Indian Kanoon - Search engine for Indian Law

2. The appellants were convicted under Section 395, I.P.C. to rigorous imprisonment for two years and a fine of Rs. 100/- each, under Sections 323/149 to three months rigorous imprisonment, under Sections 427/149 to one year's rigorous imprisonment, under Sections 435/149, I.P.C. to two years - rigorous imprisonment and a fine of Rs. 100/- each under Sections 457/149, I.P.C. to two years rigorous imprisonment and under Section 147, I.P.C. to one year's rigorous imprisonment all the sentences to run concurrently. For the purpose of brevity instead of naming the accused individually they will be referred to in this judgment as 'A' No. so and so. Appellant No. 1 Musa Khan is A-4, appellant No. 2 Sardar Khan is A-7, appellant No. 3 Jani is A-8 appellant No.4 Mohd. Fashiuddin is A-9 appellant No. 5 Mohd Eqbal is A-11, appellant No. 6 Abdul Hamid is A-12, appellant No. 7 Saber Ali Khan is A-20 and appellant No. 8 Mohd. Azam Khan is A-22.

7. Taking A-4 we find that he was a young man of 20 years in 1968 when the occurrence took place and he is the brother of A-11 and A-12. The only evidence of his participation in the incident at the Bharat Lodge consists of P.W. 1 Prakash and P.W. 16 Vishwanath, So far as P.W. 16 is concerned his evidence has been rejected as he was not able to identify the appellant at a test identification parade. Further more, in view of the evidence of P.W. 16 extracted above, it would appear that he does not mention A-4 as one of the persons who had taken part in removing the cash box from the counter. In these circumstances, therefore, A-4 can only be convicted at the most under Sections 149/ 425, I.P.C. As this appellant does not appear to have taken any part either in the raid which was made at the Engineering College hostel or at the chawl he can only be responsible for the mischief which was caused at the Bharat Lodge. As his conviction under Sections 395/149 fails, the appellant can only be convicted under Sections 149/425, I.P.C. The other convictions and sentences recorded against him are set aside. As, however, the appellant was a boy of 20 years, his case clearly falls within the purview of the Probation of Offenders Act, 1958. The Probation of Offenders Act is a social legislation which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the Government Unfortunately, though the provisions of Section 6 of the Probation of Offenders Act are mandatory, the Courts do not appear to make wise use of these provisions which is necessary to protect our younger generation from becoming professional criminals and, therefore, a menace to the society. It may be that the appellant A-4 was not dealt with under the provisions of Section 6 of the Probation of Offenders Act because of the charge under Section 395, I.P.C. but that charge having failed, there is no impediment now in his being dealt with under the provisions of Section 6 of the Probation of Offenders Act. In these circumstances, therefore, we would set aside the convictions and sentences imposed on A-4 Musa Khan and direct that he be released on his entering into a bond with two sureties of Rs. 500/- each for a period of one year in order to keep the peace and be of good behavior. The appellant will report to the Probation Officer appointed within the jurisdiction of the place where he resides.

13. So far as A-20 Saber Ali Khan and A-22 Mohd. Azam Khan are concerned they have been expressly named by P. Ws. 1 and 16 as being members of the mob which attacked the Bharat Lodge and which actually participated in stealing away the cash box. Both these accused had attacked the counter along with two others and had forcibly removed the cash box containing few hundred rupees and, therefore, they cannot escape conviction under Section 392, I.P.C. even if the charge under Sections 149/395 fails. We might like to mention that it was not at all necessary for the learned Additional Sessions Judge to have framed a charge under Sections 149/395, I.P.C. because an offence under Section 395, I.P.C. comes into existence only when an act of dacoity is committed by five or more persons jointly, and, therefore, the question of applying Section 149, I.PC. is a mere surplusage. At any rate since the number of persons who have been proved to have stolen the cash box is less than five, the charge under Section 395, I.P.C. as also that under Section 149, I.P.C. must necessarily fail. We, therefore, alter the conviction of A-20 Saber Ali Khan and A-22 Mohd. Azam from that under Sections 149/395, I.P.C. to that under Section 392, I.P.C. simpliciter and reduce their sentence under this section to one year's rigorous imprisonment each while maintaining the fine imposed on them by the Trial Court. The convictions and sentences on other counts are set aside.

14. On a consideration, therefore, of the evidence and circumstances of the case, we allow this appeal to this extent that A-8 Jani is acquitted of all the charges framed against him and is directed to be set at liberty forthwith. A-4 Musa Khan, A-7 Sardar Khan and A-9 Mohd. Fasihuddin are dealt with under Sections 4 and 6 of the Probation of Offenders Act and their convictions and sentences are set aside and they are directed to be released on their executing a bond with two sureties of Rs. 500/-each for a period of one year in order to keep the peace and be of good behavior and all of them will report to the nearest Probation Officer in their range. The conviction of A-12 Abdul Hamid under Sections 149/427, I.P.C. is upheld but his sentence is reduced to three months rigorous imprisonment. His conviction under Sections, 149/395, I.P.C. is set aside while his conviction under Section 147, I.P.C. will stand. The convictions under Sections 149/395, I.P.C. as against A-ll, Mohd. Eqbal, A-20 Saber Ali Khan and A-22 Mohd. Azam Khan are altered to that under Section 392, I.P.C. and their sentence is reduced from two years to one year's rigorous imprisonment under this section. As there is no reliable evidence to prove the participation of any of the appellants in the incident of arson at the Chawl of Jogendra Singh, the convictions and sentences imposed on all the appellants under Sections 149/435, I.P.C. are hereby set aside. The other convictions as also the sentences passed on these appellants are confirmed. In respect of all the accused the sentences are ordered to run concurrently.