted investigation.
12. DW-1 Deputy Singh stated that about five years back dacoity was committed at around 12:00 night in house of Ativeer Singh and he has also reached at spot and seen the alleged miscreants but accused Ranvir and Rajvir were not among those miscreants.
13. The main thrust of argument of learned Senior Counsel is that on same set of evidence, one accused Rajvir has been acquitted, whereas on same evidence, accused appellant Ranvir has been convicted. As per prosecution version, both these accused persons were identified during test identification parade and all the witnesses have made same statements in respect of both the accused persons and that no specific role was assigned to accused persons. It was submitted that as one of the accused has been acquitted and on the same evidence whereas another has been convicted and thus, the impugned judgment of conviction suffers from material illegality and the conviction is liable to be set aside on this ground alone. It was further submitted that only two accused were charge-sheeted and faced trial on charge under Section 395 IPC and one of them namely accused Rajvir was acquitted and thus, in view of all these facts and circumstances, sole accused appellant Ranvir cannot be convicted under Section 395 IPC. It was submitted that ingredients of Section 395 IPC are not fulfilled and impugned judgment passed by the learned trial Court suffers from illegality and perversity.
14. Learned AGA has submitted that accused-appellant was identified during test identification parade and that there is evidence against him that he was involved in alleged incident of attempt to commit dacoity. Simply because other miscreants could not be apprehended, it can not be said that conviction of appellant is bad in law. The involvement of accused-appellant is established by test identification parade and that acquittal of co-accused would not affect the conviction of accused-appellant. It was submitted that conviction of appellant is based on evidence and calls no interference.
15. After going through evidence, it is apparent that substantially evidence against both the accused persons was same. No witness has attributed any specific role to any of the accused. No accused was apprehended at spot and FIR was lodged against unknown persons. No recovery was made from any of the accused. Both accused were identified in test identification report. There is no such evidence, which distinguish the accused-appellant Ramvir from co-accused Rajvir. It is surprising that on same evidence, one accused Rajvir has been acquitted by the trial court, whereas on same evidence, accused appellant Ranvir has been convicted. Learned trial court has not assigned any satisfactory reasons that why on same evidence one accused is acquitted and other accused is convicted. There is no State appeal against acquittal of co-accused Rajvir. In view of these facts, the impugned judgment of conviction is liable to be set aside on this ground alone.
16. However one more question involved in this matter is that, whether a single accused can be convicted under Section 395 IPC? The case of prosecution is that on the intervening night of 29/30.09.1978, some bandits came at roof of the house of complainant and felling their commotion, complainant and his son awoke and raised an alarm. Hearing noise, several villagers reached there and they made firing at miscreates and also pelted stones and bricks on them, which forced the said bandits to flee from there. In alleged incident, no one has sustained any injury and that alleged bandits could not succeed in committing any robbery or dacoity. There is no clear evidence regarding number of miscreants, who were involved in alleged incident. As stated above two accused were arrested but after trial one of them was acquitted. For the sake of convenience, Section 391 IPC, which defines ''dacoity' is reproduced as under:-
"391. Dacoity When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
After considering the above stated provision, it appears that the term 'conjointly' implies jointness of action and understanding. 'Conjointly' means to act in joint manner, together, 'unitedly by more than one person. 'Conjoin' means 'join together', as per the Oxford Large Print Dictionary. As per dictionary.com, meaning of term 'conjoint' is 'joined together, united, combined, associated'. Similar maening has been given in Webster's New International Dictionay and by Collins. Thus the use of word 'conjointly' in Section 391 IPC indicates that five or more robbers act with knowledge and consent and in aid of one another or pursuant to an agreement or understanding, i.e., unitedly. No doubt in most of dacoities, the robbers would be acting with a common object to loot with use of violence. At least in some cases of dacoities, the robbers act and use force in pursuance of their common intention and in all cases they act in prosecution of a common object. The word 'conjointly' means uniform intention along with unified or united or concerted action. It appears that this word has been deliberately preferred over the word 'jointly'.
17. From bare reading of provisions of aforesaid Section, it is clear that when five or more persons conjointly commit a robbery or they conjointly attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt amount to five or more, every person who is so committing, attempting or aiding is said to commit 'dacoity'. Therefore, robbery or attempted robbery by at least five persons is dacoity. It is not necessary that all the five persons must commit or attempt to commit robbery. If the total number of those who are committing or attempting to commit or are present and aiding such commission or attempt is at least five, all of them are guilty of dacoity. In other words, those who commit robbery and those who attempt to commit the same, and those who are present and aiding such commission or attempt are all counted, and if their number is five or more all of them would be guilty of committing dacoity. Moreover, it is not necessary for their conviction that their attempt must succeed. If the attempt does succeed it is a dacoity, and if the attempt fails even then the offence is dacoity. Section 395 IPC provides punishment for dacoity, which reads as under:-
"395. Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
18. It is apparent from aforesaid provisions that when robbery is committed or an attempt to commit is made by five or more persons, then all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. In case of Manmeet Singh @ Goldie Vs. State of Punjab, 2015(4) SCALE 111, the Hon'ble Supreme Court observed as under:-
"27. With reference to the offence of dacoity under section 391, IPC in particular and the import of Section 149, IPC, the Apex Court in Raj Kumar vs. State of Uttranchal 2008 (11) SCC 709 had propounded that in absence of a finding about the involvement of five or more persons, an accused cannot be convicted for such an offence. Their Lordships, however, clarified that in a given case it could happen that there might be five or more persons and the factum of their presence either is not disputed or is clearly established, but the Court may not be able to record a finding as to their identity resulting in their acquittal as a result thereof. It was held that in such a case, conviction of less than five persons or even one can stand, but in the absence of a finding about the presence or participation of five or more persons, less than five persons cannot be convicted for an offence of dacoity."
Supreme Court in Raj Kumar alias Raju vs. State of Uttranchal, (2008) 11 SCC 709, after making deliberation on point whether the number of convicts, out of figure tried, falling below the statutory minimum of five, the remainder could be convicted of an offence of dacoity held on facts that where the total number of accused put on trial were six, of whom two were acquitted by the Trial Court, without recording a finding that the offence was committed by six, held as under:-
"35. In the instant case, as observed earlier, there were six accused. Out of those six accused, two were acquitted by the trial court without recording a finding that though offence of dacoity was committed by six persons, identity of two accused could not be established. They were simply acquitted by the court. In our opinion, therefore, as per settled law, four persons could not be convicted for an offence of dacoity, being less than five which is an essential ingredient for commission of dacoity. Moreover, all of them were acquitted for an offence of criminal conspiracy punishable under Section 120-B IPC as also for receiving stolen property in the commission of dacoity punishable under Section 412 IPC. The conviction of the appellant herein for an offence punishable under Section 396 IPC, therefore, cannot stand and must be set aside."
19. Adverting to facts of present case, evidence regarding number of miscreants involved in incident is not not cogent. As stated above, only two accused were apprehended and faced trial and one of them was acquitted by trial court and that identity of remaining miscreants could not disclosed, even after the arrest and interrogation of accused persons. Though PW-2 has stated that there were about 10-11 miscreants in alleged incident but this version is not supported by PW 1. No specific role has been assigned to appellant. In fact there is no cogent evidence that there were five or more persons in alleged attempt of robbery. Here it would be pertinent to mention that in alleged incident no robbery or theft has taken place and no article was taken away by alleged miscreants. Similarly there is no evidence that any person has sustained injury in alleged incident. Mere allegation is that the alleged miscreants have made firing in order to commit robbery/dacoity, however, none was injured and no article was robbed or taken away. Considering all the facts and circumstances, the conviction of accused-appellants is not in accordance with law.
20. In view of aforesaid, the impugned judgment of conviction and sentence of accused-appellant under Section 395 IPC is set aside and he is acquitted of charge under Section 395 IPC. Accused-appellant is on bail, his bail bonds are cancelled and sureties are discharged.
21. Appeal is allowed.
Date: 24.02.2020 A. Tripathi (Raj Beer Singh, J)