Heard the learned counsel for the appellant and the learned A.G.A. for the respondent and perused the record.
By this appeal, the appellant Gopi Jaiswal has impugned the judgement and order dated 28.02.2009 rendered by Mr. SN Agnihotri, the then Additional Sessions Judge/Special Judge (E.C.Act), Gorakhpur in S.T. No. 96 of 1993 (State v Gopi Jaiswal) whereby the learned Additional Sessions Judge has convicted and sentenced the appellant Gopi Jaiswal under sections 328, 379 and 411 IPC.
The prosecution story leading to this appeal is that on 23.08.1992, the complainant Hari Ram Prasad Gupta (P.W.-1) and other victims, namely, P.W.-2 Baij Nath, P.W.-3 Nand Lal, P.W.-4 Moti and others were travelling in the 114 Down, Gwalior -Chhapra Mail, and when they reached the railway station Unnao few other passengers boarded in the Bogie of the train and they developed intimacy with the complainant and other victims and one of them provided intoxicated biscuits to the complainant and other victims, consequently, all of them became unconscious and remained in that condition even when the train arrived at the Gorakhpur railway station on 24.08.1992. P.W.-6 Shesh Nath Singh and other Police officials took the complainant and other victims from the aforesaid train to the District Hospital, Gorakhpur and got them admitted in the hospital. P.W.-9 Dr. ML Jaiswal medically examined the complainant and other victims on 24.08.1992 between 9.30 A.M. to 10.30 A.M. and found all of them semi conscious and accordingly prepared medical reports (Exhibit Ka 4 to Ka 9). It may also be mentioned that on 25.08.1992, the complainant and other victims regained consciousness. In the meantime, before the complainant and other victims could regain consciousness another development took place. The police of GRP, Gorakhpur arrested the appellant Gopi Jaiswal on 24.08.1992 at about 20.30 hours at the Gorakhpur railway station and recovered three suitcases containing various articles detailed in the recovery memo from his possession and accordingly lodged an FIR (Crime No. 405 of 1992 under sections 441/411 IPC) against the appellant Gopi Jaiswal at GRP, Gorakhpur. When the complainant and other victims regained consciousness on 25.08.2009, they identified the appellant as the person, who provided them intoxicated biscuits. Thereafter, the complainant Hare Ram Prasad gave an FIR of the incident at P.S. GRP, Gorakhpur on which basis the police registered the Case Crime No. 408 of 1992, under sections 328/379 IPC. In view of the fact that both the matters related to the same incident, the trial was held jointly at Gorakhpur. Stomach wash of the complainant and other victims was done in the hospital and samples of the stomach wash contents were sent to the Forensic Science Laboratory, Lucknow for analysis. The Forensic report opined that the stomach wash contents had intoxicated substance (poisonous substance) and accordingly submitted its report (Exhibit Ka 11). The Investigating Officer after concluding the investigation submitted charge sheet against the appellant.
The learned trial court charged the appellant Gopi Jaiswal under sections 328/379/411 IPC who denied the charges and claimed to be tried.
To prove the aforesaid charges, the prosecution examined as many as 11 witnesses. P.W.-1 Hare Ram Prasad, the complainant and victim, supported the prosecution story. P.W.-2 Baij Nath, one of the victims, also supported the prosecution story regarding the incident but stated in the court that the appellant was not the person, who gave intoxicated biscuit to him. P.W.-3 Nand Lal, one of the victims, also supported the prosecution story, including the involvement of the appellant. P.W.-4 Moti and P.W.-5 Mahendra Kushwaha also supported the prosecution story to certain extent but did not give any statement regarding the involvement of the appellant. P.W.-6 Shesh Nath Singh is a formal witness, who got deboarded the complainant and his witnesses in the unconscious state from Gwalior -Chhapra Mail train and got them admitted in the District Hospital, Gorakhpur. P.W.- 7 Sumeshwar Singh had partly investigated the case. He has proved the site plan (Exhibit Ka -2), P.W. -8 Sub Inspector Heera Lal, has partly investigated the case. He has proved that on 24.08.1992 at about 8.30 p.m. he arrested the appellant Gopi Jaiswal at the railway station, Gorakhpur and recovered from his possession three suit cases containing different articles disclosed in the recovery memo. P.W. -9, Dr ML Jaiswal medically examined the complainant and other victims on 24.08.1992 between 9.30 A.M. to 10.30 A.M. and stated that the complainant and other victims were semi conscious and he further stated that their stomach wash contents were taken in different containers. This witness has further proved the injury reports (Exhibit Ka -4 to Ka- 9). P.W. -10 NK Bhatnagar had also investigated the case. He has proved the fact that the stomach wash contents were sent to the Forensic Science Laboratory for analysis and accordingly proved the relevant dockets (Exhibit Ka 10 & 11) and has also proved the charge sheet (Exhibit Ka 12). P.W.- 11 Virendra Kumar has proved the chick report and copies of G.D. (Exhibit Ka 15 to Ka 17).
The accused did not adduce any evidence to counter his guilt. The learned trial court believed the prosecution story and convicted and sentenced the appellant as aforesaid.
The learned counsel for the appellant very frankly conceded that he would not press the appeal against the finding of guilt recorded by the learned trial court as the same was based on proper appraisal of record. However, he pressed the appeal on the point of sentence and contended that the appellant has no criminal history and was in jail since long and the occurrence was of the year 1992, therefore, in view of the facts and circumstances of the case and antecedents of the appellant, the sentence of five years rigorous imprisonment under section 328 IPC was excessive. He further submitted that the sentence may be reduced.
P.W. -1 Hare Ram Prasad, P.W. -2 Baij Nath, P.W. -4 Moti and P.W. -5 Mahendra Kushwaha are the witnesses of fact and they have supported the prosecution by stating that all the victims had been travelling in the aforesaid train from Kanpur to Gorakhpur and they were provided intoxicated biscuits at the Unnao Railway Station by a co-passenger. There is no inconsistency, improbability and discrepancy in this regard. Their statements find corroboration from the statement of P.W. -6, Shesh Nath, who took the complainant and other victims, in unconscious state, from the train to the District Hospital, Gorakhpur and got them hospitalized there. P.W. -9 Dr. ML Jaiswal, who had medically examined the complainant and other victims, has corroborated that the complainant and other victims were semi concious and they were hospitalized and their stomach wash contents were also taken in different containers. Moreso, P.W. - 1, Hare Ram Prasad and P.W. -3 Nand Lal have categorically proved that it was the appellant, who provided them and other victims intoxicated biscuits. P.W. -8, Hira Lal has proved recovery of three suit cases at the railway station, Gorakhpur from the possession of the appellant. It has also been proved from the statements of the complainant and other victims that the recovered suit cases and other articles belonged to them, which had been taken away when they fell unconscious. In this way, the prosecution has established beyond all reasonable doubts that it was the appellant, who provided intoxicated biscuits to the complainant and other victims and when they fell unconscious, he took away their suit cases and other articles and was arrested on the next day at the railway station, Gorakhpur along with the suitcases and other articles. To this extent, the prosecution story cannot be secluded in any way.
In view of the fact that the appellant Gopi Jaiswal was the real thief, his conviction could only be made under section 379 IPC. His conviction under section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under section 411 IPC. Therefore, the order of conviction and sentence passed against the appellant under section 411 IPC cannot be upheld.
On the point of sentence, it may be mentioned that the occurrence is of the year 1992 and since then more than 19 years have elapsed and the appellant had no criminal antecedent prior to the incident. Moreso, there was nothing to show that he committed any crime after the incident.
In view of the fact and circumstances of the case and antecedents of the appellant, the sentence of only three years rigorous imprisonment under section 328 IPC would serve the ends of justice. The other sentences require no modification.
The appeal is partly allowed. The conviction of the appellant under sections 328 and 379 IPC is confirmed. However, the sentence of five years rigorous imprisonment passed against the appellant under section 328 IPC is reduced to three years rigorous imprisonment. The sentence under section 379 IPC is approved. The order of conviction and sentence passed against the appellant under section 411 IPC is set aside.
Let a copy of this judgement along with the lower court's record be transmitted forthwith to the learned trial court for immediate compliance.
Order Date :- 8.11.2011 shailesh