Charandas vs State of Madhya Pradesh

N.K. Gupta, J.—This criminal appeal is preferred by the appellant Charandas being aggrieved by the judgment dated 5/8/1997 passed by the Sessions Judge, Raisen in ST No. 98/1987 by which the appellant was convicted for commission of offence punishable under Sections 399 and 402 of IPC and sentenced for two years rigorous imprisonment for each count. The prosecution''s case, in short, is that on 6.12.1983 an information was received to SHO Police Station Sanchi Shri S.S. Sikarwar that some culprits were gathered near the railway line of Railway Station Sanchi to commit a dacoity. Shri Sikarwar gathered the witnesses Phool Chand and Subhash Chand and with a huge police force he went to the spot. He found five to seven persons at the spot who were talking about the planning to commit dacoity in the house of one Patel residing at Village Madwai. All such persons were arrested and various weapons were seized from those persons. One stick was seized from the appellant Charandas. After completing the procedure of investigation, a charge sheet was filed before the Chief Judicial Magistrate, Raisen, who committed the case to the Sessions Court. Initially the appellant Charandas was absconding, and therefore the charge sheet was filed in his absence. Thereafter a supplementary challan was filed against the appellant and one Kishan Singh.

The appellant-accused abjured his guilt. He did not take any specific plea, but has stated that he was falsely implicated in the matter.

The learned Sessions Judge after considering the prosecution evidence, convicted and sentenced the present appellant as mentioned above.

Since the appellant Kishan Singh has expired during the pendency of this appeal, therefore his appeal was dismissed being abated, but it was found that the appellant Charandas was not available on the given address and he was missing since long. The present appeal is an old appeal, and therefore amicus-curie was appointed on behalf of the appellant No. 2 to argue the matter.

I have heard the learned counsel for the parties.

The learned amicus-curie for the appellant No. 2 has submitted that there were 7-8 persons at the spot according to the prosecution and out of them four persons were acquitted by the trial Court vide judgment dated 15.7.1986, and therefore in supplementary challan filed against the appellant Charandas, it could not be said that he was amongst five persons who were gathered to commit the dacoity, hence the present appellant cannot be convicted. Secondly, a stick was seized from the appellant which was not a deadly weapon whereas other accused persons who had guns etc. were acquitted by the trial Court, and therefore conviction directed by the Sessions Judge Raisen appears to be erroneous. It is prayed that the present appeal may be allowed.

On the other hand, learned counsel for the State has argued in support of the impugned judgment on the ground that conviction and sentence directed by the trial Court appears to be correct, hence no interference is warranted by this Court.

After considering the submission made by the learned counsel for the appellants and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal may be accepted.

It is apparent from the record that vide judgment dated 15.7.1986 Additional Sessions Judge Raisen has acquitted the accused Ghanshyam, Shashi and Nand Kishore from the charges of offence u/s 399 and 402 of IPC. Out of seven accused persons three were acquitted from the charges of offence u/s 399 and 402 of IPC, therefore remaining four persons could not form a gang of dacoits. For an offence of dacoity, minimum five culprits are required. When the trial Court has found that out of seven culprits, three were not present and they were not involved in the preparation to commit dacoity, then remaining four persons could not be implicated for the offence u/s 399 and 402 of IPC, because for commission of such offence, at least five culprits were required.

Also the independent witnesses Subhash Chandra (PW-1) and Phoolchand (PW-6) were turned hostile. The testimony of Shafiqulla (PW-2) and Head Constable Bharat Yadav (PW-5) cannot be accepted, because neither they had signed on the documents of seizure etc. nor their case diary statements were recorded by the Investigation Officer. Moreover, the Investigation Officer S.S. Sikarwar was not examined at the time of trial of the appellant, and therefore in absence of evidence given by S.S. Sikarwar, no seizure is proved against the appellant Charasdas. It is observed by the Additional Sessions Judge in the judgment dated 15.7.1986 that there was no opportunity to the police force to hear the talk took place between the culprits, and therefore if the appellant was found at the spot with a stick, then by such a fact no inference can be drawn that he was with other culprits and preparing to commit a dacoity. Under such circumstances, the conviction directed by the Sessions Judge for the offence u/s 399 and 402 of IPC appears to be patently illegal, which cannot be sustained.

The prosecution could not prove beyond a reasonable doubt that the appellant was with other four persons present at the spot and he was planning to commit a dacoity or preparation for the same. Under such circumstances, the appellant Charandas could not be convicted for the offence u/s 399 and 402 of IPC. Consequently, the appeal filed by the appellant deserves to be allowed, and hence it is allowed. Conviction and sentence directed against the appellant Charandas by the trial Court for the offence u/s 399 and 402 of IPC is hereby set aside. The appellant is acquitted from all the charges appended against him.

At present the presence of the appellant Charandas is no more required, therefore there is no need to issue any warrant against him. A copy of this judgment be sent to the trial Court with its record for information and compliance.