DACHCHU Vs. STATE OF M P

JUDGEMENT

(1.) This Judgment shall also govern disposal of Criminal Appeal No. 944 of 1985 (Sugga Chamar v. State of Madhya Pradesh) and criminal Appeal No. 1085 of 1985 (Siddu v. State of M.P.), as they arise out of the same Judgment dated 3rd August, 1985 passed by Shri. N.S. Chouhan, Special Judge, Damoh in Special Case No. 34 of 1982. Appellants in this appeal have found guilty of offence punishable under section 395 I.P.C. and sentenced to five years R.I. and a fine of Rs. 250/-, in default of payment of fine, they have been directed to undergo further R.I. for three months each. Appellants in other two appeals have been found guilty of offence punishable under section 412 I.P.C. and sentenced to three years R.I. and fine of Rs. 250/- each. In default of payment of fine, they have been directed to undergo further R.I. for three months.

(2.) The appellants along with six others were put on trial for offence under section 395 I.P.C. on the allegation that in the night dated 18-11-1981, they committed dacoity in the house of Ramnath at village Bihua and looted gold and silver ornaments. Specific case of the prosecution against the appellants was that at about 10.00 P.M. of the date of the incident, Bihari came running to his house from the village side telling that dacoits have entered into the village. He, his brother Mukundi together with their wives and children, therefore, ran away from the house. Dacoits, however forced open the house and assaulted Ramnath, the elder brother of Mukundi and Bihari and looted gold and silver ornaments. The incident was reported at P.S. Gaisahad by Ramnath on the basis of, which F.I.R. (Ex. P-27) was recorded. Appellants Dachchu and Siddu along with others were arrested on 1-1-1982 and during investigation, gave their statements. which were recorded in memorandum under section 21 of the Evidence Act. Appellants Sugga, Bhagona and Shanker were arrested on 18-1-1982 and gave similar memorandum statements during investigation. On the basis of these memorandum, looted property was seized. Identification of the appellants and also the property was separately done. After full and proper investigation, the appellants were prosecuted as aforesaid. The learned Special Judge relying on evidence of witnesses examined by the prosecution held that the dacoity had taken place in the house of Ramnath in the night of 18- 11-1982. The learned Judge relying upon the identification parade, held that appellants Dachchu. Shankar and Bhagona have been properly identified as persons participating in the parade. Relying on memoranda and discovery of looted property and test identification, the learned Special Judge held that it was the looted property. On these findings appellants in Criminal Appeal No. 925 of 1985 were found guilty of offence under section 395 I.P.C. while the appellants in two other appeals were held guilty of offence under Section 412 I.P.C. only. Out of those seven appellants found guilty and sentenced, only five have preferred their appeals.

(3.) The submission of the learned counsel for the appellants that the identification parade held for establishing identity of the appellants was not only delayed, but otherwise unreliable. Even the identification of property is said to be unduly delayed and otherwise of no legal value. It is further submitted that the whole prosecution case against the appellants is based on police witnesses without any independent corroboration. On the contrary, the independent witnesses do not support the prosecution. It is therefore, submitted that the conviction based on police witnesses alone should not be sustained. As regards sentence, it is submitted that in the context of facts and circumstances of the case, sentence imposed upon them is harsh.