Manoj Kumar Gupta, J.
1. These two appeals seek to assail the conviction and sentence recorded against the appellants under Section 394, 412 IPC in Session Trial No. 207 of 1995. All the three appellants have been sentenced to life imprisonment for committing offence under Section 394 IPC, whereas Dinesh alias Babali (appellant in Criminal Appeal No. 2194 of 1996) and Asghar (Appellant no. 1 in Criminal Appeal No. 2222 of 1996) have also been convicted under Section 412 IPC and sentenced to life imprisonment. The sentences were to run concurrently.
2. According to the prosecution case, on 13.7.1992 at around 8 PM, Dr. B.R. Bhatnagar (the complainant) returned to his house by car from his clinic near Aradhana Cinema. He was accompanied by his friend Vikram Kulshrestha. As soon as they reached near the house, they saw three persons coming out of the house of complainant. One of them Dinesh alias Babali (appellant in Criminal Appeal No. 2194 of 1996), was known to them being son of Chaukidar Amar Singh. The other two were also clearly seen in streetlight and headlight of car. They were carrying bundles in their hand and they ran towards the nalla. The complainant and his companion raised alarm and as a result whereof, Chaukidar Babu Ram and other persons of the locality came out. They also saw the culprits and tried to catch them, but they succeeded in running away. The complainant entered his house and found his wife Nirmala Bhatnagar locked inside the bathroom. She told the complainant that Dinesh alias Babali and his two accomplices, came to their house at 07:30 PM and sounded the call bell. As soon as she opened the door, all the three barged into the house, throttled her neck, squeezed her mouth and by showing knife, put her under fear of instant death/hurt and asked her to hand over keys and valuables. When she refused, she was locked in the bathroom and they looted the goods and household articles. After sometime, they heard the sound of the car of complainant and ran outside. It later transpired that they had taken away VCR, tape recorder, wrist watch, video cassettes, pocket transistor, camera, foreign currency worth Rs. 200/-. There were abrasion and contusion marks on the neck of his wife. The criminals had left behind a shirt spotted with blood and a chappal. The FIR (Ext. Ka-4) relating to the said incident was got registered by Dr. B.R. Bhatnagar on 13.7.1992 at 09:05 PM.
3. On the same date, the Investigating Officer tried to search the named accused and his accomplices. On 14.7.1992, he prepared a fard of the chappal and shirt left behind by the criminals at the place of occurrence (Ext. Ka-6). On 16.7.1992, the named accused and his two accomplices were arrested. All the three accused were identified in police lockup by the complainant and his wife and Vikram Kulshrestha. The police thereafter, at the pointing out of Asghar, reached his house. He took out key which he had concealed under a brick. He opened the lock of the almirah and handed over the stolen VCR. It was duly identified by the complainant and his wife. A fard (Ext. Ka-2) was prepared in respect thereof. Thereafter, on the same date, they went to the house of Dinesh alias Babali and at his pointing out, succeeded in recovering tape recorder, watch and foreign currency from his house. These articles were also duly identified as the goods stolen from their house. A fard in respect thereof (Ext. Ka-3) was duly prepared. The Investigating Officer after completing the investigation, submitted a charge sheet against all the three accused under Section 394, 412, 307 IPC. The accused persons pleaded not guilty. The prosecution in order to prove the prosecution case and bring home the charges against the accused, examined the complainant Dr. B.R. Bhatnagar as PW1, his wife Smt. Nirmala Devi as PW2, his friend Vikram Kulshrestha as PW3, S.I. Devendra Kumar Sharma as PW4 and S.I. Arun Kumar Singh as PW5. All of them supported the prosecution case.
4. The accused persons were confronted with the incriminating evidence under Section 313 CrPC. They denied their guilt, but did not lead any evidence. The Trial Court by judgment dated 29.11.1996 acquitted the accused of offence u/s. 307 IPC but found them guilty of offence under section 394 IPC and sentenced them to life imprisonment. Dinesh alias Babali and Asghar were also found guilty of offence under Section 412 IPC and were sentenced to life imprisonment for the said offence. Both the sentences were to run concurrently.
5. We have heard Sri. Rohan Gupta, learned counsel for the appellant in Criminal Appeal No. 2194 of 1996 and Sri. Sunil Kumar Dubey, learned counsel for the appellants in Criminal Appeal No. 2222 of 1996 and learned AGA for the State.
6. Sri. Rohan Gupta, learned counsel for the appellant submitted that the prosecution story regarding recovery of stolen goods from the house of Dinesh alias Babali and Asghar is false as there is no independent public witness to the alleged recovery; that Babu Ram, the Chaukidar, who witnessed the accused running away after committing theft, had not been examined; that the injury report was not proved as the doctor had not been examined; that the prosecution story that Dinesh alias Babali who is son of guard and known to the complainant and his family, had committed the offence without hiding his identity, is against normal human conduct and belies the prosecution story; that the appellant has been falsely implicated. He further submitted that at the time of alleged incident, the appellant was only aged 19 years. He was on bail during trial and also in appeal. He came to be arrested on 7.6.2020 on account of issuance of non-bailable warrant by order dated 20.12.2019, as his counsel did not appear on that date. During this period, except for the incident giving rise to instant appeal, he was not charged or convicted of committing any criminal offence. He is a young man and in view of his consistent good conduct during pendency of the trial as well as the instant appeal, he is entitled to the benefit of the Probation of Offenders Act, 1958. In support of his contention, he has placed reliance on the decision of Delhi High Court dated 25.2.1995 in Criminal Revision No. 251 of 1980 (Suresh vs. State) 1995 CrilJ 3741 [LQ/DelHC/1995/215] and judgment of Bombay High Court dated 12.8.1992 in Criminal Appeal No. 1335 of 1992 (Rajesh Anantram Thakur vs. The State of Maharashtra) 1992(3)Bom CR 696.
7. Sri. Sunil Kumar Dubey, learned counsel for the appellants in Criminal Appeal No. 2222 of 1996, apart from adopting the arguments of Sri. Rohan Gupta, further submitted that no recovery of any stolen good was made from Islam, nor there is any incriminating evidence to prove his complicity; that Sri. Kulshrestha was a chance witness; that the appellants have no criminal history and are entitled to the benefit of the Probation of Offenders Act, 1958.
8. Learned AGA submitted that there is abundant evidence to establish the charges against the appellants. The FIR clearly gives description of goods that were stolen. The goods mentioned in the recovery memo tallies with the description of the goods mentioned in the FIR. The recovery was made from the house of Dinesh alias Babali and Asghar on their own pointing out, thus leaving no shadow of doubt regarding commission of offence and their involvement therein. He further submitted that even if the doctor who conducted the medical examination of Nirmala Devi, wife of the first informant, was not examined, the injuries received by her, as disclosed in the FIR, were proved by the evidence of the victim and other witnesses. It is submitted that no reason for false implication has been disclosed in the statement under Section 313 CrPC. The accused have also not led any independent evidence to prove any enmity. He further submitted that though a suggestion was made during cross examination of prosecution witnesses that father of the accused Dinesh alias Babali had worked as Guard in the mohalla and certain differences arose with him, there was no further suggestion nor evidence that he was removed. Consequently, there was no reason for any false implication, that too, not him but his son. He fairly conceded that in respect of Islam, except for his alleged identification made by the prosecution witnesses at thana while in lockup, there is no other independent or corroborative evidence.
9. We have given thoughtful consideration to the submissions of learned counsel for the parties and perused the material on record.
10. We find that the prosecution has succeeded in proving the occurrence, its time and place. In this regard, there is nothing to doubt the consistent version of the complainant (PW1) that when he reached the house, he saw Dinesh alias Babli and his two accomplices coming out of his house with bundles in their hand. When he raised alarm, they succeeded in escaping through the nala. The prosecution case, in this regard, was duly supported by PW3 Dr. Kulshrestha who was accompanying him. The contention that the prosecution story in this respect is doubtful as Babu Ram who had allegedly witnessed the accused running away, was not examined, has no force. In fact, the same plea was also raised before the Trial Court. The Trial Court noticed that Babu Ram was not named as a witness even in the charge sheet. PW5 Arun Kr. Singh, the Investigating Officer, in his statement disclosed the reason for not including him as a witness in the charge sheet and not examining him during trial. He stated that after the episode, Babu Ram was untraceable. Consequently, he could neither be interrogated during investigation, nor was examined as a witness during trial. In the above circumstances, his non-examination is not fatal, particularly in view of the consistent eye version account of PW1, PW2 and PW3.
11. The most important part of the prosecution story is that what transpired inside the house. Again, in this respect, the testimony of PW2 is convincing beyond any iota of doubt. She had duly identified the accused Dinesh, being son of the erstwhile chowkidar of the mohalla. She opened the door after hearing the call bell, as the caller was known to her from before. The FIR specifically mentions that there were abraded contusions on her neck. According to medical examination report, she received the following injuries:-
(i) Abraded contusion 7 cm x 5 cm on middle of neck left side lateral aspect 3 cm below the angle of mandible. Redish coloured.
(ii) Abraded contusion 7 cm x 6 cm on middle of right side neck lateral aspect, 3 cm below the angle of mandible. Redish coloured.
(iii) Abrasion 1/2 cm x 1/2 cm on ventral aspect of middle of right finger.
All injuries are caused by hard and blunt object and all are simple. Duration about 3/4 three fourth day.
12. PW1 in his cross examination reiterated that there were abraded contusions on the neck of his wife. He further stated that it seemed to be a result of throttling of her neck. His wife (PW2) deposed that as soon as she opened the door, the accused covered her face with a cloth and pushed her inside the house. They throttled her neck and put her under fear of instant death and asked her for keys and valuables. During cross examination, she stated having received injuries on her neck. PW3 also supported the prosecution case on the said aspect. Although, the doctor was not examined to prove the report, but the factum of injuries having been inflicted upon the wife of the complainant was duly proved by her (PW2). Her testimony in this regard stands corroborated by the statement of PW1 and PW3, which we find no reason to disbelieve. The nature of injuries were also such as would result if attempt is made to overpower a person to commit theft in his/her house.
13. A faint attempt was made to suggest that father of the accused Dinesh had some differences with PW1, while he was working as a guard in the mohalla and this was the possible reason for his false implication. The submission has no force. The accused Dinesh has not led any evidence in defence. Even in his statement under Section 313 CrPC, he did not take any such plea. Only a suggestion was made to PW1 during cross examination, which itself was wholly vague. It did not contain any suggestion that the complainant or his wife bore animosity against his father. Moreover, it was also not the case of the appellant that his father's service as a guard was dispensed with on account of any difference with the complainant. The Trial Court rightly observed that it seems highly unnatural and improbable that the complainant would falsely implicate his son for any such reason. The recovery of stolen goods from the house of appellant Dinesh on his own pointing out fully corroborates the prosecution story that one of the perpetrators of crime was Dinesh.
14. Next submission of learned counsel for the appellants was that there was no independent witness to the alleged recovery of stolen goods from the house of Dinesh and Asghar. The recovery was planted upon the accused to falsely implicate them. PW3 Vikram Kulshrestha who was one of the witness to the recovery memo, admitted in his cross examination that recovery of stolen goods was made from a room on the first floor of the house of Dinesh. He further admitted that he did not go to the first floor. Consequently, he did not witness the alleged recovery.
15. The recovery memos are Exts. Ka-2 and Ka-3, witnessed by PW1 Dr. B.R. Bhatnagar, PW2 Smt. Nirmala Devi, PW3 Vikram Kulshrestha, PW4 S.I. Devendra Kumar Sharma, PW5 S.I. Arun Kumar Singh and other police officials present at the time of recovery of the stolen goods. PW1 was a doctor by profession and PW2 an injured witness. The suggestion regarding false implication of the appellants has already been found to be unacceptable. The stolen goods were duly identified by the owners, i.e. PW1 and PW2. There is no reason to doubt their testimony in this regard. Even if PW3 remained standing outside the house of Dinesh, his testimony cannot be ignored altogether. It is relevant to the extent that the police party accompanied by PW1, PW2 and PW3 went to the house of Dinesh alias Babli to recover the stolen goods on his own pointing out. The trustworthiness of the prosecution case regarding recovery of stolen goods from Dinesh and Asghar is fully established by PW1 and PW2 and by police officials (PW4 and PW5) who were present at the time of recovery. For the same reasons, absence of other public witnesses is not fatal to the prosecution case. The attempt made by learned counsel for the appellants to assail the creditworthiness of recovery made from Islam and Asghar thus remains unsuccessful.
16. In Criminal Appeal No. 2222 of 1996, it was urged that there was no evidence to prove complicity of Islam in the theft in question. The Trial Court held that the said accused was duly identified by the complainant and other witnesses while he was in lockup in the police station. The Trial Court also observed that the stolen goods were recovered in the presence of PW1, PW2 and PW3, therefore, there is no reason to doubt the identification of the accused by the said witnesses, while in police lockup.
17. The recovery of stolen goods was made from the appellants Dinesh and Asghar on their pointing out. The accused Dinesh was known to PW1 and PW3 even before the offence was committed. The recovery of stolen goods from the houses of Dinesh and Asghar is a major consideration in recording findings against them. However, no recovery of any good or any other incriminating material was made from the accused Islam. The prosecution witnesses PW1, PW2 and PW3 had only seen the third robber running towards nalla. He was also not known to the complainant or other witnesses. His alleged identification in police lockup becomes doubtful without any other evidence to corroborate his involvement in the robbery. A formal identification parade was concededly not organized. The prosecution has thus failed to prove that the third person involved in the crime was Islam.
18. It is clear from the above discussion that:-
(a) The prosecution has succeeded in proving beyond doubt that Dinesh and Asghar were guilty of committing robbery in the house of the complainant;
(b) In committing the robbery, they had voluntarily caused hurt to the wife of the complainant;
(c) Both of them were found in possession of stolen property, knowing fully well that same was stolen property;
(d) The prosecution failed to prove that the third robber was Islam in absence of proper identification and other corroborative evidence.
19. In view of the above conclusions, accused Dinesh and Asghar are found guilty of committing offences under Section 394 IPC and 411 IPC. It was a case of robbery and not dacoity. The Trial Court was wrong in convicting accused Dinesh and Asghar under Section 412 IPC instead of Section 411 IPC. The punishment under Section 394 is imprisonment for life or rigorous imprisonment for a term which may extend to ten years and fine. The punishment for offence under Section 411 IPC is imprisonment of either description for a term which may extend to three years, or with fine, or both.
One of the pleas was for extension of the benefit of the provisions of the Probation of Offenders Act, 1958 to the accused. Since one of the offence committed is punishable with imprisonment for life, consequently, none of the beneficial provisions of the get attracted to the facts of the instant case.
20. Nonetheless, I find that Dinesh, as submitted by his learned counsel, was 19 years of age at the time of commission of offence. He now claims to be working in Meerut in a cloth manufacturing factory as a Supervisor. He is married and father of two children aged 15 and 25 years. He has no other criminal incidents. The other convict Asghar was also of same age. None of them are shown to have indulged in any illegal activity during trial or while on bail. There is no evidence that they constitute a threat to the society. Consequently, we are of the opinion that a lenient view deserves to be taken while sentencing them. For committing offence under Section 394 IPC, instead of life imprisonment, rigorous imprisonment of three years and a fine of Rs. 20,000/- each and in default, further simple imprisonment of three months will subserve the ends of justice. They are also sentenced to two years imprisonment for offence under Section 411 IPC. Both the sentences will run concurrently.
21. The conviction and sentence of Islam is set aside. Convict Dinesh and Asghar will serve out the remaining sentences, whereas Islam will be set free forthwith. In consequence, the appeals stand allowed in part. The judgment be communicated to the concerned court immediately for necessary compliance.
