Gaffar @ Faruk vs State of U.P.

Arun Tandon and Ramesh Sinha, JJ.—These four criminal appeals are directed against one common judgment of the Fast Track Court No. 2, Gautam Buddh Nagar dated 6.11.2007 made in Sessions Trial Nos. 639/06 and 639A/06 arising out of Case Crime No. 30 of 2006, Police Station Sector 49, N.O.I.D.A., District-Ghaziabad. Under the judgment in appeal the Sessions Court has convicted the four appellants as well as one Munir and Viplav under Sections 395, 397, 506 and 412, I.P.C. The convicts have been sentenced with life imprisonment plus fine of Rs. 10,000 each, in case of default in payment of fine one year additional imprisonment for the offence u/s 395, I.P.C. For the offence u/s 397, I.P.C., 7 years rigorous imprisonment has been imposed upon each. For the offence u/s 412, I.P.C., 7 years rigorous imprisonment plus fine of Rs. 5,000 upon each, in case of default in the payment of fine, six months additional imprisonment. For the offence u/s 506, I.P.C. the accused have been sentenced one year''s imprisonment plus fine of Rs. 2,000 each. In case of default in payment of fine, two months'' additional imprisonment. It has been provided that the time spent in jail shall be adjusted in the sentence and the sentences shall run concurrently.

It may be recorded that the convict Munir and Viplav have not filed any appeal against their conviction/ sentence.

The case of the prosecution, as reflected from the records Is as follows:

Informant Rakesh Mohan Bakshi on 13th February. 2006 lodged a first information report at police station-Sector 49 N.O.I.D.A., District-Gautambuddh Nagar. It was mentioned that in the night between 12/13.2.2006 while the informant was sleeping in his house and the guard was on duty, at 2.45 a.m. about 9-10 persons caught hold of the guard and, after tying him, took the guard to third story of the building. After breaking the lock of the main door, six of these persons entered into the house. On the opening of the main door the alarm started ringing. After putting of the alarm the informant came out of his room, simultaneously his mother-in-law. who was occupying a room below, also came out. The intruders caught hold of the mother-in-law and two of them having a knife and country made pistol in their hand reached the first floor and by that time the informant and his wife were out of their room. When the informant and his wife made an attempt to put on the alarm, they were threatened and were warned not to put on the alarm. All the residents of the house were taken into one room. Their hands and feet were tied together. The residents were threatened with death in case of an alarm being raised. The intruders thereafter started looting the goods available in the house. Details of some of the goods so looted is mentioned in the first information report. It was stated that the list of the complete goods as well as cash so looted shall be supplied later. The intruders also threatened the son of the informant and directed that they must provide more money after withdrawing the same from the bank. Before leaving the house they closed the door and put a cloth on the eyes of the informant and other family members. The looting in the house of the informant continued for nearly one hour. The intruders left from the first door. It was also stated in the first information report that at the time of incident the informant, his wife Jaypee, his son Ainesh and mother-in-law Swarn Kawatara and father-in-law A.K. Kawatara were present. The first information report records that there was sufficient light and they could see the culprits. The informant can identify the goods as well as the miscreants if they are brought before him.

On the basis of the said first information report, Case Crime No. 30/06 under Sections 395, 397, 506 and 412, I.P.C. was registered against 9 to 10 unknown persons. The investigation of the crime was done by the Station House Officer Vishwajeet Singh. He prepared the site plan and recorded the statement of the witnesses (Exhibits Ka-3 and Ka-4).

On 19th February, 2006, the S.O. Vishwajeet Singh alongwith other police personnels is stated to have received information that the culprits, who had committed the dacoity at house at Sector 49, N.O.I.D.A., are present in the house of one Dharmendra Veer Singh at village Aagahpur and they are likely to leave the house alongwith the looted property.

On the said information, the S.O. informed the S.O.G. Incharge Sri Jaspal Singh on mobile phone as well as other police personnels. The informant Rakesh Mohan Bakshi was also informed and he also joined the police party at crossing of Sector 49. All the aforesaid persons reached the residence of Dharmendra Veer Singh and encircled the same. Five persons came out from the house with bags in their hand and other goods. Four of them were arrested while one of them made an attempt to flee away from the place by jumping from the roof. however he was also arrested. All the five arrested were searched. They disclosed their identity, which was duly recorded.

From the possession of the accused Munir a country made pistol of 315 bore was recovered alongwith one live cartridge of 315 bore and from the bag, which he was carrying one CD. Player Phillips India Ltd. Serial No. 1L01-0434-045993 Silver Colour, one brass idol of approximately 2 k.g. with broken hands was recovered. From accused Faraim @ Irfan one country made pistol of 12 bore alongwith one live cartridge of 12 bore was recovered. In his left hand one wrist watch Logens Swiss made, gold colour No. 3135048 in running condition with black strap was found. From the third accused Kamal one knife and from the bag, which he was carrying, one Sony Digital Video Camera Recorder. Handicam-Vision No. 1059777 M 50 made in Japan and two batteries, one charger, two leads one additional lead, one Recorded CD. Sony H.M.V. 60 were recovered. From the fourth accused Farukh @ Gaffar one knife and from the bag, which he was carrying in his left hand, one Laptop Tosiba Tecra M 4 Model No. PTM 40L-0 EZ00C Serial No. 85094997 H made in China silver colour was recovered. From the fifth accused Rafiqul one knife was recovered and from the black bag of raxine one Digital Video Camera recorder, one Digital Camera Samsung with cover F.I. No. 25 DLX with three leads and one charger, one remote, make Sony and one battery make Sony made in Japan, one Tagri of silver, two bracelet and two artificial bangles of yellow metal, from the white plastic bag one Car Stereo silver colour, one chargeable emergency light with two tubes, one gents watch stainless steel, one watch golden colour Henry Sandoz Swiss made etc. were recovered.

The statement of all the accused was recorded on the spot wherein they confessed that they had committed the crime. It was stated by them that the goods, which are in their possession were the looted property and that they were proceeding for disposing off the said goods. The goods recovered alongwith illegal arms were sealed.

After the investigation was completed, charge-sheet was submitted under Sections 395, 397, 506 and 412, I.P.C. The charges were framed against all the accused on 2.1.2007 by the trial court under the aforesaid sections.

The prosecution produced the informant P.W. 1 Rakesh Mohan Bakshi, his wife Jaypee Bakshi as P.W. 2, S.I. Mahesh Mishra was examined as P.W. 3, S.O. Jaspal Singh was examined as P.W. 4, S.I. Vishwajeet Singh was examined as P.W. 5 and A.S.I. Jai Singh was examined as P.W. 6.

The accused made their statement u/s 313, I.P.C. They denied the prosecution story and stated that they have been falsely implicated. However, the accused did not lead any evidence in their defence.

The trial court, after considering the evidence brought on record and after examining the material evidence, held that the accused were guilty of offence under Sections 395, 397, 506 and 412, I.P.C. They were accordingly convicted and sentenced on all the four counts, as already noticed herein above by us. It is against this order of the trial court that the present appeals have been filed.

We have heard Sri Sunil Singh, advocate on behalf of the appellants and Sri Arunendra Kumar Singh, learned A.G.A. on behalf of the State in all the four appeals.

Counsel for the appellants contended that there is no evidence worth its name which could have led the trial court to come to a conclusion that the accused had committed any offence under Sections 395 and 397, I.P.C. It is stated that the only evidence, which has been referred to by the trial court for holding that the accused were the persons involved in dacoity oh 12/13.2.2006 are the statement of P.W. 1 and P.W. 2.

It is the case of the appellants that the statements of P.W. 1 and P.W. 2 are not sufficient to establish beyond reasonable doubt that the appellants had committed the offence of dacoity referable to Sections 395 and 397, I.P.C. Counsel for the appellants submits that the two witnesses had only stated that perhaps the accused who are present in the court were the person who had committed the dacoity. Something more than mere likelihood/doubt is required to be established for bringing home the criminal offence alleged. He submits that it is settled principle of criminal jurisprudence that for the guilt in a criminal offence being established it is but necessary that the involvement of the accused must be proved beyond all reasonable doubts. The use of word ''Shayad'', i.e., perhaps/likelihood by both P.W. 1 and P.W. 2 is in itself sufficient to establish that they were not sure that the accused were involved in dacoity. Therefore, it cannot be said that the prosecution has been able to establish beyond all reasonable doubt that the offence has been committed by the appellants. It is his case that neither any identification had taken place nor the appellants were otherwise identified by any other person or by any other means to be involved in offence under Sections 395 and 397, I.P.C.

Faced with the aforesaid contention learned A.G.A. initially made an attempt to suggest that the finger prints obtained from the site of dacoity were matched with the finger print of the appellants and probably on that basis they have been found to be involved in the offence. However, he admitted that except for statement of P.W. 1 and P.W. 2 there is no other evidence to implicate the appellants, for the offence u/s 395/397, I.P.C.

We have considered the submissions made and have examined the records.

The relevant portion of the statements of P.W. 1 and P.W. 2 reads as follows:

So far as the report of the finger print expert is concerned, it may be recorded that no such report has been made available on record before the trial court nor the appellants were ever confronted with any such report in their statements recorded u/s 313, Cr. P.C. Moreover, the report has not been referred to by the trial court for the purposes of holding the appellants guilty. As a matter of fact the report of the finger print expert does not exist on record. At least the learned A.G.A. could not refer to any exhibit from the records of the Sessions trial before us for the purpose.

We are of the view that the statement of P.W. 1 and P.W. 2 is not sufficient to establish beyond reasonable doubt that the offence of dacoity was committed by the appellants. On reading of the statement of P.W. 1 and P.W. 2 in extenso, we find that, except for the part quoted above, there is absolutely no evidence with regard to the identity of the persons said to have committed the dacoity on the relevant date.

The use of word ''Shayad'', i.e. perhaps/likelihood in the statement of P.W. 1 and P.W. 2 is in itself sufficient to establish that they are in doubt with regard to the identity of the persons involved in the dacoity. It is for this reason that we hold that the prosecution has not been able to establish beyond reasonable doubt that the offence under Sections 395 and 397, I.P.C. has been committed by the accused appellants.

So far as the conviction of the appellants u/s 412, I.P.C. is concerned, the Apex Court in the case of Achyut Das and another Vs. State of Assam, , has held that once the prosecution has not been able to establish an offence under Sections 395 and 397, I.P.C. against the accused, then an offence u/s 412 can be said to be made out only if the prosecution is able to establish that the goods as recovered from the accused were to their knowledge looted property of a dacoity. In absence of any evidence to establish such knowledge that the goods recovered from the accused, to their knowledge were property of a dacoity, offence u/s 412, I.P.C. will not be made out and in that circumstance only offence u/s 411, I.P.C. can be said to have been committed.

We have carefully examined the material on record. We find that there is absolutely no evidence to establish that the accused appellants had knowledge that the goods recovered from them to be the looted property of a dacoity. Therefore, applying the principle laid down by the Apex Court in the case of Achyut Das and another v. State of Assam (supra), we have no hesitation to hold that an offence u/s 412 is also not made out against the appellants. They are held to be guilty of an offence u/s 411, I.P.C. only.

In view of the fact that we have come to a conclusion that an offence under Sections 395 and 397 has not been brought home, the offence as alleged u/s 506, I.P.C. shall also fall automatically. It is held that an offence u/s 506, I.P.C. is also not made out.

We, therefore, hold that the appellants are guilty of an offence u/s 411, I.P.C. only. For the said offence they are sentenced to rigorous imprisonment of 3 years with fine of Rs. 1,000 each. In case of default in payment of the fine, they shall be required to further undergo rigorous imprisonment of two months.

In view of the aforesaid, the four appeals are allowed in part. Conviction and sentence of the appellants under Sections 395, 397, 506 and 412, I.P.C. is hereby set aside. All the appellants are convicted of an offence u/s 411, I.P.C. and are sentenced as aforesaid.

We have been informed that all the appellants have been confined to prison for a period more than the punishment inflicted upon them by us. The appellants Faruk @ Gaffar, Kamal and Rafikul are in jail since more than six years. They shall be released forthwith, if anyone of them is not wanted in any other case. So far as appellant Faraim @ Irfan is concerned, he has undergone in jail for more than five years and he is on bail, he need not surrender and his bail bonds and sureties are discharged.

After we have dictated our judgment and the appellants had been found not guilty of an offence under Sections 395, 397, 411 and 506, I.P.C., the counsel for the appellant Sri Sunil Singh comes up with the plea that non-appealing accused who are confined to prison, namely, Muneer and Viplav may also be granted the benefit of the judgment of this Court and their offences may also be converted into one u/s 411, I.P.C. only. For the purpose he has placed reliance on the judgment of Hon''ble Apex Court in the case of Ashok @ Dangra Jaiswal Vs. State of M.P., , and in the case of Myla Venkateswarlu Vs. The State of Andhra Pradesh, .

Learned A.G.A. however, takes objections to the plea so raised. He contends that the powers which are vested in the Hon''ble Apex Court for doing complete justice under Article 142 of the Constitution of India are not available to this Court while exercising appellate power u/s 374 (2), I.P.C. He submits that this Court cannot travel beyond the scope and the relief prayed for in the appeal.

Learned counsel for the appellant however, submits that High Court has been constituted under the Constitution of India. The Court is meant to do substantial justice. In the facts of the case, the conviction and sentence against non-appealing accused cannot now be sustained in view of the finding recorded by this Court in the appeal in question. Detention of the non-appealing accused would be rendered violative of Article 21 of the Constitution of India and, therefore, whatever may be the technicalities, the High Court must intervene and direct the release of non-appealing accused also after setting aside their conviction under Sections 395, 397, 411 and 506, I.P.C. Matter requires detail consideration and, therefore, we direct that the case shall be placed on Tuesday, i.e., on 7th August, 2012 for hearing on the following issue:

Whether the High Court while exercising appellate powers u/s 374 (2) of the Code of Criminal Procedure can extend the benefit of its judgment in favour of the non-appealing co-accused tried together, assigned identical role and punished for identical offence by the trial court?

Sri P.N. Mishra, learned senior advocate, Sri Gopal S. Chaturvedi, learned senior advocate, Sri Satish Trivedi, learned senior advocate, Sri Gajendra Pratap Singh, learned senior advocate and Sri Daya Shanker Mishra, learned senior counsel are required to assist the Court in the matter.

Put up on 7th August, 2012.

Office is directed to furnish copy of the order to the above named senior counsels free of cost by tomorrow.