The Allahabad High Court has observed that when a conviction is made as a whole regarding any occurrence or set of occurrences, the accused cannot, at a later stage, claim that a confessional statement made by him should be considered regarding some of the offences only and not for others.
A Single Bench of Justice Ajai Tyagi passed this order on Thursday, while hearing a Criminal Appeal filed by Vinod Mali, convicted in a case registered under Sections 177, 171, 419, 417, 411 and 413 of IPC at Police Station GRP, District Gorakhpur, along with fine.
According to the FIR, the accused and his accomplices were arrested from Police Station GRP, Gorakhpur district on March 12, 2016, while they were planning a robbery. The accused told the police that he was a constable and posted in Kotwali Maharajganj. He even showed them his identity card, which later turned out fake.
During inquiry, the accused confessed that he was running a gang of thieves, who robbed passengers travelling in train. Police recovered 120 grams of Alprazolam powder, two stolen mobile phones, one stolen motorcycle and a fake identity card of UP Police from them. The police uniform of Vinod Mali was also found fake.
All the accused were booked under Sections 8/21/22 of Narcotic Drugs and Psychotropic Substance Act, 1985 and also under Sections 411, 413, 414, 417, 419 and 171 of IPC.
The trial court framed charges under Sections 177, 171, 419, 417, 411 and 413 of IPC against the accused-appellant and he was convicted for all the above offences. Aggrieved by the impugned judgment and order of trial court, the appellant preferred the appeal.
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Counsel for the appellant said that as per the prosecution case, 120 grams of Alprazolam powder was said to be recovered from the possession of the applicant for which separate case under relevant Sections of N.D.P.S. Act was registered and in the case, two stolen mobile phones and one stolen motorcycle were said to be recovered from the possession of the appellant.
Apart from that it is said that he was having a fake identity card of U.P. Police and wearing fake U.P. Police; posing himself as police constable and on making inquiry by the police of G.R.P., Gorakhpur, he falsely told them that he was a police constable and posted in Kotwali, District Maharajganj.
Counsel for the appellant submitted that constable Ram Pravesh Bharti and Head Constable Abhay Pandey were examined before the trial court and at that time appellant moved a confession application before the learned trial court and his file was separated. In his statement under Section 313 Cr.P.C. the appellant confessed his guilt and on the basis of that confession, the trial Court held him guilty for all the charges framed against him and convicted.
Counsel for the appellant further submitted that apart from the conviction of offences under Sections 177, 171, 419, 417 and 411 I.P.C., the appellant was also convicted and sentenced under Section 413 I.P.C.
It is also submitted that he had nothing to say regarding the conviction and sentence of all the other offences except offence under Section 413 I.P.C. because Section 413 I.P.C. relates to the habitual offender.
Counsel for the appellant argued that in its impugned judgment, trial court has given finding regarding the appellant being habitual offender only in one line by saying that accused was habitual offender used to deal in stolen property while for being habitual, the accused should have been convicted twice or more than twice under Section 411 I.P.C. No person can become habitual by a single act.
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Counsel for the appellant said that if the appellant had made confession before the trial Court under Section 413 I.P.C., even then he could not have been held guilty for that offence rather at that time lower Court should have asked for at least two judgments of conviction of appellant under Section 411 I.P.C. There is no evidence on record that the accused was ever convicted for the offence under Sections 411 I.P.C.
Additional Government Advocate submitted that accused himself made confession of his offences with freewill before learned trial court and there is nothing under Section 413 I.P.C. that accused should have been convicted more than once for offence under Section 411 I.P.C.
The Court observed that the appellant was arrested on March 12, 2016 along with other accused persons at railway station Gorakhpur and during trial, prosecution examined two witnesses as constable Ram Pravesh Bharti and Head Constable Abhay Pandey.
The Court did not agree with the submission made by the learned counsel for the appellant that despite the confession of appellant, learned trial court should have asked for two judgments in which appellant would have been convicted under Section 411 I.P.C. because a confession made by the accused, shall be taken as a whole.
It cannot be in parts because it was made regarding the same occurrence and he made confession with his own freewill and in his statement under Section 313 Cr.P.C., it was specifically put before the appellant as to whether he habitually used to deal in stolen goods. Appellant did not deny this question, he also said that a trial was held against him on account of commission of offences by him. It is important to mention that offences committed by the appellant which he confessed include offences under Section 413 I.P.C. also, the Court said.
“I am unable to agree with the argument of Counsel for the appellant that for convicting the accused under Section 413 I.P.C. it is mandatory particularly after confession, that the accused should have already been convicted under Section 411 I.P.C. twice or more than twice because appellant has himself made confession before the trial Court that he was habitual in dealing with the stolen properties. It is not the case of the appellant nor he argued that the accused did not make confession with freewill”,
the court said while dismissing the appeal.