JUDGMENT
R.D. Shukla, J.
1. This judgment shall dispose of Criminal Appeal No. 55 of 1987 (Kallu alias Ramkumar v. State of Madhya Pradesh) and 98 of 1987 (Gabbar alias Goverdhan and three others v. State of Madhya Pradesh).
Both these appeals are directed against the judgment and order dated 7-1-1987 of Sessions Judge, Seoni, passed in Sessions Trial No. 49 of 1986, whereby all the accused persons have been convicted Under Section 397 and 395 of the IPC and sentenced to rigorous imprisonment for seven years and four years, respectively.
2. The brief history of the case is that, on the date of incident, i.e., on 7-2-1986, the bus of New Public Transport, bearing No. MBJ 8586, driven by Hamid Khan (P.W. 3) was proceeding towards Lakhnadon. It started at about 5-30 P.M. from Seoni. Mohammad Rayees (P.W. 1) was the conductor of the bus. It reached village Kudari at about 8-30 p.m. and, thereafter, proceeded towards Lakhnadon. It was stopped by nearly seven miscreants. They were all armed with deadly weapons, i.e., dagger and knife. The bus was stopped at the point of dagger. They looted nearly Rs. 604/- from the conductor and some passengers were also relieved of some of their valuables. After collecting the money and valuables as such, they made good their escape. The matter was reported by Mohammad Rayees (P.W. 1) at about 9-30 p.m. at police-station Dhanora. Crime No. 4/86 was registered thereafter. During investigation, all these accused persons were apprehended.
Mohammad Rayees (P.W. 1) was medically examined. He had two wounds on his body. The map of the incident was prepared.
Rs. 604/- and one knife was seized from accused Kallu alias Ramkumar, vide seizure-memo (Ex. P. 9), on 8-2-1986, at about 7-00 P.M. by Sub-Inspector J. L. Athya (P.W. 13). Rs. 98/- and one knife was seized from accused Gabbar alias Goverdhan, on 8-2-1986, vide Ex. P-10. Rs. 15/- and one knife was seized from accused Chhotu alias Dayaram, on 8-2-1986, vide seizure-memo (Ex. P-11). Rs. 87/- and one knife was seized from accused Barelal on 8-2-1986, vide Ex. P-12. One jerkin and one full-pant was seized from accused Chhotu alias Dayaram on 8-2-1986, vide Ex. P-13. One white shirt and one full-pant was seized from accused Barelal on 8-2-1986, vide Ex. P-16. One full-pant and one white shirt was seized from accused Kallu alias Ramkumar, on 8-2-1986, vide Ex. P-14. Similarly, one white shirt and one full-pant was seized from accused Gabbar alias Goverdhan, vide Ex.P-15, on 8-2-1986.
All these five accused-appellants and two other persons, viz., Malot and Ramnath, were put up for identification. The driver, conductor and passengers of the bus were examined. Thereafter, a challan against these five accused persons and accused Malot and Gudda alias Ramnath was filed in the Court of Judicial Magistrate First Class, Lakhnadon, who, in turn, committed the case to the Court of Session.
During trial, accused Malot and Gudda alias Ramnath were discharged and charges under the aforesaid Sections were framed against these accused persons.
3. Accused persons abjured the guilt and pleaded that they have been falsely implicated. They examined D.W.1 Kishanlal Agarwal, D.W. 2 Vijay and D.W. 3 Rajaram in support of their defence.
After trial, learned Sessions Judge has convicted and sentenced accused persons as above. Hence, this appeal.
4. In the memo of appeal and during the course of arguments, it has been submitted by the learned counsel for the appellants that the evidence of test identification parade is not reliable, and there is no consistency in the evidence of prosecution witnesses and further the overt act of the accused persons has not been clearly spelt out.
As against it, learned counsel for the State has submitted that the evidence of prosecution witnesses is not only reliable but has been corroborated from the evidence of test identification parade and recovery of money and weapons from the accused persons.
5. Prosecution has examined P.W. 1 Mohammad Rayees, P.W. 2 Dr. Diwakar, P.W. 3 Hamid Khan, P.W. 4 Sunnu, P.W. 5 Madan Kumar, P.W. 6 Anant Sharma, P.W. 7 Bhudhulal, P.W. 8 Sabhachand, P.W. 9 Hiralal, P.W. 10 Ku. Suman Dhurve, P.W. 11 Hirasingh, P.W. 12 Ramawadh Singh and P.W. 13 J. L. Athya, in support of its case.
It is an established principle of law that it is the evidence in the Court that forms part of substantial evidence and all other evidence, including the evidence of test identification parade and the seizure of incriminating articles, are corroborative and presumptive piece of evidence and, therefore, where the eye-witness account of incident of dacoity or offence by number of persons is alleged, the overt act of each of the accused and specific participation has to be proved.
6. In this case, so far as the seizure of money and the alleged weapons are concerned, they having no specific identification mark and, in the absence of evidence of specific use of any of the weapons, that cannot form the basis of conviction and, therefore, it is the eye-witness account, corroborated by test identification parade, will have to be looked into and scrutinized.
P.W. 1 Mohammad Rayees, while supporting all other story of the prosecution, has stated in paras 3 and 5 of his statement, that accused Gabbar alias Goverdhan put dagger on him and asked for handing over the money. He has also stated that accused Chhotu had earlier put dagger on the chest of driver Hamid and, thereafter, along with accused Gabbar alias Goverdhan, relieved him of the money.
The memo of test identification parade (Ex. P-2), which has been proved by P.W. 10 Kumari Suman Dhurve, shows that he (P.W. 1 Mohammad Rayees) identified all the accused persons in the test identification parade. Since he had not identified other accused persons in the dock, the identification before the Executive Magistrate cannot be read against those accused persons. However, the evidence with respect to Chhotu alias Dayaram and Gabbar alias Goverdhan can certainly be accepted. Thus, P.W. 1 Mohammad Rayees stands corroborated regarding these two accused persons by the test identification parade.
Mohammad Rayees had received injuries during the course of incident and the said fact has been proved by P.W. 2 Dr. Diwakar and, thus, his presence in the bus during the incident further stands corroborated.
7. P.W. 3 Hamid Khan has also stated about the overt act of accused Chhotu and Gabbar. He has identified only these two accused persons in the dock. He could not identify the other accused persons in the Court. However, in the test identification parade, he identified only the accused Gabbar alias Goverdhan and Sukhram, but he failed to identify accused Sukhram in the dock.
8. P.W. 4 Sunnu Kotwar has identified the accused Kallu in the Court. He has identified accused Kallu in the test identification parade also. According to him, Kallu snatched money from conductor Mohammad Rayees, but P.W. 1 Mohammad Rayees has alleged said act to Chhotu. Mohammad Rayees had the opportunity of seeing the accused as he must have been very close and near to him while snatching the money. Hence, his evidence is more reliable and the evidence of Sunnu cannot be accepted with that exactitude.
9. P.Ws. 5, 7 and 8, viz., Madan Kumar, Buddhulal and Sabhachand, have turned hostile and were declared as such.
P.W. 6 Anant Sharma, who was checker of the motorbus, identified accused Gabbar, Chhotu, Kallu and Barelal in the Court. However, so far as overt act is concerned, he has stated that the accused Gabbar had snatched money from him. He has stated that accused Chhotu and Gabbar, who were addressing each of them as such, were armed with dagger. They firstly terrorized the driver and, thereafter, snatched the money from conductor Mohammad Rayees. This witness had identified all the five accused persons during the test identification parade, but, the evidence of test identification parade will be accepted only against those accused persons against whose overt act this witness had stated in the Court. He has not stated about the specific overt act of accused Kallu and Barelal.
Thus, evidence with respect to accused persons other than Gabbar alias Goverdhan and Chhotu alias Dayaram (Kallu alias Ramkumar, Barelal and Sukhram) appears to be shaky. The mere statement of P.W. 6 Anant Sharma about the presence of accused Kallu and Barelal, in the absence of any evidence of overt act, and further in the absence of evidence of other witnesses referred above, cannot be made the basis for conviction.
10. In the opinion of this Court, therefore, the case has been proved beyond reasonable doubt against accused Gabbar alias Goverdhan and Chhotu alias Dayaram; and it has rightly been held so by the learned trial Judge. The presence of more than five persons, at the time of incident, has been proved, but who were other persons participating in the crime, is in doubt.
However, the accused-appellants Kallu alias Ramkumar, Barelal and Sukhram are entitled to benefit of doubt, as their presence during the incident and their overt act has not been proved so as to warrant their conviction.
11. Learned trial Judge has sentenced the accused persons u/Sections 395 and 397 of the I.P.C. separately. Section 397 of the I.P.C. deals with enhanced punishment only. It is not a substantive offence. The substantive offence may be robbery or dacoity. In this case, the substantive offence as proved, is decoity and, therefore, there ought to have been only one sentence. It is a different matter that the enhanced punishment could be inflicted with the aid of Section 397 of the I.P.C.
Consequently, the appeal filed by accused Kallu alias Ramkumar, Barelal and Sukhram is accepted. They are acquitted of the charges levelled against them. They are on bail. Their bail-bonds are discharged.
The appeal of accused appellants Gabbar alias Goverdhan and Chhotu alias Dayaram is dismissed and sentence passed against them Under Section 395 read with Section 397 of the I.P.C., i.e., rigorous imprisonment for seven years, is maintained. Appellant No. 1 Gabbar alias Goverdhan is in jail. He be informed with the result of this appeal accordingly. Appellant Chhotu alias Dayaram is on bail. He is directed to appear before the Chief Judicial Magistrate, Seoni, on 11-12-1991 for serving out the remaining period of sentence.