Gopinath Dutta and Another vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal is directed against the judgment dated 24.9.1991 passed by Additional Sessions Judge, Bilaspur, in Sessions Trial No. 229/1989 convicting accused/appellants for the offences punishable under Sections 395/397 IPC and sentencing each of them to undergo rigorous imprisonment for seven years, and pay fine of Rs. 100, in default of payment of fine to further undergo simple imprisonment for one month.

Case of the prosecution in brief is that on 29.8.1988 FIR (Ex.P-12) was lodged by Bansilal (PW- 11) alleging that on that day at about 6 p.m. when he was sitting in his medical stores/grocery stores, 5-6 persons came there and asked for mixture (one kind of snack). When he asked his son namely Ashok to give them the said article, one of them took out a revolver and closed the shop. Thereafter, all of them took out the revolver and asked him as to where he had kept the coffer. One of them pressed his neck and took out the wrist watch worth Rs. 300 worn by him. Meanwhile, when his son Ashok tried to run for safety, two of them chased him and entered his house. At that time, when one Soncharan Yadav had come to his shop along with his son, they had threatened him also at the point of knife as a result of which he had immediately left the shop. When his family members cried, one of them had got out of the shop and exploded something like bomb and thereafter all of them fled away. They had taken away a cash of Rs. 600-700 from his shop.

So as to hold the accused/appellants guilty, prosecution has examined 13 witnesses in support of its case. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. During pendency of appeal, appellant No. 2 Sakti Padopal alias Phuchcha and appellant No. 4 Sanjay Kumar Singh have died and therefore, the present appeal relates to appellant No. 1 Gopinath Dutta and appellant No. 3 Dilip Kumar.

After hearing the parties the trial Court has convicted and sentenced the accused/appellants for the offences as mentioned above.

Heard counsel for the parties and perused the material available on record including the judgment impugned.

Counsel for the accused/appellants submits that no seizure has been made by the police of concerned police station though it has been made by the police of some other police station. He submits that identification of the accused persons is not in accordance with law and that the seizure witnesses have not been examined by the prosecution.

On the other hand counsel for the respondent/State supports the judgment impugned and submits that there is ample material on record to show the complicity of the accused/appellants in the crime in question and therefore, the judgment impugned convicting and sentencing them as mentioned above being strictly in accordance with evidence of the witnesses, calls for no interference in this appeal.

Banshilal (PW-11) has stated in his evidence that he is the proprietor of medical stores in which he also used to keep grocery items for sale. On 29.8.1988 at about 6.30 p.m. when he was in his shop, five persons came and demanded for chooda (a sort of snack) for Rs. 2. When this witness said that he was not having the article so demanded, they people asked for mixture (also a sort of snack). On this witness asking his son Ashok to give them mixture, one of those five persons took out a revolver and by catching hold of his collar asked for the money. When he told them not to have money, one of them dragged him up to the middle room and the other one closed the shop. Thereafter, they took him to another room and compelled to show them the coffer. At the same time, one Soncharan Yadav had come to his shop but the accused persons chased him at the point of knife. When his son Ashok informed his wife about the same, she also rushed to the spot but the accused persons had threatened her also to take out the jewelry worn by her. Thereafter, one of the accused persons had compelled him to take them to the coffer and also took out the wrist watch worn by him. Though his wife had told the accused persons that they did not have any coffer, she had opened the almirah before them which was kept there. After some time, another bomb exploded and while leaving the place they took away a tin box meant for keeping money which at the relevant time was containing about Rs. 500. On fourth day after the incident, identification parade was conducted in Primary School, Champa where he had identified all the five accused persons. In cross examination, this witness has stated that only five persons had entered his shop and if in the FIR six persons are named, he cannot give the reason there-for. He has given the entire account of the incident as to in what manner it had taken place. He has also stated that while lodging the FIR he had disclosed to the police about the demand of Chooda for Rs. 2 made by the accused persons but if it is not written therein, he cannot say anything. According to this witness, at the time of lodging of FIR he had disclosed to the police that the accused persons had taken out the revolver and asked for the place where the money was kept but if it is not mentioned in it, he cannot say anything. Factum of his wife being threatened by them was also disclosed to the police but the reason for non-mentioning of the same in the FIR is not known to him. According to this witness, about 15-20 persons were brought to the police station for the purpose of identification. In respect of identification of wrist watch, this witness has stated that it was identified by him by its chain.

Ashok Kumar Tamboli (PW-8) has also supported the case of the prosecution stating the manner in which the incident had taken place. He has stated that identification parade was held in the primary school in which 20-25 persons were mixed and he had identified four persons namely Gopinath, Sakti Padopal, Dilip and Sanjay Singh. He has stated that one cartridge was also left by the accused persons in his shop and on explosion of the bomb there was damage to the shop. Mohanlal (PW-1) has stated in his evidence that on the date of incident he was sitting in the liquor shop which was adjacent to the shop of complainant Banshilal and at about 6 p.m. accused Gopinath and Sakti Padopal came there and consumed liquor. He has stated that apart from these two persons, there were other persons also. After some time he heard the sound of bomb explosion and saw accused Gopinath and Sakti Padopal running away. Thereafter, complainant Banshilal came out of the shop and told him that dacoity had been committed and the accused persons had taken away a cash of Rs. 500-600. Ram Patel (PW-2) has stated in his evidence that at the time of incident, he was the employee of some toll contractor and his duty was to collect toll tax from the passengers. He has stated that Sub Inspector of Champa police station had asked him to check the vehicles and when he was doing that, at about 2 a.m. he saw five persons walking on the road and out of them one person had fled away and remaining four were caught by the police people and recovery of one revolver, one knife and one bomb was made vide Ex. P-2. However, though recovery of other articles was not made before him, he had signed the seizure memo Ex. P-3, P-4 and P-5. Ramcharan (PW-3) has stated in his evidence that on the date of incident in the evening he had heard the sound of bomb explosion twice near the house of the complainant and two cartridges were seized by the police. Khirendra Kumar Dubey (PW-4) - the witness of identification of watch has stated in his evidence that it was identified by the complainant vide Ex. P-11. Jagdish Prasad Yadav (PW-7) is the Patwari who had prepared the spot map. Smt. Nirmala Bai (PW-9), the wife of the complainant has also supported the statement made by her husband Banshilal (PW-11). G.R. Bhagat (PW-12) Assistant Sub Inspector who had seized one country made pistol, three live cartridges, one bag, knife and some amount from the accused persons, has also supported the case of the prosecution.

Having thus given a thoughtful consideration to the evidence available on record particularly the statement of the complainant, though certain contradictions and omissions are noticeable yet identification of the accused persons and the watch seized at their instance duly identified by the complainant as also the seizure of pistol, live cartridges, knife etc. and that being so minor discrepancies in the evidence of the witnesses, would not be a mitigating circumstance for the accused persons. Looking to the act of the appellants of their entering the shop of complainant, asking him to show his coffer and exploding the bomb outside his house, speaks volumes of their pre-planned intention to commit dacoity. The findings recorded by the court below convicting and sentencing the accused/appellants as mentioned above are based on the evidence available on record leaving no room for this Court to strike a note on the contrary.

Appeal thus being without substance is liable to be dismissed and it is dismissed accordingly. Appellants are reported to be on bail. Their bail bonds stand cancelled. They be sent to jail forthwith to serve out the remainder of sentence.