Jai Kishan v. State

1. There are three appellants before this Court. Appellant Jai Kishan @ Kishan has been convicted under Sections 392/397 of the IPC and Section 25 read with Sections 27/54/59 of the Arms Act and has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo SI for 15 days for the offence under Section 392/397 of the IPC. For his conviction under Section 25 of the Arms Act, he has been sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo SI for 15 days. Appellant Sallauddin @ Chuha has been convicted under Sections 392 read with Section 397 of the IPC and has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo SI for 15 days. Appellant Vinod @ Kali has been convicted under Sections 392 read with Section 397 of the IPC and has been sentenced to undergo RI for a period of 4 years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo SI for 15 days. The sentences were to run concurrently.

2. Nominal roll of the appellants reflects that all of them as on date have undergone incarceration of more than 4 years i.e. approximately 4 years and 1 month.

3. Learned counsel for appellant Vinod @ Kali states that the appellant has undergone the complete sentence which has been awarded to him and he accordingly be released forthwith as he is not challenging his conviction on merit. It is accordingly ordered that appellant Vinod @ Kali be released forthwith if not required in any other case.

4. Record shows that appellant Jai Kishan @ Kishan and Sallauddin @ Chuha out of 7 years of incarceration awarded to them have undergone RI for a period of 4 years and 1 month each.

5. Learned counsel for the appellant points out that there was confusion in the version of PW-3 (victim/injured) and he was not clear as to whether there were two chapads/knives which have been recovered from the appellants or whether there was one. Submission being that in the absence of prosecution having nailed the person who had „used‟ the deadly weapon, benefit of doubt has to accrue in favour of the accused and their convictions under Section 397 of the IPC is thus unfounded.

6. Testimony of PW-3 (Mohd. Sazzad) reflects that on the fateful day when he was coming down (after making the collection of money at the asking of his mama/PW-2), three persons caught hold of him. One person caught hold of his neck from behind by putting his arms around his neck and pulled him backwards. The second person put a chopper on his neck and the third person came from the front side and caught hold of his bag. He was carrying Rs.1,25,000/- which he had collected on behalf of his mama and which he was holding. The boys tried to pull his jhola. The person who was holding his neck pressed it hard and he became unconscious and thus lost grip over the bag. The said boy snatched the bag from his hand and thereafter they pushed him. They managed to flee away. PW-3 called his mama/(PW-2) who also reached the spot. While following the boys, PW-3 reached village Barola where they entered the room; inside the house. There was one lady who told him that this house was tenanted out to Jai Kishan. PW-3 along with PW-2 entered the house by opening the kundi. The boys were putting a chappad between two planks of the doors but they somehow managed to escape. One of the boys who was running fell down in the gali. He was the one who was carrying a chappad in his right hand and the tahila bag containing the cash amount. His name was identified as Jai Kishan @ Jyoti. In another part of his examination, PW-3 stated that Jai Kishan had caught hold of his neck by putting his arm around his neck and pulled him back. Vinod was the person who had caught his hand and snatched his bag and Sallauddin was the person who had kept the chappad on his neck and had threatened him.

7. In his cross-examination, it was reiterated that Sallauddin had put a chappad on the back side and he can identify him as that person out of three persons who had joined hands together to rob him. In another part of his cross-examination, PW-3 stated that there was darkness at the time of incident and he could not see the accused who had caught hold of him from behind.

8. This version of PW-3, as rightly pointed out by the learned counsel for the appellant reflects that there was one chopper which was involved in the incident. This has been repeated by PW-3 in various part of his deposition that there was one chopper which was used in the offence.

9. The prosecution had however recovered two choppers/knives.

10. Testimony of PW-2 is also relevant on this score. He had stated that when he received a phone call from PW-3 informing him that some bad elements had snatched his bag, he reached the spot from where he along with PW-3 went to Badola Village where he was told that the accused were three in number and were present in the house. The accused heard their noise from inside and starting pulling the gate inside to open it. PW-2 along with PW-3 also pulled the gate. They tried to run away from the spot. The boy who had the bag in his left hand was also having a chappad and his name was Jai Kishan.

11. Admittedly, PW-2 was not an eyewitness to the incident. He had reached the spot after PW-3 had informed him. As per the version of PW-2, there were two chappad/knives. In the course of investigation, two knives/chappads have been recovered. One of them was recovered from Jai Kishan on the same date i.e. on 19.01.2012 and has been proved as Ex.PW-5/A. The second weapon of offence/chappad had been recovered pursuant to the disclosure statement of Vinod @ Kali which was seized on 22.01.2012 as is evident from the seizure memo Ex.PW- 13/E.

12. Learned counsel for the appellant has rightly pointed out that the version of the investigation is shaky and whether there were one or two choppers, is not clear. As per the version of PW-3 (which read in its entirety) there was one chappad which was used and which was recovered from Jai Kishan while he had fallen down when he was trying to flee away. In his cross-examination, he stated that Sallauddin was the person who had put the chopper on his neck. Recovery of these two knives was made from Jai Kishan and Vinod respectively; there was no recovery from Sallauddin.

13. This Court notes that for a conviction to be founded under Section 397 of the IPC, it is the “use” of the weapon which has to be established. This is an individual offence unless and until, the prosecution establishes that it was the offender had „used‟ the deadly weapon, conviction under Section 397 of the IPC would be unfounded. It is no longer res-integra that the words „use‟ for the purposes of Section 397 of the IPC would be sufficiently proved even if it is established that the victim was terrorized/put into a state of fear by the showing of the weapon and as such actual use of the weapon is not really necessary.

14. The Supreme Court in (2004) 3 SCC 116 Ashfaq Vs. State had gone so far to state as under:- “Thus, what is essential to satisfy the word „uses‟ for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to capable of creating a terror in the mind of the victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting as the case may be ”

15. However, the prosecution to ensure a conviction u/s 397 of the IPC must establish that the particular offender had used the deadly weapon even if this deadly weapon was within the vision of the victim so to create a terror in the mind of the victim, ingredients of Section 397 would stand satisfied. The testimony of PW-3 however does not establish this ingredient. PW-3 has time and again stated that it was one weapon of offence which was used. As per his first version, it was Jai Kishan who had caught hold of him with the knife and he was the person who had put the chappad on his neck; in his cross-examination he had stated that Sallauddin who had put the chappad on his neck. There were also two recoveries of separate knives from two persons. None was from Sallauddin. One was from Jai Kishan and other from Vinod.