Punjab-Haryana High Court
Gurpal Singh vs State Of Haryana on 30 October, 2014
Author: K. C. Puri
Bench: K. C. Puri
CRA No. S-165-SB of 2004 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No. S-165-SB of 2004 (O&M)
DECIDED ON : 30.10.2014
Gurpal Singh
...Appellant
versus
State of Haryana
...Respondent
CORAM : HON'BLE MR. JUSTICE K. C. PURI
Present : Mr. Rajinder Goyal, Advocate,
for the appellant.
Mr. Amit Kaushik, Senior DAG, Haryana.
K. C. PUR, J.
Challenge in this appeal is to the judgment of conviction dated 11.07.2003 and order of sentence dated 12.07.2003 passed by Shri M.P.Mehndiratta, Additional Sessions Judge, Sirsa vide which the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of `5000/- under Section 397 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months.
Brief facts as gathered from the prosecution story are that Balbir Singh got his statement recorded to the effect that he had been plying a jeep bearing registration No. PBR-4007 as a taxi. On 25.01.2000 in the afternoon, four persons hired his taxi for going to village Raghuana. From Raghuana they asked him to carry them to Sirsa SHALINI BHATIA city. On the way he was forced to occupy the rear seat while one of the 2014.11.20 10:29 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. S-165-SB of 2004 (O&M) -2- assailants occupied the driver's seat. They drove the jeep to petrol pump in the area of village Khairekan and snatched some cash from the office of petrol pump on pistol point and then went towards Burj Bhangu. Before that he got an opportunity to jump down from the jeep. He along with employees of the petrol pump chased the culprits in an ambassador car but could not nab them. On the basis of his statement, formal FIR was registered. Investigation was carried out. Statements of witnesses were recorded. Accused were arrested. After completion of investigation, challan against the accused was presented in court.
On presentation of challan, copies of same were supplied to all the accused free of costs as envisaged under Section 207 Cr.P.C.
Since the offence under Section 397 IPC was exclusively triable by the court of Sessions, the case was committed to the Court of Sessions. On finding a prima-facie case made out against the accused, charge under Section 397 IPC was framed against all the accused, to which they pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined Jagdish Lal Patwari as PW-1, C. Harbans Singh as PW-2, Som Dutt as PW-3, Balbir Singh complainant as PW-4, Mahinder Singh as PW-5, Amar Singh as PW-6, ASI Chander Pal as PW-7, HC Pritam Singh as PW-8, Darshan Singh as PW-9, HC Ram Murti as PW-10, Madan Lal as PW-11, Om Pal as PW-12 and SI Panjab Singh as PW-13 and closed the prosecution evidence.
Thereafter, statements of accused under Section 313 Cr.P.C was recorded wherein all the incriminating evidence was put to them to SHALINI BHATIA which all the accused pleaded innocence and false implication. 2014.11.20 10:29 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. S-165-SB of 2004 (O&M) -3-
The accused were asked to produce defence evidence but they did not examined even a single witness.
The learned trial court, after appreciation of evidence on record, acquitted accused Sukhminder and Harcharan from all the charges levelled against them, however, convicted accused/appellant Gurpal Singh under Section 397 IPC and sentenced him to undergo rigorous imprisonment and fine as narrated above.
Learned counsel for the appellant has submitted that the law was set in motion by recording the statement of Balbir Singh who has alleged that he had been plying a jeep and the said jeep was taken by four persons at gun point. In the FIR, he has further stated that those persons also committed robbery. However, said Balbir Singh while appearing as prosecution witness, has not supported the case of prosecution. The other persons stated to be present at the time of robbery were PW-11 Madan Lal, PW-12 Om Pal and PW-3 Som Dutt. He has further contended that PW-11 Madan Lal and PW-12 Om Pal have also not supported the case of prosecution and both of them were declared hostile.
Learned counsel for the appellant has further contended that the appellant has been convicted on the sole statement of PW-3 Som Dutt who is stated to have identified the appellant at the time of alleged robbery. It is submitted that the accused was arrested after two months of the occurrence and no connecting evidence has been produced by the prosecution against the appellant. No test identification parade was conducted. The statement of PW-3 Som Dutt in respect of test SHALINI BHATIA identification parade of the appellant for the first time in court, cannot be 2014.11.20 10:29 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. S-165-SB of 2004 (O&M) -4- accepted.
Learned counsel for the appellant has further contended that as per prosecution story, `1200/- were recovered from the accused. PW- 6 Amar Singh is stated to be the witness for the recovery of `1200/- from the appellant. The said witness has also not supported the case of prosecution. Learned trial court has not accepted the theory of recovery of amount from other two co-accused namely Sukhminder and Harcharan and they have been acquitted by the trial court.
Lastly, learned counsel for the appellant has submitted that even if the case of prosecution is taken as it is, in that case also the offence under Section 397 IPC is not made out. At the most, offence under Section 392 IPC is made out. He has further contended that Section 397 IPC would be attracted only if robbery/dacoity has been committed by the offender armed with deadly weapons or they caused grevious hurt to any person or attempt to cause grevious hurt to any person. The minimum sentence prescribed under Section 397 IPC is 07 years, whereas under Section 392/395 IPC, no minimum sentence has been prescribed. It is further contended that no weapon has been recovered from the appellant or any of the other co-accused. According to PW-3 Som Dutt, the appellant pointed pistol towards PW-12 Om Pal. However, said Om Pal while appearing as PW-12, has not stated that any of the persons were armed with any weapon. So, the offence under Section 397 IPC is not made out. He has further contended that as per custody certificate, the appellant has undergone incarceration for a period of about 04 years, 11 months and 11 days SHALINI BHATIA including 2014.11.20 10:29 I attest to the accuracy and remission of 02 months and 15 days. So, prayer has been authenticity of this document High Court Chandigarh CRA No. S-165-SB of 2004 (O&M) -5- made for acquittal of the accused under Section 397 IPC and reducing the sentence to the period already undergone by him.
Learned State counsel has opposed the prayer made in the appeal and has supported the judgment passed by the trial court.
Learned State counsel has contended that appellant is accused in other cases of similar nature, as shown in the conviction slip. The appellant was armed with deadly weapon. Mere fact that there is no recovery, is not a ground to discard the story of prosecution. The identification of accused for the first time in the court cannot be rejected only on the ground that no test identification parade has been conducted.
I have considered the rival submissions made by both the parties and have gone through the records of case.
So far as the acquittal of both the two accused namely Sukhminder and Harcharan is concerned, that does not effect the case of present appellant in any manner. PW-3 Som Dutt has not identified the remaining two accused facing trial before the trial court and on that account the said accused were acquitted. The identification of appellant by PW-3 Som Dutt, cannot be rejected merely on the ground that no test identification parade was conducted. He was owner of the petrol pump and was stated to be present at the time of occurrence. He has no axe to grind against the appellant. Mere fact that the accused has been arrested after two months of the occurrence is not a ground to discard the prosecution story. The accused might have run away and avoided the arrest and on that account, his arrest on later stage does not create doubt in the prosecution story. No doubt PW-6 Amar Singh has not SHALINI BHATIA supported the case of prosecution regarding recovery but Investigating 2014.11.20 10:29 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. S-165-SB of 2004 (O&M) -6- Officer has supported the case of prosecution regarding recovery of robbed money from the appellant. The recovery of part of the booty from the appellant coupled with the statement of PW-3 Som Dutt proves the factum of dacoity against the appellant along with others. So, the offence of robbery against the appellant stands proved beyond any reasonable doubt.
The next question for determination is whether the offence under Section 397 IPC is made out to the facts of the present case. In order to properly appreciate the same, Section 397 IPC is reproduced as under :-
"397. Robbery or dacoity, with attempt to cause death or grevious hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grevious hurt to any person, or attempts to cause death or grevious hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
From the perusal of said provision of Section 397 IPC, it is revealed that offender should have used deadly weapons or caused grevious hurt to any of the persons. It is not nobody case that any of the robberer including appellant has caused any grevious hurt to any person. No doubt PW-3 Som Dutt has stated that the appellant was armed with pistol but he has stated that pistol was pointed out by the appellant towards PW-12 Om Pal but Om Pal has not supported the said version. Moreover, there is no recovery of pistol from the appellant or any other accused and as such, the prosecution story cannot be said to be proved in respect of ingredients of offence under Section 397 IPC. The learned SHALINI BHATIA 2014.11.20 10:29 trial court has not considered that aspect of the case. So, conviction of I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. S-165-SB of 2004 (O&M) -7- the appellant under Section 397 IPC cannot be maintained. Consequently, the appeal stands partly accepted and the appellant stands acquitted under Section 397 IPC but stands convicted under Section 392 IPC.
As per the conviction slip, appellant has undergone incarceration for a period of 04 years 11 months and 11 days including remission of 02 months and 15 days. So, the ends of justice would be met in case the sentence of appellant is reduced to the period already undergone by the appellant in respect of offence under Section 392 IPC and I order accordingly.
Disposed of accordingly.
OCTOBER 30, 2014 (K. C. PURI)
shalini JUDGE
SHALINI BHATIA
2014.11.20 10:29
I attest to the accuracy and
authenticity of this document
High Court Chandigarh