Rajasthan High Court Sets Aside Conviction Of Six In Dacoity Case Over 21 Years After Trial Court Verdict

Nearly 23 years after the case was registered, the Rajasthan High Court recently set aside the conviction under Section 395 of IPC of six accused persons including one deceased person on the ground that the prosecution evidence on record was not sufficient enough to substantiate the charge alleged against the accused persons.

The single judge bench of Justice Farjand Ali said that neither the prosecution succeeded in establishing the fact that the appellants were the same persons who stopped the car or removed the bag of currency notes from it since no identification was conducted nor has it been established beyond reasonable doubt that the alleged recovery of currency notes belonged to the complainant or that they were the same as the complainant claimed.

The absence of bag and evidence regarding its specification creates further doubt upon the genuineness of the allegation, said the court.

An FIR was lodged by the informant on June 23, 2000 alleging that on June 22, 2000 he handed over a bag to Hanuman Singh and Chhotu Khan containing cash amounting to Rs. 45 lakhs and a demand draft of Rs. 36 lakhs which was to be carried from Beawar to Ahmedabad in an Ambassador car. It was alleged that on when the car was passing through the area of Police Station Bhim, 4-5 policemen and four other persons stopped the car and searched it, however, during search, nothing was recovered from the car.

It was stated that the policemen were not convinced and directed the drivers of the car to sit in a Gypsy and then, kept on searching the car for sometime and after completion of search, they were set free and the policemen said that nothing was found in the car and thus, the vehicle was handed over to them.

It is further stated in the FIR that the driver took the car to Ahmedabad and upon reaching there, the bag containing cash amounting to Rs. 45 lakhs and demand draft of Rs. 36 lakhs was not found and only Rs. 1 lakh was found in the car.

On the basis of the information, an FIR was registered for the offence under Section 395 (Punishment for dacoity) and Section 34 (Acts done by several persons in furtherance of common intention) of IPC. During the course of investigation, accused-appellants were arrested.

It was claimed that on the basis of the information supplied by one Ram Singh, a sum of Rs. 8.5 lakhs was recovered; upon information furnished by accused Manmohan Singh, a sum of Rs.1.5 lakhs was recovered; and in pursuance of the information given by accused Nenu Singh, Rs.28,28,000/- were recovered.

After conclusion of the investigation, a charge-sheet was filed against the accused appellants for the offences punishable under Section 395 and Section 34 of the IPC. The Trial Court vide judgment dated November 19, 2001 convicted and sentenced the accused-appellants to seven years of imprisonment and a fine of Rs. 5000/- each.

The appellants assailed the impugned judgment and order of sentence of the Trial Court in the present appeals before the High Court. The counsel appearing for the appellants submitted before the court that the prosecution has failed to prove that the cash and demand draft allegedly lying in the car were taken by the police officials who conducted search of the car as alleged by the driver of the vehicle Chhotu Khan and Hanuman Singh.

It was further submitted that no test identification parade was conducted to ascertain the fact as to who were the persons on the night of incident when the car was stopped and searched. It was argued that even if the allegations were taken on their face value, no case of robbery is made out and at the best, either it can be a case of cheating or theft without using force.

On the other hand, the Public Prosecutor submitted that ample evidence was produced on behalf of the prosecution which got corroboration from the fact of recovery of cash and demand draft.

The court noted that there is nothing on record from which it can be safely inferred that the appellants were present at the spot to stop the car and to conduct search therein.

“In absence of such ascertainment and identification, if the accused-appellants are made to stand trial for the offence of dacoity, then, the same infringes their fundamental right to life and personal liberty as guaranteed by Article 21 of the Constitution of India. One cannot be arraigned as an accused in a case of robbery who was not previously known to the victim without placing the culprit in a test identification parade. It has to be done during the course of the investigation so as to verify the direction of the investigation as well as he is required to be identified during the course of trial because the identification in trial is the only substantive piece of evidence,” it added. 

The court further observed that no independent witness was called for from the area where recovery was made, to vouch safe the fact of recovery of currency notes. It added that neither the five ingredients of the offence of theft are made out nor are the ingredients of the offence of extortion are present and since the offence of robbery can only be committed by way of committing either of the two, thus, it can be concluded that the offence of robbery was not committed as the ingredients essential to constitute the offence are absent.

“From the material available on record, when the commission of robbery has not been established then Section 395 of the IPC would not be attracted. It seems that the investigating agency was in hang-haste or was of the view that serious aspersions against police officers should be washed out so that they conducted the investigation from that outlook and made the appellants accused in this case,” the court said.

The Court set aside the conviction and sentence of the appellants on the basis of following grounds:

1. The credence of the testimonies of prosecution witnesses No.(s) 2 and 3 is doubtful and cannot be relied upon as there are several laches and they are not believable in any manner in view of their unnatural conduct and defective testimony on vital aspect of the matter.
2. No identification parade was conducted to ascertain the identity of the persons who allegedly intercepted the vehicle and conducted the search as well as the identity of the property in question. This amounts to being a crater in the surface of the case of the prosecution that remained unplugged throughout the course of investigation and the trial.
3. There are two witnesses to verify the factum of recovery, however, both have not supported the story of the prosecution, thus, maintaining conviction which is based upon recovery alone would not be wise.
4. Even if the facts narrated by the prosecution witnesses are taken on their face value, no offence of robbery/dacoity as defined under the Code is made out.
5. Prosecution has miserably failed to discharge the onus that lies upon it to prove the case beyond reasonable doubt.

Case Title: Bhagwat Singh & Anr. v. State of Rajasthan and another connected matter

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