RI .^^ •LV,''ct^';. '•:f" M ,)(' '.. \r ^cV- —s=r v^M' v ^ ^ifc.»» IH.TFIE HIGH eoURT'-O? M;®HXaPRABBSH AT .JftB&iPOR CRIMINSL APPEAL NO../.".1.*'/ 1995 >.8£i3.S9£-.4^£2S£Sd- s Oapeshwar Majhi s./o , in'jaj:l--- Deshai Hajhl, aged 19 ^rs r/e Kl.nbira P.S Simdega < • ' . Dlstt. Garala (Bl'-iae. ) versus Respondeat s- State sf psahya prades'n throagh th.e statiaa Haase officer, pallce Statloa - House ®f£icerjashpu? I'sag' :h M.P. //" SSSi-S^.^^££&JJjS£R^smTlaS.3Z4^2l^^TgE ®Bl-fiS-SBStS.SSk-£R2S®!RB"' ,^M.^.,^*«te ^r^ HIGH COURT OF CHHATTISGARH ATBILASPUR (Hon. Mr. Justice Pritinker Diwaker) Crimina) Appeal No. '(021 of 1994 APPELLANTS VERSUS RESPONDENT Ramdhar @ Ramadhar,@ Ramu & others State of Madhya Pradesh Cnminal Appeat No. 120 of 1995 APPELLANT Gopeshwar Majhi VERSUS RESPONDENT State of Madhya Pradesh Shri Miss. Sharmila Singhai and Shri Sahjay Agrawal counsel for the appettants. Shri Pravin Das Dy. G.A. for respondent/State. ^ CRIMINAL APPEALS UNDER SECTION 374 (2)OF THE CODE OF CRIIVIINAL PROCEDURE. JUDGIVIENT (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 convicteci under sections 395 & 397 IPC and s6ntenced to under go rigorous imprisohrrlent for seven years and pay fin'e of Rs. 1 ,000 each, in default of paymenl dffine to further lindergo rigorous imprisonment for three months. 3. Case of the prbsecution iri brief is that in the intervening night of 29th/30th JUIy, 1992 dacoity was committed irt the house of Kam Dayal (PW-1) and the accused persons had takeri Rs. 175, some ornaments, household items etc. Dehati Ndlisi was fecorded on 30.07.1992 vide Ex. P-1 and based on that, FIR Ex. P-7 w&s registered on 31.07.1992 agaihst the unknown persons. Furthet case of the prosecution is that appellarlt'' No.2 Markus Xess in Criminat Appeal No. 1021/19&4 was arrested on 10.08.1992 whereas appellants Gama and G&peshwar were arrested on ^I— _^^,^ (d. \ j ^^, ^-y/ a — 31.10.1992. Identification Parade in respect of accused Markus Xess, Ramu @ Ramadhar, Lach|iu 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 aboye. 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 thejudgment impugned. 7. Counsel for the acQused/appellants fairly submits that so far as offenee 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 stdted as to the us6 of deadly weapons by the accused/appellants in the commjssibn 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 Eind 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 dealtwith subsequehtly. T;-^^ ^^,,.-»<~:——..•*-*-•—•1-"~-~-~~~*-""^^'' ..4.,,.-^*;.<i*..-».'-*-»^*""ili MEI'aK^ac3*i*3 "^^^: -3- 9 . On the other hand relying on the evidence of Ram Dayal (PW-1), Sharda Bai (PW-2) and Vimla (PW-3) couhsei for the respondent/State submits that the offence under section 397 IPC is clearly made t>ut agaihst the accused/appellants. 10. Before deciding the validity df conviction under section 397 IPC in the case in 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 grievous 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 ofthe imperatives for establishing ihe guilt ofthe accused. It is a settled legal 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 iri 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 arrned with deadly weapons. It is incumbent on the prosecution to prove during trial that the particular accused used the deadly weapon. 11. Thus, if the said legal proposition is applied in this case, it emerges that in the FIR it has been alleged that only one of the accused was haviri^ pistol and knife in his hand whereas there is no allegation against the other accused persons as to their being armed with any deadly weapon. Ram Dayal (PW-1) - the lodger of the FIR appiears to have itnproved his version in making the statement that the dacoits w&re carrying knife, Balwa, pistol and club. He However has not stated as to which person wSs holding which weapon. Similar is the position With PW-2 Sharda Bai wtio has stated in her evidence that five dacOits had tentered the house carrying certain weapons in theii" hands. Vimta (PW-3) one of the inmates of the /^l ^ i:1. a i E 3 HSBaaBnrai't3T; ^ o ;; ^^"" .- LI- house has not stated anything that the accused persons were carrying any weapon. Though one knife has been seized 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 the seizure of torch and cash of Rs.20 only. So far as other accused Ramadhar and Gopeshwar are concerhed, 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 ot 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 condusion the appeal is partly allowed. Conviction of the appellants under section 395 IPC is rriaintained. 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. Ih these circumstances this Court finds it reasonable 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 IPG, the same having not been duly proved by the prosecution by leading any cogent and rfeliable evidence, it is hereby set aside. 14. Appeals fhus succeed in part. / l^ , Sd/- Pritinker Diwaker Judge