Shiv Narain vs State

Dua, J.—These three appeals (Criminal Appeals Nos. 196-D, 197-D and 207-D of 1962) arise out of the same occurrence and are directed against a common judgment and are, therefore, to be disposed of together.

On 13th December, 1960 a dacoity was committed at the house of Roop Chand, a land-owner, money lender and Pradhan of the village Panchayat in his village Hamidpur at about 6 P.M. Roop Chand had just returned to his house and was taking his meals on the first floor amidst the other members of his family including his father. Three of the dacoits, two of them armed with guns and one holding a torch came there but Roop Chand continued taking his meals. One of the dacoits who was at the head of the group felt: annoyed and addressing Roop Chand in abusive language gave him a kick near his right cheek at the same time remarking as to how he dared to continue taking his meals. Roop Chand was then made to stand and was asked as to where his valuables were. Roop Chand answered that they were in the house. He was pushed back and the door was bolted from outside. The dacoits then went on to the roof and warned the villagers not to come near them. They also fired some shots at random to terrorise the villagers and to scare them away. Three of the villagers, however, were also hit by these random shots. As a matter of fact, there were 10/15 dacoits in number the majority of whom actually remained in the house in the lower storey. One of them began to break open the safe and indeed the sound created thereby could be heard all over the house. The villagers, it seems, gathered up some courage and again started collecting round the place. Noticing this the dacoits at the top of the house exhorted their companions down below to rush through their job. This operation is stated to have lasted for about one hour. All the cash and jewellery from the safe were removed and some other boxes were also emptied in search of valuables. All the dacoits then went to the top of the house and escaped by passing over the roofs of the adjoining houses. Hearing the gunshots a resident of a neighbouring village is stated to have rushed to Alipur Police Station on his tractor and brought a police party with him to the scene of occurrence. In the meantime when the inmates of the house were satisfied that the dacoits had actually gone away they succeeded in loosening one of the leaves of the outer door. On coming down they discovered the extent of the loss. On the arrival of the police Piare Lal lodged a report and as a result of the investigation seven persons were sent up for trial, they being Shiv Narain, Kapura, Subedin, Majid, Sadiq, Yasin and Mangey. They were committed by Shri R.S. Dewan, Magistrate 1st Class, the first six persons u/s 395/397, Indian Penal Code and the 7th one for abetment u/s 395/109, Indian Penal Code. The learned Additional Sessions Judge in a fairly detailed and considered judgment dealing with the case of each one of the accused before him came to the conclusion that Shiv Narain, Kapura and Subedin (appellants in this Court) were clearly proved to be guilty u/s 395, Indian Penal Code. He also found. Shiv Narain and Kapura to be armed with gun and Subedin with a lathi. Holding that the word "uses" occurring in section 397, Indian Penal Code, merely means that the offender should be armed with a deadly weapon at the time of the commission of the dacoity he sentenced all the accused persons to ten years'' rigorous imprisonment. The four remaining accused persons Sadiq, Majid, Yasin and Mangey were given the benefit of doubt and acquitted.

On appeal, Shri Nanak Chand has addressed me on behalf of Shiv Narain and Shri Dhanbir Singh, Advocate as amicus curiae on behalf of Kapura and Subedin. Shri Nanak Chand, the learned counsel for Shiv Narain very frankly submitted that the factum of the commission of dacoity was not being questioned by him and that the only point which in his submission arises for consideration on appeal is whether his client Shiv Narain can actually be held to have been proved to have taken part in this dacoity. In other words, the only question relates to the identity of this appellant. The learned counsel somewhat surprisingly did not press any elaborate arguments on the prosecution evidence but concentrated his attention on witnesses produced on behalf of defence. It is not disputed and indeed reliance has been placed on Shiv Narain being a history-sheeter. D.W. 6 Bhopal Singh has proved Exhibit D.P., a letter said to have been written by him and addressed to Yoginder Kumar D.W. about the arrest of Shiv Narain convict. He has deposed that Ch. Rambal Singh had informed him about this convict's arrest on 20th December, 1960. After verifying this fact he wrote a letter Exhibit D.P. Before writing this letter the witness also states to have gone to Kanth where Yoginder Kumar resides to inform him about Shiv Narain's arrest but since he could not find him there he came back and then wrote this letter. In cross-examination the witness has had to admit that he was neither related to Shiv Narain nor to Yoginder Kumar and that he had written this letter merely for the purpose of performing a good neighbourly act. He also expressed his ignorance if Rambal Singh knew either Yoginder Kumar or Shiv Narain accused. A suggestion was put to him that he had got the postal mark affixed on this letter with the connivance of some post office clerk but he denied it. It was also put to him that he was related to Shiv Narain accused and that this letter had been manufactured for being produced as evidence but as expected he controverted this suggestion as well. He, however, admitted that he had verified about Shiv Narain's arrest from Rambal Singh. Rambal has appeared as D.W. 8 and hud deposed that he had become acquainted with Shiv Narain because he used to go to Chanda village to sell his bullocks. According to him Shiv Narain was arrested on 19th December, 1962 by the police which appeared to be Punjab Police. They stated that they were taking Shiv Narain in connection with the dacoity in Hamidpur village. While getting into the police van Shiv Narain is stated to have said that if anyone could go to Kanth he should inform his relative Yoginder Kumar. In cross-examination this witness gave a poor account of his memory in regard to dates.

The appellant's learned counsel has laid great stress on this letter Exhibit D.P. and has urged that the Court below erred in not relying on this letter. The Court below has, however, gone into the matter at some length and after considering the various aspects has come to the conclusion that the postal mark on the letter Exhibit D.P. is not conclusive and that the defence evidence is highly unimpressive. The statement of Bhopal Singh, D.W. 6 does suggest that he was trying to create evidence in the form of a letter posted by him because if Bhopal Singh had already been to Kanth where Yoginder Kumar resides to inform him about Shiv Narain's arrest, then normally speaking, a message could have been left there and there was no necessity of posting this letter. Assertion of absence of relationship between himself and Shiv Narain or Yoginder Kumar is also not without significance because as suggested in cross-examination the witness is related to the accused; and if this is true then his interest and partiality are of some importance.

After considering the evidence and the arguments addressed to me at the Bar I have not been persuaded to hold that the Court below has on erroneous grounds discarded Exhibit D.P. as an unreliable piece of evidence. Reference was also made to the testimony of Nisar Ali, P.W. 23, where he has stated in cross-examination by Shri Mathur that on 19th December, 1960 the police brought Shiv Narain to Barant police station. This statement does support the argument of the learned counsel for the defence but as observed by the Court below when Shiv Narain was produced before the Sub-Divisional Magistrate, P.W. 26, he did not complain that he had been shown to witnesses during his custody prior to 26th December, 1960. It is true that if the police tried to show the arrest of Shiv Narain on 26th December, 1960 whereas he was actually arrested on 19th December, 1960 and remained with the police which the latter tried to conceal, then this circumstance must throw suspicion on the investigation as a whole but, in my opinion, the evidence on the record has not brought out sufficiently credible material to support the conclusion that Shiv Narain had already been arrested on 19th December, 1960 and that the police has wrongly tried to show he was arrested on 26th December, 1960. I am inclined to place implicit reliance on the above answer in cross-examination by P.W. 23.

It has also been argued that on 2nd January, 1961 when the accused were taken out of jail it is not shown that their faces were-covered. This too, in my opinion, does not lead to the necessary inference that persons who were to identify the accused had been shown the accused persons so as to enable them to identify the accused persons later on evidence on this point is far from satisfactory.

It has next been argued on behalf of the appellants that at the time of identification the witnesses should have stated the precise part played by different accused persons and this having not been done the evidence regarding identification should be discarded. I am not impressed by this contention either. It is not necessary that while identifying persons who took part in the dacoity every detailed part played by each dacoit should be stated. In my opinion, it is enough if a person identified is shown to have taken part in the dacoity, and, indeed, as I look at the "position, it is a matter which depends on the facts and circumstances of each case, and, no hard and fast rule can be laid down for evaluating identity evidence.

Lastly, the recoveries have been commented upon and it has been submitted that the articles recovered are common articles which are available in the market and also that the story of oral pledge is unconvincing. This contention is also devoid of merit. In evidence it has not been shown that the articles recovered have been wrongly identified to be those which were the subject matter of dacoity. Common articles are also capable of identification and it depends on the facts and circumstances of each case whether or not the articles are those which were stolen. The argument was not seriously pursued by the counsel by reference to the evidence on the record.

For the foregoing reasons I have no hesitation in upholding the conviction of Shiv Narain. The counsel has before concluding submitted that the sentence is too severe. Keeping in view the daring nature of the dacoity and the manner in which practically the whole village was terrorised, amply justifies the sentence imposed and I do not find any cogent reason for holding that the sentence imposed is too severe requiring reduction on appeal. In civilized societies peace and tranquility are of the essence if the society is to progress and dacoities of the nature which concern us in this case are a blot not only on our general character but also on the authorities which are responsible for maintaining peace, law and order. Strong impulses which drive citizens to the life of crime must be curbed and kept under proper restraint by proportionate sentences, for, properly balanced impulses are indispensable to democratic and progressive society where rule of law and not the law of the jungle reigns supreme.

Coming to the case of Kapura, his learned counsel had nothing to say on the merits so far as the question of his complicity is concerned. He has, however, contended that the case is covered by section 395, Indian Penal Code, and not 397, because the persons committing dacoity did not wield any deadly weapon though they were armed with the same. My attention has in this connection been drawn to the language used in section 398, Indian Penal Code, where the expression used is "armed with any deadly weapon" as against the expression "uses any deadly weapon" as used in section 397. Prima facie the argument appears to be attractive. There are, however, decided cases where it has been held that the expression "uses a deadly weapon" includes the carrying of a weapon for the purpose of overawing the person robbed. The argument urged on behalf of the appellants even otherwise is unsubstantial on the present record, as, in the case in hand, the guns have been used and this evidence has not been criticised before me. But, be that as it may, even u/s 395, the maximum term of imprisonment is ten years and section 397 merely fixes the minimum term of imprisonment as seven years. In the case in hand even if the offence were to be considered to be one falling within section 395, Indian Penal Code, I would have no hesitation in holding the maximum sentence of imprisonment to be properly called for; such is, in my view, the gravity of the offence.

Regarding Subedin his learned counsel in addition to the argument that his offence also falls u/s 395 has argued that the identity evidence is untrustworthy and, therefore, his conviction is liable to be set aside. Reference has been made to the testimony of Roop Chand son of Gordhan, P.W. 14, and emphasis has been laid on the fact that when he had gone to the house of Roop Chand, P.W. 13, (at whose house the dacoity was committed) he (P.W. 14) saw about 9/(sic) persons arriving there, three of them armed with guns and others with lathis etc. The argument is that this witness must have felt completely perplexed, panic-stricken and terrified and, therefore, his identification of Subedin in Delhi Jail later should not be given much credence. I am afraid this argument, even if conceded to have some merit, of which I am far from convinced, does not by itself show that Subedin has been wrongly convicted. The counsel, for reasons best known to him, has not cared to discuss the recovery evidence; nor has he criticised the evidence of other witnesses who identified him. That evidence seems to be quite trustworthy and free from any vice. I have, therefore, no hesitation in holding, in agreement with the Court below, that Subedin was one of the participants in the dacoity.

The counsel as a last resort argued that originally the charge was against seven persons and four of them having been acquitted no charge of dacoity can in law be sustained against the three convicts. Reliance for this contention has been placed on Ram Shankar Singh and Others Vs. State of Uttar Pradesh, The head-note of the reported case reads thus :

Six accused were placed on trial under charge that they had committed dacoity. Of these six accused three belonged to the complainant's village while the remaining three belonged to an adjoining village. All the six accused were well-known to the complainant's party and were actively opposed to the complainant's party. The Sessions Judge convicted all the six u/s 395, Penal Code.

In appeal the High Court acquitted the three accused belonging to the complainant's village on the ground that evidence against them was tainted testimony and it was not probable that they would commit dacoity in their own village without taking the least precaution to conceal their identity. The High Court did not give the benefit of this observation to the remaining three accused and convicted them u/s 395. Held, that the High Court erred in making a distinction between the three accused belonging to the complainant's village and the remaining three belonging to the adjoining village. The High Court having come to the conclusion that three out of the six accused were not guilty, should have gone into the question whether there was satisfactory evidence to show that the three remaining accused could be convicted u/s 395, Penal Code, on the charge as framed.

The Supreme Court, however, went on to observe that the three remaining accused could be convicted of the lesser offence of robbery u/s 392 if there was evidence to show that they had committed acts of theft and used violence while committing theft. But the individual acts having not been considered in that case, this would have necessitated retrial. However, as the accused had been in jail for a little less than three years, retrial was not ordered in the interests of justice. The ratio of that case, in my opinion, is not applicable to the case in hand. The evidence in the case before me, as is obvious from the testimony of Roop Chand, P.W. 14, and other witnesses (and this fact is not questioned before me), is that about nine or ten persons arrived at the house of Roop Chand, P.W. 18 J, three of them armed with guns and others with lathis etc. It is true that only seven were traced and sent up for trial, but it is not disputed that ten or fifteen persons had come to the place of occurrence with the convicts for the purpose of the dacoity. Sadiq, Majid, Yasin and Mangey were of course given benefit of doubt and acquitted. This, however, does not mean that only three persons, namely, the three convicts, alone took part in the dacoity. The facts of the Supreme Court case were different.

But this apart the evidence on the record would also seem to bring the offence within the purview of section 392, Indian Penal Code, but as, in my opinion, the four accused acquitted were given the benefit of doubt for want of identification, I am not inclined to hold that only three convicts or less than five persons took part in the offence. I do not consider it necessary to pursue the matter any further. As is apparent majority of the persons taking part in the dacoity remained below and only seven persons were put up for trial. On this premise the contention that the offence does not fall within the purview of section 397 must be repelled.

So far as the question of sentence regarding these two convicts is concerned, as already observed, the offence in question is indicative of the law of the jungle, and, complete absence of an organised civil society and also of the State forces of law and order. The civilized status of a nation may well be measured by the extent to which the perilously strong impulses of the raw material of human nature are kept within legitimate bounds. If a person is not sufficiently educated and disciplined and his civic sense is not sufficiently developed so as to keep his violent impulses within proper check then the penal laws must be so enforced as to effectively deter him from taking to the life of organised crime. Interests of the society at large demand effective protection and it would be dangerous to take lenient view of the offences like the one in question. It may also be recalled that lately such offences appear to have become somewhat more frequent and, therefore, they demand somewhat sterner measures also for curbing the criminal propensities of the like-minded persons.

For the foregoing reasons these appeals fail and are hereby dismissed.