Mukesh and Others vs State of Madhya Pradesh

S.S. Dwivedi, J.—The appellants have preferred this appeal u/s 374(2) of the Criminal Procedure Code feeling aggrieved by the Impugned

Judgment of conviction dated 16-9 20Q4 passed by the 2nd Additional Sessions Judge, Neemuch in Session Trial No, 09/2004 whereby held

appellants/accused guilty for the offence punishable under Sections 394/397 and 332/34 of the Indian Penal Code and sentenced each of them to

7 years rigorous imprisonment with a fine of Rs. 3,000/- and 3 years rigorous imprisonment respectively on each count.

Briefly stated facts of the case are that on 12-9-2003 at about 21.00 hours in the night complainant Ramchandra Bhati Head Constable posted

at Police Station Baghana while on public duty was going towards village Achera. When he reached near the field of one Quadar Khan at that time

present appellants Mukesh, Dilip and Onkarlal accompanied by 2 others caught complaint Ramchadra Bhati and started beating him by means of

lathi etc. and also by fist and legs and thus, forcibly took away his official dress from his possession, also looted currency notes of Rs. 300/-

together with wireless set and then ran away from the spot. Complainant after some time reached at Police Station, Baghana and lodged first

information report on which basis police had registered a case under Sections 395 and 332, IPC, sent complainant Ramchandra Bhati for medical

examination to Civil Hospital, Neemuch. Dr. N.K. Goyal (P.W. 12) examined injured complainant Ramchandra Bhati and found one incised

wound on the frontal region of head, one lacerated wound on the frontal region of head and many abrasions and contusions on the back for which

proved report Ex.P/17. Concerning doctor also took x-ray of the head, but not found any facture in the bone concerned. During investigation,

investigating officer A.R. Khan (P.W. 13) seized motor cycle of the complainant, prepared spot map, thereafter arrested the accused/appellants

Mukesh, Dilip and Onkarlal as per memo Ex.P/5 to Ex. P/7 and on their information, from accused Dilip seized one lathi, blue colour official cap

of complainant with a badge (BILLA) as per seizure memo Ex. P/10. Similarly, from the possession of accused/appellant Mukesh seized official

belt of complainant as per seizure memo Ex.P/8. Similarly as per information given by appellant/accused Mukesh wireless set had been seized from

a well where accused thrown it, for which seizure memo Ex.P/4 had been prepared. Similarly from accused/appellant Onkarlal seized currency

notes of Rs. 300/- and one lathi from his possession as per seizure memo Ex, P/9, Seized article had been identified by complainant Ramchandra

Bhati before Executive Magistrate, After investigation, chargee-sheet had been filed against the appellants/accused. Appellants/accused abjured

the guilt and their defence is of false implication in this case. Learned trial Court after due appreciation of the entire evidence on record, held

appellant/accused guilt for offence punishable u/s 394/397 and 332/34, IPC and sentenced them as stated herein above. Feeling aggrieved to

which, appellants/accused have preferred this appeal.

I have heard the counsel for the appellants as well as learned Government Advocate for the State and perused the record.

It is submitted by the learned Counsel for the appellants that learned trial Court has wrongly held appellants guilty for of fence punishable u/s

397, IPC whereas no grievous injuries had been sustained to the complainant, which is necessary ingredient to prove the charge u/s 397, IPC. On

overall evidence on record, only charge which can be found proved against appellants/accused is offence punishable under Sections 394 and 332,

IPC. In view of that, prayed for just reduction of the jail sentence awarded by the '' trial Court.

In reply, learned Government Advocate supported the impugned judgment of conviction and sentence passed by the trial Court and prayed for

dismissal of the appeal.

To bring home the charge as levelled against the appellants, the prosecution had examined complainant Ramchandra Bhati (P.W. 1) who

admittedly posted as Head Constable at Police Station, Baghana. He stated that on the date of incident i.e. on 12-9-2003 at about 9.00 p.m. he

was going from Achari village to Jaisinghpura when he reached near the well of one Quader Khan at that time appellant/accused Mukesh,

Onkarlal, Dilip and 2 others caught him and started beating him by means of lathi and dhariya, which appellant/accused Mukesh was having in his

hand. They also beaten him by means of leg and fists also for which he sustained injuries on the head and on back portion of the body. Thereafter

appellant/ accused Mukesh and Onkarlal removed his official trouser forcibly and also snatched currency notes of Rs. 3,00/- which were in his

possession and also snatched his wireless set and then ran away from the spot. He also clarified that in the light of motorcycle, he clearly identified

these three accused persons Mukesh, Onkarlal and Dilip. He immediately came to the Police Station, lodged first information report Ex. P/1, then

he was sent to Civil Hospital for examination of the injuries and for necessary treatment. Injuries sustained to complainant Ramchandra Bhati had

been proved by medical witness Dr. N.K. Goyal (P.W. 12) who found one incised wound on the frontal angle of the head right side. Similarly, one

lacerated wound on the frontal area of the head and many abrasions and contusions on back side of the complainant, for which proved report Ex.

P/17. Same doctor also examined complainant and took x-ray of the head and not found any fracture in the frontal bone of the head. Thus, on the

basis of the statement given by the medical witness Dr. N.K. Goyal (P.W. 12), the prosecution could not prove that in this incident complainant

had sustained any grievous injuries which is the necessary ingredient to prove the charge u/s 397, IPC. Thus, on the basis of the aforesaid

statement of the medical witness, only fact is proved that complainant sustained simple injuries at the time of incident when accused/appellants had

committed robbery, therefore, when accused persons at the time of commission of offence of robbery had caused injuries to complainant also, then

this case of accused persons can be held punishable u/s 394, IPC only and if that the time of commission of robbery or dacoity, accused persons

had caused any grievous injury to the complainant then only, the minimum sentence for robbery should be seven years, as provided u/s 397, IPC,

but in the present case, as discussed herein above, complainant had not sustained any grievous injury, in view of that, the conviction of the

appellants with the aid of Section 397, IPC for robbery punishable u/s 394, IPC is not sustainable. Appellants/accused can be held guilty for

offence punishable u/s 394, IPC only.

The statement of complainant Ramchandra Bhati (P.W. 1) that appellants are the persons who had committed this robbery and obstructed to his

public duty, has got further support by the promptly lodged FIR Ex. P/1 wherein he clearly mentioned name of all these three accused persons

who had committed this robbery and willfully obstructed complainant in his official duty by causing injury to him.

Similarly, investigating officer A.R. Khan (P. W. 13) proved the fact that he had seized the looted property from the possession of accused

persons. From accused Dilip, he seized official cap of the complainant as per seizure memo Ex. P/10. Similarly, as per information given by

accused Mukesh, he seized one wireless set from the well where accused Mukesh had thrown it. Similarly, from the possession of

appellant/accused Mukesh, he also seized one official belt of the complainant. Similarly, from the possession of accused Onkarlal, he had seized

currency notes of Rs. 300/- which accused persons looted from the possession of complainant Ramchandra Bhati. Similarly, he also seized one

official trouser of the complainant and these articles had been identified by the complainant before executive magistrate also.

This identification has been proved by P.L. Devra, (P.W. 14) executive magistrate before him complainant Ramchandra Bhati identified his

official cap, official belt and one trouser as property which accused persons looted from his possession on the date of incident.

It is true that seizure witness Ramesh (P.W. 2), Murarilal (P.W. 3), Karulal (P.W. 5), Mohanlal (P.W. 6), Prahlad (P.W. 7), Virendra Kumar

(Patidar (P.W. 9) and Ishwarlal (P.W. 10) had not proved the seizure from the possession of accused. All these witnesses had been declared

hostile by the prosecution, but seizure had been proved by the investigating officer and thus, statement of seizing officer cannot be disbelieved.

Madanlal (P.W. 11) is the Head Constable, Moharir Police Station Baghana proved the fact that Ramchandra Bhati Head Constable had been

entrusted to make an inquiry and he had been given a wireless set and he went for inquiry on 12-9-2003. His departure had been noted in the daily

diary of Police Station concerned. Thus, this fact has been proved that at the time of incident complainant was on official duty for making an inquiry

of the application filed by some complainant.

Thus, on overall reappreciation of the entire prosecution evidence on record, in my considered opinion, the prosecution has failed to prove the

fact that in this incident complainant Ramchandra Bhati sustained grievous injury for which accused persons can be held guilty for offence

punishable u/s 397 with the aid of Section 394, IPC wherein minimum sentence for robbery ought to be not less than seven years. Only charge

which is found proved against appellants is commission of offence of robbery u/s 394, IPC and also offence punishable u/s 332, IPC for causing

injury to public servant with the intention to obstruct his public duty.

With regard to the sentence is concerned, appellants are in jail from 17-9-2003. This period appears to be near about four years and as charge u/s

397, IPC is not found proved, therefore, the sentence awarded by the trial Court u/s 394, IPC can be reduced suitably.

Resultantly, this appeal preferred by the appellants is allowed in part. The conviction and sentence of the appellants with the aid of Section

397, IPC is set aside and appellants are found guilty u/s 394 and 332/34, IPC. Trial Court has awarded 3 years sentence u/s 332/34, IPC is also

affirmed, but u/s 394, IPC appellants are sentenced to five years rigorous imprisonment instead of seven years RI as awarded by the trial Court.

With this modification, the appeal is disposed of.