BABU LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These three appeals arise out of the judgment dated 1-10-1993, passed by the Judge, Special Court, S.C./S.T. (Prevention of Atrocities) Cases, Jodhpur, by which the learned Judge of the Special Court. convicted accused-appellant Shahid Ali, Yogiyeshwar Singh, Babu Lal and Suleman for the offences under Sections 148, 395 and 461/149, I.P.C. and accused Shahid Ali and Yogiyeswar Singh were, also, convicted for the offence under Section 397/ 149, I.P.C. in addition to the aforesaid offences. Accused Shahid Ali was, also convicted for the offence under Section 27 of the Arms Act. All the accused were sentenced to undergo one year's rigorous imprisonment and a fine of Rs. 200.00 and in default of payment of fine further to undergo 1 1/2 months' simple imprisonment for the offence under Section 148, I.P.C.; seven years rigorous imprisonment and a fine of Rs. 2000.00 and in default of payment of fine further to undergo six month's rigorous imprisonment for the offence under Section 395, I.P.C.; five years' rigoruous imprisonment and a fine of Rs.500.00 and in default of payment of fine further to undergo two months' simple imprisonment for the offence under Section 460/149, I.P.C. Accused-appellants Shahid Ali and Yogiyeswar Singh were, also, sentenced to undergo eight years' rigorous imprisonment for the offence under Section 397, I.P.C. Accused-appellant Shahid Ali was, also, sentenced to three years' rigorous imprisonment and a fine of Rs. 500.00 and in default. of payment of fine further to undergo two months' simple imprisonment for the offence under Section 27 of the Arms Act. .

(2.) Appellants Shahid Ali, Suleman, Babu Lal, Yaogiyeshwar Singh and Jagveer Singh along with co-accused Dhannu Khan, Naneh Khan and Premiya were tried by the learned trial Court for the offences under Sections 148, 395, 397, 460/ 149, I.P.C . and Sections 3/25, 4/25 and 27 of the Arms Act. The case of the prosecutions is that in the night intervening 10/ 11/12/1991, a dacoity was committed by the five appellants and three other accused the temple of Nimbeshwar Mahadeo situated in Nimba-Nimdi, Mandore, Jodhpur. PW 2 Budh Giri was, at that time, sleeping in the Surya temple of Nimba Nimdi and was engaged in doing the Pooja-path and was looking after the temple. P W 3 Bai Ram was doing the prayer in the temple of Nimbeshwar Mahadeo at about 12.00 in the night when the accused persons entered into the temple, threw some eatables to the dogs and tried to open to the iron-fenced door (Jaafri) of Nimbeshwar temple. On this, Bai Ram called Budh Giri. When Budh Giri tried to come from the Surya temple, four persons interrupted him and gave him beatings and four persons entered into the temple and one person caughthold of her by neck while the other asked her to disclose the whereabouts of the valuable. She showed them the place where the money was lying. The accused took away the money and came outside the temple. The person, who had caught hold of Budh Giri, inflicted injury to him. She came out of the temple but by that time the accused had run away. While running away, the accused fired in the air. The prosecution, in support of its case, examined eighteen witnesses while the accused did not examine any witness in their defence. The learned Judge of the trial Court, after trial, convicted and sentenced the accused-appellants as stated above and acquitted the other co-accused. It is against this judgment dated l-10-1993 that the accused-appellants have preferred these three appeals.

(3.) It is contended by the learned counsel for the appellants that there is no evidence available on record connecting the appellants with the crime and they have been falsely implicated in this case. The identification parade held by PW 17 Mr. Mangi Lal Gaur - the learned Munsif and Judicial Magistrate - was not held in accordance with law and the accused were not properly identified by these witnesses, and, therefore, no reliance can be placed on this identification, particularly in the circumstances when the incident took place in the night and there was no possibility of identification of the accused by these witnesses when they were under the fear of death. It has also, been contended by the learned counsel for the appellants that the recovery of the so-called incriminating articles is also, of no help to the prosecution because these articles were not got identified by any of the witnesses. It has also, been contended that the witnesses have not given any description of the dacoits either in the F.I.R. or in their statement recorded by the police during the investigation nor any identification marks, like the structure, colour etc. of the accused has been mentioned/disclosed and in the absence of such description of the accused, the appellants cannot be convicted merely on the basis of their identification in the identification parade or their identification in the trial Court. It has also, been contended by the learned counsel for the appellants that the case of the present appellants is similar to the case against the three other co-accused who have been acquitted by the learned trial Court and as such the prosecution has not been able to prove the case against the accused-appellants beyond a reasonable manner of doubt and the appellants, therefore, deserve to be acquitted. lt has also, been contended by the learned counsel for appellant Yogiyeshwar and Shahid Ali that no offence under Section 397, I.P.C. has been made out against these appellants and they have been wrongly convicted and sentenced for this offence. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the learned trial Court, while convicting the appellants, has considered the evidence, produced by the prosecution, in the right perspective and rightly convicted and sentenced the appellants and no interference is called for.