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PETITIONER: OM PRAKASH & ANR.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       21/01/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati, J.      The two  appellants were  convicted by  the trial court for  the  offence  punishable  under  Section  395  IPC  and sentenced to  suffer 4 years rigorous imprisonment. The High Court High  Court confirmed  their conviction  and sentence. Therefore, they have filed this appeal.      It was  alleged against  them they  along with  Amarjit Singh, Radhey  Shyam and Vijay Kumar had robbed Mohan Lal of his wrist  watch and  10  currency  notes  of  10/-each.  On 10.4.1977 at  5.00 P.M.,  while Mohan  Lal was  standing  in front of  his shop  along with  his brother Prabhunarain all the 5  accused come  there in a car and after committing the decoity ran away in that car. Within an hour the were caught by the police near Dausa octroi check-post.      In order  to prove  prove its  case the prosecution had examined three  eye witnesses Mohan Lal (PW-6), Prabhunarain (PW-2) and  Hanumansahai (PW-6).  The prosecution  had  also relied upon the circumstance that when the search of accused Amarjit Singh  was taken  at the  police station  the  wrist watch belonging  to Mohan  Lal was  found from  his  person. Believing the  evidence of  these  witnesses  and  also  the recovery of  wrist watch  from Amarjit Singh the trial court held that  five persons  had caught  hold of  Mohan Lal  had snatched away  his  wrist  watch  and  hundred  rupees.  It, However, held  that identity  of  accused  Vijay  Kumar  and Radhey  Shyam   was  not   established  beyond   doubt  and, therefore, acquitted them. The other three accused, that is, two  appellants  and  Amarjit  Singh  were  convicted  under Section 395 IPC.      The High  Court on re-appreciation of the evidence held that the  trial court  had rightly  believed the evidence of Mohan  Lal,  Prabhunarain  and  Hanumansahai  and  also  the evidence relating  to recovery  of wrist watch of Mohan Lal. Lal. It  further held  that the  prosecution had established beyond any  doubt the  case against  the said three accused. If, therefore,  dismissed the  appeal  filed  by  the  three convicted accused.      Out of  them Om  Prakash  and  Munna  have  filed  this appeal. Accused  Amarjit Singh  has  not  filed  any  appeal

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against his conviction and sentence.      It  was  contended  by  the  learned  counsel  for  the appellants  that  the  story  narrated  by  the  prosecution witnesses was  unnatural and,  therefore, ought  not to have been believed  by the  courts below.  We fail  to appreciate that how  the version of the eye witnesses can be said to be unnatural. Mohan Lal and Prabhunarain have stated that while they were  standing in  front of  the shop  of Mohan Lal the accused came there and snatched away the wrist watch and ran away in  the car  in which  they had come. They have further stated that  they chased the accused for some time in a jeep in which they got lift soon thereafter but they did not stop the car of the accused and accused and decided to proceed to the police station as they were afraid of the dacoits. It is difficult to  appreciate how this version can be regarded as unnatural. lmpulsively  they chased  the  dacoits  but  soon realised the  danger of intercepting them. So they noted the number of  the car  and went straight to the police station. This  conduct   of  the  witnesses  cannot  be  regarded  as unnatural. lmmediately after lodging the FIR they along with Sub-Inspector of  Police had  proceeded in  the direction in which the accused had left and found them sitting near Dausa octroi check post, at a distance of about 23 K.ms. On seeing the police  two occupants  of the car ran away but the other three, that  is, Om  Prakash, Munna  and Amarjit  Singh were caught. They  were then  taken to  the  police  station  and searched. From  the person  of Amarjit Singh the wrist watch of Mohan  Lal was  recovered. The  learned counsel  for  the appellants submitted that it was highly improbable that even after about an hour, the accused would have remained sitting in the  car. The  evidence discloses  that the jeep in which Mohan Lal and Prabhunarain were chasing the accused overtook the accused  and went  ahead to the police station. There is no material  to show  that he  accused knew  that they  were chased. They  had, therefore,  no reason to suspect that the jeep would  go to  the police  station and  police would  be informed. They  had already travelled a distance  of 23 Kms. and they might have considered it safe to take a halt there. Therefore, the  prosecution version  cannot be  said  to  be improbable. Having  carefully considered the evidence of eye witnesses and  the Investigating Officer we do find anything in their  evidence which  would create  any doubt as regards the correctness  of what  they have  stated. The trial court and the  High Court  have thought  it fit  to believe  their evidence and we see no reason to differ from their findings.      It was  lastly argued  by the learned counsel that even after believing  their evidence  the courts  below could not have convicted  the appellants  under Section 395 IPC as the charge of  decoity was against five named persons and out of them two  were acquitted  by the  trial court.  Neither  the charge nor  the finding recorded by the trial court was that accused Om  Prakash, Munna,  Amarjit  Singh  and  two  other unknown persons  had committed  dacoity.  Specifically,  the five named  accused were alleged to have commit the offence. Two accused  having been  acquitted it  ought to  have  been appreciated  that  only  the  remaining  three  accused  had committed the  said offence. Therefore, it was not proper to convict the  remaining three  accused under Section 395 IPC. Their conviction  will have  to  be  altered  to  one  under Section 392 IPC.      We, therefore,  partly allow this appeal, set aside the conviction of  the appellants from that of under Section 395 IPC to  Section 392  IPC and  reduce their  sentence from  4 years   rigorous    imprisonment   to   2   years   rigorous imprisonment. The  accused were  released on bail during the

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pendency to the appeal. Their bail is cancelled and they are ordered to  surrender to  custody to serve out the remaining sentence.