Punjab-Haryana High Court
Jitender Son Of Bihari Lal vs The State Of Haryana on 6 February, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.432-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Appeal No.432-SB of 2001
Date of Decision:- 6.2.2013
Jitender son of Bihari Lal, r/o village Majra (Bhalkhi), Post Office Kund,
Rewari.
...Appellant
Versus
The State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Rahul Vats, Advocate for the appellant.
Mr.Gourav Vema, A.A.G. Haryana for the State.
Mehinder Singh Sullar, J. (Oral)
The challenge in this appeal is to the impugned judgment of conviction dated 10.2.2001 and order of sentence dated 13.2.2001, by means of which, appellant-convict Jitender son of Bihari Lal (for brevity "the appellant") was convicted and sentenced to (i) undergo rigorous imprisonment for a period of five years, to pay a fine of ` 1000/-and in default of payment of fine, to further undergo imprisonment for a period of two months, on accusation of having committed the offence punishable u/s 392 IPC, (ii) to undergo rigorous imprisonment for a period of seven years, for the commission of offence punishable u/s 397 IPC and (iii) to further undergo rigorous imprisonment for a period of five years, to pay a fine of ` 1000/- and in default of payment of fine, to further undergo imprisonment for a period of two months u/s 25 of the Arms Act. However, all the sentences were ordered to run concurrently by the trial Court.
CRA No.432-SB of 2001 2
2. The matrix of the facts, material and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of instant appeal and emanating from the record, is that on 20.2.2000, complainant Dharmender Singh (PW3) was returning from village Majra and was going to his own village Bodia Kamalpur on his motorcycle, bearing registration No.HR-29-G-3932. At about 4 PM, when he reached near Nandha turning, then, the appellant signaled him to stop his motorcycle. He asked him to give lift on his motorcycle upto Rewari. The complainant asked him to avail the lift upto village Khori as he was not going to Rewari. The prosecution claimed that at about 4.30 PM, as soon as, they reached near the bus-stop of the village (place of occurrence), in the meantime, the appellant asked him to stop the motorcycle. Thereafter, he suddenly snatched the keys of his motorcycle, took out a country made pistol and threatened the complainant to hand over his motorcycle, otherwise, he would kill him. Faced with the situation, the complainant handed over his motorcycle to the appellant. Meanwhile, in the wake of noise raised by the complainant, PW9 Krishan Kumar son of Nathu and PW10 Lila Ram son of Parbhati alighted from their vehicle and came to rescue him. The appellant tried to run away, but they overpowered and apprehended him at the spot. They handed over him to the police along with his country made pistol and four live cartridges of .315 bore.
3. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that the appellant while committing robbery, used a deadly weapon (pistol Ex.P1) and attempted CRA No.432-SB of 2001 3 to cause death and grievous injury to the complainant. In the background of these allegations and on the basis of complaint of the complainant, the present criminal case was registered against the appellant, by way of FIR No.47 dated 20.2.2000, on accusation of having committed the offences punishable u/ss 392, 397 IPC and 25 of the Arms Act by the police of Police Station Sadar Rewari in the manner depicted here-in-above.
4. After completion of the investigation, the police submitted the final police report (challan) against the appellant. Consequently, he was charged for the commission of indicated offences by the trial Court, by virtue of order dated 17.5.2000. The appellant pleaded not guilty and claimed trial. Thereafter, the case was slated for prosecution evidence.
5. The prosecution, in order to substantiate the charges framed against the appellant, examined complainant Dharmender Singh as PW3, who has, inter-alia, stated, on oath, that on 20.2.2000 at about 4 PM, he was going from village Majra to his own village on his motorcycle. The appellant (present in the Court) asked him to give lift upto Rewari. He asked him to avail lift upto village Khodi as he was not going to Rewari. As soon as, they reached near village Teent, then, the appellant asked him to stop the motorcycle, suddenly snatched the keys of his motorcycle, took out the pistol (Ex.P1), threatened and asked him to hand over the motorcycle to him. He further maintained that the appellant has also threatened him that in case he refused to hand over the motorcycle, he would kill him. On the basis of noise raised by the complainant, Krishan Kumar son of Nathu (PW9) and Lila Ram son of Parbhati (PW10) alighted from their vehicle and came to rescue him. Although the CRA No.432-SB of 2001 4 appellant tried to run away, but he was caught red handed by them. They handed over him to the police along with his country made pistol (Ex.P1) and live cartridges (Ex.P2 to Ex.P5) of .315 bore.
6. Sequelly, PW9 Krishan and PW10 Leela Ram have also, inter-alia, deposed that on 20.2.2000, they had rescued the complainant from the clutches of the appellant. They overpowered and handed over him to the police. Instead of reproducing their entire statements in toto and in order to avoid the repetition, suffice it to say that they have fully corroborated the statement of complainant Dharmender (PW3) on all vital counts and supported the prosecution version in totality.
7. Likewise, PW1 C.Krishan Kumar has handed over the special report to the higher authorities. PW2 HC Charan Dass, mechanically examined the pistol (Ex.P1) and found the same in working condition and four cartridges (Ex.P2 to Ex.P5) were live cartridges, vide his report (Ex.PA). PW4 Data Ram, Reader to the Deputy Commissioner has proved the sanction order (Ex.PD). PW5 Sunder Lal SI (retired) has mentioned that on 20.2.2000, on receipt of ruqqa (Ex.PB/1), he recorded the formal FIR (Ex.PB/2).
8. Similarly, PW6 Dharampal, Draftsman has proved the scaled site plan (Ex.PE), prepared at the instance of the complainant, whereas PW7 HC Randhir Singh proved the disclosure statement (Ex.PF) of the appellant that about 1½ years ago, he had stolen/snatched other motorcycles also from the different persons mentioned therein. PW8 SI/SHO Magan Singh has testified his investigation. The prosecution has also placed reliance on the test report of pistol & cartridges (Ex.PA/1), CRA No.432-SB of 2001 5 recovery memo of motorcycle (Ex.PC), recovery memo of pistol & cartridges (Ex.PG), rough sketch of pistol (Ex.PH) and rough site plan of place of occurrence (Ex.PJ). This is the entire oral as well as documentary evidence brought on record by the prosecution.
9. Having closed the prosecution case, the statement of the appellant was recorded. The entire incriminating material appearing in the evidence, was put to enable him to explain any circumstance appearing against him in the evidence, as contemplated under Section 313 Cr.P.C. However, he has stoutly denied all the evidence of the prosecution in its entirety and pleaded false implication.
10. Taking into consideration the oral as well as documentary evidence brought on record by the prosecution, the trial Court has convicted & sentenced the appellant in the manner discussed here-in- above.
11. Aggrieved thereby, the appellant has preferred the present appeal, to challenge the impugned judgment of conviction & order of sentence. That is how, I am seized of the matter.
12. Assailing the impugned judgment of conviction & order of sentence, the learned counsel has contended with some amount of vehemence that the appellant has been falsely implicated in this case and no pointed offences are made out against him. The cosmetic argument is that the evidence brought on record by the prosecution falls short as is required to prove the criminal charges. Thus, he prayed for acceptance of the appeal.
13. On the contrary, hailing the impugned judgment of CRA No.432-SB of 2001 6 conviction and order of sentence, the learned State counsel urged that since the trial Judge has rightly convicted and sentenced the appellant, so, no interference is warranted in this regard.
14. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeal in this context.
15. As indicated earlier, the appellant was charge sheeted for the commission of offence of robbery and while committing robbery, he attempted to cause death of complainant with his pistol. Section 390 IPC postulates that in all robbery there is either theft or extortion and theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint, is liable to be punished u/s 392 IPC, whereas section 397 IPC posts that if, at the time of committing robbery, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
16. A conjoint and meaningful reading of these provisions would reveal that if any person while committing robbery, used the deadly weapon or attempted to cause death or grievous hurt to any person, the offences u/ss 392 & 397 IPC are completed.
CRA No.432-SB of 2001 7
17. Such thus being the legal position and evidence on record, now the short and significant question, though important, that arises for determination in this appeal is, as to whether the indicated offences are made out against the appellant or not?
18. Having regard to the rival contentions of learned counsel for parties, to me, the answer must obviously be in the affirmative in this regard.
19. Ex facie, the celebrated argument of learned counsel that at the most, it is a case of attempt of robbery, is not only devoid of merit but misplaced as well.
20. As is evident from the record that very serious and direct allegations of commission of heinous offences are assigned to the appellant that on 20.2.2000, complainant Dharmender Singh (PW3) was returning from village Majra and was going to his own village Bodia Kamalpur on his motorcycle, bearing registration No.HR-29-G-3932. At about 4 PM, when he reached near Nandha turning, then, the appellant signaled him to stop his motorcycle. He asked him to give lift on his motorcycle upto Rewari. The complainant asked him to avail the lift upto village Khori as he was not going to Rewari. He maintained that at about 4.30 PM, as soon as, they reached near the bus-stop of the village (place of occurrence), in the meantime, the appellant asked him to stop the motorcycle. Thereafter, he suddenly snatched the keys of his motorcycle, took out a country made pistol and threatened the complainant to hand over his motorcycle, otherwise, he would kill him. Finding no alternative, the complainant handed over his motorcycle to the appellant. Meanwhile, CRA No.432-SB of 2001 8 in the wake of noise raised by the complainant, PW9 Krishan Kumar son of Nathu and PW10 Lila Ram son of Parbhati alighted from their vehicle and came to rescue him. Although, the appellant tried to run away, but they overpowered and apprehended him at the spot. They handed over him to the police along with his country made pistol (Ex.P1) and four live cartridges (Ex.P2 to Ex.P5) of .315 bore. The complainant has, inter-alia, categorically deposed that on the fateful day, the appellant asked him to give lift on his motorcycle. He immediately snatched the keys of motorcycle of complainant. Not only that, there is positive evidence on record that appellant took out the pistol and threatened PW3 with dire consequences of elimination in case he has refused to hand over his motorcycle.
21. Sequelly, PW9 Krishan Kumar and PW10 Leela Ram are also eye & independent witnesses of the occurrence and have corroborated the statement of complainant. In this manner, PW3, PW9 and PW10 have duly supported the prosecution version on all vital aspects, as regards the direct participation of appellant in the commission of heinous crime and recovery of pistol and live cartridges is concerned. PW2 HC Charan Dass mechanically examined the pistol (Ex.P1) and found the same in working condition, whereas the cartridges (Ex.P2 to P5) were live cartridges, vide his report (Ex.PA). The investigation of the case was duly testified by SI/SHO Magan Singh (PW8).
22. All the material prosecution witnesses were cross-examined at length, but nothing substantial material could be elicited in their cross- examination to dislodge their testimony. No motive could possibly be CRA No.432-SB of 2001 9 attributed either to PW3 or PW9 and PW10 as to why they would falsely depose against the appellant in this respect. He was apprehended by them at the spot and was handed over to the police along with the pistol and live cartridges. So, there is no dispute of identity of the appellant as well. Moreover, the presence of PW3, PW9 & PW10 at the spot is very natural and cannot be doubted. Therefore, the evidence brought on record by the prosecution is reliable, natural and trustworthy. The moment the appellant used the pistol (Ex.P1) in committing robbery of motorcycle and caused apprehension of death or grievous hurt to complainant, so, the offences u/ss 392 and 397 IPC are completed and the contrary contentions of learned counsel for the appellant "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances. Therefore, if the entire evidence brought on record by the prosecution, as discussed here- in-above, is put together, then, to my mind, the conclusion is inescapable and irresistible that the prosecution was successful in bringing guilt home to the appellant. Thus, all the essential ingredients of these sections are complete and the trial Court has rightly convicted and sentenced the appellant for the commission of pointed offences. Likewise, as per the disclosure statement (Ex.PF), the appellant is a habitual offender of committing such offences.
23. Meaning thereby, the trial Judge has recorded the cogent grounds in this respect, examined the matter in the right perspective and correctly convicted and sentenced the appellant. Learned counsel for the appellant did not point out any material, much less cogent, so as to warrant any interference in the impugned judgment of conviction & order CRA No.432-SB of 2001 10 of sentence.
24. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
25. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. Consequently, the impugned judgment of conviction & order of sentence are maintained, in the obtaining circumstances of the case. At the same time, the Chief Judicial Magistrate is directed to secure the presence of the appellant forthwith and commit him to jail to serve out the remaining portion of his sentence.
6.2.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter?Yes/No