2023 (3) TMI 1559 - HC - Indian Laws

Dacoity - challenge to sentence passed by the sentencing court - impugned judgment is based on conjectures and surmises - convicting court did not record the statement under section 313 of the Code properly which violates the fundamental principles of natural justice - HELD THAT - The convicting court was not justified in convicting the appellants for the offence punishable under section 395 IPC. The prosecution could prove that the appellant Bharat Kumar Goswami had participated in snatching of bag from the complainant Manish Aggarwal PW1 and subsequently recoveries as detailed herein above were affected at the instance of the appellants and convict Kanhaie Jha. The impugned judgment convicting the appellants for the offence punishable under section 395 was passed on factually and legally unsustainable surmises and assumptions and without adequate support of evidence. It is proved that the appellant Jitender @ Jitu and Azad @ Gaurav received/retained the stolen property. The prosecution from the quality and quantity of evidence could only prove guilt of the appellant Bharat Kumar Goswami for offence punishable under section 379/356/34 IPC and guilt of the appellants Jitender @ Jitu and Azad @ Gaurav for the offence punishable under section 411 IPC. The Criminal Appeals bearing no 593/2022 354/2022 and 367/2022 preferred by the appellants Azad @ Gaurav Jitender @ Jitu and Bharat Kumar Goswami respectively to challenge the impugned judgment passed by the convicting court whereby appellants along with the convict Kanhaie Jha were convicted for the offence under section 395 IPC is partly allowed. The appellant Bharat Kumar Goswami is convicted for offences punishable under section 379/356 IPC and the appellants Jitender @ Jitu and Azad @ Gaurav are Convicted for offence punishable under section 411 IPC. The order on sentence dated 04.06.2022 passed by the sentencing court is also modified. The appellant Bharat Kumar Goswami is sentenced to undergo rigorous imprisonment for a period of two years along with fine of Rs. 2000/-in default of payment of fine to further undergo simple imprisonment of two months for offence punishable under section 379 IPC and to undergo rigorous imprisonment for a period of six months along with fine of Rs. 500/-in default of payment of fine to further undergo simple imprisonment of one month for offence punishable under section 356 IPC. Both the sentences shall run concurrently. The benefit of section 428 of the Code is extended to the appellant Bharat Kumar Goswami. The appellants Jitender @ Jitu and Azad @ Gaurav are individually sentenced to undergo rigorous imprisonment for a period of two years along with fine of Rs. 2000/-in default of payment of fine to further undergo simple imprisonment of two months for the offence punishable under section 411 IPC. The benefit of section 428 of the Code is extended to the appellants Jitender @ Jitu and Azad @ Gaurav. Applications disposed off.

1. ISSUES PRESENTED and CONSIDERED

The legal judgment primarily revolves around the following core legal questions:

Whether the appellants were guilty of committing the offense under Section 395 of the Indian Penal Code (IPC), which pertains to dacoity?
Whether the evidence presented, including testimonies, call detail records (CDRs), and recoveries, was sufficient to establish the involvement of the appellants in the alleged crime?
Whether the refusal to participate in the Test Identification Parade (TIP) by the appellants could be used to draw an adverse inference against them?
Whether the conviction under Section 395 IPC was justified given the evidence and circumstances?
What should be the appropriate sentencing for the appellants based on the offenses they were found guilty of?

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Guilt under Section 395 IPC

Relevant legal framework and precedents: Section 395 IPC deals with dacoity, which involves robbery by five or more persons. The essential ingredients include the conjoint commission of robbery by five or more individuals.
Court's interpretation and reasoning: The court examined whether the prosecution successfully proved the involvement of five or more individuals in the robbery. The court noted discrepancies in the identification of the accused and the absence of one accused (declared Proclaimed Offender).
Key evidence and findings: The prosecution relied on the testimony of the complainant, CDRs, and recoveries from the accused. However, the court found inconsistencies in the identification and the lack of direct evidence linking all accused to the crime.
Application of law to facts: The court concluded that the evidence did not conclusively establish the participation of five individuals as required under Section 395 IPC.
Treatment of competing arguments: The defense argued that the evidence was insufficient and based on conjectures, particularly challenging the reliance on CDRs and the lack of independent witnesses.
Conclusions: The court partially allowed the appeals, finding the evidence insufficient to sustain a conviction under Section 395 IPC.

Issue 2: Sufficiency of Evidence

Relevant legal framework and precedents: The prosecution must prove the guilt of the accused beyond a reasonable doubt, relying on credible and corroborative evidence.
Court's interpretation and reasoning: The court scrutinized the testimonies, CDRs, and recoveries, noting discrepancies and the lack of direct evidence linking all accused to the crime.
Key evidence and findings: The complainant's testimony was pivotal, but inconsistencies were noted. The CDRs showed presence near the crime scene but were deemed insufficient as sole evidence.
Application of law to facts: The court found that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt for the offense of dacoity.
Treatment of competing arguments: The defense highlighted the lack of corroborative evidence and the reliance on circumstantial evidence, which the court found persuasive.
Conclusions: The court concluded that the evidence was insufficient to uphold the conviction under Section 395 IPC.

Issue 3: Refusal to Participate in TIP

Relevant legal framework and precedents: Refusal to participate in TIP can lead to adverse inference, but it must be justified based on the circumstances.
Court's interpretation and reasoning: The court noted that the appellants refused TIP due to alleged prior exposure to the complainant, which was not substantiated.
Key evidence and findings: The court found no credible evidence that the appellants were shown to the complainant before TIP, thus drawing adverse inference.
Application of law to facts: The court used the refusal to participate in TIP as part of the reasoning against the appellants.
Treatment of competing arguments: The defense argued that the TIP refusal was justified, but the court found no merit in this claim.
Conclusions: The court drew adverse inference from the refusal to participate in TIP.

Issue 4: Appropriate Sentencing

Relevant legal framework and precedents: Sentencing must be proportionate to the crime and based on the proven charges.
Court's interpretation and reasoning: Given the failure to prove dacoity, the court considered lesser charges and appropriate sentencing.
Key evidence and findings: The court found sufficient evidence for lesser charges such as theft and receiving stolen property.
Application of law to facts: The court modified the sentences based on the lesser charges of theft and receiving stolen property.
Treatment of competing arguments: The defense sought acquittal, while the prosecution argued for upholding the original sentences.
Conclusions: The court reduced the sentences, aligning them with the lesser charges proven.

3. SIGNIFICANT HOLDINGS

Preserve verbatim quotes of crucial legal reasoning: "The prosecution, from the quality and quantity of evidence, could only prove guilt of the appellant Bharat Kumar Goswami for offence punishable under section 379/356/34 IPC and guilt of the appellants Jitender @ Jitu and Azad @ Gaurav for the offence punishable under section 411 IPC."
Core principles established: The court emphasized the necessity of proving all elements of the offense beyond a reasonable doubt and the importance of credible, corroborative evidence.
Final determinations on each issue: The court modified the convictions to lesser charges, resulting in reduced sentences for the appellants, reflecting the evidence presented.

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