R^ ^! •/ m. ^^/;'/^^ '^ CF0000057'7'I'5' w«te^r>c.n \ (^Witnsi^ v ly.THE HIGH COUHT 02' ^DH'fi^ PR^DESH s AT JAE&I.PUR CRIMl^*!. AppSAL No i 172 / /l994. Ap£-£i,lAN?S s ACCUSgD Ci.K JAIL) ^> S^t^- \^ f..-8'tTjL 't^h^±Ll^b>^ JVOC^^ ^.LD.e. &LZ^i.r.f^ SSSPO^DEW !<, :Ramdhar ^ixas Ramadhar.alxas' &ama son of Kharsa Sajhi^ aged 20 years^ L^ '&esident of Mdngarpani^. P^S^Sii^^g^^/,^ .(BIHAR) , •^' 2^ Markaa Xess^.son of Sudhix^,.:/ aged '20 years^ resident of Diyapatt.har, ^' Police Statton '(BIH^R)^ .-^ • •';| 3^ /3am^, son of Calairient^-'aged .20 years^- ' j res ident of Khus rutoli ^ .P»S ^Simgeda^ (BI!ir&) , ^ ^ Versua - State.: of J-ladhya Pradesh through Station.Hcuse Officer^ Police Station Jasbpurnagar, distto ^IG^fiIi ( ). 1 :/ r -^4 L. CKIMIMA APPIS&L: TOIDER SBCriON' 374 (2) OF THE COD2, OF au.]uai-s'^ PROGSDTJRS .j TtP^, HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1021 of 1994 APPELLANTS RESPONDENT VERSUS Ramdhar @ Ramadhar @ Ramu & others State of Madhya Pradesh Criminal Appeal No. 120 of 1995 APPELLANT Gopeshwar Majhi VERSUS RESPONDENT State of Madhya Pradesh Shri Miss. Sharmila Singhai and Shri Sanjay Agrawal counsel for the appellants. Shri Pravin Das Dy. G.A.for respondent/State. CRIMINAL APPEALS UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (18.06.2010) Since the aforesaid two appeals arise out of the same judgment dated 17.08.1994 passed by Additional Sessions Judge, Raigarh in Sessions Trial No. 212/92, they are disposed of by this common judgment. 2. By,the judgment impugned the appellants have been convicted binder sections 395 & 397 IPC and sentenced to under go rigorous imprisonment for seven years and pay fine of Rs. 1,000 each, in default of payment offine to further undergo rigorous imprisonment for three months. 3. Case of the prosecution in brief is that in the intervening night of 29/30 July, 1992 dacoity was committed in the house of Ram Dayal (PW-1) and the accused persons had takenRs. 175, some ornaments, household items etc. Dehati Nalisi was recorded on 30.07.1992 vide Ex. P-1 and based on that, FIR Ex. P-7 was registered on 31.07.1992 against the unknown persons. Further case of the prosecution is that appellant No.2 Markus Xess in Criminal Appeal No. 1021/1994 was arrested on 10.08.1992 whereas appellants Gama and Gopeshwar were arrested on N' B a) i -^- 31.10.1992. Identification Parade in respect of accused Markus Xess, Ramu @ Ramadhar, Lachhu and Ram Kumar was held on 11.09.1992 vide Ex. P-2 whereas in respect of accused Gama and Gopeshwar it was held on 03.11.1992 vide Ex. P-3 in which they were duly identified. After investigation, challan was filed on 05.11.1992 against five accused persons. 4. So as to hold the accused persons guilty, prosecution has examined 17 witnesses in support of its case. Statements of the accused persons were also recorded under section 313 ofthe Code ofCriminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 5. After hearing the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. During the pendency of these appeals, accused/appellant Ramu @ Ramadhar died and therefore these appeals relate to accused/appellants Markus Xess, Gama and Gopeshwar only. 6. Heard counsel for the parties and perused the material available on record including the judgment impugned. 7. Counsel for the accused/appellants fairly submits that so far as offence under section 395 IPC is concerned the same is obviously made out against the appellants but as regards offence under section 397, according to her there is absolutely no evidence on record to establish the involvement of the accused/appellants in the same. It is argued that none of the witnesses has stated as to the use of deadly weapons by the accused/appellants in the commission of the alleged offence of dacoity. Thus, the submission of counsel for the appellants is that she is not pressing this appeal as far as it challenges the conviction under section 395 IPC and as the accused/appellant had already remained in jail for about two and half years and that no other case of the like nature has ever been registered against the accused/appellants, their sentence may be reduced to the period already undergone by them. » 8. Accordingly, the conviction against the appellants under section 395 IPC is maintained. Sentence part will however be dealt with subsequently. /^ '\ ^jy -3- 9. On the other hand relying on the evidence of Ram Dayal (PW-1), Sharda Bai (PW-2) and Vimla (PW-3) counsel for the respondenVState submits that the offence under section 397 IPC is clearly made out against the accused/appellants. 10. Before deciding the validity of conviction under section 397 IPC in the casein hand, it would be appropriate to have a glimpse of the said provision itself which runs as under: 397 - Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes gri&vous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. As per this provision it is explicit that the use of deadly weapon is one of the imperatives for establishing the guilt of the accused. Itis a settledlegal position that the actual user ofthe deadly weapon is not necessary. A mere displaying the deadly weapon to frighten the victim or brandishing the deadly weapon against another person in order to over-awe him while committing dacoity or robbery is sufficient to attract the provisions'of Sec. 397 IPC. But it must be proved as a fact that the particular accused used the weapon. It is not sufficient merely to allege that one or two or some of the dacoits were armed with deadly weapons. It is incumbent on the prosecution to prove during trial that the particular accused used the deadly weapon. 11. Thus, ifthe said legal proposition is applied in this case, it emerges that in the FIR it has beenalleged that only one of the accused was having pistol and knife in his hand whereas there is no allegation against the other accused persons as to. their. being.armed with any deadlyweapon. Ram Dayal (PW-1)—the lodger of the FIR appears to have improved his version in making the statement that the dacoits were carrying knife, Balwa, pistol and club. He however has not stated as to which person was holding which weapon. Similar is the position with PW-2 Sharda Bai who has stated in her evidence that five dacoits had entered the house carrying certain weapons in their hands. Vimla (PW-3) one of the inmates of the ^.^ ,;-^ ^c^ '^ ^ <.;^^ - . \~^ '^ -4- house hasnot stated anything that the accused persons were carrying any weapon. Though one knife has beenseized from the possession of accused Markus Xess vide Ex. P-9 on the basis of his memorandum Ex. P-8 but if the said memorandum is seen on its face value, there is no mention of it in the same and it merely speaks about theseizure of torch and cash of Rs.20 only. So far as other accused Ramadhar and Gopeshwar are concerned, no recovery whatsoever has been made from their possession. 12. Thus, taking into consideration the evidence adduced by the prosecution this Court is of the view that the prosecution has utterly failed to bring the ingredients of Section 397 IPC into play against the accused persons and that being so their conviction for the said offence cannot be approved by this Court. 13. In conclusion the appeal is partly allowed. Conviction of the appellants under section 395 IPC is maintained. It is stated that the appellant have already remained in jail two and half years and that there is no past criminal record against them. In these circumstances this Court finds itreasonable to reduce the sentence imposed on them to the period already undergone by them. However the appellants are directed to pay fine of Rs. 15,000 each (total amount being 45,000). As regards conviction under section 397 IPC, the same having not been duly proved by the prosecution by leading any cogent and reliable evidence, it is hereby set aside. 14. Appeals thus succeed in part. Sd/- Pritinker Diwaker Judge