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2016 Supreme(MP) 309
HIGH COURT OF MADHYA PRADESH
N.K. Gupta and S.A. Dharmadhikari, JJ.
Narendra @ Chunna Kirar and others v. State of M.P.
Criminal Appeals No.168, 266 and 430 of 2007 (Gwalior) : against the judgment dated 24.1.2007, passed by Special Judge and XI Additional Sessions Judge (Fast Track), Gwalior in S.T. No.25 of 2006;
Decided on 19.5.2016.
A.K. Jain for appellants;
Vishal Mishra, Deputy Advocate General for respondent/State;
Brijesh Sharma for objector.
Headnote:Penal Code, 1860 -- Ss.302, 394, 396, 397 r/w S.34 -- Evidence Act, 1872 -- S.27 -- M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 -- S.13 -- offence under -- trial Court sentenced each appellants to life imprisonment -- appeal -- it is proved that robbed ornaments recovered from appellants -- it is established appellants Chandu and Monu were involved in robbery and other crime -- fifth person not involved in crime of robbery then it is not dacoity -- each of appellants liable for committing robbery -- offence of dacoity not constituted then all appellants may be convicted of offence under section 302 r/w section 34 of IPC -- appellant Ballu cannot be convicted either directly or with help of section 34 of IPC -- appeal partly allowed -- conviction and sentence recorded by trial Court under section 396 of IPC and section 13 MPDAVPK Act is set aside -- appellants acquitted from charge of section 396 of IPC -- appellants Narendra, Monu and Chandu convicted of offence under section 302 of IPC and sentenced to undergo life imprisonment -- each of appellants convicted under section 394 r/w section 397 of IPC and section 13 of MPDAVPK Act and sentenced to seven years RI.
Held : On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. The conviction and sentence recorded by the trial Court for the offence under section 396 of IPC read with section 13 of the MPDVPK Act is hereby set aside. The appellants are acquitted form the charge of section 396 of IPC .... In the charge of section 396 read with section 397 of IPC along with section 13 of the MPDVPK Act, each of the appellants is convicted of offence under section 394 read with section 397 of IPC and under section 13 of the MPDVPK Act and sentenced to seven years’ RI. AIR 1983 SC 352 and AIR 2011 SC 3114 followed. AIR 1965 SC 277 referred to.
naM lafgrk] 1860 & /kkjk 302] 394] 396] 397 lgifBr /kkjk 34 & lk{; vf/kfu;e] 1872 & /kkjk 27 & e-iz- MdSrh vkSj O;igj.k izHkkfor {ks= vf/kfu;e] 1981 & /kkjk 13 mica/kksa ds v/khu vijk/k & fopkj.k U;k;ky; }kjk izR;sd vihykFkhZ dks vkthou dkjkokl naMkfn"V fd;k x;k & vihy & ;g lkfcr gqvk fd ywVs gq, vkHkw"k.k vihykFkhZx.k ls cjken fd, x, & ;g LFkfir gqvk fd vihykFkhZx.k panw rFkk eksuw ywV rFkk vU; vijk/k esa varoZfyr Fks & ik¡pok O;fDr ywV ds vijk/k esa varoZfyr ugha rc ;g MdSrh ugha & izR;sd vihykFkhZ ywV dkfjr djus ds fy, nk;h & MdSrh dk vijk/k xfBr ugha rc lHkh vihykFkhZx.k Hkk-na-la- dh /kkjk 302 lgifBr /kkjk 34 ds v/khu vijk/k ds fy, fl}nks"k gks ldrs gSa & vihykFkhZ cYyw dks lh/ks ;k Hkk-na-la- dh /kkjk 34 dh lgk;rk ls fl}nks"k ugha fd;k tk ldrk & vihy Hkkxr% eatwj & fopkj.k U;k;ky; }kjk Hkk-na-la- dh /kkjk 396 rFkk e-iz- MdSrh vkSj O;igj.k izHkkfor {ks= vf/kfu;e dh /kkjk 13 ds v/khu vfHkfyf[kr nks"kflf} rFkk naMkns'k vikLr & vihykFkhZx.k Hkk-na-la- dh /kkjk 396 ds vkjksi ls eqDr & vihykFkhZx.k ujsUnz] eksuw rFkk panw Hkk-na-la- dh /kkjk 302 ds v/khu vijk/k ds fy, nks"kflf} rFkk vkthou dkjkokl Hkqxrus ds fy, naMkfn"V & izR;sd vihykFkhZ Hkk-na-la- dh /kkjk 394 lgifBr /kkjk 397 ds v/khu rFkk e-iz- MdSrh vkSj O;ogj.k izHkfor {ks= vf/kfu;e ds v/khu nks"kflf} rFkk lkr o"kZ ds dBksj dkjkokl ds fy, naMkfn"VA
vfHkfu/kkZfjr % iwoZdfFkr ppkZ ds vk/kkj ij vihykFkhZx.k }kjk izLrqr vihy ,rn~}kjk Hkkxr% eatwj dh tkrh gSaA fopkj.k U;k;ky; }kjk Hkk-na-la- dh /kkjk 396 rFkk e-iz- MdSrh vkSj O;igj.k izHkkfor {ks= vf/kfu;e dh /kkjk 13 ds v/khu vijk/k ds fy, vfHkfyf[kr nks"kflf} rFkk naMkns'k ,rn~}kjk vikLr fd;k tkrk gSA vihykFkhZx.k Hkk-na-la- dh /kkjk 396 ds vkjksi ls eqDr fd, tkrs gSA ---- Hkk-na-la- dh /kkjk 396 lgifBr /kkjk 397 ds lkFk e-iz- MdSrh vkSj O;igj.k izHkkfor {ks= vf/kfu;e dh /kkjk 13 ds vkjksi esa] vihykFkhZx.k esa ls izR;sd dks Hkk-na-la- dh /kkjk 394 lgifBr /kkjk 397 rFkk e-iz- MdSrh vkSj O;igj.k izHkkfor {ks= vf/kfu;e dh /kkjk 13 ds v/khu nks"kflf} fd;k tkrk gS rFkk lkr o"kZ ds dBksj dkjkokl ds fy, naMkfn"V fd;k tkrk gSA , vkb vkj 1983 ,l lh 352 rFkk , vkb vkj 2011 ,l lh 3114 vuqlfjrA , vkb vkj 1965 ,l lh 277 fufnZ"VA
1. All the three appeals i.e. Criminal Appeal No.168/2007 [Narendra @ Chunna Kirar and other v. State of M.P.], Criminal Appeal No.266/2007 [Chandu v. State of M.P.], and Criminal Appeal No.430/2007 [Ballu @ Jamunaprasad v. State of M.P.], arise out of one common judgment and therefore they are hereby collectively decided by the present common judgment.
2. The appellants have preferred the present appeals being aggrieved by the judgment dated 24.1.2007 passed by the Special Judge (under Madhya Pradesh Dakaiti Vyapaharan Prabhavit Kshetra Adhiniyam) and XI Additional Sessions Judge (Fast Track) Gwalior (M.P.) in SST No.25/2006 whereby each of the appellants has been convicted of offence under section 396 IPC and section 397 of IPC read with section 13 of the Madhya Pradesh Dakaiti Vyapaharan Prabhavit Kshetra Adhiniyam (for brevity “the MPDVPK Act”) and sentenced to life imprisonment and a fine of Rs.1,000/-. No separate conviction or sentence was passed for the offence under section 302 of IPC whereas 10 years’ RI was also recorded for offence under section 397 of IPC.
3. Facts of the case, in short, are that on 6.6.2004 at about 3 p.m., the complainant Ramgopal @ Gopal Prasad Sharma (PW2) was at his shop situated near old bus stand at township of Bhitarwar, District Gwalior. At about 3 p.m., his daughter Ranjana @ Lakshmi (PW1) had telephoned to her friend that some culprits entered in their house and they were committing robbery. Ramgopal @ Gopal Prasad Sharma (PW2) along with his son Manoj Sharma (PW3) immediately rushed to his house and found that the appellants Narendra @ Chunna Kirar, Monu @ Haribabu and Chandu were inside the house of the complainant and they were beating the deceased Shakuntala, wife of the complainant Ramgopal @ Gopal Prasad Sharma (PW2). Thereafter, they gave blows of Baka (Dagger). After hearing the noise of crowd gathered in front of the house of the complainant Ramgopal @ Gopal Prasad Sharma (PW2) all the culprits went to the first floor and thereafter jumped outside the house. However, the appellant Ballu @ Jamuna Prasad who had already come out of the house along with a box was held by the crowd and was handed over to the police. The Sub-Inspector Rajeev Kumar Gupta (PW14) also visited the spot and sent the complainant Ramgopal @ Gopal Prasad Sharma (PW2) to the police station where he had lodged the FIR Ex.P-2. Initially, the case was registered for the offence under sections 393 and 302 of IPC. Sub-Inspector Rajeev Kumar Gupta (PW14) also seized the Katta (hand-made pistol) of 0.315 bore and three live cartridges form the appellant Ballu @ Jamuna Prasad.
4. On the same day evening, on intimation given by some persons, the appellant Narendra @ Chunna Kirar was also arrested and blood stained Baniyan and one rusted dagger were also recovered from him. Ranjana @ Laxmi (PW1) had informed the investigating officer that initially the culprits robbed her. They robbed a golden chain, golden ear tops and a golden nose ring form her and there were five persons in all involved in the crime and therefore the police registered the offence under section 396 of IPC along with other offences. Thereafter, the appellants Monu @ Haribabu and Chandu were arrested and the robbed property was also recovered from them along with their blood stained clothes and weapons. Dead body of the deceased Shakuntala was sent for post-mortem and Dr. Rameshwar Vimlesh (PW5) after performing post- mortem gave a report Ex.P-6. A huge incised wound was found on the throat of the deceased Shakuntala and due to that injury she had expired. Dr. Rameshwar Vimlesh (PW5) also examined victim Ranjana @ Laxmi (PW1) and gave his report Ex.P-7. He found five injuries sustained by her which were simple in nature. All the seized properties were sent to the Forensic Science Laboratory for their examination. The Forensic Science Laboratory in its report Ex.P-23 found blood on all the articles except one full pant of appellant Monu @ Haribab
