AMIT SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellants herein have been convicted and sentenced as below vide judgment dated 21.05.2005 passed by the learned Additional Sessions Judge (Fast Track) No.2, Bhilwara in Sessions Case No.01/2004:

(2.) Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374(2) Cr.P.C.

(3.) Learned counsel Shri Bora representing the appellants, vehemently and fervently urged that conviction of the appellants for the offence under Section 399 and Section 402 IPC cannot be sustained because the evidence of the star prosecution eye witness Rashid Mohammed (PW-20), who claims to have joined the so-called unlawful assembly formed by the accused, while they were planning the alleged dacoity, is far from convincing and deserves to be discarded. He urges that the witness did not state that the FIR (Ex.P/25) was registered on the basis of information provided by him to the SHO. He further contended that the Parcha Kaymi (Ex.P/24) does not bear the signatures of Rashid Mohammed. Neither, in the Parcha Kaymi nor in the previous police statement of Rashid Mohammed, is it mentioned that he overheard the accused planning that they would be looting any particular bank. But, while deposing in the court, he made a significant improvement from the previous versions and stated that in his presence, the accused were hatching a pertinent design to loot The State Bank of Bikaner and Jaipur, the Krishni Mandi Branch, Bhilwara. He thus urged that this allegation of Rashid Mohammed is a sheer improvement from his previous statement under Section 161 Cr.P.C. (Ex.D/6) with which he was confronted during his cross-examination and he could not explain this significant deviation. Thus, as per Shri Bora, charge for the offence under Section 399/402 IPC cannot be sustained against any of the appellants. He further submits that the appellants Amit Singh and Lalit Kumar, who were also convicted for the offence under Section 3/25 of the Arms Act for being in possession of a Deshi Katta each, were respectively 19 and 20 years of age when the offence was committed. As such, these appellants are entitled to be released on probation as per law. He further submitted that from the possession of the appellants Rinku Singh, Meenu @ Manjeet Singh and Harendra Singh, recovery of a knife and two live cartridges each has been shown. He urged that the recovery of live cartridges, apart from being obviously concocted, does not amount to any offence. He further submitted that mere possession of knives, in absence of any evidence to show that the same were not meant for industrial, agricultural or domestic purposes, mere possession cannot be construed to be an offence in view of the notification dated 29.01.2000 issued by the Department of Home, State of Rajasthan (Ex.P/22). Regarding the appellants Dharmendra Singh and Robin Tyagi from whom a Gupti each is said to have been recovered, the contention of Shri Bora was that these appellants have also been convicted for the offence under Section 4/25 of the Arms Act and in absence of any material to show that they had any previous criminal antecedents, they too are entitled to benefit of probation. In support of his contentions, Shri Bora relied upon the following judgments: