JAIN, J. - (1.) THIS appeal under Section 374, Code of Criminal Procedure, on behalf of two accused-appellants, namely, (1) Sukhram S/o Budhram Yadav and (2) Rakesh S/o Shri Mahendra Singh Jat, is directed against the impugned judgment and order dated 4. 6. 2003 passed by the Additional Sessions Judge (Fast Track), Kishangarhbas, District Alwar, in Sessions Case No. 67/02 (17/02), whereby each appellants were convicted and sentenced under Section 397, Indian Penal Code, to undergo 7 years rigorous imprisonment, and a fine of Rs. 5,00/-; in default of payment of fine, to further undergo six months' additional simple imprisonment.
(2.) BRIEFLY stated the facts of the case are that on 7. 1. 2002 at about 8. 00 PM a written-report (Exhibit P-1) was lodged by PW-1 Raju S/o Pratap Singh, at Police Station Kotkasim, Alwar, wherein it was alleged that he is resident of village Shahjahapur and working as driver on Indica Car No. RJ 02 T 0120 of Santra Devi W/o Balwant Singh. On 7. 1. 2002 at about 5. 15 PM two persons came to him and asked the hiring-charges of Indica Car for Badhana, Police Station Kotkasim and it was settled at Rs. 450/- for the said destination. He took both of them in the Car. At village Bawal, these persons purchased bananas and liquor; thereafter he departed with them, taking the Car for Badhana. On arrival at village Badhana, he told them about it. Thereupon, they said that their relatives reside nearby 'dhani' and requested to go ahead. Soon he left Badhana for 'dhani', all of a sudden, one person sitting behind him, put a shawl at his neck and pulled him backside forcibly; he stopped the vehicle; the another person descended from the Car and tried to pull him out therefrom; thereupon started a scuffle between us. It was further alleged in the report that the descended person, lashed with knife, intended to inflict him an injury then he caught hold of his knife and thereby he sustained injury on his right-handfinger and both of them started scuffling and pushed Raju down the earth. Thereafter both of them started his car and fled towards Kotkasim. He shouted loudly and number of persons gathered at the spot. One driving licence was found belonging to one person Sukhram whose photo was also affixed thereon. The another person was Rakesh Jat. On the basis of this written-report, the police registered FIR No. 6/2002 under Section 394 of the Indian Penal Code. During investigation, the accused-persons were arrested. The vehicle was seized. After completion of investigation, a charge- sheet was filed against both the appellants. The trial court framed charge against both the appellants under Section 397, Indian Penal Code, which was denied and the trial was claimed. The prosecution, in support of the charge, examined PW-1 to PW-13 and produced documentary evidence Exhibit P-1 to Exhibit P- 19. . Thereafter the statements of accused-persons were recorded under Section 313 of the Code of Criminal Procedure, wherein it was stated that they were coming from Bawal to Lalpur and one Indica Car came and the Driver thereof asked them as to where they are going and he caused them to be seated in the vehicle. On the way, driver Raju caused them to have liquor. On having found surrounded on all sides by the Police, Driver Raju fled leaving the vehicle at check-post of Daruheda and the Police arrested them. Thereafter they came to know that a false report has been lodged against them. The trial court, after considering the evidence on the record as well as the submissions of both the parties, convicted and sentenced the accused-appellants, as mentioned above. The learned counsel for the appellants contended that as per the written-report, the incident took place at about 8. 00 PM on 7. 1. 2002 and immediately thereafter a message was given at Police Station Daruheda and the vehicle was seized along with the accused-persons on 7. 1. 2002 itself. But seizure memo of the vehicle as well as other articles show that the same were seized on 8. 1. 2002 and accused persons were also arrested on 8. 1. 2002 at 6. 00 PM, whereas the officials of Police Station Daruheda, in their statements, stated before the trial court that on 7. 1. 2002 itself the vehicle was seized and accused persons were taken into custody. The statement PW-1 Raju was also referred, who admitted that on the same day he went at Daruheda in Police Jeep and saw the accused as well as the vehicle there on that day itself. The learned counsel referred the relevant Exhibits, exhibited on behalf of the prosecution, and contended that there are two sets of evidence in the present case; one set shows that Daruheda police seized the vehicle on 7. 1. 2002 arresting the accused persons, whereas another set of evidence shows that on 8. 1. 2002 at about 6. 00 PM both the accused-persons were arrested by Kotkasim Police at Kharkhada Mod near Daruheda Police Station and the vehicle was seized. The learned counsel also referred Exhibit P-6, the medical-report of injured Raju (PW-1) and contended that there is overwriting in the date as well as time. Initially the date 8. 1. 2002 and time 1. 30 AM were written but later on changed to 7. 1. 2002 and 8. 30 PM. He, therefore, contended that one set of prosecution evidence controverts the another set and there is no consistent evidence to prove the charge against the accused-appellants and they are entitled to get the benefit of doubt. The trial court has committed an error in convicting the accused-appellants in absence of reliable and trustworthy evidence in the case. In support of his contentions, the learned counsel for the appellants referred to the decision in the case of Harchand Singh & Another vs. State of Haryana - AIR 1974 SC 344.
(3.) THE learned counsel for the appellants further contended that prima-facie the offence under Section 397, IPC, is not made out. He contended that accused appellants were arrested on 8. 1. 2002 at 6. 00 PM and information under Section 27 of the Evidence Act was given by accused Sukhram at 6. 20 PM and thereafter recovery of so-called knife was made at the instance of accused Sukhram whereas from the prosecution evidence itself it is clear that on 7. 1. 2002 itself the recovery of so-called knife was made by officials of Daruheda Police Station itself. He further contended that in the information-memo (Exhibit P-10), recorded under section 27 of the Evidence Act, it is not mentioned that he has given the information in respect of knife, which was used for so-called robbery and, in absence of such facts of using of weapon in crime in the information given under Section 27 of the Evidence Act, the same cannot be connected with the crime and the recovery of knife, made in pursuance of such information, is inadmissible in evidence. He further contended that in Exhibit P-11 it is specifically mentioned that no bloodstain was found on the knife. One 'motbir' of Exhibit P-11, namely, Ramswaroop was not examined. Another 'motbir' Tejsingh (PW-9) has not stated that recovery of knife was made in pursuance of the information given under Section 27 of the Evidence Act, but it was found during search of vehicle itself at the time of seizure of the vehicle. The learned counsel for the appellant alternatively contended that, although the recovery of knife itself is doubtful and evidence in this regard is inadmissible in evidence, the so- called knife cannot be said to be a deadly weapon in the facts and circumstances of the present case. He also submitted that knife was not used as a weapon to commit robbery but it was only used in scuffle with Raju (PW-1), when he was not allowing the accused-persons to take the vehicle with them. It is further contended that the prosecution had not produced the knife nor got it identified from the complainant PW- 1 Raju in the court and further that, according to the statement of PW-3 Dr. Padam Chand Jain, the injuries were caused by light sharp weapon, therefore, it was a light sharp weapon, which cannot be described as deadly weapon and, in these circumstances, the offence under Section 397, IPC, is not made out, and, at the most, the appellant could have been convicted by the trial court for the offence under Section 394, IPC. ;