Jalamsingh And Others vs State Of Madhya Pradesh

This is an appeal against judgement and order dated 20.09.2005 passed in S.T. No.206/2003 by Additional Sessions Judge, Jobat, District- Jhabua, whereby the learned trial Court has acquitted the appellants from the charge under Section 399 of IPC, but has convicted them for the offence under Section 402 of IPC and sentenced to undergo 3 years R.I. with fine of Rs.200/- each. In default of payment of fine, they have further to undergo 1-1 months R.I.

Facts giving rise to the present appeal in brief are that on 03.05.2003, the Police Station- Jobat, District Jhabua received a credible secret information that 5-6 miscreants are sitting near Jhipanya Nullah at village Pahadva and planning to rob Sanjay Bus, which usually passes through the place they were sitting. The information was entered into Rojnamcha. The team was constituted comprising TI R.S. Savita, (PW-5), SI Naresh Gil, (PW-4), SI Bharat Singh Rawat, (PW-3) and some other sleuths. Independent witnesses Jackie (PW-1) and Johnson (PW-2) were called. The police party reached on the spot by official jeep. All the cops divided into three parties. They cordoned the area from three sides. The appellants were sitting under the cover of boulders having falia, sword and bow and arrows in their hands. The police threw torch light and asked them to surrender. They tried to escape, but caught on the spot. The police recovered a sword from Gulsingh, falia from Mukam and one bow & six arrows from Jalam, a bow & five arrows from Bahadursingh, a bow & four arrows from Chagan. The police also recovered 50 grams salty snacks, 2 empty bottles of liquor, pieces of consumed Bidi and used matchsticks. They all were brought to the Police Station, where FIR bearing Crime No.158/2003 under Section 399 and 402 of IPC was registered (Ex.P/3). Spot map Ex.P/13 was sketched. Arms and articles like snacks, Bidi (hand rolled cigarette), match box etc. were seized vide seizure memo Ex.P/6-9 & P/11 and Ex.P/12. The accused persons were arrested vide arrest memo Ex.P/1 to P/5. The Police recorded the statements of witnesses and after completing other usual investigation, filed the charge-sheet.

The appellants were charged under Section 399, 402 of IPC. They abjured their guilt and claimed for trial. After the trial, they were acquitted from the charge under Section 399 IPC, but were convicted for the offence punishable under Section 402 of the IPC and sentenced as stated in para 1 above.

The appellants have preferred this appeal on the grounds that the judgment and order of the trial Court is contrary to the law and facts on record. The trial Court has wrongly appreciated the evidence produced by the prosecution. The trial Court has not considered the contradictions and omissions appeared on the materiel points in the statements of the witnesses. It has been admitted by the prosecution witnesses themselves that all the appellants belong to the Bhil Community and they usually carry falia, bow and arrows etc. and also carry snacks, Bidi, matchbox etc. whenever they go out of the house. Therefore, they cannot be doubted only for having these arms or articles with them. The main allegation against them is that they were planning to rob Sanjay Bus, but there is no evidence that any bus crossed during the time; the police reached there and arrested them. Independent witnesses have admitted that they were not acquainted with the accused persons and have denied to identify them before the Court also. On the basis of same set of evidence, the trial Court has acquitted the accused persons, therefore, conviction cannot be based on the same set of evidence, which has been disbelieved in respect of other charge levelled against them. The prosecution has failed to prove the allegation, therefore, conviction of the appellants is not sustainable and deserves to be set aside.

Learned Public Prosecutor has opposed the prayer. It has been submitted that all the main witnesses TI R.S. Savita (PW-5), SI Naresh Gill (PW-4), SI Bharat Singh Rawat (PW-3) have categorically deposed before the Court that on the date of incident, after receiving the information, they went together to the spot pointed out by the informer and caught all the five persons sitting there, recovered a sword, a Faliya, three bows and 15 arrows from them, arrested them and brought them to the police station. Independent witness Jackie (PW-1) has fully supported the case of the prosecution. The prosecution has successfully produced convincing evidence to convict the appellants and the trial Court has rightly convicted them, and therefore, no case for appeal is made out. He prayed for dismissal of the appeal.

I have considered rival contentions of the parties and have perused the record as well as the statements of witnesses examined before the trial Court.

Before the trial Court TI R.S. Savita (PW-5) has stated that he had received the information, constituted a police party and proceeded to the spot, where they noticed that some miscreants sitting and planning to rob Sanjay Bus. He caught all five accused persons with the help of his companions and brought them to the police station. He recovered falia, sword and three bows and fifteen arrows from all the appellants. SI Naresh Gill (PW-4), SI Bharat Singh Rawat (PW-3) and independent witness Jackie (PW-1) have supported him. Statements of these witnesses could not be shattered in their cross-examination on all the material points like they had gone to the spot, caught the appellants and recovered falia, sword and bows & arrows from their possession. Independent witness Jackie (PW-1) was not acquainted with the appellants, but on this ground alone, his statement cannot be discarded, as he has identified them before the Court stating that that they are the person, who were caught by the police on the spot.

True; that witnesses Naresh Gill PW-4) or Bharat Singh Rawat (PW-3) could reveal the names of the appellants but their Court statements were recorded after a considerably long period. Both Sub Inspectors were not well acquainted with the appellants, therefore, it is natural that they forgot their names, but there is no doubt regarding their identification as both Sub Inspectors have identified them as the persons who were caught by them on the spot.

The doubt is raised on the ground that during the operation of the police, admittedly, no bus was crossed from the spot but this is the case where the appellants are apprehended on the allegations that they were assembled for the purpose of committing dacoity. Whether dacoity was committed or not, is immaterial. The questions have been placed before the witnesses as to whether Sanjay Bus crosses at the relevant point of time from the spot alleged by the prosecution and the answer was positive. TI R.S. Savita (PW-5) has stated in Para 8 of his cross-examination that at about 9:00- 9:30 at night, both Sanjay buses coming from the opposite directions i.e. from Indore and from Jobat, crosses at the place of the incident. This fact fortifies the statements of the witnesses. No other contradiction could be pointed out by the appellants, which goes to the roots of the statements of the witnesses to the extent to make them doubtful, therefore, the trial Court has rightly convicted the appellants.

Admittedly, all the appellants belong to Bhil community, they do not carry criminal record, they are facing trial since 2003, now running in their 50's, having growing children, bearing responsibility of their respective families on their shoulders, no evidence or no claim of the prosecution that during this long 16 years any other criminal case is registered against them, therefore, having regard to the nature of the incident and other facts and circumstances of the case, in my considered opinion, the ends of justice would be sub-served if the sentence of the appellants is reduced to some extent by enhancing the fine amount, this appeal is partly allowed. The conviction of the appellants is maintained and but sentence awarded to them is modified to the extent that they are awarded imprisonment of the period already undergone for the offence under Section 402 of IPC with the fine of Rs.10000/- each, which they shall deposit within a period of two months from today, else will suffer the sentence as awarded by the learned trial Court. In case of their failure, they shall surrender before the trial Court, else the trial Court shall take appropriate steps to take them into custody to serve the sentence.

The order of the trial Court regarding disposal of the case property is hereby confirmed.

With the aforesaid modification, the appeal is partly allowed and disposed off to the extent indicated hereinabove.