JAWAHAR Vs. STATE OF M P

JUDGEMENT

(1.) The appellants have preferred this appeal being aggrieved by the judgment dated 25.6.1992 passed by the Ist Additional Sessions Judge, Damoh in Sessions Trial No. 153/88 convicting the appellant no.1 and 4 namely Jawahar and Dalu @ Dal Singh Lodhi under Section 394 of IPC with the sentences five years R.I. against each of them, while the appellant no.2 Lallu, under Section 394/397 of IPC for seven years R.I. and the appellant no.3 Nanhe Bhai under Section 411 of IPC for two years R.I.

(2.) The facts giving rise to this appeal in short are that one Dhaniram's family was residing in a house situated at the Kherai agricultural field of village Ghanshyampura. In the aforesaid house on dated 23.11.1987 at about 6.30 in the evening the Shanti Bai, w/o Dhaniram was making food while her son Babbu sat there to have his meals. Bhoora his wife Bata bai and sister Mulabai, (the brother, sister-in-law (Bhabhi) and sister of said Babbu) were also present there while said Dhaniram went out somewhere else to have tea. The door of the house was hanging but was not locked. At that time two culprits lashed with Tabal (sharp edged implement) entered in such house and asked about Dhaniram. On replied that he went outside to have a tea, on which they reacted with filthy abuses with the name of mother and sister and asked the Babbu Singh to keep out the money with threatening to shoot them on shouting. They removed the watch from the wrist of Babbu Singh. Then Shanti Bai was subjected by one of the culprit with the blow of Tabal on her head. She sustained injury with bleedings. Then third culprit lashed with rifle entered in the house and threatened to kill them by means of rifle. Subsequent to it aforesaid two culprits removed the weared ornaments from the persons of said Shanti Bai and Mula Bai. Thereafter by breaking trunks of the Mulabai and Bati Bai some other ornaments were also looted by them from such trunks. The culprits bolted the door from outside while leaving the house after committing the offence. Thereafter said Babbu Singh and other family members came out from the house with shouting. The culprits were identified by them in the light of "Dibbi" (Kerosene lamp). Soon after the incident the report was lodged by Babbu Singh at Police Station Batiyagarh from where his mother Shanti Bai was sent to hospital. On medical examination one lacerated wound was found on her head. The MLC report was prepared. After interrogating the witnesses the appellant no.1 and 2 Jawahar and Lallu were taken in custody on dated 22.5.1988. The Katta and three live cartages and two blank cartages were recovered from the person of appellant Jawahar while the watch was recovered from the appellant no.2 Lallu. On disclosing some information regarding place of concealment of looted property memorandums under Section 27 of the Evidence Act were recorded. In pursuance of it, at their instance the alleged looted ornaments were recovered at the instance of the concerning appellants. Subsequent to it, on dated 23.5.1988 the other appellant no. 3 and 4 Nanhe Bhai and Dalu @ Dhal Singh Lodhi were taken in custody. A stick from Nanhe Bhai while Tabal from Lallu were recovered. On disclosing the information regarding the place for concealment of the looted ornaments their memorandums under Section 27 of the Evidence Act were recorded. In pursuance of it, at their instance the recovery was made. Subsequent to such recoveries the appellants were arrested by preparing the respective Panchanamas. The identification parade of their persons was held in which except Nanhe Bhai all other appellants were identified by the witnesses. On holding the identification parade regarding seized ornaments, the same were identified by the witnesses as their own. On completion of the investigation, the appellants were charge sheeted for the offence punishable under Section 394, 397 of IPC and Section 25/27 of the Arms Act.

(3.) After committing the case to the Sessions Court the charges for the offences under Section 394, r/w Section 397 was framed against all the appellants while charge under Section 25 of the Arms Act was additionally framed against the appellant no.1 Jawahar and the charge of Section 411 of IPC was additionally framed against the appellant no.3 Nanhe Bhai. The same were denied by them on which the trial was held. In order to prove the case the prosecution examined as many as eleven witnesses while two witnesses were examined on behalf of the appellants in their defence. The defence of the appellants was of denial and of false implication in the case at the instance and under influence of one Sahab Singh, the powerful person of the village, having inimical relations with them. According to the case of the appellant no.1 some gun shot was made on him by said Sahab Singh on which he went to the Police Station for lodging the report of such incident where instead to record his FIR, they were falsely implicated, as said above. On appreciation of the evidence by the trial court the defence of the appellants was not found to be proved and the appellant no.1 and 4 were held guilty for the offence under Section 394 of IPC while the appellant no.2 for the offence under Section 394 r/w 397 of IPC and the appellant no.3, Nanhe bhai for the offence under Section 411 of IPC and each of them were sentenced as mentioned above. Except this they were acquitted from the other charges. The aforesaid conviction and sentence of the appellants are under challenge in this appeal.