Judgment:
Vinod Shanker Dave, J.
1. This appeal is directed against the judgment dated August 14, 1985 and September 4, 1985 of Additional Sessions Judge, Gangapur City convicting and sentencing the accused appellant as under:
Under Section 395 IPC 7 years RI and a fine of Rs. 100/-, in defaultof payment of fine to further undergo RI forone month;Under Section 397/398, IPC 7 years RI;Under Section 459, IPC 7 years RI and a fine of Rs. 200/- in defaultof payment of fine to furthhr undergo RI fortwo months;
All the sentences of imprisonment have been ordered to run concurrently.
2. The prosecution case is that a report was lodged at police station Mandavar on October 4, 1983 by one Dwarka Prasad where in he informed the police also that 6-7 miscreants have entered their house and looted the property and have also opened fire, he has escaped and came to report. On receipt of this a case was registered under Section 395/397 IPC and the Station House Officer started for the site. By the time he reached there the miscreants had left after looting the property and injuring several persons by fire arms as well as lathies. The Investigating Officer prepared the site plan and recovered the empty cartridges as also clubs lying there. He also recovered blood stained clothes and some of the property left behind which had been taken out from the persons of the injured. When the investigation was in process in FIR No. 84/83 of the same police station the accused was apprehended for an offence under Section 3/25 of the Arms Act. It was on December 1, 1983 that one 12 bore country made pistol, two cartridges and few more things were recovered from this accused vide recovery memo Ex.P 10. When that case was being investigated the accused admitted to have also participated in the dacoity committed in village Garh Himmatsingh for which case No. 68/83 was registered on October 4, 1983. This information he had given on December 2, 1983 On the very next day, i.e., December 3, 1983 the accused was sent to judicial custody and was lodged in sub jail Hindaun-city where on December 6, 1983 a test identification parade was arranged by Munsif and Judicial Magistrate 1st class, Hindaun-city. Six persons, namely. Hariya, Vijaysingh, Man Singh, Hari Om, Parsadi and Mst. Kunta were asked to identify the accused and all of them correctly identified the accused. It is thereafter that further investigation continued. After completing the investigation the accused-appellant was charge-sheeted in the court of Addl. Munsif and Judicial Magistrate, Hindaun-city who committed the accused to the court of Addl. Sessions Judge, Gangapur-city who framed charges for offence under Sections 395, 397, 398 and 459 IPC. The accused pleaded not guilty to the charges and claimed to be tried.
3. The prosecution in support of its case examined 19 witnesses and the accused none. His case is that he and his wife when reached the Bus-stand Mandavar on their way to Menhadipur-Balaji they were apprehended there by the police. His wife was detained for two days in police station, while he was detained for 2-1/2 or 3 months and was shown to the witnesses. He denied the recoveries of arms from his person. The learned Addl. Sessions Judge held the accused guilty of offence under Sections 395, 397, 398 and 459 IPC vide his judgment dated August 14, 1985 and adjourned the case for hearing arguments on sentence. An application was moved by the Public Prosecutor that the accused was convicted in case No. 59/66 by police station, Chirgaon District Jhansi by Judicial Magistrate. Jhansi on February 27, 1967 for offence under Section 380 IPC and 457 IPC for 12 months and 18 months respectively and as such he should also be changed under Section 75 IPC and evidence about sentence should be taken. The learned Judge vide his order, dated August 16, 1985 framed an additional charge under Section 75 IPC. However, no evidence was produced and the learned Judge vide his order, dated September 4, 1985 passed the aforesaid sentence.
4. The learned Counsel for the accused-appellant challenging the conviction and sentence submitted that there is no evidence to hold that the accused appellant was a participant in the dacoity which was committed on the night intervening between 3rd & 4th October, 1983 at the residence of Mool Chand Sunar. It is submitted that there is no convincing evidence on record to show that there was sufficient light in which the accused could be identified. Terror was prevailing according to the prosecution witnesses at the time of occurrence and it was impossible for them to have identified the accused-appellant. It is submitted that accused-appellant had been detained for 2/1-2 months prior to the date of holding the identification parade and during this period he had been shown to the witnesses. It is further alleged that no reliance could be placed on the statement of PW 1 Dwarka Prasad, PW 2 Smt. Kunta, PW 3 Man Singh, PW 4 Hari Om, PW 6 Mool Chand and and PW 7 Hariya. He submits that they are highly interested witnesses and their statements are inconsistent and contradictory.
5. The learned Public Prosecutor has supported the judgment of the learned Addl. Sessions Judge and submitted that it was an armed dacoity where the fire arms were used. He submits that it was because of the case under the Arms Act that the accused could also be apprehended in this case and there is overwhelming evidence on record to connect the accused with the crime. He has submitted that several persons have been injured in this case where all sort of injuries have been sustained. Besides this it is also submitted that the identification of the accused has been got done without any loss of time. On October 1, 1983 the accused was arrested in another Case, on October 2, it was known that he is involved in this case also and on October 3, he was remanded to judicial custody where identification parade was got conducted on December 6, 1983. Thus, there are no chances of the Investigating Officer to have shown the accused to the witnesses who belong to a village other than where the accused was kept in judicial custody.
6. I have given my thoughtful consideration to the rival contentions and have perused the entire record.
7. In the instant case there is the evidence of Dr. Radhey Shyam, PW 10 who had examined the various injured persons in the case. He found the following injuries on the person of injured persons:
Mool Chand injured:
(1) Bruise with haemotoma on left tempo parietal region, size ill defined.
Smt. Gendi injured:
(1) Lacerated wound With loss of lobe of the left ear 1 x 1/2 c.m. blunt, grievous in nature;
(2) Lacerated wound 2 x 1/2 c.m. loss of upper part of right ear pinna;
(3) Lacerated wound 1/2 x 1/2 c.m. lobe of the right ear lost;
Smt. Kunta injured:
(1) Lacerated wound 6 x 1 x 1 c.m. bone deep over the left forehead just above the left eye brow;
(2) Lacerated wound 5 x 1 x 1 c.m. over right occipital parietal region of the skull;
(3) Lacerated wound 5 x 1 x 1 c.m. over left occipital region;
(4) Lacerated wound 2 x 1 x 1 c.m. over left occipital region just below injury No. 3;
(5) Two pellet marks on right fore-arm within upper half of the forearm 1/1-2 c.m. in diameter oval in shape;
(6) Two pellet marks on left upper quadrant of the abdomen 1/2 cm. in diameter oval in shape;
Vijay Singh injured:
(1) Pellet mark at the middle of the left clavical oval in shape 1/2 c.m. in diameter;
(2) Pellet mark on upper part of the menuberium stemi oval in shape 1/2 c.m. in diameter just right to the mid-line;
(3) Ten pellet marks on left side of head and face oval in shape 1/2 c.m. in diameter.
Mansingh injured:
(1) There are six pellet marks over the extensor surface of the left fore-arm and hand oval in shape 1/2 c.m. in diameter;
(2) There are 36 pellet marks over the left gluteal region and left inguinal and over left iliac for oval in shape 1/2 diameter.
Injuries on the person of Mansingh and Moolchand were referred to Radiologist who opined that in the earliear case radio opaque densities were seen in fore-arm and lower part of abdomen, pelvis, inguinal and gluteal regions and in the later case he found a fracture of the parietal bone Thus, it is amply proved that the aforesaid injured persons sustained injuries by fire-arms and other blunt objects on the night intervening between 3rd and 4th October, 1983, and therefore, the presence of these injured at the place of occurrence cannot be doubted and further that during the incident fire-arm and other weapons of offence were used at the time of commission of dacoity. The accused-appellant has been got identified in identification parade by Munsif and Judicial Magistrate, Hindaun-city on December 6, 1983. He was identified by PW 2 Smt. Kunta, PW 3 Mansingh, PW 4 Hari Om, PW 5 Parsadi and PW 7 Hariya. All these witnesses along with one Vijay Singh (since not examined) had gone to sub-jail, Hindaun-city for identifying the accused who was mixed with 8 other persons and was correctly identified by all of them, PW 9 Radhey Shyam Gupta, ACJM, Hindaun-city proved the identification memo and stated about the identification parade. He has categorically stated that the accused was identified by six persons. Nothing could be brought out in cross examination of this witness. Two things are more pertinent about the identification in the instant case. One is the date of lodging the accused in judicial custody and holding of the test identification parade. It was on December 2, 1980 that this fact came to the knowledge of the Station House Officer that the accused is involved in the dacoity committed in village Ghadi Himmatsingh and so on the very next day he sought a remand for judicial custody and same day moved an application before the Munsif and judicial Magistrate for fixing the date for identification which was fixed for December 6, 1983 and it was so done. Thus the accused had not remained in police custody for a longer period much less such a period where it could be inferred that he had taken time to show the accused to the witnesses. In fact lot of pre-cautions had been taken ft r ensuring a fair identification parade and the accused was forthwith sent to judicial custody for this purpose. The another important aspect is that it was not got done in piecemeal or in any such manner which could arouse the doubt about its fairness. Thus, I hold that there was a proper identification parade where the accused has been correctly identified by as many as five witnesses examined in the case and thus his participation in the dacoity is fully established I need not go into various other points as both the involvements of the accused-appellant in the crime as well as using the fire arms in making an attempt to cause grievous hurt is fully established. In fact the case of the accused-appellant is fully covered by the decision of their Lordships of the Supreme Court reported in Phool Kuar v. Dehli Administration: : [1975]3SCR917 , as such I find no ground for interference with the judgment of the trial court.
8. However, I would like to add that instead of holding the accused-appellant separately guilty for offence under Sections 395, 397 and 398 IPC the proper course for the trial Judge was that he should have added Sections 397 & 398 along with Section 395 IPC since the latter are enabling provisions, hence with the aforesaid modification that the conviction be deemed to be recorded under Sections 395/397 and 395/398 IPC the appeal stands dismissed and the sentence passed by the trial court is maintained.