The Allahabad High Court has reduced the life sentence of Saieed @ Shaheed, to seven years imprisonment and fined Rs 5,000 and the other three accused have been acquitted by giving benefit of doubt who are accused of robbery and Criminal Conspiracy in Lalitpur Kotwali area in 2008.
The Division Bench of Justice Sunita Agarwal and Justice Dinesh Pathak passed this order while hearing a Criminal Appeal filed by Saieed @ Shaheed and others.
These four connected appeals are arising out of the order dated 28.02.2011 passed by the Additional Sessions Judge/Special Judge, Dacoity Prohibition Area, Lalitpur, arising out of Case under Sections 394/397, 411 and 120- B IPC, as also arising out of Case under Section 25 Arms Act, P.S- Kotwali Lalitpur, District Lalitpur.
Four appellants in the connected appeals have been convicted for the offences under Sections 394, 397 IPC. The Appellants Saheed @ Saieed and Anil Sachan have also been convicted under Section 412 IPC. Appellant- Saheed @ Saieed has also been convicted under Sections 25(1B)(a) of the Arms Act. For the offences under Section 394 read with Section 397 IPC, the appellants have been imprisoned for life with fine of Rs10,000/- each; the default punishment is one year additional imprisonment for each of the appellants. Under Section 412 IPC, appellants Saheed @ Saieed and Anil Sachan have been sentenced for 10 years rigorous imprisonment with fine of Rs10,000/-; the default punishment is one year additional imprisonment for each of the two appellants. Under Section 25 of the Arms Act, Saieed @ Saheed has been convicted for 3 years rigorous imprisonment and Rs 2000 as fine; the default punishment is 3 months additional imprisonment.
The prosecution story starts with the lodging of the first information report by Dr Rajkumar Jain s/o Babu Lal Jain r/o Mohala Nadipur, Lalitpur on 24.08.2008. The report given by informant Rajkumar Jain was a computerised typed letter in Hindi. It was stated therein that the informant was a resident of Nadipura, Lalitpur in front of Ramraja Mandir and a doctor by profession running a nursing home in Mohalla Nadipur.
On the fateful day, i.e 24.8.2008 at about 03:30 pm, the informant was in his nursing home namely Ayushman Hospital and his mother Smt. Prama Devi, wife Neelima and son Nayan (aged about 11 years) were at home. The door of the staircase leading to the house was open. Four unknown miscreants came into the house through the stairs and his mother asked them as to how they came when the informant was not at home. One of the miscreants pointed a country made pistol towards his mother and threatened her to keep quiet. Another miscreant tied the hands of his mother by a rope which they were carrying. On the shouting of his mother, his wife and son came out from another room and then his wife was attacked with a knife by two of them with an intention to kill her.
One miscreant showed a country made pistol to her and three gold chains and two gold rings were looted by them from his mother and wife, looted gold jewellery was worth Rs 70,000/-. At that time, a servant of a nursing home namely Suresh Sen and one Amit Saini reached at the house for some work and seeing the miscreants, they raised alarm whereafter all four miscreants tried to run away. Two of them, however, had been apprehended by the overwhelming crowd who gathered on hearing alarm raised, on the main road and the remaining two had escaped. It was stated therein that both his wife and mother could identify the miscreants if they were brought before them and his child got scared because of the incident. The information of the incident was given by his wife on telephone and he immediately reached there. The report was being lodged as per the narration of the incident by his wife and mother.
During their examination under Section 313 Cr.P.C, all the appellants had denied all incriminating circumstances against them. Appellant- Anil Sachan stated that it was a case of mistaken identity and he was caught by the public under some confusion while he was standing at the side of the road, he was beaten and later admitted in the hospital when he was unconscious. Appellant- Rinku @ Beeru stated that he was doing his business of selling bedsheets near the company garden. Some people started an oral confrontation and he was beaten and falsely implicated in the case. The goods for sale kept by him namely rugs and bedsheets could not be found, thereafter. Appellant- Rakesh Tiwari, pleaded some previous incident of oral confrontation with informant, Dr Rajkumar Jain over payment related to the treatment of one Manjulata, his acquaintance on 10.08.2008, when she was discharged from the hospital, being the reason of his false implication. Fourth appellant- Saieed @ Saheed gave an explanation, in his defence, that he was falsely implicated by the police on account of some confrontation with the Investigating Officer who had caught him earlier and also stated that the I.O told him that they then would keep a Brass chain and would project it as a gold chain. He argued that Brass chain was projected as a gold chain in a forged recovery planted by the police.
Placing the above evidence of the witnesses and the reports prepared by the prosecution witness of investigation, it was argued by the counsels for the appellants and the Amicus Curiae appearing on behalf of appellant- Anil Sachan, that there is a serious doubt with regard to the identification of accused persons namely Rinku @ Beeru and Anil Sachan who were allegedly caught by the public on the spot.
The recovery from appellant- Anil Sachan was planted. There was no independent witness of recovery. The identification of Rakesh Tiwari at the time of his arrest by the informant and other witnesses is not credible. Both the recoveries were made in the presence of the informant and in one of the recovery memos, it is noted that the informant and his wife met the Investigating Officer by chance. The manner in which the recovery memos had been prepared clearly prove that the recoveries were planted to ensure conviction of the accused persons under Section 394 and 397 IPC, offences committed during commission of robbery. When identification of articles alleged to have been recovered from the accused is not properly proved, the accused appellants cannot be convicted for the offence of commission of robbery.
This is a case where the Investigating Officer had tried to solve the crime just to secure conviction by planting articles, said to have been looted by the accused persons and then identifying them at the instance of the informant and the victim. Both the recoveries were made at the instance of the victim and as such are not creditworthy. Even identification of appellant Saieed @ Saheed at the instance of the informant, Dr Rajkumar Jain is absolutely unacceptable, inasmuch as, this witness, in cross (appeared as informant), admitted that when he reached at his house on getting a telephone call from his wife, two miscreants were caught by the public and two ran away and those were running at the distance of 20-25 paces from him. As the recovery of articles which is the basis of conviction of the appellants is highly doubtful and the identification of appellant- Saieed @ Saheed at the instance of the informant is highly improbable, the entire prosecution story stands demolished being concocted. The appellants deserve acquittal.
In light of the above legal principles pertaining to the offences under Sections 394, 397 and 412 IPC, we are required to appreciate the evidence of the case. We may note that in the offence of robbery, to convict the accused persons who were unknown to the victims, the identification of the accused persons by the eye-witnesses and recovery of stolen (looted) articles would have to be established by the prosecution.
“In view of the above, the Court noted that the weapon recovered at the instance of accused Saheed @ Saieed projected as “weapon of offence” is country made pistol, recovery of which has been discarded for the same being tainted, inadmissible under Section 27 of the Evidence Act.
The offence of commission of theft or robbery could not be proved by the prosecution against accused appellant Saheed @ Saieed as recovery is found tainted. At the most, it can be said that appellant Saheed @ Saieed made an attempt to commit robbery and in the attempt to commit such robbery, he along with his accomplices (whose implication could not be established by the prosecution) voluntarily caused hurt to the inhabitants of the house, including the prosecution witnesses.
We find that when the recovery of weapon of offence made at the instance of appellant Saieed @ Shaheed has been discarded, in the oral testimony of the victim and eye-witness, though the use of deadly weapon by this accused for creating terror in the mind of the victim by showing weapon (country made pistol) in his hand, had been asserted by the prosecution but the offence under Section 397 IPC of using any deadly weapon or causing grievous hurt to any person or attempt to cause grievous hurt to any person at the time of commission of robbery against appellant Saheed @ Saieed could not be proved by the prosecution.
However, for causing hurt to the prosecution witnesses in attempting to commit robbery, the conviction of appellant Saheed @ Saieed under Section 394 IPC is, hereby, upheld.
The offence under Section 412 IPC of retaining stolen articles is, however, not proved against appellant Saheed @ Saieed for the fact that the recovery has been disbelieved. The conviction of accused appellant Saheed @ Saieed for the offence under Section 25 of the Arms Act is also liable to be set aside for the same reason”, the Court observed while allowing the appeal.
“For conviction under Section 394 IPC, in our considered opinion, punishment of the rigorous imprisonment for a term of seven years is found to be sufficient in the facts and circumstances of the instant case. The sentence of life imprisonment awarded to the appellant Saheed @ Saieed for the offence under Section 394 IPC is, thus, reduced to seven years rigorous imprisonment, with fine which is further reduced to Rs 5,000/-. In case of default in payment of fine, the appellant shall be liable to serve a sentence of additional one month simple imprisonment.
For all other offences under 397, 412 IPC and Section 25 (1 Khaka) Arms Act, the appellant Saheed @ Saieed s/o Chhidu is hereby acquitted, giving him benefit of doubt.
Accordingly, the judgment and order dated 01.03.2011 passed by the Additional Sessions/Special Judge, Lalitpur in Special Sessions Trial arising out of Case is modified to the above extent. The conviction of appellant Saieed @ Shaheed in Sessions Trial, arising out of Case under the Arms Act, Police Station-Kotwali Lalitpur, District Lalitpur, is hereby set aside”, the Court ordered.