Raju Tyagi vs State of U.P.

K.K. Misra, J.—This appeal arises out of the judgment and order dated 17.3.2004, passed by Sri Vishram Singh, Additional District and Sessions Judge, Bulandshahr convicting the Appellant Raju Tyagi u/s 394, I.P.C. and sentencing him to undergo life imprisonment.

As per the F.I.R. lodged by Subhash Chandra Verma on 18.8.2000 at 9.05 a.m. there was a shop of jewellery comprised in his house in town Gulaothi. On 18.8.2000 at about 8.30 a.m., his nephew Sachin was cleaning the shop. Three miscreants came at the shop armed with countrymade pistols and started looting the ornaments. When he resisted, the miscreants assaulted him with the butts of the pistols and also fired a shot. On hearing the sound of the firing and cries, Sachin''s mother rushed to the shop. The miscreants also gave her beating and escaped with the gold and silver ornaments and Rs. 3,000 in cash. On hearing the cries, a mob chased them. When the miscreants reached near the Bus Stand, the miscreants opened fire and shot-dead Manohar Lal. The mob killed a miscreant and caught hold of another (Raju Tyagi present Appellant) and handed him over to police. One miscreant succeeded in escaping. The looted material consisted of ornaments made of 2 kgs. silver and 5 gms. gold. Besides this, Rs. 3,000 cash was also looted.

Another F.I.R. was lodged by Govind stating that his brother Manohar Lal was going towards his hotel in Gulaothi when he saw the miscreants running. Manohar Lal struck a miscreant with his cycle and the miscreant fell down upon which the miscreant fired a shot at his brother by countrymade pistol. Manohar Lal fell down and died at the spot. One of the miscreants was killed by the public. The present Appellant Raju Tyagi was apprehended by public and handed over to the police. The third miscreant ran away. This second report was lodged on 18.8.2000 at 9.15 a.m.

S.I. P. C. Bharti, P.W. 6 started investigation of the case on the first F.I.R. and the papers of second F.I.R. were also handed over to him. He inspected the place of robbery and prepared the site plan. Thereafter, he reached at Dholana Bus Stand and inspected that spot, prepared site plan where he found the corpse of Sanavvar miscreant. He collected three live cartridges of 315 bore from the side of the corpse. He collected blood stained earth and plain earth. He prepared the inquest reports of the dead bodies of miscreant Sanavvar and Manohar Lal deceased and sent the same for post mortem examination. The investigation of the case was then taken over by S.O. V. P. Singh.

After completion of the investigation charge-sheet against the accused Raju Tyagi under Sections 394 and 302, I.P.C. and against the accused Munavvar under Sections 394 and 302/411, I.P.C. and u/s 25, Arms Act was submitted.

The accused in their statements u/s 313, Code of Criminal Procedure denied the prosecution story and claimed trial.

The prosecution in order to prove its case against the accused examined six witnesses, namely, P.W. 1 Subhash Chandra, the first informant, P.W. 2 Smt. Poonam, P.W. 3 Sachin, P.W. 4 Govind, P.W. 5 Deepak and P.W. 6 S.I. P. C. Bharti.

P.W. 1 Subhash Chandra, the first informant of the case was the owner of goldsmith shop. He deposed in his evidence that on the date of the incident, his nephew Sachin Kumar (P.W. 3) was cleaning the shop at about 8.30-45 a.m. Three miscreants came at the shop armed with countrymade pistols. He narrated the story as given in the F.I.R. He further deposed that he could not catch up with the mob in chasing the miscreants. He heard that the miscreants fired a shot at Manohar Lal as a result of which he died. He further deposed that when he reached at the Bus stand, he found a miscreant and the deceased Manohar Lal dead. He came to know there that one miscreant was handed over to the police and Anr. ran away. Some jewellery and one countrymade pistol were lying near the dead body of the miscreant. He further deposed that he did not see the incident and he could not recognise the accused Raju Tyagi and Munavvar. He further deposed that he came to know about the incident from his sister-in-law Smt. Poonam (P.W. 2). The witness was declared hostile.

P.W. 2 Smt. Poonam, who, as per the F.I.R., had seen the incident did not recognise the two accused and turned hostile.

P.W. 3 Sachin in his deposition narrated the story of the F.I.R. and further stated that when the miscreants after loot ran away towards the Hospital, he did not chase them and remained at his shop. He denied having seen that the miscreants had killed someone. This witness also did not recognise the two miscreants as accused and he could also not recognise the looted articles. He was also declared hostile.

P.W. 4 Govind deposed in his evidence that on 18.8.2000 at about 8.40 a.m., he was sitting at his brother Rajendra''s shop near the shop of the first informant Subhash Chandra Varma. Three miscreants came at the shop of the first informant and after looting, fired a shot. A mob gathered there. Then the accused Raju Tyagi, Sanavvar and Munavvar flaunting their country made pistols ran away. The mob chased them and so chasing the mob reached at Bus Stand. He was also one of the chasers. He further deposed that his brother Manohar Lal struck his cycle against accused Sanavvar and he caught hold of him. The accused Raju Tyagi fired a shot at his brother which hit him in the chest and he died at the spot. The mob killed the miscreant Sanavvar. The miscreant Munavvar ran away from the spot. The mob caught hold of the accused Raju Tyagi and handed him over to the police.

The trial court acquitted Munavvar of the charges punishable under Sections 394, 302 and 411, I.P.C. and Section 25, Arms Act but found accused Raju Tyagi guilty u/s 394, I.P.C. and sentenced him to undergo life imprisonment. He was also acquitted of the charge u/s 302, I.P.C.

We have heard Sri Samit Gopal for the Appellant who was appointed as amicus curiae by this Court''s order dated 23.9.2005 and learned A.G.A. for the State.

Firstly, learned Counsel for the Appellant argued that the three eye-witnesses in the case turned hostile and did not support the prosecution case. Therefore, the conviction of the present Appellant on the basis of the statement of P.W. 4 Govind is not sustainable, more so when accused Munavvar was acquitted of all the charges. It is well-settled that if an eye-witness who himself was the informant of the case supports the prosecution case as given in the F.I.R., his evidence cannot be discarded only due to the fact that all other eye-witnesses named in the F.I.R. have turned hostile. Moreover, the statement of the hostile witness is not always to be discarded in totality. The statement of the hostile witnesses can be taken for corroboration of the evidence given by the other witnesses. In the present case, we find that the statement of P.W. 4 Govind finds corroboration from the statement of the hostile witnesses in great deal as to time, place and manner of happening. The conviction of the Appellant, therefore, cannot be assailed on the ground of the hostility of some witnesses.

The main plank of argument of the learned Counsel for the Appellant is that the co-accused Munavvar was acquitted of all the charges on the same set of evidence whereas the present Appellant has been convicted u/s 394, I.P.C. on the same set of evidence. This, according to him, is bad in law and cannot be sustained.

On the other hand, learned A.G.A. argued that there is clear cut distinction between the case of the acquitted accused Munavvar and the present Appellant and on the facts of the case, the conviction of the present Appellant is perfectly legal being based on sterling evidence against him.

It is important to note that the other accused Munavvar was not arrested at the spot. His name came to light by the testimony of P.W. 4 Govind. He was not put up for identification. There is no evidence of any recovery of looted article from his possession. It has come in the evidence of P.W. 1 Subhas Chandra that no property was recovered from the accused Munavvar in his presence. It has come on record that when the accused Munavvar had produced the looted property of his share to the police on the patri of Bamba, P.W. 1 Subhash Chandra reached there and identified the looted property but later on in his evidence, he deposed that no property was recovered from the accused Munavvar in his presence. There is no evidence on record to this effect that any recovery of looted property was made from the possession of accused Munavvar. That recovery memo has also not been proved. The other police personnel have also not been examined by the prosecution in whose presence accused Munavvar allegedly produced the looted articles.

The facts found by the trial court in support of the conviction of the present Appellant are that the accused-Appellant Raju Tyagi was arrested at the spot by the mob while running away with the looted property. There is no evidence to infer that Raju Tyagi was arrested by the mob while he was waiting for the bus. On the other hand, there is sufficient evidence that he was among the miscreants, who committed robbery and voluntarily caused hurt and death of Manohar Lal. The present Appellant has admitted his arrest by people in his statement u/s 313, Code of Criminal Procedure The factum of robbery at the given time, date and place has been established by the three eye-witnesses also who turned hostile. It has also been established that some of the looted articles were recovered from the side of the dead body of one of the miscreants and that property was taken in custody by the police after preparation of recovery memo.

This fact has been corroborated by P.W. 6 S.I. P. C. Bharti.

P.W. 4 Govind is real brother of the deceased Manohar Lal. He specifically deposed that Appellant Raju Tyagi caused death of his brother Manohar Lal when he struck his cycle against Sanavvar. When these miscreants were running towards Dholana Bus Stand and were being chased by the people, he fired a shot which hit his brother who died on the spot. Sanavvar was killed by the public and Raju Tyagi (present Appellant) was arrested by the public on spot and some of the looted articles were also lying besides the dead body of one miscreant. In the written report lodged by P.W. 4 Govind Singh at P. S. Gulaothi, it is stated that at Dholana Bus Stand one miscreant was struck down by his brother Manohar Lal and then he caught hold of the miscreant. Then the miscreant fired a shot with his countrymade pistol at his brother who died on the spot. The miscreants also attempted to fire at the gathering and in the meanwhile one of the miscreants was killed by the public and Anr. miscreant was apprehended by the people and handed over to the police.

It has come in the testimony of P.W. 1 Subhash Chandra that some of the looted ornaments were recovered that were lying beside the dead body of one miscreant. They were taken in possession by the police and memo (Ex. Ka-2) was prepared. P.W. 6 P. C. Bharti has also corroborated this fact. In our view, the trial court rightly held that one of the miscreants opened fire and voluntarily caused death of Manohar Lal for the purpose of carrying away the looted property. Therefore, in view of the provision of Section 394, I.P.C., even if it was assumed that it was Sanavvar who had opened shot, Raju Tyagi would also be held guilty u/s 394, I.P.C. as he was also jointly concerned in committing robbery.

Thus, from the above, we find that the followings facts have been proved beyond doubt :

(a) that a robbery was committed by the three miscreants at the shop of the first informant Subhash Chandra ;

(b) that while committing robbery the miscreants fired shots from their countrymade pistols ;

(c) that on hearing the cries and sound of firing a mob gathered there and the miscreants ran away taking looted articles with them ;

(d) that on the way to Bus Stand, when the deceased Manohar tried to catch them, one of them fired a shot which hit him and he died on the spot ;

(e) that the mob still chased them and killed one of the miscreants. Sanavvar and caught hold of another, namely, the present Appellant and handed him over to the police ;

(f) that the third miscreant escaped and ran away ;

(g) that the looted articles and countrymade pistols were found lying near the dead body of miscreant and the deceased Manohar Lal ; and (h) that all the above facts were seen by P.W. 4 Govind.

From the above, it is clearly established that the prosecution well succeeded in proving its case against the Appellant Raju Tyagi u/s 394, I.P.C. beyond any reasonable doubt. The factum of death of Manohar Lal is covered by the charge u/s 394, I.P.C. and it has been rightly held by the trial court that the charge framed u/s 302, I.P.C. was redundant.

In the last, learned Counsel for the Appellant argued that the sentence of Appellant be reduced to the period undergone. He further argued that the Appellant was not earlier involved in any criminal case.

In the result, the appeal is partly allowed. The order of conviction passed by the court below against the accused-Appellant Raju Tyagi is upheld but his sentence of life imprisonment u/s 394, I.P.C. is reduced to that of ten years'' rigorous imprisonment. The Appellant is in jail. The C.J.M., Bulandshahr, shall ensure that he undergoes the awarded sentence of ten years'' rigorous imprisonment.

Sri Samit Gopal amicus curiae who argued this appeal shall get Rs. 1,000 as his fee.

Let original record of the trial court be returned alongwith a copy of this judgment for compliance. Compliance be reported by the concerned Chief Judicial Magistrate to this Court within two months.