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Judgment
This appeal is directed against the judgment of conviction dated 30.3.2005 and order of sentence dated 01.4.2005 passed by the then Additional Sessions Judge (Fast Track Court) Sahibganj in S.C. No. 168/03 whereby and whereunder, the court having found the appellants Sk. Rustam and Sk. Khalil guilty for committing dacoity in the train and also for retaining the stolen property convicted them for the offences punishable u/s. 395 and u/s.412 of IPC and sentenced them to undergo imprisonment for life for the offence u/s. 395 of IPC and further to undergo rigorous imprisonment for 10 years for offence u/s. 412 of IPC. Both the sentences were ordered to run concurrently.
It is the case of the prosecution that on 01.05.2002 Train No. 816 DN left Jamalpur in the morning for coming to Sahibganj. The guard of the train was Yamuna Prasad Yadav, the informant (P.W. 6). In the guard bogie one guard of a goods train Ram Prawesh Singh (P.W.2), a courier peon Muneshwar Ram (P.W. 4) and a parcel clerk Ranjan Kr. Jha (P.W. 7) were also there.
The informant used to collect the proceeds of sale of tickets from different stations which were being kept in an iron box, kept in the said bogie of the train. At Sheonarainpur station, one Jamil Ali (P.W. 5) the station master gave a sum of Rs. 83,512.00/-containing in a bag which was kept in iron box. At Pirpainti station also Raj Kumar Singh, P.W. 1 the station master deposited the cash. Those money collected from different stations was kept in iron box. When the train reached to Mirzachouki Railway Station, station master of Mirzachouki also gave the proceeds of the sale of the tickets which was kept in the iron box. As soon as the train left platform at 1.36 pm four persons from the side of platform and three persons from the opposite side boarded in the guard bogie and remained standing near the door. Inspite of they being asked to come inside, they remained standing when the train crossed the platform they came near the informant and on the point of pistol asked the informant Yamuna Prasad Yadav, P.W. 6 to open the lock of iron box. When the informant refused to open the lock on the plea that the key is not with him the accused persons by pulling iron chest brought it near the gate and pushed it down. Thereafter they got the train stopped by releasing the vacuum pressure. After they got down they asked the informant to take the train ahead. When the train came to Karam Tola station, the informant informed about the incidence. When train reached to Sahibganj station information was given to Head Quarter and at the same time the GRP was also informed. On getting information when SI N.K. Mishra came to platform No. 1 he recorded the fardbeyan (Ext. 6) of the informant who made the statement to the effect as has been stated above on the basis of said fardbeyan a formal FIR (Ext. 7) was drawn against unknown.
The matter was taken up for investigation. During investigation when some clue was received, the I.O. arrested these two appellants as well as Sk. Islam and Bipin Sharma @ Bugli. They are said to have made their confessional statements. In course of the investigation iron box was recovered which was seized under seizure list (Ext. 2). That apart a sum of Rs. 8500/-was recovered from the house of one Md. Munna (DW-1). That money was taken to be looted amount on account of the fact that no satisfactory explanation was given by Md. Munna who happens to be a relative of Sk. Rustam. A sum of Rs. 2100/- had been recovered from the possession of appellant Md. Khalil but there does not appear to be any evidence, whatsoever, of recovery of Rs. 2100/- from the possession of Sk. Khalil.
After completion of the investigation when the charge sheet was submitted cognizance of the offence was taken against these two appellants as well as Sk. Ismail and Bipin Sharma @ Bugli.
Subsequently, when the case was committed to the court of Sessions all the four persons were put on trial during which prosecution examined altogether 12 witnesses. Of them P.W. 6 Yamuna Prasad Yadav the informant, P.W. 2 Ram Prawesh Singh, P.W. 4 Muneshwar Ram and P.W. 7 Ranjan Kr. Jha who were travelling in the guard bogie did testify that Sahibganj bound train No. 816 DN started from Jamalpur. The proceeds of the sale of tickets and money collected from Parcel at different stations were being kept in the iron box to be taken to Maldah.
They did testify that when train reached at Mirzachouwki station there also the station master deposited proceeds of the sale of tickets which was kept in the iron box. As soon as the train left platform seven persons from both the sides of train boarded in the bogie of the guard and when the train left the platform they on the point of revolver asked the informant, P.W. 6, to open the lock of the iron chest but the informant told to them that he is unable to do that as the key is not available with him. Thereupon the accused persons brought the iron box near gate and pushed it down and fled away. During evidence P.W. 6 identified both the appellants Sk. Rustam and Sk. Khalil but failed to identify Sk. Ismail and Bipin Sharma @ Bugli. However, the P.W. 2 Ram Pravesh Singh did identify only Sk. Rustam. P.W. 1 and P.W. 5 are the station masters of the Pirpainti and Sheo Narainpur station respectively who had deposited the money with the informant to be kept in the iron box. P.Ws. 8,9, 10 and 11 have been declared hostile. Whereas P.W. 3 is the witness to the seizure of the iron box.
After the case of the prosecution was closed, the appellants were questioned about the incriminating materials appearing against them u/s. 313 of Cr. P.C., which they denied. Thereupon, the court having relied upon the testimonies of the P.Ws. 2, 4, 6 and 7 and regard being had to the fact that P.W. 2 did identify the appellant Sk. Rustam whereas the P.W. 6 identify the appellant Sk. Rustam and Sk. Khalil found the appellants Sk. Rustam and Sk. Khalil guilty for the offence punishable u/s. 395 and 412 of IPC and accordingly recorded the judgment of conviction and order of sentence whereas the court having found no evidence against Sk. Ismail and Bipin sharma @ Bugli acquitted them from both the charges.
Being aggrieved with the judgment of conviction and order of sentence both the appellants have preferred this appeal.
Mr. Ashish Kr. Thakur, learned counsel appearing for the appellants submits that so far as the judgment of conviction and order of sentence of the appellants u/s. 412 of IPC is concerned that is quite illegal as the appellants have never been found in possession of looted money. In this regard it was pointed out a sum of Rs. 8500/- was recovered from house of one Md. Munna (D.W.1) on the day when there was marriage of his sister, that money is being taken to have been looted by the appellant Sk. Rustam as Md. Munna failed to give satisfactory explanation relating to its possession and that Sk. Rustam was relative of Md. Munna which in absence of money being identified as that of looted money can not be taken to be looted money. Further in absence of any evidence that the said money had been given by the appellant Sk. Rustam, it cannot be said that the appellant Sk. Rustam was found in conscious possession of that money. Similarly, the court has convicted the Sk. Khalil for the offence punishable u/s. 412 as it is said that a sum of Rs. 2100/- had been recovered from the possession of Sk. Khalil but no evidence whatsoever is there that looted money was recovered from the possession of SK. Kahlil.
Further, it was submitted that so far as conviction of the appellant u/s. 395 of IPC is concerned it is based on the testimony of P.W. 6 and P.W. 2 who did identify the appellants. P.W. 6 has identified both the appellants whereas P.W. 2 has identified only Sk. Rustam and so far other witnesses P.W. 4 and P.W. 7 are concerned they fail to identify any of the appellants and in this situation when P.Ws. 4 and 7 were there in the bogie along with P.Ws. 2 and 6 fail to identify the appellants, the court should not have placed reliance on the testimony of P.W. 2 and 6 and thereby the judgment of conviction and order of sentence is fit to be set aside.
Learned counsel also submits that under the circumstances stated above the court should not have awarded life imprisonment for the offence punishable u/s. 395 of IPC and generally sentence what is being inflicted upon the persons found to be guilty for the offence u/s. 395 of IPC is ten years but the court has inflicted sentence for the life though the fact is not as such that the appellants deserve maximum sentence.
Learned counsel appearing for the State submits that since P.Ws. 4 and 7 have failed to identify the appellants that could not be a reason for discarding the testimonies of P.Ws. 2 and 6 who have identified this appellants as they have had ample time to identify the appellants who along with others had entered into the bogie of the guard and put the witnesses under threat on the point of pistol and pushed the iron box down the train in which money had been kept. The trial court has rightly convicted the appellants for the offence punishable u/s. 395 and u/s. 412 of IPC and hence, the order of conviction and sentence does not warrant to be interfered with.
Having heard counsel for the parties and on perusal of the record, we do find that while the P.W. 6, a guard was taking a train 816 DN to Sahibganj from Jamalpur, P.W. 2 Ram Prawesh Singh goods guard of a train, P.W. 4 Muneshwar Ram courier clerk and P.W. 7 Ranjan Kr. Jha, Parcel Clerk, were also accompanying him. According to P.W. 6 station masters of different stations used to deposit proceeds of sale of the tickets and other money to be kept in the iron box to be taken to Head Quarter at Maldah. In that process according to P.Ws. 1 and 5 station masters of Pirpaiti and Sheo Narainpur respectively had deposited Rs. 50,748/- and Rs. 83,512/- respectively with the informant, P.W. 6, who kept it in the iron box. According to the witnesses who were there in the bogie of the guard as soon as the train started from Mirzachouki some persons from either side of the train boarded on the bogie of the guards and when the train left platform the miscreants took out the revolver and by putting the informant and other witness to fear they brought the iron box near the door and then pushed it down and they fled away. In this situation sufficient time was there for P.Ws. 2 and 6 to identify the appellants and hence the P.W. 6 did identify both the appellants in the court whereas the P.W. 2 identify one of the appellants Sk. Khalild. Since Sk. Khalil had been identified only by one of the witnesses submission was advanced that it would not be safe to rely on the identification of the sole witness P.W. 2. The submission is not acceptable for the reason as we have stated earlier that P.W. 6 as well as P.W. 2 had ample time to identify the culprits who took away the iron box. Thus, we do find that the trial court was absolutely justified in recording the conviction u/s. 395 against the appellants.
So far as conviction u/s. 412 is concerned it appears to be without any basis, as we have already stated above that a sum of Rs. 8500/-, as per the evidence of DW 1 Md. Munna, had been recovered by the police from his house which without there being any evidence was taken to be the looted money and further without there being any evidence that the Sk. Rustam had given that money to Md. Munna, the appellant Sk. Rustam can not be said to have been found in conscious possession of that money. Moreover, according to DW 2 since there was marriage of his sister on the same day it is expected that money must have been arranged for meeting out the expenses and, therefore, it is wrong on the part of the prosecution to say that no cogent explanation was given by Md. Munna over recovery of money from his house. Furthermore, the court has convicted the appellant Sk. Khalil as it is said that a sum of Rs. 2100/- has been recovered form his possession but nothing is there on the record that looted money had ever been recovered from the possession of Sk. Khalil. Under the circumstances the order of conviction and sentence passed u/s. 412 of IPC is hereby set aside.
Coming to the point of sentence we in the facts of circumstances do find that the sentence inflicted upon the appellant for life imprisonment for the offence u/s. 395 of I.P.C. Is too excessive. The appellant has already served sentence for the period approx 12 and 1/2 years.
Accordingly, we do modify the sentence of life imprisonment into a sentence for the period already undergone.
With this modification in the judgment of conviction and order of sentence, this appeal stands dismissed. Since, the appellants are in custody they are ordered to be released forthwith if not wanted in any other case.