Omprakash Alias Dhakkadi alias Davikni vs State of Madhya Pradesh

Brij Kishore Dube, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 17/02/2009 passed by the learned Special Judge (under MPDPK Act), Shivpuri in Special Sessions Trial No. 73/2007 (State of Madhya Pradesh Vs. Suraj and another), convicting the present appellant, Omprakash alias Dhakkadi alias Davikni under Sections 395 read with 397 of IPC and thereby sentencing him to suffer rigorous imprisonment for ten years with fine of Rs. 5,000/- and in default of payment of fine to suffer additional rigorous imprisonment for two years, the appellant has preferred this appeal u/s 374 of Code of Criminal Procedure, 1973. The prosecution case, in brief, may be narrated as under:

(i) That, the complainant, Vrindavan Soni (P.W. 1) reached to the Police Station, Indar, District Shivpuri on 09/07/2007 at 5.45 am and lodged a report to the effect that he and his wife, Rajkumari son Sourabh (P.W. 2) and daughter, Sonam (P.W. 3) were sleeping in side their house situated in Village Khatora. At about 2.00 am., in the night over heard the sound of opening the doors of the stairs, his wife woke up and went to close the door, at that time one culprit pushed the door and entered into the house and gave a Sariya blow on her head. On this, he went there and saw that 06 unknown culprits having Sariya (iron rod), lathi and katta entered into the house and caused a Sariya blow over his head as a result of which he slightly fell unconscious. Sourab tried to intervene. On this, he was also assaulted by Sariya and one culprit committed marpeet with his wife and pulled down her and kept his foot over her neck and tied her mouth with a cloth and one culprit snatched away the gold ornaments worn by her, thereafter miscreants entered into another room and looted gold and silver ornaments and cash of Rs. 25,000/- and other items total worth Rs. 4.50 lacs. Thereafter, the culprits tied their hands back side, pushed them inside the room and closed the doors and fled away along with the looted articles.

(ii) That, on the basis of aforesaid oral report of the complainant, Vrindavan Soni (P.W. 2), an FIR at Crime No. 121/2007 (Exhibit P/1) under Sections 395, 397 of IPC, 11 /13 of MPDVPK Act and 25/27 of the Arms Act was recorded by Rakesh Sahu, Sub Inspector (P.W. 12). The criminal law was triggered and set in motion.

(iii) That, the injured were sent to for medical examination at PHC Khatora. The investigating agency rushed to the spot and prepared the spot map (Exhibit P/2). Investigating agency also recorded the statements of the witnesses who were acquainted with the facts of the offence; and

(iv) That, during investigation, the accused have been arrested and from their possession the looted property was seized. On completion of the investigation, a charge sheet was filed against the accused Murari, Jagdish alias Gilta, Ram Singh and Rumal before the Trial Court for the trial.

(v) At the time of filing of challan, the accused Suraj and the present appellant, Omprakash alias Dhakkadi alias Davikni could not be nabbed, therefore, challan was filed by mentioning them as absconders.

After arresting the appellant/accused and co-accused, Suraj supplementary challan was filed against them. The learned Trial Judge on the basis of the material placed on record framed charge punishable under Sections 399,395 of IPC read with 397,411 of IPC and 11 /13 of MPDVPK Act against the appellant/accused, Dhakkadi alias Davikni and the co-accused, Suraj. The defence of the present appellant/accused is that of false implication and the same defence, he set forth in his statement recorded u/s 313 of the Code of Criminal Procedure, 1973.

It is apposite to mention here that at the time of initial trial the present appellant and another co-accused absconded, hence a trial was conducted only against the co-accused, Murari, Jagdish alias Gilta, Ram Singh and Rumal, The co-accused, namely; Jagdish alias Gilta has been convicted for the offence punishable under Sections 395 read with 120-B of IPC and sentenced to 10 years rigorous imprisonment with fine of Rs. 10,000/-, in default to undergo additional 21/2 of years rigorous imprisonment while the co-accused, Rumal has been convicted under Sections 395 read with 397 of IPC and sentenced to serve 10 years rigorous imprisonment with fine of Rs. 5,000/- and in default to undergo 2 1/2 years rigorous imprisonment, however, two of them, namely; Murari and Ram Singh have been acquitted from the charge by the learned Trial Court vide the judgment dated 03/07/2008. The convicted co-accused have preferred criminal appeals being Cr. Appeal No. 490/2008 and 648/2008 which are pending before this Court.

To bring home the charge, the prosecution has examined as many as 12 witnesses and placed Exhibits P/1 to P/41, the documents on record. The accused has not examined any witness in his defence.

The learned Trial Judge on the basis of evidence placed on record came to hold that charge under Sections 399, 395 read with 397 of IPC and 11 /13 of MPDVPK Act has been proved against the appellant as a result of which convicted him and passed the sentence under Sections 395 read with 397 of IPC as mentioned hereinabove. However, the appellant has been acquitted from the charge u/s 411 of IPC.

The learned Trial Judge on the basis of same set of evidence placed on record came to hold that charges leveled against the co-accused Suraj has not been proved and eventually, acquitted him from those charges.

The State has not preferred any appeal against the acquittal of the appellant under Sections 411 of IPC, therefore, the findings regarding acquittal recorded by the learned Trial Court had attained finality.

In this manner, this appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the learned Trial Court.

Shri D.R. Sharma, learned counsel for the appellant argued only on the point that offence u/s 397 of the IPC is not made out against the appellant because there is no specific evidence on record about possession of dangerous weapon or use thereof during the course of incident. It is argued further that according to the prosecution witnesses, the necessary ingredients to attract Section 397 of IPC were missing. On the facts and circumstances of the case, when it was not shown by any evidence that the present appellant actually used the deadly weapon or put into any use, as such Section 397 of IPC cannot at all be resorted. The reliance has been placed on the following decisions:

(1) Shri Phool Kumar Vs. Delhi Administration,

(2) Halle Vs. State of M.P., 1995(1) MPWN 161;

(3) Ranchhod Vs. State of M.P., ; and

(4) Santosh S/o. Kesharsingh & another Vs. State of M.P., 2004 [1] Criminal Appeals Reporter [HC] 33 (M.P.).

Learned counsel also submits that the appellant is in jail since last more than five years and for the offence u/s 395 of IPC, there is no minimum jail sentence prescribed. He prayed for reduction of the jail sentence of the appellant.

On the contrary, Shri R.K. Shrivatava, learned Panel Lawyer supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that the conviction in question is well merited.

In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record.

Dr. R.R. Mathur (P.W. 4) testified that in the medical examination conducted on 09/07/2007 at Public Health Centre, Khatora, he had noticed the following injuries on the persons of Sourabh, Rajkumari and Vrindavan Soni.

(I) Injuries on the person of Sourabh:

(1) Bruise (red) over left shoulder upto scapular front of chest in 14 cms x 2.5 cms.

(2) Lacerated wound over left front head in 5 cms x 1.5 cms.

(3) Lacerated wound over left back middle part of head in 5 cms x 2 cms x 1 cm.

(4) Swelling (red) over right back upper part of head in 4 cms x4 cms.

(II) Injuries on the person of Rajkumari:

(1) Abrasion (red) over left face in 8 cms x 6 cms.

(2) Bruise (red) over right neck in 6 cms x 1/2 cm.

(3) Abrasion over left mid outer fore-arm in 10 cms x 4 cms.

(4) Bruise (red) over left fore-arm in 5 cms x 2 cms.

(5) Bruise (red) over left chin below mandible in 3 cms x 2 cms.

(6) Lacerated wound and blood over right back hand in 5 cms x 1 cm x 1 cm.

(7) Lacerated wound and blood over front mid back of head in 4 cms x 1 cm x 1 cm.

(8) Abrasion (red) over left front chest in 2 cms x 1/9 cm.

(9) Bruise (red) over left neck in 4 cms x 3 cms.

(10) Abrasion over right and left ears lobules in 1/2 cm x 1/2 cm each.

(11) Abrasion over nose in 1/2 cm x 1/2 cm.

(III) Injuries on the person of Vrindavan Soni:

(1) Lacerated wound and blood over mid frontal part of head in 6 cms. x 1 cm x 1 cm.

(2) Bruise (red) over right shoulder upto arm in 8 cms x 5 cms and over left shoulder upto arm in 8 cms x 4 cms.

In the opinion of Dr. R.R. Mathur (P.W. 4), all the injuries found on the person of Sourabh, Rajkumari and Virendra were inflicted by hard and blunt object.

Coming to the evidence of Vrindavan Soni (P.W. 2), it may be observed that he not only reiterated the facts as stated in the FIR (Exhibit P/1) scribed by him immediately after the incident but also identified one of the accused, i.e., Omprakash (the present appellant) as the person involved therein. According to him, on 08/07/2007 in the night he after taking night meal sleeping along with his wife and children inside the house. In the night at about 2.00 am., his wife over heard the sound of opening the doors of stairs then she woke up and cry and went to close the door and tried to do it but one culprit pushed the door and dealt a Sariya blow on her head as a result of which she sustained injury over her head and blood started oozing out. He rushed there and saw that 06 persons having Sariya, lathi and katta entered into the house. On resisting, one culprit gave a Sariya blow over his head as a result of which he fell slightly unconscious. His son Sourabh was also assaulted by Sariya. One culprit assaulted his wife and by causing her to fall down and by placing his foot on her neck and by pressing it tied her mouth with a cloth and snatched away the gold ornaments, i.e., bangles, ear rings, chain with locket and ring, worn by her. The miscreants took him inside the room and assaulted him and looted the silver and gold ornaments and cash an amount of Rs. 25,000/-. He categorically stated that while offering resistance, he was assaulted and one culprit snatched away (I) ring from his finger. As per his statement, the culprits tied their hands back side, pushed them inside the room and closed the doors from outside and fled away along with the looted articles. According to him, he had identified the culprits. The accused, Omprakash who was present in the Court during recording his testimony was one of the culprits present in house and he had tied his and other family members'' hands. He duly identified Omprakash as the companion of the other co-accused. Nothing could be elicited in his cross-examination so as to suggest that he was, in any way, interested in implicating Omprakash (present appellant) on absolutely false grounds.

The aforesaid testimony of Vrindavan Soni (P.W. 1) was duly supported by Sonam (P.W. 3). Thus, identity of Omprakash as the person involved in the dacoity has been duly established from the sworn testimony of Vrindavan (P.W. 1) and Sonam (P.W. 3).

P.W. 1, Vrindavan and Sonam (P.W. 3) had ample opportunity to see the face of the appellant. Looking to the number and stitches of the injuries and happenings, it was not expected from them that they would forget the faces of the persons who had subjected them to such a traumatic experience. It is well settled that evidence as to identification of the accused for the first time in the Court is not totally irrelevant and in admissible.

The Apex Court in the case of Dana Yadav @ Dahu and Others Vs. State of Bihar, considered the effect of identification of accused made first time in the Court without holding TIP and held as under:

(e) Failure to hold test identification parade does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in Court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in Court of an accused by a witness and the same is a rule of prudence and not law. In exceptional circumstances only, as discussed above, evidence of identification for the first time in Court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.

In the case of Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), , the Apex Court has ruled that even when there is no provision for Test Identification Parade, the Court may appreciate the dock identification as being above board and more than conclusive. Dock identification is substantive piece of evidence and even in absence of TIP no prejudice is caused to prosecution case.

Sworn testimony of Vrindavan Soni (P.W. 1) and Sonam (P.W. 3) did not suffer from any serious infirmity. Accordingly, in view of the aforesaid judgment of the Apex Court, learned Trial Court did not commit any irregularity in treating the evidence of Vrindavan Soni and Sonam as to dock identification of the appellant as worthy of credence.

It is pertinent to note that the conviction of the present appellant is based only on the basis of the evidence of dock identification of Vrindavan Soni (P.W. 1) and Sonam (P.W. 3).

Now the question arises is that whether in the facts and circumstances of the case attract applicability of Section 397 of IPC that provide for minimum punishment for certain aggravated forms of robbery or dacoity.

On going through the statements of all the eye-witnesses and victim of the incident, there is no evidence about the possession of deadly weapon or used any weapon by the appellant. The role attributed to the present appellant was that he had only tied the hands of the victim and his family members.

The Apex Court in the case of Ashfaq Vs. State (Govt. of NCT of Delhi), explained the word ''uses'' in Section 397 of IPC and held as under:

Thus, what is essential to satisfy the word "uses" for the purposes of S. 397, I.P.C. is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be.

Only individual act of accused to be relevant to attract Section 397 of IPC. The Apex Court in the case of Ashfaq (supra) ruled as under:

The provisions of S. 397, does not create any new substantive offence as such but merely serves as complementary to Ss. 392 and 395 by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract S. 397, I.P.C. and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in S. 34, I.P.C.

In Phool Kumar (supra), the Apex Court held that the use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 of IPC for the imposition of the minimum punishment on another offender who had not used any deadly weapon.

In the case of Halle (supra), it has been held that to satisfy the ingredients of Section 397 of IPC, first the person has to commit robbery or dacoity. Second, he uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. In Ranchhod (supra), it has been held that there cannot be conviction for offence u/s 397 of IPC with the aid of Section 34 or 149 of IPC.

Since, the present appellant was neither armed with any weapon nor used any weapon, therefore, the conviction of the appellant u/s 397 of IPC for the purpose of imposition of minimum sentence is bad in law. The appellant can be convicted only u/s 395 of IPC.

It is informed by learned Panel Lawyer that as per the report received from the Superintendent, Central Jail, Shivpuri dated 24/09/2013, the appellant had already undergone 07 years and 28 days of sentence including the period of remission as on 24/09/2013 and is still undergoing the sentence.

In the result, the appeal is allowed in part. The conviction of the appellant u/s 397 of IPC and the consequent sentence are hereby set aside. However, his conviction u/s 395 of IPC is hereby affirmed but the sentence is set aside and instead thereof, the appellant is sentenced to the period already undergone by him in jail with fine as imposed by the learned Trial Court and in default of payment of fine, he shall serve the additional sentence as directed by the learned Trial Court as no previous criminal conduct of the appellant has been proved by the prosecution. The appellant is in jail, therefore, he be set at liberty if not required in any other criminal case.

With the aforesaid modification, this appeal is disposed of finally. A copy of this order be sent to the learned Trial Court for necessary compliance.