RAM BILAS DHOBI AND ANOTHERversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 1490 of 1996

Ram Bilas Dhobi And Another
                                                               .....Appellant(s)
                                    Versus
State of U.P.
                                                             .....Respondent(s)

Counsel for Appellant(s)          : Bharat Bhushan Dubey, V.K.Agnihotri
Counsel for Respondent(s)         : Govt.Advocate

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. This appeal has been filed by the appellants against the judgment and
order dated 17.08.1996 passed by learned Special Judge, Anti Dacoity Area,
Etawah in Sessions Trial No.107 and 108 of 1991, convicting and sentencing
both appellants for 3 years under Section 392 I.P.C. and 1 year under Section
411 I.P.C. and 3 months under Section 25 of Arms Act, Police Station-
Sahson, District- Etawah.
2. Heard Sri Bharat Bhushan Dubey, learned counsel for the appellant and
Sri Rahul Asthana, learned A.G.A. for the State.
3. The prosecution case, in brief, is that in the intervening night of 15.08.87,
the informant was sleeping on the roof of his house, while his daughter and
daughter-in-law were sleeping inside the house. At about 2.00 a.m., upon
hearing noise, the members of the house wake up and saw two accused
persons namely, Ram Vilas Dhobi son of Badru Dhobi and Kamlesh Teli
son of Sitaram Teli, leave from the house. On alarm being raised, villagers
gathered and surrounded the house of Rameshwar Teli, where the accused
person was hidden themselves, and lock the house from outside. Upon
arrival of police, the accused persons were apprehended. Stolen silver
ornaments along with illegal firearm and cartridges were recovered from
their possession.
4. FIR was registered on the basis of written report. G.D. entries were drawn.
After investigation of the case, charge-sheet was submitted. Charges were
framed for offences under Section 392 and 411 I.P.C. and Section 25 of
Arms Act. Charges were read over to the accused persons. They denied the
allegation levelled against them and claimed to be tried.
5. In order to prove its case, the prosecution examined as many as 8
witnesses namely, P.W.-1 Bhagirath, the complainant, P.W.-2 Uma Singh,
P.W.-3 Vimala Devi, P.W.-4 Shiv Sahay, P.W.-5 Sub Inspector Satyaveer
Singh, P.W.-6 Sub Inspector Jang Bahadur P.W.7 Constable Nathu Singh
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and P.W.-8 Shiv Narayan Pandey.
6. Documentary evidences, written report Ext. Ka-1, recovery memo of
Maal Masruka Ext. Ka-2, Recovery memo of Tamancha, Cartridges Ext. Ka-
3, Fard Supurdaginama Torch Ext. Ka-4, Site plan Ext. Ka-5 and Ext. Ka-6,
Charge-sheet under Section 25 Arms Act Ext. Ka-7 and Ka-8, prosecution
sanction Ext. Ka-9 and Ka-10, charge-sheet under Section 392 and 397 Ext.
Ka-11 along with material Exts. are available on record.
7. After hearing the arguments advanced by both the parties and considering
the evidences on record, the learned trial court returned the finding of guilt
and convicted the accused persons for offences under Section 392 and 411
I.P.C. and Section 25 of Arms Act.
8. Aggrieved with the judgment of conviction and sentence, the appeal has
been preferred alleging that the conviction of the appellants are against
weight of evidence on record and bad in law. The sentence imposed upon the
appellants are too severe.
9. Learned counsel for the appellants has submitted that the offence of
robbery with use of deadly weapon is not made out. It is further submitted
that no overt act of violence was committed at the time of incident. No
injury was caused and the alleged use of firearm is not substantiated by any
recovery of empty cartridges or damage on the spot.
10. Learned A.G.A. for the State supported the judgment of conviction and
sentence.
11. Having heard, learned counsel for the appellants and learned A.G.A. for
the State, this Court finds that the presence of accused persons at the spot
and recovery of stolen articles from their possession soon after the
occurrence stands proved by the evidences adduced by the prosecution
before trial court. However, so far as the applicability of Section 392 I.P.C.
is concerned, the evidence on record does not establish that the accused
person had used force or fear of instant death, hurt or wrongful restraint at
the time of commission offence.
12. Section 392 I.P.C. reads as under :-

     " 392. Punishment for robbery :- Whoever commits robbery
     shall be punished with rigorous imprisonment for a term which
     may extend to ten years, and shall also be liable to fine; and, if
     the robbery be committed on the highway between sunset and
     sunrise, the imprisonment may be extended to fourteen years."

13. Dacoity has been defined in Section 391 I.P.C., which reads as under :-

     "391. Dacoity :- When five or more persons conjointly commit or
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                                3


     attempt to commit a robbery, or where the whole number of
     persons conjointly committing or attempting to commit a robbery,
     and persons present and aiding such commission or attempt,
     amount to five or more, every person so committing, attempting
     or aiding, is said to commit 'dacoity'.

     When robbery is either committed or an attempt to commit it is
     made by five or more persons then all such persons, who are
     present or aiding in its commission or in an attempt to commit it,
     would commit the offence of dacoity."

14. The prosecution case itself shows that upon being noticed, the accused
person attempted to flee and subsequently hit themselves in another house
belonging to Rameshwar Teli. The allegation of firing is also doubtful as no
empty cartridges was recovered from the spot. No injury was caused to any
person. No mark of damage due to firing has been found. The complainant,
Bhagirath, himself stated that the house of Rameshwar Teli was locked from
outside, making the alleged firing improbable.
15. It is also pertinent to note that the alleged firearm recovered from the
possession of the accused persons were not sent for ballistic examination. It
cannot be ascertained that whether the recovered weapon were in working
condition at the relevant time.
16. Further, there is no evidence on record to show that the said firearm were
actually used during the commission of offence for the purpose of causing
fear, intimidation, or facilitating the alleged crime. None of the prosecution
witness deposed that the weapons were used in a manner so as to attract the
offence of robbery. In these circumstances the offence does not travel
beyond theft and the conviction under section 392 I.P.C. cannot be
sustained.
17. At this juncture, it is also relevant to mention Section 380 I.P.C.
pertaining to theft in dwelling house. It reads as under:-

     "380. Theft in dwelling house, etc:- Whoever commits theft in
     any building tent or vessel, which building, tent or vessel is used
     as a human dwelling, or used for the custody of property, shall be
     punished with imprisonment of either description for a term
     which may extend to seven years, and shall also be liable to fine"

18. The oral and documentary evidences available on record clearly establish
that the accused persons committed house trespass, entered into the house of
complainant and committed theft of ornaments and attempted to flee from
the spot and hide themselves in the vacant house of Rameshwar Teli, from
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where they were arrested by the police and stolen articles were recovered
from their possession. In these circumstances, the offence committed by the
accused persons, at best, falls within the ambit of theft in dwelling house
punishable under Section 380 I.P.C. Accordingly, the conviction of the
appellant under Section 392 I.P.C. is liable to be altered to one under Section
380 I.P.C.
19. So far as the conviction under Section 25 Arms Act is concerned,
according to prosecution, country made tamanchas and cartridges were
recovered from the possession of the appellants. It was stated that one empty
cartridges of .303 bore was stuck in the barrel of firearm and one live
cartridge of the same bore was also recovered. The prosecution examined
P.W.-5 S.I. Satyaveer Singh and P.W-8 - S.I. Shiv Narayan Pandey, who
supported the recovery of the firearm and cartridges from the possession of
the appellants. P.W.-7 constable Natthu Singh proved the chik FIR and
relevant General Diary increase. The investigation was conducted by the
P.W.-6 Sub Inspector Jang Bahadur Singh. After investigation of the case,
he submitted charge-sheet for offence under Section 25 Arms Act.
20. Upon perusal of evidence on record, certain material discrepancies and
deficiency emerge:-

     (i) The Investigation Officer P.W.-6 has admitted that he does not
     know when the recovered articles were deposited in the Thana
     and when they were sent to Maalkhana.
     (ii) It has come in evidence that one constable Santosh Dixit
     brought the case property to the police station. Yet his statement
     was not recorded during investigation.
     (iii) Sub-Inspector Satyaveer Singh P.W.-5 stated that the
     recovered articles were sealed at the spot and a memo with
     signatures of witnesses was prepared and affixed. However, when
     the case property was produced before the court, no such paper or
     seal was found affixed. The explanation given by P.W.-5, the
     Investigating Officer that the paper be got detached due to
     passage of time does not inspire confidence.
     (iv) The prosecution has failed to establish the safe custody and
     proper sealing of the recovered articles thereby breaking the
     chain of custody.

21. These serious lapses create a serious doubt regarding the genuineness of
the alleged recovery itself. The prosecution has failed to prove beyond
reasonable doubt that the firearm and cartridges were recovered from the
conscious possession of the appellants. It is settled principle or criminal law
that where the recovery itself becomes doubtful due to improper handling
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                                    and lack of proof of custody, the benefit of doubt must go in favour of the
                                    accused. In view of the above, the finding of conviction under Section 25 of
                                    the Arms Act recorded by the learned trial court is not sustainable in law and
                                    liable to be set aside.
                                    22. A perusal of order-sheet and report of Jail Superintendent, District Jail
                                    Etawah, it transpires that the appellants were confined in jail from
                                    07.08.1996 to 06.09.1996 and from 17.08.1987 to 26.10.1987. Moreover he
                                    was confined in jail for some days during trial also. No fruitful purpose
                                    would be served in sending them jail again.
                                    23. In view of the foregoing discussions, the conviction and sentence under
                                    Section 392 I.P.C. and Section 25 of Arms Act are set aside. The appellants
                                    namely, Ram Bilas Dhobi and Kamlesh Kumar Teli are convicted for
                                    offence under Section 380 I.P.C. Substantive sentence of imprisonment is
                                    reduced to the period already undergone with a fine to the tune of Rs.500/-
                                    each, which shall be deposited within one month from the date of receiving a
                                    certified copy of this judgment.

                                    24. The appeal is accordingly, partly allowed.

                                    25. Appellants are on bail. Their bail bonds and sureties are discharged.

                                    26. Let a copy of this judgment along with trial court record be transmitted
                                    to the trial court for necessary compliance.
                                    January 30, 2026
                                    P. Pandey
                                                                                 (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad