Raju Khanjar v. State of Chhattisgarh
Case at a glance
Held
The Court upheld the convictions and sentences of the first three appellants but set aside the conviction and sentence of the fourth appellant, Sattyan Madhwan, and ordered his release and refund of any fine paid.
Provisions considered
- Code of Criminal Procedure, 1973 ss. 161, 374
- Indian Penal Code, 1860 ss. 399, 402
Key paragraphs
- Para 99. Learned counsel placed reliance in the matter of Suleman and another v. State of Delhi through Secretary, in which the Apex Court has held that in the absence of cogent evidence for preparation to commit dacoity, conviction and sentence under Sections 399 and 402…
Summary
AI-generated summaryWritten by AI from the judgment text below. It is not part of the judgment and is not legal advice — read the original before relying on it.
Facts
The appellants were convicted for preparation to commit dacoity under Sections 399 and 402 IPC. The appeal challenges the conviction and sentence on the ground that there was no proof of preparation by five or more persons.
Issues
- Whether the conviction and sentence are supported by sufficient evidence of preparation to commit dacoity by the required number of persons.
- Whether the conviction of the fourth appellant, Sattyan Madhwan, is sustainable under the law.
Holding
The Court upheld the convictions and sentences of the first three appellants but set aside the conviction and sentence of the fourth appellant, Sattyan Madhwan, and ordered his release and refund of any fine paid.
Reasoning
The Court found that the evidence showed three appellants were present with arms and ammunition, but there was no proof that five persons were involved, making the conviction of the fourth appellant unsustainable. The sentences of the first three were deemed proportionate to the offence.
Practical significance
The judgment clarifies that convictions for preparation to commit dacoity require proof of participation by the requisite number of persons and that sentences must be proportionate to the offence. It underscores the importance of evidentiary sufficiency in criminal appeals.
Judgment
Raju Khanjar S/o Jayram bharikar, Aged about 28 years, R/o San9ram Chowk, Camp-1, Bhilai, Police Station- Chhawani, District-burg (C.G.) Chhotu ©Krishna, s/o Jangbahadur Rajput, Aged about 25 years, R/o Sharda Paara, Camp-1, Bhilai, Police Station-Chhawani, bistrict-burg (C.G.) Pitambar S/o Vrindavan Sahu, Aged about 22 years, R/o Balaji Nagar, Police Station Chhawani. Bhiali, District-burg \C.G.) Sattyan Madhwan, S/o b.H.Madhwan, Aged about 36 years, R/o Quarter No.2P, Sec.-6, Police Station-Kotwali, bistrict-Durg (C.&.) Versus RESPONbENT State of Chhattisgarh Through Station HousePalari, District Raipur (CG) (Appeal under Section 374 of the Code of Criminal Procedure, 1973) (SB: Hon'ble Mr. T.P. Sharma. J.) Present: Mrs. Fouzia Mirza, counsei for the appellants. Mr.Akhil Mishra, Dy.Oovt. Advocate for the State/respondent. JUbGMENT (belivered on 3rd August, 2009) Thisappeal is directed against the judgment of conviction and order of sentence dated 28.6.2008 passed by the Additional Sessions Judge, Bhatapara, Gamp Court, Baloda Bazar, in Sessions Trial No.14/2007 whereby and whereunder learned Additional Sessions Judge after holdin9 the appellants guilty for the offence punishable under Sections 399 and 402of the Indian Penal Code each of them sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- and rigorous imprisonment for 5 yearsand to a fineof Rs.l000/-/in default of payment of fine to further undergo rigorous imprisonment for 6 months on each count.
Judgment of conviction and order of sentence is challenged on the ground thatwithout there being any proof for preparation to commit dacoity and that too by five or more persons, the Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3 Case of the prosecution in brief is that the present accused/appellants and one absconding accused are residents of Bhilai, bistrict Durg. On the dQte ofincident i.e. 29.4.2005 Station House Officer of thepolice station Palari, bistrict Raipur came into knowledge that present appellants and one absconding Jaideep were present in the vacant house of Daulat Chandrakar at Palari suspicious condition and planning for committing dacoity. Investigating officer dong with police officials with arms proceeded for the spot. Police force surrounded the house of Daulat Chandrakar. They heard the sound of persons present inside the house. They were speaking with each other that they will commit dacoity in the house of Heera Seth and they are directing their persons as to how they will commit dacoityand who will present at which place. They wereplanning to commit dacoity about 12 mid night. Raid party challenged the persons present inside the house, then two persons fledaway from the house and three accused persons namely Raju Khanjar, Chhotu @ Krishna and Pitambar ^' were found in the house. They were caught red handed along with arms and ammunition. behati nalishi was recorded on the spot vide Ex.P/6. Finally/F.I.R. was lodged vide Ex.P/5. Accused Raju was in possession of one country-made pistol/one knife and two cartridges which were recovered from himvide Ex.P/7/ Accused Chhotu @ Krishna was having one country-madepistol and two cartridges which were recovered from him vide Ex.P/8 and accused Pitambar wasalso in possession of one country-made pistol and threecartridges which was recovered from him vide Ex.P/9. Sketch of arms and cartridges were prepared vide Exs.P/10 to 12. Accused were arrested on the spot vide Exs.P/13 to 15. Spot map was prepared vide Ex.P/16.
4. After recording the statements of thewitnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code'), seized firearms were sent for examination and same was found in working condition and cartridges were ative vide Exs.P/2 and P/4. Sanction was obtained from the District Magistrate vide Ex.P/lC, After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Baloda Bazar who in turn committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge/ Bhatapara received the same on transfer for trial.
In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 11 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearmg against them and innocency and false implication is pleaded.
Learned Additional Sessions Judge after affording an opportunity of hearing to the parties, convicted sentenced the appellants aforementioned.
I have heard Mrs. Fouzia Mirza, counsel for the appellantsand Mr.Akhil Mishra, beputy Government Advocate for the State/respondent and perused thejudgment impugned and record of the court below.
Learned counsel for the appellants vehemently argued that in order to ^ convict the appellants for the offence punishable under Section 399 of the Indian Penal Code, the prosecution is required to prove preparation of dacoity beyondall shadow of doubt and for conviction under Section 402 of the Indian Penal Code, the prosecution is required to prove that persons present were dacoit and number of persons were five or more. Only presence of persons present in place with arms and explosive substance is not sufficient to convict the persons under Sections 399 and 402 of the Indian Penal Code. Learned counsel further argued that statements of the witnesses donot inspire confidence and trustworthy and independent witnesses though they were kotwarsof the village i.e.Bhagwan bas (PW-10) and Vijay bas (PW-11) were within the control of pplice officers but have not supported the case of the prosecution.
Only police officials who are interested in outcome of the case has deposed against the present appetlants and their evidence are full of ContradictJon, omission and discrepancies. They have not supported the evidence of each other. From the perusal of the statements of the prosecution witnesses it is difficult to hold that who chased the two persons who fled away from the spot when all the persons of raid party were present on the spot within very close distance, then how it was possible that sorne witnesses heard the sound of the accused persons and some had not heard the sound. The evidence of the prosecution that pitch of sound of the accused persons were so high that they have heard the sound from the outside of the room that too for the commission of dacoity at 12 mid night are improbable, impossible and not reliable. Learned counsel further argued that dehati nalishi was recorded on the spot beQring 0/2005.
Seizure of the articles which were made on the spot bears Crime No. 124/2005 shows concealing and tempering the documents with a view to falsely implicate the appellants in the alleged commission of offence. Atleged accused Jaideep is still absconding. The prosecution witnesses have notdeposed that they knows the absconding appellant Jaideep and the person who absconded from the spot alleged Sattyan Madhwan. No identification parade has been conducted by the prosecution for identification of Sattyan Madhwan. On the basjs of alleged oral admission of the co-accused that the persons who fled away from the spot were Sattyan Madhwan and Jaideep is not admissible In the !»»' evidence. Learned counsel also argued that according to the case of ^.v prosecution the present appellants were wanted in one Mahadev Murder Case and with a view to create pressure and strengthening to Mahadev Murder Case thepolice officers have falsely implicated the present appellants in the crime in question.
Learned counsel also argued that according to the case of prosecution persons were present at Palari there were so many houses in the vicinity and so many persons were present but police has not examinedany independent witnesses in support of the case of the prosecution. Even Investigatin9 Officer P.S.Sen (PW-7) has admitted in para-23 and 24 of his evidence that he has inquired the matter from Devnath and Tekram but he has not recorded their statements. He has also not recorded the statement of wife of R.LTekam. This high handed investigation shows that the police party has decided to implicate theappellants in false accusation.
Learned counsel placed reliance in the matter of Suleman and another v. State of Delhi through Secretary, in which the Apex Court has held that in the absence of cogent evidence for preparation to commit dacoity, conviction and sentence under Sections 399 and 402 of the Indian Penal Code is not sustainable. Learned counsel further placed reliance in the matter of State of U.P.y. Punni <& Ors.2 in which the Apex Court has held thatin the absence of non-examination of 5.0. and 1.0. adjoining grove holder are fatal to prosecution. In case of offence punishable under Section 399 of the Indian Penal Code, in the absence of any resistance or struggle by the alleged accused. previous enmity between two accused who were found together makes their participation of the persons for the commission of preparation of dacoity is improbable. Learned counset also placed reliance in the matter of Chaturi Yadav and others v. State of Bihar in which the Apex Court has held that the presence of 8 persons in the school compound is not sufficient to prove preparation of dacoity. There may be possibility of commission of someother offence. Learned counsel also placed reliance in the matter of Chhotey & Ors. v. State ofUP.in Which the High Court of Allahabad has held that when the raid party was at the distance from spot then it isdifft'cutt to hear the sound and the appellants did not retaliate by their fire-arms to avoid arrest was circumstance to create doubt on the story of prosecution. Learned counsel also placed reliance in the matter of Sukhlal Banshi Lodhi dnd another v. State of M.P.5 in which the High Court of Madhya Pradesh has held that merely assembly or presence of the persons does not constt'tute the offence of preparation to commit dacoity punishable under Section 399 of the Indian Penal Code. Learned counsel also placed reliance in the matter of Murarilal v. State of M.P6 in which the High Court of Madhya Pradesh has held that mentioning of crime number in different seizure memo without registering of the offence makes the story doubtful. Learned counsel also placed reliance in the matter of Chhagan and others v.
Questions this judgment answers
What did the Court decide in this case?
The Court upheld the convictions and sentences of the first three appellants but set aside the conviction and sentence of the fourth appellant, Sattyan Madhwan, and ordered his release and refund of any fine paid.
What was the main issue before the Court?
Whether the conviction and sentence are supported by sufficient evidence of preparation to commit dacoity by the required number of persons.
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — ss. 161, 374; Indian Penal Code, 1860 — ss. 399, 402.
Which court decided this case, and when?
Chhattisgarh High Court, on 03 Aug 2009. The bench was T P SHARMA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.