Madhya Pradesh High Court
Habib vs The State Of Madhya Pradesh on 22 October, 2010
HIGH COURT OF MADHYA PRADESH : JABALPUR
CRIMINAL APPEAL NO. 1833/2007
(1) Habib, son of Hamid,
aged about 36 years, Resident of
Gairatganj, Distt. Raisen
(2) Imran, son of Babu Khan,
aged about 22 years
Gairatganj, Distt. Raisen ... Appellants
vs.
d
State of M.P., through SHO,
P.S. Khajuri Sadak, Bhopal ... Respondent
--------------------------------------------------------------------------------------
Shri Madan Singh, Advocate for the appellants.
Shri Ajay Tamrakar, Panel Lawyer, for the respondent/State.
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CRIMINAL APPEAL NO.1849/2007
Balla alias Farhat, son of Hamid Khan,
aged about 25 years, Resident of near Kanji House,
Gairatganj Distt. Raisen ... Appellant
vs.
State of M.P., through SHO,
P.S. Khajuri Sadak, Bhopal ... Respondent
--------------------------------------------------------------------------------------
Shri V.P. Tiwari, Advocate for the appellant.
Shri Ajay Tamrakar, Panel Lawyer, for the respondent/State.
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CRIMINAL APPEAL NO.2046/2007
(1) Masroor Ahmed, son of Sageer Ahmed,
aged about 28 years, Resident of Congress Nagar
Kaji Camp Distt. Bhopal
(2) Annu alias Syed Anwar, son of Syed Ehsaan Ali,
aged about 32 years, Resident of H.No.145,
Congress Nagar, Kaji Camp, Bhopal ... Appellants
vs.
State of M.P., through SHO,
P.S. Khajuri Sadak, Bhopal ... Respondent
--------------------------------------------------------------------------------------
:: 2 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and
Ms. Nalini Gurung, Advocate for the appellant no.1.
Shri Ashish Tiwari, Advocate for the appellant no.2.
Shri Ajay Tamrakar, Panel Lawyer, for the respondent/State.
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CRIMINAL APPEAL NO.2220/2007
Khalid, son of Kallu, aged about 32 years,
Resident of Fharhan Shadi Hall, Kaji Camp,
Distt. Bhopal ... Appellant
vs.
State of M.P., through SHO,
P.S. Khajuri Sadak, Bhopal ... Respondent
--------------------------------------------------------------------------------------
Shri K.N. Fakhruddin, Advocate for the appellant.
Shri Ajay Tamrakar, Panel Lawyer, for the respondent/State.
--------------------------------------------------------------------------------------
and
CRIMINAL APPEAL NO.1431/2010.
Waheed Khan, son of Kallu, aged about 45 years,
Resident of Fharhan Shadi Hall, Kaji Kamp,
Distt. Bhopal ... Appellant
vs.
State of M.P., through SHO,
P.S. Khajuri Sadak, Bhopal ... Respondent
--------------------------------------------------------------------------------------
Shri Prashant Kohade, Advocate for the appellant.
Shri Ajay Tamrakar, Panel Lawyer, for the respondent/State.
--------------------------------------------------------------------------------------
Date of Hearing : 19.08.2010
Date of Judgment : 22.10.2010
JUDGMENT
These appeals are interlinked, as preferred against a common judgment dated 23.08.2007 passed by Eighth Additional Sessions Judge, Bhopal in S.T. No.142/2002 whereby the appellants were convicted and sentenced as under :-
:: 3 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and Cri. Appeal No. & Name Convicted Sentenced to No. of appellant under Section 1833/2007 (1) Habib undergo R.I. for 10 years (2) Imran 120B of and to pay fine of the IPC Rs.5000/- and in default to suffer R.I. for 6 months.
1849/2007 Balla @ 412 of the undergo R.I. for 10 years Farhat IPC and to pay fine of Rs.5000/- and in default to suffer R.I. for 6 months.
with the direction that the jail sentences shall run concurrently 2046/2007 (1) Masroor 395 of the undergo R.I. for 10 years IPC and to pay fine of (2) Annu @ Rs.5000/- and in default Anwar to suffer R.I. for 6 2220/2007 Khalid months.
1431/2010 Waheed 395 read no separate punishment with S.397 of the IPC
2. By that judgment only, co-accused Aziz was acquitted of the offences punishable under Sections 395 and 395 read with 397 of the IPC. It is relevant to note that the judgment is conspicuously silent about the offence under Section 25(1B)(a) of the Arms Act, 1959 with which the appellant Khalid was charged. No appeal has been preferred by the State against the express or implied order of acquittal. Moreover, none of the absconding co-accused namely Mustaqeem, Raees, Zahid and Laeek Khan has been traced as yet.
3. For the sake of convenience, the appellants and the co-accused shall be referred to by their respective names only.
4. The prosecution story, in short, may be narrated thus -
:: 4 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and
(i) At the relevant point of time, Manohar (PW5) was running a kirana shop along with his brothers Rajendra Kumar (PW13) and Vimal (PW14) whereas his another brother Manoj (PW4) was doing the same business at Silwani where the complainant Vivek Jain (PW15), a grain merchant, was also residing. Manohar and his brother owned a Truck, bearing registration no.M.P.09-
KA-2271, whereon Lalmiyan (PW12) and appellant Balla alias Farhat were employed as drivers and Pannalal (PW10) was working as cleaner.
(ii) On 26.11.2001, after getting a consignment of Masoor loaded in the truck at Silwani for being transported to Indore, Vivek also boarded the vehicle being driven by appellant Balla. Vivek was having a cash amount of Rs.1 lac that was kept in a blue bag whereon NIKE was printed. He was also keeping 1350 silver coins of Victorian Era in two plastic bags. At Silwani only, Manoj handed over a red bag containing currency notes worth Rs.1 lac and list of kirana items to be handed over to Manohar for purchasing the same at Indore. As the truck reached Gairatganj, Manohar also went on board and his suitcase comprising garments & articles of toiletries and a green bag containing cash amount were placed by Pannalal inside the truck with the assistance of Balla who got down at Gairatganj only. Lalmiyan then drove the vehicle to its proposed destination.
(iii) In the night intervening 26th and 27th of November, 2001 at about 4, when the truck had already passed through Bairagarh, it was overtaken by a white Maruti Car boarded by a gang of criminals. After stopping the :: 5 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and truck on a false pretext that it had been involved in an accident, one of the inmates of the car entered into the cabin from the driver's side; pushed Lalmiyan aside and started driving the vehicle himself. In the meanwhile, two other miscreants entered into the cabin from the cleaner's side and their other companion remained standing outside. Brandishing knives and katta, they asked Manohar to get up from the seat whereunder bags belonging to Manohar, Vivek and Manoj were kept. Manohar tried to offer resistance but he was assaulted with the knife and Pannalal was also belaboured. The offenders not only picked up the bags and the suitcase belonging to Manohar but also snatched a gold chain worn by him. After driving the truck to a short distance, the offender-taking driver's seat stopped the truck near village Bhainsakhedi where all the stolen articles were handed over to the associate standing outside. Upon getting down from the vehicle, one of the miscreants caused damage to its headlights & wind screen and also punctured one of its tyres by means of a knife. Taking the bags, the suitcase and the gold chain, all the robbers fled away in the car.
(iv) It was upon the FIR (Ex.P-42) lodged by Vivek Jain (PW14) that a case under Sections 394 read with 397 of the IPC was registered against four unknown persons at Police Station Khajuri Sadak. Injured Manohar and Pannalal were taken to the hospital where Dr. A.T. Mangtani (PW1) examined them.
(v) In their case diary statements, Manohar as well as his brothers Rajendra and Vimal disclosed that in addition :: 6 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and to Rs.1 lac for purchasing Kirana items mentioned in the list also kept therein, the bag being carried by Manohar also contained an amount of Rs.5,50,000/- meant for purchasing building materials for construction of Jain Temple.
(vi) Investigation revealed that it was Balla @ Farhat who had informed Habib and Imran about the fact that Manohar and Vivek were carrying huge amount of cash in the truck and the information was further communicated to Laeek who, in turn, apprised all the other accused of the information. However, in pursuance of the conspiracy thus hatched, only four of them took the car having registration number MP-09-N-
8100 and proceeded to follow the truck and commit robbery at a convenient place.
(vii) On 21.12.2001, appellant Masroor was apprehended and at his instance, currency notes worth Rs.1,45,000/-, Maruti Car, mobile phone and a green bag were seized. He was further interrogated on 24.12.2001 and 28.12.2001 and at his instance; a gold chain, 150 silver coins and cash amount of Rs.35000/- were recovered from his house. Excepting Laeek and Aziz, the other accused were also apprehended and red & blue bags, suitcase, cash amounts and coins forming subject matter of the robbery along with the weapons of offences were seized from their possession. A katta (country made pistol) was also seized from Khalid. Accordingly, sanction of the District Magistrate was obtained for his prosecution in respect of the offence under Section 25 of the Arms Act, 1959. Details of the :: 7 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and calls (Ex.P-57) made and received through the mobile cell phone were also obtained from RPG Cellcom Ltd.
(viii) On 17.01.2002, Annu and Khalid and co-accused Raees, Zahid and Mustaqeem were subjected to Test Identification Parade before Executive Magistrate Ramesh Chandra Dubey (PW16). At the Parade, Mustaqeem was not identified by Manohar as one of the persons conjointly involved in the robbery.
However, Manohar identified the other four accused whereas Vivek identified only Raees, Khalid & Annu as the robbers and Lalmiyan could identify Annu only.
(ix) On 05.02.2002, at the test identification proceedings conducted by the Sarpanch namely Jai Kishan (PW18), both Manohar and Vivek identified the suitcase containing clothes, all the three bags and broken gold chain as the articles stolen from their possession.
5. After due investigation, charge sheet was filed against all the accused, showing Aziz and Laeek Khan as absconding, before JMFC, Bhopal who committed the case to the Court of Session for trial.
6. Amongst the accused, only four namely Habib, Imran, Balla @ Farhat and Laeek were charged with the offences punishable under Sections 120B and 412 of the IPC whereas charges of the offences under Section 395 and 395 read with Section 397 of the IPC were framed against all other accused. Khalid was additionally charged with the offence under Section 25(1B)(a) of the Arms Act.
7. The appellants abjured the guilt and pleaded false implication. However, no cogent reason was assigned therefor even in the examination under Section 313 of the Code of Criminal Procedure.
:: 8 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and
8. The prosecution sought to prove the charges by examining as many as 20 witnesses including the inmates of the truck and the witnesses pertaining to recovery; seizure and identification of the seized articles. However, apparently due to inadvertence of the trial Judge, Manohar (PW5) was re-examined as PW20. No evidence was led on behalf of the defence.
9. Legality and propriety of the impugned convictions have been challenged on the following grounds -
(i) Veracity of the occurrence as described in the FIR (Ex.P-42) was shrouded with suspicion.
(ii) Evidence as to identification of Annu and Khalid as the persons involved in the robbery suffers from serious infirmities.
(iii) Amongst the panch witnesses to seizure, Dhan Singh (PW8) did not corroborate the corresponding version while Rakesh Jain (PW7) also did not state any incriminating fact against Balla and Habib whereas Nirmal Kumar (PW6) was apparently an interested witness.
(iv) There was no cogent evidence as to existence of criminal conspiracy.
(v) The investigation was apparently doubtful as, admittedly, two suspects namely Mohd. Zahid son of Mohd. Waheed resident of Gairatganj Distt. Raisen and Vikky alias Sudama son of Lal Sahu resident of Shivpuri were released at the instance of Investigating Officer despite the fact that they were identified by Vivek and Lalmiyan as the robbers.
:: 9 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence, has submitted that the convictions were well-merited.
10. In the light of the rival contentions, the prosecution evidence may be re-appreciated under the following heads -
VERACITY OF THE INCIDENT
11. The first informant Vivek Jain (PW15) substantially reiterated the contents of the FIR (Ex.P-42) lodged immediately after the incident. As per his statement, on 26.11.2001 at about 10 p.m., while carrying a blue bag containing currency notes worth Rs.1 lac and a cartoon comprising 2 polythene bags containing 1350 silver coins, he boarded the truck, in which consignment of Masoor for being transported to Indore, was loaded at Silwani where Manoj had entrusted him with a bag containing cash amount of Rs.1 lac and list of grocery articles to be handed over to Manohar at Gairatganj. He further deposed that along with Lalmiyan, Balla was also working as driver on the truck whereas Pannalal was employed as the cleaner. According to him, truck was driven from Silwani to Gairatganj by Balla who, after stopping the vehicle in front of Manohar's shop at Gairatganj, was able to witness that a bag being brought by Manohar and the other bags already kept in the truck were placed under the seat in the driver's cabin. His evidence drew ample support from the statement of Manoj (PW4) who was not cross-examined in respect of his assertion that he had handed over the cash amount of Rs.1 lac to Vivek in a red bag and also that of Manohar (PW5) to the effect that he had boarded the truck at Gairatganj where his suitcase was kept in the cabin and a green bag containing cash amount and list of grocery articles was kept in the dickey, located beneath the seat situated behind the driver's seat in the cabin. No serious dispute was raised as to the assertion made by Vivek that Balla had left the truck at Gairatganj.
:: 10 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and
12. Vivek (PW15), Manohar (PW5) and Lalmiyan (PW12) were unanimous in stating that the truck driven by Lalmiyan was intercepted near Bairagarh by inmates of a Maruti Car who were alleging that it had met with an accident. According to them, amongst the miscreants, two entered into the cabin from the cleaner's side whereas their companion, after coming into the cabin from driver's side, had pushed Lalmiyan aside and drove the vehicle to a short distance. Pannalal (PW10) also corroborated this part of their evidence. As per statements of Vivek and Manohar, the intruders entering from the cleaner's side were able to compel Manohar and Pannalal, by assaulting them, to get up from the seat whereunder bags containing cash amounts and the cartoon containing silver coins were kept and this assertion was duly substantiated by the injured witness viz. Pannalal. Vivek and Manohar further affirmed that the offenders other than the one driving the truck, were able to lift up and hand over the bags & cartoon to their associate standing outside the vehicle.
13. It may be pointed out that the FIR (Ex.P-42) that was lodged nearly 90 minutes after the incident also reflected involvement of only 4 unknown persons. Recitals thereof also supported the version given by Vivek and Manohar that all the offenders had fled away in the Maruti Car and the delay had occasioned due to the fact that while leaving the spot, one of the offenders had punctured one of the tyres of the truck by means of a knife.
14. Dr. A.T. Mangtani (PW1) testified that, in the medical examinations conducted on 27.11.2001, he had noticed the following injuries -
on the body of Manohar (as described in the report Ex.P-1)
(i) Lacerated wound 1 cm x ½ cm over the left parietal region.
:: 11 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and
(ii) Incised wound 1 cm x linear x superficial on left thumb on the body of Pannalal (as described in the report Ex.P-2) Lacerated wound 1 cm x ½ cm x scalp deep on the left side frontal region.
According to medical expert, lacerated wounds were caused by hard and blunt object whereas the incised wound was caused by hard and sharp object. In the cross-examination, he clearly admitted that the lacerated wound could be received on being thrown due to abrupt application of brakes in a truck whereas the incised wound could be self-inflicted.
15. The discrepancy in the quantum of the cash amount being carried by Manohar was satisfactorily explained. As per his version, initially he was under an impression that his brother Rajendra (PW13) had kept only a sum of Rs.1 lac along with list of kirana items to be purchased at Indore but subsequently, he was apprised by Rajendra that an amount of Rs.5,50,000/- had been kept in the bag for purchasing the raw materials for construction of Jain Temple. Corroborating the explanation, Rajendra categorically stated that in the afternoon of 26.11.2001, Mr. Tekchand, a member of Chaturmas Sewa Samiti had handed over currency notes of Rs.6 lacs, out of which a sum of Rs.50,000/- was meant for payment to the supplier of bricks and the remaining amount viz. Rs.5,50,000/- had to be given to Manohar for purchasing the construction materials at Indore. According to him, since the truck had arrived around midnight at the time when Manohar was sleeping, he could not communicate the aforesaid fact to Manohar. Rajendra further pointed out that some of the currency notes were bearing seal of the Samiti. This aspect of the matter was not subjected to challenge in his cross-examination. His evidence gathered support from the statement of Vimal Jain as well as :: 12 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and from that of Tekchand (PW3). Corresponding resolution of the Samiti (Ex.P-56) was also placed on record.
16. All this evidence was rightly considered as sufficient to prove veracity of the incident beyond a reasonable doubt. However, as recited in the FIR, only 4 unknown persons had participated in the robbery. As explained by the Supreme Court in Saktu v. State of U.P. AIR 1973 SC 760, conviction of less than five persons for the offence of dacoity would be sustainable only when it is proved that five or more persons including themselves had participated in the offence. However, as pointed out already, in the instant case, the persons involved in the commission of the robbery numbered only 4. As such, there could be no dacoity (Ram Lakhan v. State of U.P. AIR 1983 SC 352(1) that was referred to in Raj Kumar v. State of Uttaranchal AIR 2008 SC 3248).
EVIDENCE AS TO IDENTIFICATION OF THE PERSONS
17. Even though, the Executive Magistrate R.C. Dubey (PW16) proved the result of test identification parades, conducted by him on 17.01.2002 in the Central Jail at Bhopal suggesting that -
Annu was identified by Manohar, Vivek and Lalmiyan
Khalid was identified by Manohar and Vivek
Raees was identified by Manohar and Vivek
Zahid was identified by Manohar
yet, at the trial, Lalmiyan was not able to identify any one of the accused persons; Vivek could identify only Raees (since absconding) and Aziz (since acquitted) and the injured victim Manohar duly identified Annu and Khalid as the persons involved in the robbery. According to Manohar, Annu had pushed aside Lalmiyan and had :: 13 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and started driving the truck at the time when he and Vivek were robbed of the aforesaid properties by Khalid and their companion.
18. It is well settled that the identification evidence in order to carry conviction must clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused and the details of the part which he allegedly played in the Crime in question with reasonable particularity. (See Budhsen v. State of U.P. (1970) 2 SCC 128). Thus, evidence as to the identification on record was only sufficient to prove complicity of Annu and Khalid in the robbery.
EVIDENCE AS TO RECOVERY OF STOLEN PROPERTIES
19. Investigating Officer Anil Tripathi (PW17) narrated as to how he was able to apprehend the appellants & the co-accused and recover various weapons used in commission of the dacoity and the subject matters thereof at their instance. His assertion pertaining to recovery of weapons of offence; the cash amounts and the other properties stolen in the robbery as well as the arrest of the appellants and the co- accused, may be tabulated as under -
Name of Description Relevant memo under Section 27 Date of
the of the of the Evidence Act, List of Seizure seizure
appellant/ properties and Arrest Memos exhibited in
co-accused seized at evidence as
his instance
Memo Seizure Arrest
or from his
S.27 Memo Memo
possession
Balla @ Rs.18000/- Ex.P-13 Ex.P-8 Ex.P-14 21.12.01
Farhad
Habib Rs.50000/- ExP-11 Ex.P-9 Ex.P-16 21.12.01
(comprising 5
bundles each
containing 100
currency notes of
Rs.100
denomination and
bearing seal of
Chaturmas Sewa
Samiti)
:: 14 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and Imran Rs.28000/- Ex.P-12 Ex.P-10 Ex.P-15 21.12.01 Khalid Rs.75000, Ex.P-17 Ex.P-26 Ex.P-35 21.12.01 300 silver coins, a knife, a blue NIKE bag and a katta Rs.20000/- - Ex.P-31 - 27.12.01 Masroor Rs.145000/, Ex.P-19 Ex.P-27 Ex.P-34 21.12.01 a Maruti Car, a SAMSUNG mobile cell phone and a green bag A broken Ex.P-22 Ex.P-28 24.12.01 gold chain and 150 silver coins Rs.35000/- Ex.P-32 Annu Rs.68000/- Ex.P-21 Ex.P29 Ex.P-37 26.12.01 Waheed Rs.3000/- Ex.P-23 Ex.P-33 Ex.P-48 09.01.02 & 252 silver coins Name of Description Relevant memo under Section 27 Date of the of the of the Evidence Act, List of Seizure seizure appellant/ properties and Arrest Memos exhibited in co-accused seized at evidence as his instance Memo Seizure Arrest or from his S.27 Memo Memo possession :: 15 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and Co-accused Rs.65000/-, Ex.P-18 Ex.P-24 Ex.P-36 21.12.01 Zahid 115 silver (Prepared in coins and a the house of knife Raees) (comprising 6 bundles each containing 100 currency notes of Rs.100 denomination and bundle containing 100 notes of Rs.50/-
denomination and some of the notes having seal of Chaturmas Sewa Samiti) Rs.20000/- Ex.P30 27.12.01 (prepared in the house of Khalid) Co-accused Rs.85000/-, Ex.P-20 Ex.P-25 Ex.P-38 21.12.01 Raees 300 silver coins, a knife and a red REEBOK bag Co-accused Rs.25000/-, Ex.P-45 Ex.P-46 Ex.P-47 01.01.02 Mustaqeem 150 silver coins and a suitcase containing 2 trousers, 3 shirts and 1 small towel, 1 black jeans.
20. Nothing could be brought in the cross-examination of Investigating Officer so as to suggest that he was, in any way, interested in securing the convictions of the appellants on absolutely false grounds. In this view of the matter, non-corroborative evidence of Rakesh Jain (PW7) and Dhan Singh (PW8) did not assume any significance particularly when Nirmal Kumar (PW6) was able to support the assertion made by SHO Anil Tripathi that the currency notes mentioned in the lists (Ex.P-8, P-9 and P-10) were seized from the possession of Balla @ Farhat, Habib and Imran respectively.
:: 16 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and
21. This apart, the fact that the suspects namely Mohd. Zahid son of Mohd. Waheed and Vikky alias Sudama son of Lal Sahu were let off for want of evidence was of no consequence as a defective investigation, by itself, cannot be a ground for acquittal. However, as pointed out already, Masroor and Waheed have been convicted for being involved in the robbery but fact of the matter is that Maruti Car said to have been recovered from the possession of Masroor was not subjected to identification whereas the evidence relating to test identification of gold chain (Article 'A'), red bag (Article 'B'), green bag (Article 'C'), blue bag (Article 'D'), suitcase containing two pairs of pant-shirt and towel (Article 'E'), said to have been conducted by Sarpanch Jai Kishan (PW18), did not inspire confidence for the following reasons -
(i) Jai Kishan clearly admitted that no other article was mixed with articles sought to be identified by Manohar and Vivek.
(ii) The police official who had brought the articles had remained present at the time of identification.
Moreover, at the trial, the aforesaid items were not subjected to identification by Vivek (PW15) and the blue bag belonging to Vivek was also not identified by Manohar.
22. The Apex Court in Shivappa v. State of Mysore AIR 1971 SC 196 has explained the difference between the presumption as to whether the accused were receivers of stolen property or were dacoits in the following words -
"If there is other evidence to connect an accused with the crime of dacoity itself however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn. In what circumstances the :: 17 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and one presumption or the other may be drawn depends upon the circumstances under which the discovery of the fruits of crime are made with a particular accused. If the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed".
23. In such a situation, mere recovery of the green bag and Maruti Car from the possession of Masroor and silver coins from the possession of Waheed could not have formed basis of their conviction for the offence of robbery. As the allegations found proved against them were not distinguishable from the other accused except Balla, they ought to have been convicted for the offence of receiving the stolen property punishable under Section 411 of the IPC.
EVIDENCE AS TO CONSPIRACY
24. Direct evidence, being extremely rare, criminal conspiracy can be proved by the circumstantial evidence. In-fact because of the difficulties in having direct evidence of criminal conspiracy once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then, anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to Section 10 of the Evidence Act, relevant for proving both conspiracy and the offences committed pursuant thereto (Noor Mohammad vs. The State of Maharashtra 1971 CRI.L.J. 793 (SC) referred to).
25. The circumstance that Balla was the only person who knew about the availability of a huge amount of money in the truck was sufficient to infer that it was he who had communicated the corresponding information to the robbers. However, in absence of relevant evidence against Habib and Imran, they were entitled to :: 18 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and benefit of doubt in respect of the offence of conspiracy. In this view of the matter, only Balla's conviction under Section 120B of the IPC deserves to be affirmed as justified.
26. Thus, none of the contentions raised against complicity of the appellants namely Annu and Khalid in the robbery and that of other appellants in dishonestly receiving the stolen properties as well as that of Balla in the conspiracy is acceptable.
27. To sum up, convictions of Annu and Khalid for the offence of dacoity deserve to be converted into one of robbery whereas the impugned convictions of all other appellants also deserve to be converted into one under Section 411 of the IPC. In addition, Balla is also liable to be convicted for hatching conspiracy to commit robbery.
28. Coming to the question of sentence, it may be observed that a considerable period of nearly 9 years has already elapsed after the incident in question. Taking into consideration the social impact of the crime and other background facts and circumstances of the case, interests of justice would be met if the custodial sentence of the offence of robbery or its conspiracy is fixed at 7 years whereas the offence of dishonestly receiving the stolen properties is reduced from 10 years to 3 years.
29. Consequently, the appeals are allowed in part. In the result -
(i) Convictions of Annu @ Syed Anwar and Khalid, respectively the appellants in Cri. Appeal Nos.2046/2007 and 2220/2007, under Sections 395 & 395 read with 397 of the IPC are converted into one under Section 394 of the IPC and each one of them is sentenced to undergo R.I. for 7 years and to pay fine of Rs.5000/- and in default to suffer R.I. for 6 months.
:: 19 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and
(ii) Convictions of Masroor and Waheed, respectively the appellants in Cri. Appeal Nos.2046/2007 and 1431/2010, under Sections 395 & 395 read with 397 of the IPC are converted to one under Section 411 of the IPC and each one of them is sentenced to undergo R.I. for 3 years and to pay a fine of Rs.5000/- and in default to suffer R.I. for 6 months.
(iii) Conviction of Balla @ Farhat, the appellant in Cri.
Appeal No.1849/2007, under Section 120B of the IPC and the consequent fine sentence are hereby affirmed but the term of corresponding custodial sentence is reduced from 10 years to 7 years. Further, his conviction under Section 412 is converted to one under Section 411 of the IPC and he is sentenced to undergo R.I. for 3 years and to pay a fine of Rs.5000/- and in default to suffer R.I. for 6 months. His custodial sentences shall run concurrently.
(iv) Conviction of Habib and Imran, the appellants in Cri.
Appeal No.1833/2007, for the offence under Section 120B of the IPC is hereby set aside. Instead, they are acquitted of the offence. Fine amount, if deposited, be refunded. However, their conviction under Section 412 is converted into one under Section 411 of the IPC and each one of them is sentenced to undergo R.I. for 3 years and to pay a fine of Rs.5000/- and in default to suffer R.I. for 6 months.
30. Appellants Habib, Imran, Balla alias Farhat and Masroor are on bail. They are directed to surrender to their bail bonds before the trial Court on or before 08.12.2010 for being committed to the custody for undergoing remaining part of the sentence.
31. A copy of the judgment be retained in connected criminal appeals.
Appeals partly allowed.
(R.C. Mishra) JUDGE 22.10.2010 :: 20 ::
Cri. Appeal Nos.1833/07, 1849/07, 2046/07, 2220/07 and