Kalam @ Iqlam v. State

1 These are two appeals filed by appellants Babloo and Kalara. Babloo is a convict under Sections 397/392/394 of the IPG. He has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo SI for 6 months. He has been separately sentenced under Sections 392/394 of the IPG. The sentences were to run concurrently. Nominal roll of appellant Babloo reflects that as on date, he has completed incarceration of 3 years and 8 months which includes the remission earned by him.

2 Co-accused Kalam is a convict under Sections 392/394 of the IPG. He has been sentenced to undergo RI for a period of 5 years andto pay a fine to Rs.3,000/- and in default of payment of fine, to undergo SI for 3 months. The nominal roll of appellant Kalam reflects that as on 2015:DHC:11962 date, he has also undergone incarceration of about 3 years and 8 months.

3 The version of the prosecution is that on 07.09.2010, the complainant Sudesh Kumar (PW-3) had caught the appellant Babloo; public persons were giving beatings to him; it was a rainy day; there was mud; accused Babloo got smeared by mud. Constable Rajesh Kumar (PW-4) also reached the spot. The statement of the complainant was recorded which was to the effect that at night at about 03:30 am when he being a watchman at the Azad Pur Subzi Mandi reached in front of shed No.3, three boys came there; one of them pushed him; they started abusing him; one had a bag with him; they took out an iron rod and two knives; they threatened the complainant. He was hit on his head. He received injuries. Accused Babloo took out Rs.250/- and his election card from his shirt. Accused Babloo was apprehended at the spot. Pursuant to the disclosure statement of accused Babloo, the coaccused Kalam was also arrested. The weapon of offence i.e. sword was found lying at the spot. Pursuant to the disclosure statement of Babloo, he had got recovered a knife. The third accused could not be nabbed.

4 On the basis of the aforenoted evidence collected by the prosecution, both oral and documentary, the accused persons were tried, convicted and sentenced as aforesaid.

5 On behalf of appellant Babloo, arguments have been addressed by the learned amicus-curiae Ms. Rakhi Dubey. Her submission is that the ingredients of Section 397 oftheIPG are not made out. Recovery is clearly doubtful. Attention has been drawn to the testimony of PW-3 wherein he has categorically stated that the clothes of Babloo were smeared with mud. There was mud lying all over. His shirt had also got lost. He was the person who had used the l-cnife. Attention has also been drawn to the testimony of PW-4 wherein he, in one part of his deposition, stated thatthe knife did nothave any mud. Learned amicuscuriae submits that the recovery of knife thus becomes doubtful. Her second submission is that the 'use' of the Icnife was not put to the accused in his statement recorded under Section 313 of the Cr.PC and to support this submission, attention has been drawn to the questionnaire which has been put to the accused while recording his statement under Section 313 of the Cr.PC.

6 This submission of the learned counsel for the appellant is correct. It is borne outfrom the record that inthe list of questions put to accused Babloo, it has not been put to the accused that he has used this knife either to threaten or victimise the victim.

7 In (2000) 8 SCC 740 Basava R. Patil And Others Vs. State of Karnataka theApex Court has held that where a piece of incriminating evidence has not been put to the accused in his statement under Section 313 of the Cr.P.C., such piece of evidence cannot be read against him. Relevant extract of the aforenoedjudgment reads herein as under;- "At the same time it shouldbe borne in mind that theprovision is not intended to nail him to any position, butto comply with the most salutary principle ofnatural justice enshrined in the maxim "aiidi alteram partem". The word "may" in Clause (a) ofSub-section (1) in Section 313 of the Code indicates, M'ithout any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance of it. But if the courtfails to put the neededquestion under Clause (b) of the Sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstances about which the accused was not asked to explain cannot be used against him. "

8 Thus it is established that the 'use' of deadly weapon does not stand established. Whether the 'deadly weapon' was recovered or not also becomes doubtful as PW-4 has categorically admitted that the Icnife which was shown to him was not smeared with mud whereas the version of PW-3 was that there was mud all over and in fact the clothes of Babloo had also been smeared with mud. In these circumstances, the loiife not having smeared with mud, it is also doubtful whether this was the same knife which was recovered from the appellant. This recovery thus becomes doubtful.

9 Ingredients of Section 397 of the IPG thus do not stand established against accused Babloo. His conviction is accordingly modified from Section 397 to one under Section 392 of the IPG. This Gourt notes that the appellant Babloo has already undergone incarceration of 3 years and 8 months. He is a first time offender. His jail conduct has been satisfactory. Accordingly, the sentence of incarceration already suffered by him be treated as the sentence imposed upon him. He be released forthwith, if not required in any other case.

10 Qua the accused Kalam, learned amicus curiae submits that no public person had been joined in the raid and this creates a doubt on the version of the prosecution as PW-4 clearly admitted that there were public persons but there appears to be no explanation as to why public persons were not joined. The entire version of the prosecution rests upon the testimony of PW-3 who is an interested witness. Attention has also been drawn to the version of PW-3 wherein in one part ofhis deposition, he stated that he had received injuries on his hand whereas in another part of his testimony, he stated that injuries had been received by him on his head. Fingerprints had also not been lifted from the iron rod. No recovery has also been effected from the appellant. These submissions arenoted quathe appellant Kalam.

11 These discrepancies as pointed out by the learned counsel for the ^ appellant are, however, too minor and would not thwart the version of the prosecution which is otherwise clear, cogent and coherent; PW-3 has categorically described the incident in the manner in which it had occurred. There was no reason as to why PW-3 would have implicated the accused persons; it is only for the reason that he was guilty of the offence for which he stands convicted. The conviction of Kalam under Sections 392/394 of the IPC calls for no interference.

12 This Court however notes that the appellant has already undergone incarceration of 3 years and 8 months. He is a first time offender. He is young in years. His jail conduct has been satisfactory. Accordingly, the sentence of incarceration already suffered by him be treated as the sentence imposed upon him. He be also released forthwith, if not required in any other case.

13 Appeals disposed of in the above terms.

INDERMEET KAUR, J SEPTEMBER 10, 2015