Durjan vs State of U.P.

V.P. Mathur, J.—Mr. Sree Pal the then VII Additional Sessions Judge of Aligarh, vide his order dated 15-5-1985 found Durjan guilty and sentenced him u/s 397 IPC to seven years'' rigorous imprisonment; and u/s 25 of the Arms Act to one year''s rigorous imprisonment making the two sentences concurrent.

At the very out-set I may point out that the learned Sessions Judge was wrong in directing the conviction u/s 397 IPC. Section 397 IPC only provides for an enhancement of the term of the imprisonment in certain cases in which the offender uses a deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt to any person, and lays down that under such circumstances the imprisonment shall be the minimum of seven years. So actually it should be taken to be the conviction u/s 395/397 IPC.

It is a case of occurrence of dacoity, which took place in the evening of 12-4-1981 in village Baai Khurd which lies within the area of police station Barla, District Aligarh. The first information report was lodged without much delay at a distance of four miles in the early morning hours on 13-4-1981 at 1.25 A.M. by Sukhram who is the victim of this dacoity. It is contended that at about six in the evening, about 10-12 armed dacoits raided the house of Sukhram. Sukhram rushed up and went to the roof of Beniiam and started crying. His crying attracted at the scene of occurrence Ram Das PW 2, Udai Ram PW 3 and Siya Ram PW 4 and a large number of other villagers including the license-holders. The dacoits busied themselves in looting the goods and articles from the house of Sukhram. It so happened that a police party had just left the village and when a noise was created by the villagers, these police men who had not gone very far away, returned to the scene of occurrence. One man was also sent to call them. One Assistant Sub-Inspector and two constables including the injured Om Gautam PW 6 came on the spot. They started firing. The dacoits after committing the loot, emerged out and tried to run away, but, because the police men and the villagers and license-holders were pressing them, they entered into a Kotha inside the Gher of the first-informant Sukhram PW 1 and chained it from inside. They were challenged and directed to come out. But they paid little heed to what the police said and continued to rain bullets from inside. Then some-body out of the villagers removed a part of the roof of the Kotha and threw some burning substance inside. The heap of straw and wood that was there inside the Kotha caught fire and there was a lot of smoke which forced the dacoits to come out. It is contended that one of the dacoits died as a result of burning and some others who came out were killed on the spot by the firing made by Police and the villagers. Ten such dead bodies were recovered from the spot. Two dacoits were arrested on the spot namely Babu and Durjan; and from the possession of Babu, some stolen articles were also recovered. Durjan who is the present Appellant was found possessed of a country made pistol, two live catridges and one spent cartridge inside the barrel of the pistol.

After completion of the formalities and the investigation, the case came up before the Sessions Judge. Durjan was charged under SECTIONs 395 and 397 of the IPC and u/s 25 of the Arms Act. One co-accused Sheolal was charged u/s 120-B of the Indian Penal Code.

It appears that the learned Sessions Judge did not find any case made out against Sheo Lal and recorded his acquittal. But against Durjan, the case was found proved and hence he was convicted and sentenced and has now come up in appeal.

In all five witnesses for the prosecution were examined as eye-witnesses. I will refer them shortly. It may be mentioned that in his statement u/s 313 of the Code of Criminal Procedure Durjan''s only stand was that he had been falsely implicated that all the prosecution evidence is false and that he was arrested from village Chharra and implicated in this case on the ground of partibandi. It may also be mentioned here that in support of his contention he did not adduce any evidence whatsoever.

The prosecution eye-witnesses are Sukhram the first informant who came into the witness box as PW 1 and gave out the entire prosecution story including the arrest of Durjan on the spot with a country made pistol and two live cartridges and one spent cartridge in the barrel of the pistol. Strangely enough, on behalf of Durjan no cross examination has been made and whatsoever cross-examination has been made even on behalf of other co-accused, does not at all make out any case in favour of Durjan.

The second witness was Ram Dass son of Beni Ram. He also supported the entire prosecution story putforth by Sukhram PW 1. Durjan cross-examined him and he specifically denied the suggestion that Durjan was arrested by police from Chharra and was shown to the witnesses at Thana and had been falsely implicated because of partibandi.

So far as the showing of Durjan to the witnesses at the thana is concerned, even Durjan did not speak about it in his statement.

The third witness is Udai Ram. He also narrated the entire prosecution case including the arrest of Durjan with the incriminating articles. He was cross-examined by Durjan himself. It was admitted by him that accused-Appellant Durjan belonged to Hidra Mai. A suggestion was made that Durjan had some enmity with Ram Sewak of Hidramai, but the witness denied any knowledge. It was also suggested to him that Durjan was not arrested on the spot and was actually arrested from Chharra and was shown to the witnesses at Thana. These two facts also were disputed and denied by this witness.

Then comes witness PW 4 Parsadi, who reached the spot with ballam. He also gave out the entire prosecution story and told that Durjan whom he had identified in Court, was arrested on the spot with a Katta, two live cartridges and one spent cartridge inside the barrel of the Katta. No cross-examination with this witness was made on behalf of Durjan and whatever cross-examination was made, was on behalf of Sheo Lal. Therefore so far as Durjan is concerned, his testimony goes uncontroverted.

The next witness was constable Om Gautam PW 6, who was also injured on the spot. He also supported the prosecution version and the only point that was made out during cross-examination with him was the lack of the knowledge on his part as regards the fact that Durjan did receive any injury. No question was put to this witness, although he belonged to the police force, that Durjan was arrested from Chharra or that he was shown to the witnesses in the Thana. Similarly when the Investigating Officer C.B. Verma PW 7 entered the witness-box as PW 7, no cross-examination was made by Durjan and the only cross-examination was made on behalf of Sheo Lal. He also belonged to the same Thana and a question should have been put atleast to him to elicit his answer as regards the fact whether Durjan was arrested from Chharra and was shown to the witnesses at the Thana. This has not been done and his testimony also goes completely uncontro verted.

The fact of the dacoity at the house of Sukhram cannot be disputed or denied. A large number of persons did receive injuries and the injury-reports are on the record. Atleast ten dacoits died on the spot and this fact also remained unchallenged. When such a big happening took place, the entire case cannot be false, and from the evidence on the record, it is undoubted that Durjan was arrested from the spot from amongst the dacoits. It may be a mere co-incidence that he did not receive any injury, which could have been examined. From his possession a country made pistol, two live cartridges and one spent cartridge were recovered.

The argument that if he was on the spot, something out of the looted property should also have been recovered from him is no argument at all. In any view of the matter, the case under Sections 395/397 IPC against Durjan is satisfactorily made out and the sentence of seven years'' rigorous imprisonment awarded to Durjan on this score is just in accordance with the Section 397 of the Indian Penal Code and cannot be interfered with.

So far as the charge u/s 25 of the Arms Act is concerned, the recovered articles have been exhibited and proved. It is in the testimony of the Investigating Officer that he obtained sanction of the District Magistrate Mr. Shah, which has also been proved on the record. This charge also stands proved and a sentence of one year''s rigorous imprisonment on this score is justiiied.

The learned Sessions Judge has already made the two sentences concurrent.

In the result, the appeal has no force and is hereby dismissed. The conviction of the Appellant u/s 395/397 IPC and u/s 25 Arms Act and the sentence of seven years'' rigorous imprisonment and one year''s rigorous imprisonment awarded to him with the order that the two sentences shall be concurrent is upheld and confirmed. He is already in jail custody, where he shall continue to serve out his sentences.