1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER 1. SB CRIMINAL APPEAL NO.476/2005. Bijendra and another. Vs. State of Rajasthan 2. SB CRIMINAL APPEAL NO.1597/2007. Shiv Singh @ Hari Singh Vs. State of Rajasthan Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 18th September, 2008. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. B.M. Sharma )for the appellants. Mr. N.A. Naqvi ) Mr. Nawab Ali ) Mrs.Nirmala Sharma PP for the State. BY THE COURT: Since both the above appeals arise out of the same judgment and order dated 11.4.2005 passed by the learned Special Judge, Dacoity Affected Area, Bharatpur in Sessions Case No.18/2002 whereby the accused appellants have been convicted and sentenced for the offences under sections 395, 396 and 397 IPC to various terms, the same have been heard and are being decided together. Brief facts for the disposal of the present appeals are that PW3 Vallabh submitted a written report at police station Weir District Bharatpur on 13.2.2000 at 5.20 a.m. which was accepted 2 by a constable at the police station on the basis of which a formal FIR Ex.P-5 was registered. It was inter-alia alleged in the report that in the intervening night of 12/13.2.2000 at about 1.20 a.m. 8-9 miscreants duly armed with lathi, iron rods and fire arms (bandook and desi katta) entered in the residential house of the complainant and enquired about the valuables from his father who was sleeping in a kothri (small room). His father asked them as to who were they. They instead of disclosing their identity assaulted him by lathi and iron rod. Thereafter 4-5 miscreants entered in the adjacent room where Smt. Sunita, the wife of his younger brother of complainant was sleeping. They asked her to give them keys of the almirah. At that time one of the miscreants caused injury on her cheeks by inserting iron rod therein, as a result of which she fell down and miscreants took out cash, gold and silver jewelery from the almirah. The miscreants also snatched the ornaments which Smt. Sunita was wearing on her person at that time including the bangles, ear-rings, ring and chain etc. Thereafter, the miscreants bolted all the family members including brother in law of the complainant Vijay inside a room. It is alleged that thereafter they entered in all other rooms and broke open the locks of boxes, almirahs etc. and collected the valuables and cash. It is also alleged that the miscreants while leaving the house climbed over the roof and when they tried to run away, they were chased by the neighbours, villagers. At that time, miscreants opened fire arms as a result of which one Ismail sustain a gun shot injury. He fell down 3 and was taken to Government Hospital, Bharatpur where he was declared dead. On the above report FIR No.21/2000 was registered and investigation commenced. On completion of investigation, charge-sheet before the learned Special Judge, Dacoity Affected Area, Bharatpur was filed against accused appellants; namely, Brijendra, Shiv Dutt and Shiv Singh. The investigation was kept pending against Lakhan, Girdhari, Kalicharan, Dashrath, Ram Khilari, Sahib Singh, Maharaj Singh, Laxman, Hari Om and Siya under Section 173(8) Cr.P.C. Charges were framed under sections 395, 396 and 397 IPC against the appellants Shiv Singh, Shiv Dutt and Brijendra on 27.2.2004. In support of its case 23 witnesses were produced by the prosecution and 43 documents were tendered in evidence. The defence got exhibited Ex. D-1 to D-5. Five statements of witnesses recorded by the police under section 161 Cr.P.C. After close of the prosecution evidence in the statements recorded under section 313 Cr.P.C., the appellant Shiv singh denief the allegation and stated that he was shown to the witness prior to conduct of test identification parade. Accused Brijendra stated that he was beaten by police and a relative of complainant who is constable demanded bribe for filing final report. Accused Shiv Dutt stated that he was taken to complainant's house while in custody in other case. One 'sepoi' demanded Rs.20,000/- for filing final report in the case. No evidence in defence was produced. 4 The learned trial court vide its judgment and order dated 11.4.2005 convicted and sentenced each of the accused appellants Bijendra, Shiv Dutt and Shiv Singh under sections 395, 396 and 397 IPC for 5 years, 10 years, 7 years rigorous imprisonment with fine of Rs.2000 and in default of payment of payment of fine to further undergo two months rigorous imprisonment respectively on each count. Hence these appeals. Learned counsel for the accused-appellants while arguing the matter submitted that the learned trial court has relied on the test identification parade though it is a weak type of evidence but they do not want to challenge the findings of the learned trial court in relation to conviction recorded against them. The matter requires consideration for reduction of sentence awarded to the accused-appellants under section 396 IPC. On the other hand, learned Public Prosecutor contends that the witnesses have identified the accused at the time of incident, therefore, the findings recorded by the learned trial court requires no interference. It is submitted that under section 396 IPC, accused have been sentenced for 10 years, therefore, the same should not be reduced. I have considered the submissions made before me. In the instant case, the prosecution examined PW-1 Manohar Lal, PW-5 Sunita and PW-21 Vijay Sharma as eye witness in the case. Out of above three witnesses PW-5 Sunita and PW-21 Vijay Kumar identified the accused during the test 5 identification parade and they have correctly identified the accused. The accused-appellant Bijendra and Shiv Dutt were arrested on 6.7.2002 and arrest memo Ex.P-21 and P-22 in this regard were prepared. They were already in jail in some other case. As they were kept baparda, a note was also appended on the arrest memos Ex.P-21 and P-22 to the effect that they were kept baparda. PW-12 Shri Lal at the relevant time was constable at police station Weir. He has stated that the accused Bijendra and Shiv Dutt were taken in this case from Karauli Jail. Their arrest memos Ex.P-21 and P-22 were prepared by him. PW-14 Pratap Singh is also a constable. He has proved his signatures on Ex.P- 21 and P-22. The accused-appellant Shiv Singh was arrested in this case vide Ex.P-31. He was in judicial custody in another case. The arrest memo is dated 25.6.2002. It has also been stated in the arrest memo that the accused was arrested and kept baparda. PW-17 Nepal Singh, Additional Chief Judicial Magistrate, Bayana conducted the test identification parade and prepared the test identification memo Ex.P-15 and P-16 in relation to accused appellants Bijendra and Shiv Dutt. He has stated that two witnesses namely PW-5 Sunita and PW-21 Vijay have correctly identified the accused. He has also stated that he took all precautions during the test identification parade conducted by him. PW-13 Ajay Kumar Sharma in the capacity of Judicial Magistrate, Bharatpur conducted test identification parade and prepared identification memo Ex.P-28. He has also stated that PW-5 Sunita 6 and PW-21 Vijay Sharma have correctly identified the accused. In this case, no recovery of the weapons or the ornamnets what-so- ever has been effected. The identification took place after two years. PW-5 Sunita and PW-21 Vijay have identified accused in the court as well. PW-1 Manohar Lal has identified the accused in the court. The case of the prosecution as stated by the witnesses is that at the relevant time some of the accused were with muffled faces. No description about their physical appearance etc. was given in the FIR which was handed over at the spot by PW-3 to the police on the basis of which formal FIR Ex.P-5 was registered. Be that as it may, since in this case the conviction recorded against the accused under sections 395, 396 and 397 IPC has not been challenged, therefore, it is not necessary to scrutinize the matter minutely and to consider the discrepancies in view of the fact that the accused were identified in jail and test identification memos were prepared. The other witnesses in the case are the police witnesses in relation to arrest and preparing various firds. PW-23 is Dr. Anil Kumar Goyal who has prepared post-mortem report of Ismail. As per the prosecution story the dacoits were chased by the villagers and at that time the dacoits opened fire, as a result of which Ismail had died. There is no recovery of the fire arms in this case. Dr. Anil Kumar Goyal has also examined PW-1 Manohar Lal and prepared injury report Ex.P- 1. All the injuries were simple in nature. Other injured in this case is Sunita. She was medically examined. Ex.P-17, the injury report 7 in this regard was prepared. On her left cheek, she sustained grievous injury. In view of the above evidence, it stands established that on the day of incident, the accused entered in the house of the complainant and committed dacoity. The findings recorded by the learned trial court, therefore, appears reasonable and proper. The question now comes for consideration is as to whether the conviction recorded in the matter under section 397 and 396 IPC is to be reduced or not? The accused are in jail since very beginning up till now and almost completed 6 years in jail, therefore, I deem it proper to reduce the sentence awarded under section 396 IPC from 10 years rigorous imprisonment to seven years rigorous imprisonment and a fine of Rs.2,000/-, in default of payment of fine to further undergo two months rigorous imprisonment. In relation to conviction and sentence under sections 395 and 397 IPC, that requires to be maintained. In the result, both the appeals are partly allowed. The judgment of conviction dated 11.4.2005 passed by the learned trial court is maintained. The order of sentence under sections 395 and 397 IPC is maintained but the sentence under section 396 IPC is reduced from 10 years rigorous imprisonment to 7 years rigorous imprisonment and fine of Rs.2,000/-, in default of payment of fine to further undergo two months rigorous imprisonment. To the above extent, the impugned order of sentence stands modified. 8 The accused are in jail. They shall be released from jail in this case on completion of sentence awarded to them. (S.P. PATHAK),J.