Kunji Lal vs State of Madhya Pradesh

N.K. Gupta, J—The appellant has preferred the present appeal being aggrieved with the judgment dated 30.9.1996 passed by the First Additional Sessions Judge, Satna in ST No. 20/1989 whereby the appellant has been convicted of offence under Section 397 of IPC and sentenced to seven years'' rigorous imprisonment.

The prosecution story, in short, is that in the midnight of 10th and 11th June, 1988, 5-6 persons entered at Village Karondiya (Police Station Amdara District Satna) to commit robbery. Some of the culprits entered in the house of Sukkhu by house breaking. Ultimately some of them held the victim Sukkhu (PW-3) and the appellant Kunji Lal after showing a dagger asked him for keys of his almirah. The appellant also assaulted him with a dagger on his right chest, however Sukkhu caught the appellant, whereas on his shouting the witnesses came and other culprits ran away. While leaving the place, they robbed Kalawati (PW-15) and took her silver payal and a watch. When the appellant was caught red handed, the villagers assaulted him and he was taken to the Police Station Amdara. Sipahilal (PW-1) son of Sukkhu had lodged an FIR Ex.P-1 at Police Station Amdara and handed over the appellant to the police, who was arrested by the police and the memo of arrest Ex.P-23 was prepared. The appellant was sent for his medico legal examination and treatment. The victim Sukkhu was also sent for the medico legal examination and treatment by Sub Inspector R.P. Richhariya (PW-16). Thereafter various accused persons were arrested and the test identification parade etc. had been arranged against those persons. The articles of robbery had also been seized from some of the culprits. Ultimately a charge sheet was filed before the JMFC Maihar, who committed the case to the Court of Sessions and ultimately it was transferred to the First Additional Sessions Judge, Satna.

The appellant-accused abjured his guilt. He took a plea that he was a worker of Public Health Engineer Department, who came to repair the various hand pumps affixed in the village, but he was caught on the basis of suspicion only, however no defence evidence was adduced.

The trial Court after considering the prosecution evidence acquitted all other accused persons except the appellant Kunji Lal, who was convicted and sentenced as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that there was no evidence against the appellant. He was held by the villagers on the basis of confusion. It is further submitted that he was not the person, who assaulted the victim by any weapon or he committed any robbery thereafter. A reliance has been placed upon the judgment of the Bombay High Court in the case of Willson Abraham Chouriappa Vs. State of Maharashtra, (1996) 3 BomCR 163 : (1995) CriLJ 4042 : (1996) 1 MhLj 437 and the judgment of Single Bench of the Manipur High Court in the case of The Union Territory Vs. Moirangthem Khomei Singh and Others, AIR 1971 Guw 43 : (1971) CriLJ 1759 to show that an accused could be convicted of offence under Section 397 of IPC that he himself committed the act of assault or used any deadly weapon and he cannot be convicted if such act is done by someone else. Similarly, reliance has been placed upon the judgment of Hon''ble Apex Court in the case of Shri Phool Kumar Vs. Delhi Administration, AIR 1975 SC 905 : (1975) 1 SCC 797 : (1975) 3 SCR 917 in which it is held that the term "offender" is confined to the offender who uses any deadly weapon. Also reliance has been place on the judgment of Hon''ble the Apex Court in the case of Sukhwinder Singh alias Jaggi Vs. State of Punjab, AIR 1994 SC 764 : (1994) CriLJ 1117 : (1994) 3 SCC 727 Supp in which it is held that the persons to whom money was demanded were not injured though accused persons fired at them nor any money taken from them. Hence, offence if proved, falls within the purview of Section 397 read with Section 511 of IPC.

If the submissions of the learned counsel for the appellant are examined on the facts, then it would be apparent that Sipahilal (PW-1), Sukkhu (PW-2) and Kalawati (PW-15) have stated that 5-6 persons came to the house of Sukkhu and out of them, 2-3 persons remained out of the house and 2-3 persons after breaking the door panel entered into the house. They asked for old man i.e. Sukkhu. One of the culprit kept a dagger on the chest of Sukkhu and asked for the keys of the almirah. On shouting, various villagers came to the spot. One culprit had fired from a gun, however nobody was injured. Appellant Kunji Lal was held by Sukkhu on the spot and he was taken to the police station by the villagers. In the FIR Ex.P-1, Sipahilal has mentioned that appellant Kunji Lal was beaten by some villagers, and therefore he sustained some injuries. Thereafter the police arrested 5-6 persons and a case was prepared against them. However, they were acquitted by the trial Court. Nothing was recovered from the appellant, and therefore it is apparent that the appellant did not rob anything from the house. One silver payal and a watch of Kalawati (PW-15) were taken by someone else. Sukkhu and Kalawati have clearly stated that one of the culprit assaulted the victim Sukkhu by a dagger on his right chest, but Sukkhu held that person, who assaulted him and he was the appellant Kunji Lal. The testimony of Sukkhu and Kalawati cannot be disbelieved. So many witnesses who have appeared for the prosecution and have turned hostile, did not accept the suggestion of defence counsel that the appellant went to that village for working of faulty hand pumps. Rameshwar Prasad Dwivedi (PW-4), who has partly turned hostile has denied that after holding the appellant Kunji Lal, he told about his work of hand pump mechanic. Similarly, a teacher Harkesh (PW-5) has denied that the appellant told to the police that he was a worker of the Public Health Engineer Department to repair the hand pump. The testimony of Sukkhu and Kalawati is duly confirmed by timely lodged FIR Ex.P-1, which was lodged on the next day morning when the appellant Kunji Lal was taken to the police station Amdara. Though the MLC report Ex.P-22 was not proved by the concerned doctor, who examined the victim Sukkhu, however, the Sub Inspector R.K. Richhariya (PW-16) has stated that he found the victim Sukkhu to be injured and he was referred for his medico legal examination and in the MLC report, one incised wound was found to him. Hence by sending, the victim Sukkhu for his medico legal examination and availability of that medical report also confirms the testimony of these witnesses.

The prosecution has examined as many as 17 witnesses and proved various documents, however those witnesses are related with the investigation done by the police against other culprits. Hence, it is not necessary to discuss that evidence in the present judgment when other accused persons have already been acquitted. However, it is apparent from such evidence that the appellant was resident of a place within the jurisdiction of police station Gaisabad District Damoh and he went to Village Karondiya in the jurisdiction of police station Amdara District Satna. He could not show any identity card or work order that he was sent for repairing of any hand pump by the Public Health Engineering Department. On the other hand, the police arrested other culprits on the information given by appellant Kunji Lal, and therefore his involvement with the alleged crime is very much apparent.

It is true that Kalawati (PW-15) did not say that the appellant was the person, who robbed her watch or silver payal. According to Sukkhu and Kalawati, the appellant gave a blow of knife (dagger) on the chest of Sukkhu in demand of keys of the almirah, but he could not commit any robbery thereafter. In the judgment passed by the Bombay High Court in the case of Willson Braham (supra) the word "offender" has been interpreted and according to that interpretation, appellant Kunji Lal was the offender because he assaulted by a knife on the chest of victim Sukkhu. Also he had used a deadly weapon at the time of incident. Similarly, in the case of Moirangthem Khomei Singh (supra) the Manipur High Court has interpreted the words "such offender" and held that, a person, who is offender shall be convicted of the act committed by him. In the present case, the act of assault with sharp cutting weapon was done by appellant Kunji Lal himself. Similarly, in the judgment of Hon''ble the Apex Court in the case of Phool Kumar (supra) the term "offender" has been interpreted, in which it is said that the offender who has used the deadly weapon shall be the offender.

On the basis of the aforesaid three judgments, it would be apparent that the appellant Kunji Lal has used a knife (a deadly weapon) in committing the crime, therefore he was the offender. However, it is apparent that in consequence of offence of assault, the appellant could not rob any property or to take anything with him, and therefore in the light of the judgment of Hon''ble the Apex Court in the case Sukhwinder singh alias Jaggi (supra), the offence of the appellant falls within the purview of Section 397 read with Section 511 of IPC. Appellant Kunji Lal could not commit his act of robbery, but while doing so, he assaulted the victim Sukkhu by a knife, and therefore since the robbery was not completed, he cannot be convicted of offence under Section 397 of IPC, but he can be convicted of offence under Section 397 read with Section 511 of IPC. The trial Court has committed an error in convicting the appellant of offence under Section 397 of IPC. However, under the same charge, the appellant can be convicted of offence under Section 397/511 of IPC. For commission of offence under Section 397 of IPC, a robbery or dacoity is to be committed with an attempt to cause death or grievous hurt. It is apparent that appellant Kunji Lal had a dagger (knife) in his hand and he caused hurt to victim Sukkhu. He attempted to cause a grievous hurt to him, but robbery or dacoity could not be completed, therefore in the light of judgment of Hon''ble the Apex Court in the case of Sukhwinder singh alias Jaggi (supra), conviction of the appellant is required to be altered.

So far as the sentence is concerned, the minimum sentence is prescribed for the offence under Section 397 of IPC, and therefore for its attempt, half of the minimum sentence is required to be imposed upon the appellant. The appellant was 32 years old at the time of incident, and therefore he was not entitled to get any advantage of probation under the Probation of Offenders Act on the basis of age. Also no other ground is shown by the appellant so that any advantage of the probation may be given to him. The appellant has faced the trial and appeal for last 26 years, and therefore it would not be proper to inflict a severe sentence upon him, but looking to the fact that he was the first offender, it would be appropriate to inflict a minimum sentence upon him.

On the basis of the aforesaid discussion, the present appeal filed by the appellant Kunji Lal is hereby partly allowed. His conviction and sentence imposed by the trial Court for commission of offence punishable under Section 397 of IPC are hereby set aside. He is acquitted from the said charge. However, under the same charge, he is convicted of offence under Section 397 read with Section 511 of IPC and sentenced to 3 ''1/2 years'' rigorous imprisonment. The custody period of the appellant during the trial and appeal shall be adjusted in the jail sentence inflicted upon him.

At present the appellant is on bail, he is directed to surrender before the trial Court without any delay.

A copy of this judgment be sent to the trial Court along with its record for information and compliance, if any.