BHOPAL Vs. STATE OF UP

JUDGEMENT

(1.) THIS is an appeal against the judgment and order of Sri D.D. Agarwal, III Temporary Civil and Sessions Judge, Meerut, convicting the Appellant Under Section 394, IPC and sentencing him to ten years' R.I. and further convicting the Appellant Under Section 324, IPC and sentencing him to two years' R.I. Both the sentences were ordered to run concurrently. The facts giving rise to this appeal are as follows.

(2.) A little before noon on 16 -6 -1964, Sadhu Chhotey Gir was robbed by the Appellant of Rs. 119/ - which he had kept in a purse. Jin order to facilitate the commission of the robbery, the Appellant caused a number of injuries to Chhotey Gir with a Daranti. Earlier the Appellant had seen the purse and the money on the person of Chhotey Gir at the house of one Bhagwan Pradhan. This robbery was committed a furlong away from village Haripur Gaonri. After committing the robbery, the Appellant ran away. Chhotey Gir tried to apprehend the Appellant without any success. Certain construction work was going on at a culvert, Chhotey Gir went there and told the labourers about the occurrence. The Appellant was seen running away by, some persons. They chased the Appellant and he was caught. He was then wearing a blood stained pyjama. At the pointing of the Appellant, the money bag was recovered from near a tree which was close to the place of occurrence. A report of the occurrence was lodged by Idu in Thana Hastinapur the same day at 1.30. a.m. On this report, a case Under Section 394, IPC was registered against the Appellant. The police investigated the case and challaned the Appellant. He was tried, convicted and sentenced, as stated above.

(3.) WHEN Chhotey Gir reached the culvert, he told Idu about the occurrence. He also gave the name's of the witnesses who had seen the Appellant committing this robbery. These witnesses were named in the FIR which Idu lodged at the Thana. Chhotey Gir stated that the Appellant followed him and attacked him with a 'Daranti' and robbed him of the money which he had kept in the money bag. Idu corroborated the statement of Chhotey Gir and stated that Chhotey Gir went to him and told him as to how he was robbed and he further stated that he gave him the names of the persons who had seen the occurrence. Sher Singh sent certain labourers to arrest the Appellant who was seen running away. Ram Kishan was one of those persons who arrested the Appellant after chasing him. Ram Kishan stated that the Appellant was wearing a pyjama which was stained with blood. The Investigating Officer took this pyjama into his custody. It was sent to the Chemical Examiner for examination and report. The Chemical Examiner reported that the pyjama was stained with human blood. This circumstance would have been an important corroborative evidence of the fact that the Appellant robbed Chhotey Gir, but the Appellant was not asked in his statement Under Section 342, Code of Criminal Procedure as to whether he was wearing this pyjama when he was arrested and if so whether it was stained with human blood. In view of this material omission by the trial court, the prosecution cannot rely on the evidence of recovery of the bloodstained pyjama from the person of the Appellant. The trial court ought to have put this important piece of evidence to the Appellant in his statement Under Section 342, Code of Criminal Procedure.