1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER 1. SB CRIMINAL APPEAL NO.509/2002. Bhoop Singh & anr. Vs. State of Rajasthan 2. SB CRIMINAL APPEAL NO.376/2002. Rasheed & ors. Vs. State of Rajasthan Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 25th February, 2009. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Ms. Anupama Parashar) for the appellants. Mr. Biri Singh Sinsinwar) Mr. Nalini G. Narain) PP for the State. Ms. Nirmala Sharma) BY THE COURT: These two criminal appeals are being decided together as they have been filed under section 374 of the Code of Criminal Procedure against the same judgment and order dated 16.3.2002 passed by the learned Special Judge, Dacoity Affected Area, Dholpur in Sessions Case No.12/1994 whereby all accused appellants, namely; Bhoop Singh, Ramsnehi, Rasheed, Pappu, Rajesh, Mehboob and Subhash have been convicted and sentenced as under: U/s 395 IPC 7 years rigorous imprisonment and a fine of Rs.1,000/-, in default of payment of fine to further undergo 1 year simple imprisonment. 2 U/s 365 IPC 3 years rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo 6 months simple imprisonment. The accused appellants have been acquitted for the offence under section 364 IPC. Briefly stated, the facts for the disposal of the present appeals are that on 19.2.1994 Giriraj Kishore (PW-3) lodged a written report (Ex.P-15) in the police station Mania with the averments that on the day of incident at about 2.15 p.m. while he along with his wife was waiting for a bus to come at bus station Dholpur, as he was to attend a marriage of his brother-in-law (looser) at Mania, at that time a Commander Jeep No. DL 2CE 7664 came and stopped when he was waiting for the bus. The driver of the jeep enquired about the destination to which the complainant replied that since there was nobody in the jeep as such he was not prepared to board in the jeep but the driver of the jeep persuaded to sit in the jeep and on his asking complainant kept his suitcase in the backside of the jeep. He boarded in the jeep with his wife. At that time 7-8 persons also came there. They also boarded in the jeep and jeep started. After sometime the persons who boarded in the jeep started breaking the lock of the suitcase. On raising objection by the complainant and his wife, they were given beating and one of the persons amongst them having a knife kept on his neck. After a little-while when the jeep slowed down its speed due to rush of traffic, his wife jumped from the jeep but he was caught hold by the accused and was given 3 beating. The miscreants sitting in the jeep threatened and demanded ransom of Rs.5 lacs. It is also stated that when two trucks came from the front side the jeep driver slowed down the speed, he jumped from the jeep and sustained injuries. It is also stated that the miscreants had gone towards Agra side and if they come before him he can identify them. The suitcase was containing Rs.1,500/- and some clothes etc. On the above report, FIR No.42/1994 for the offences under sections 395, 397, 398, 364A and 387 IPC was registered at the police station Mania, investigation commenced and accused were arrested on the same day. The commander jeep was seized and the suitcase of the complainant was recovered and accused were identified during test identification parade. After completion of investigation, charge-sheet was filed against the accused appellants. The trial court framed charge under sections 395 and 364A IPC against the accused to which the accused denied and claimed trial. One of the accused was absconding. Subsequently he surrendered before the court. Against him also charge under the aforesaid sections of the IPC was framed to which he denied and claimed trial. In support of its case the prosecution examined as many as 7 witnesses and tendered 27 documents in evidence. In the statement recorded under section 313 Cr.P.C., the accused denied their involvement and stated that they have falsely been implicated in the case. The learned trial court after hearing both sides convicted and sentenced the accused as stated here-in- 4 above. Hence, the present appeals have been filed. I have heard learned counsel for the accused appellants as well as learned public prosecutor and carefully perused the judgment and the material available on record. In the instant case, the points for consideration are: (i) as to whether the prosecution has been able to prove its case against the accused under section 395 and 365 IPC; (ii) whether the trial court has rightly convicted the accused appellants and the sentence awarded to them is adequate. It is to be seen that in the instant case in all seven witnesses have been produced. PW-1 Rajendra Singh has been declared hostile but he has stated that about 5-6 years before at the check-post Baretha thanedar stopped a jeep coming from Mania side, 5-7 persons were found sitting in the jeep. PW-2 is Gajraj has also not supported the prosecution case and stated what PW-1 Rajendra Singh has stated. PW-4 Roop Singh and PW-7 Dinesh Kumar Constable were posted at check-post Baretha at the relevant time. The above witnesses have stated that a wireless message was received to the effect that a commander jeep no. DL 2CE 7664 will pass through that side and in that jeep there were 8-9 miscreants who had abducted PW-3 Giriraj Kishore with the intention to obtain ransom from him. The witnesses have further stated that on the basis of the above message a nakabandi was staged by them including other police constables and head constable. At about 5 3.50 p.m. a jeep appeared coming from Mania side. On giving signal to stop, the jeep stopped and one person immediately got down from the back side of the jeep and ran away. Other miscreants sitting in the jeep were surrounded. At that time, SHO police station Mania reached at the spot. The persons sitting in the jeep were asked to get down. A search of their person was taken by Ummed Singh at the spot. PW-3 Giriraj Kishore and his wife Smt. Nirmala also reached there. They identified the accused as well as the suitcase and also stated that the lock was broken by the miscreants apprehended by the police. The accused were arrested and the material which was found from the jeep was also seized. Necessary memos were prepared. The relevant evidence is of PW-3 Giriraj Kishore and PW-6 Smt. Nirmala Devi. They are the persons from whom ransom was demanded. Smt. Nirmala Devi (PW-6) has been declared hostile on the point of identification as she could not identify the accused but she has stated about the incident that on the day of incident the accused gave beating to her and her husband and broke open the lock of suitcase containing Rs.1500/- and clothes and other articles. It is also stated that on the bus stand, a commander jeep came and stopped near her husband and on the insistence of the driver they boarded in the jeep and at the same time, 8-10 persons also boarded in the jeep and jeep started. On the way her husband was given beating and the miscreants broke open the lock of the suitcase. It is also stated 6 that after some time when the speed of the jeep slowed down, she got down but her husband could not escape and was forcibly taken by the accused persons. As regards identification of the accused in the court is concerned, she completely denied. She has also denied that she or her husband had ever visited the police station. PW-3 Giriraj Kishore has stated about the incident that at bus stand, Dholpur when he was standing with his wife and waiting for the bus, at that time he was having a briefcase with him. One person came near him and asked him the destination of his going to which he replied that he was going to Mania. The person asked him to sit in the jeep. After a little conversation he along with his wife sat in the jeep. On the way he was beaten by the accused persons. His suitcase was snatched by the miscreants and broke open the lock of suitcase which was containing Rs.1500/- and clothes and other articles. He has stated that his wife on the way managed to get down from the jeep when it slowed down its speed. He has also stated that after some time when again the jeep slowed down its speed, he jumped from the jeep and reported the matter to the police. He has also stated that he lodged FIR Ex.P-15 in the police station. He stated that he can identify the accused in the court except Ved Prakash. In the cross- examination he has not deviated from the stand which he has taken in the examination-in-chief. 7 The contention of the learned counsel for the accused- appellant is that in the instant case one of the main witness has turned hostile and the evidence of PW-3 Giriraj Kishore is also not of worth reliance as there are several material contradictions. It is also contended that the story of the prosecution is not reliable for the reason that how Smt. Nirmala Devi could get down from the running jeep and if she got down from the running jeep then she was bound to sustain some injuries. It is also contended that it is unbelievable that 8-10 persons will catch hold of a person and that person will escape. It is contended that Giriraj Kishore, the complainant, also did not sustain any injury then in the above circumstances, it can easily be presumed that the prosecution has not come with clean hands and correct version has been with-held. It is contended that one of the accused Yakub has been acquitted on the basis of same set of evidence then how the accused- appellants can be held guilty. Learned public prosecutor has opposed the submissions made before me. I have considered the submissions made before me. It is to be seen that soon before the incident FIR Ex.P- 15 was lodged. The accused were arrested on the same day. One of the accused escaped who subsequently appeared in the court and was tried. Thus, the question of identification of the accused by holding a test identification parade is not of much significance. 8 In the instant case, the point for consideration is as to whether on 19.2.1994, the complainant Giriraj Kishore and his wife PW-6 Nirmala devi boarded in a jeep and accused appellants also boarded in the jeep and while the jeep was in motion, the ransom was demanded and they were given beating and subsequently the accused was arrested and identified. The evidence which has been discussed here-in-above clearly indicates that on 19.2.1994 in the noon PW-3 Giriraj Kishore and PW-6 Nirmala Devi were waiting at the bus stand for the bus to come, at that time a commander jeep came and driver of the jeep insisted to sit in the jeep and on the request of the driver of the jeep PW-3 Giriraj Kishore and PW-6 Nirmala Devi boarded in the jeep and on the way one of the accused took out the knife and the same was put at the neck of PW-3 Giriraj Kishore. It also appears that the lock of the suitcase of the complainant was also broke opened by the accused persons. The above two witnesses have also stated that on the way when the jeep slowed down its speed, PW-6 Nirmala Devi managed to escape and PW-3 Giriraj Kishore was thereafter caught hold by the accused persons and ultimately he also managed to get out from the jeep and made complaint to the police vide Ex.P-15. The entire narration of the incident has been made. There appears no difficulty in arriving to the conclusion that the accused were responsible for the incident as soon after the incident they were caught and were identified by PW-3 Giriraj Kishore and PW-6 Nirmala Devi. The suitcase and the money 9 were also recovered from them. In the above circumstances, whether identification parade takes place or not is not of importance. The evidence of above two witnesses is reliable though PW-6 Nirmala Devi has not identified the accused, may be for any reason, but it is suffice to say that in view of the identification made of the accused in the court by PW-3 Giriraj Kishore as he was in the company of the accused persons for quite some time in the day time and the incident was such in which it cannot be said that PW-3 Giriraj Kishore had no opportunity to identify them. It is not only PW-3 Giriraj Kishore but PW-4 Roop Singh, PW-5 Om Prakash and PW-7 Dinesh Kumar constable have also identified the accused. In the above circumstances, in my opinion, the evidence in relation to the incident in the present matter has been correctly appreciated by the trial court and the accused have rightly been convicted for the offence under sections 395 and 365 IPC. Now, as regards the submission of the learned counsel that in the alleged incident the punishment imposed is excessive as there is no previous conviction of the accused and the accused have faced the agony of trial and one of the accused is still in jail, therefore, the sentence awarded by the trial court to the accused appellants needs to be suitable reduced. Learned public prosecutor has opposed the submission but in the facts and circumstances of the case where a sum of Rs.1500/- has been looted by the accused persons and 10 there appears no injury on the person of PW-3 Giriraj Kishore and PW-6 Nirmala Devi as they managed to escape from the clutches of the accused, I deem it proper to reduce the sentence awarded to the accused appellants. The ends of justice would meet in case the sentence of 7 years rigorous imprisonment as awarded to the accused appellants under section 395 IPC is reduced to 3 years rigorous imprisonment with fine of Rs.1,000/- and in default of payment of fine to undergo six months simple imprisonment and under section 365 IPC the sentence of 3 years rigorous imprisonment is reduced to 2 years rigorous imprisonment with fine of Rs.500/-, in default of payment of fine to further undergo six months simple imprisonment. In the result, both the appeals are partly allowed. While the conviction recorded against the accused appellants is maintained, the sentence awarded to the accused appellants namely Bhoop Singh, Ramsnehi, Rasheed, Pappu, Rajesh, Mehboob and Subhash under section 395 IPC stands reduced to 3 years rigorous imprisonment instead of 7 years rigorous imprisonment and for offence under section 365 IPC the sentence is reduced to 2 years rigorous imprisonment and fine instead of 3 years rigorous imprisonment. Sentence of fine awarded on each count is maintained. The order of sentence stands modified accordingly. The accused Ramsnehi is in jail as he has already undergone the sentence awarded to him. He be set at liberty if not required in any other case. The bail bonds of other accused 11 appellants stands cancelled. All the other accused appellants shall surrender before the trial court to serve out the remaining sentence as awarded by this court if not completed. The sentence awarded to accused-appellants shall run concurrently. The trial court shall take necessary steps for their arrest to serve out the remaining sentence awarded to them. (S.P. PATHAK),J.