Punjab-Haryana High Court
Hari Om vs State Of Haryana on 29 January, 2014
CRA-S-799-SB of 2012 & 1
CRA-S-435-SB of 2012 &
CRA-S-174-SB of 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA, AT
CHANDIGARH
-----
CRA-S-799-SB of 2012
Hari Om ... Appellant
Versus
State of Haryana ... Respondent
WITH
CRA-S-435-SB of 2012
Manoj Kumar ... Appellant
Versus
State of Haryana .. Respondent
AND
CRA-S-174-SB of 2012
Sumit @ Parveen Shankar and another ... Appellants
Versus
State of Haryana .. Respondent
Decided on : 29.01.2014
CORAM : HON'BLE MR.JUSTICE MAHAVIR S. CHAUHAN
Present : Mr.Manoj K.Tanwar, Advocate, for the appellant No.1 (in
CRA-S-174-SB of 2012).
Mr.Manish Soni, Advocate, for the appellant (in CRA-S-435-
SB of 2012 & CRA-S-799-SB of 2012) and for appellant No.2
(in CRA-S-174-SB of 2012)
Mr.Rajat Mor, Deputy Advocate General, Haryana
for respondent.
----
Mahavir S. Chauhan, J. (Oral)
This judgment, being passed in CRA-S-799-SB of 2012, Hari Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 2 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 Om versus State of Haryana, shall dispose of, besides this appeal, CRA-S- 435-SB of 2012, Manoj Kumar versus State of Haryana, and CRA-S-174- SB of 2012, Sumit @ Parveen Shankar and another versus State of Haryana, as these appeals have arisen out of a common judgment of conviction dated 14.12.2011 and order of sentence dated 20.12.2011 passed by the learned Additional Sessions Judge, Gurgaon in Sessions Case No.13 of 2010/2011, and involve common questions of fact and law.
Before setting out to analyze the sustainability of the impugned judgment of conviction and order of sentence, it is necessary to have a journey across the facts and circumstances constituting the case of the prosecution.
On March 21, 2010, PW Satish Kumar (here-in-after referred to as "the complainant") met and presented before PW Inspector Narender Singh (here-in-after referred to as the "Investigating Officer") a complaint dated March 20, 2010 (Exhibit PC) wherein it was alleged that at or around 05.00 p.m. on March 20, 2010, his sister, Sunita and her son, Amit, were going from Gurgaon towards village Jafarpur via village Sarai Alawardi in a Maruti car bearing registration No.HR-26-1727. When they reached near ice factory of village Pawala Khusarpur, four persons riding two stolen motor cycles came from behind; parked one motorcycle in front of them; one person who was 5'-7" tall, aged about 24-25 years, having wheatish complexion, with broad forehead, cut marks on both sides of his lips, supporting long hair but no moustaches, alighted from the motorcycle and Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 3 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 put a pistol on the temple of PW Amit; snatched two mobile phones, bearing No.9540114494 and 9899673034, four bangles, one chain and two ear tops from PW Sunita; and, thereafter all the four of them made good their escape towards village Sarai Alawardi. Sunita and Amit reached the complainant but being in a state of shock, they could not narrate the episode, still, a phone call was made to Police Control Room (PCR).
Investigating Officer, after making his endorsement thereon, despatched the complaint (Exhibit PC) to the Police Station where, based on it, a formal First Information Report, Ex.PG, was recorded.
Investigating Officer, during the course of investigation, visited spot of occurrence, drew rough site plan, Exhibit PQ, and recorded statements of witnesses, including those of Amit and Sunita.
PW 13, Inspector Ram Avtar, while posted in Crime Branch of Delhi Police, on receipt of a secret information that the appellants herein were planning to commit dacoity on snatched motor cycles, arrested them on March 26, 2010 from Delhi's Geeta Colony Flyover. When arrested, appellant Manoj Kejriwal was found to have in his possession a semi automatic, loaded with one cartridge, pistol, and a spare magazine, while two of them, namely, Parveen Shankar aka Sumit and Rahul Anand aka Sami, who were riding another motor cycle, were found to carry one country made pistol, each. The recovered pistols and motorcycles were taken in police possession. During interrogation, aforesaid appellants suffered disclosure statements, Exhibits PM, PN, and PO, respectively, which led to Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 4 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 recovery of gold tops, gold chain, and two mobile phones, without battery and SIMs, vide memorandum Exhibit PP. The jewellery was recovered from the office of Muthoot Finance, where the above-said appellants had pledged those articles against an amount of Rs.69,200/-. In the disclosure statements, the appellants also named Hariom, who was already in custody in some other case. Said Hariom, while being interrogated in police custody, also suffered a disclosure statement, Exhibit PK, and thereby confessed to his crime. The recovered articles were stated to have been used in the occurrence under adjudication in these appeals also.
On completion of investigation, Investigating Officer presented before the jurisdictional Magistrate, a report as required by Section 173(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.').
On perusal of the report and its annexures, it having appeared that the offences involved in the matter were triable exclusively by the Court of Session, Learned Jurisdictional Magistrate committed the case to the Court of Session at Gurgaon and it was ultimately entrusted for trial to the learned Additional Sessions Judge, Gurgaon (hereinafter referred to as the 'trial Court').
Learned trial Court, upon consideration of the record, viz., the report and its annexures, and hearing the prosecution and the defence, did not consider it to be a case for disharge of the accused, and, instead, found that, in his opinion, there were grounds for presuming that the accused had committed an offence punishable under Sections 392, 397 of the Indian Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 5 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 Penal Code (for short, 'IPC') and, accordingly charged them.
On a plea of 'not gulty' and a claim for trial having been put up by the accused, learned trial Court called upon the prosecution to bring evidence in support of the charges.
Prosecution examined PW2 Amit, PW3 Sunita, and PW4 Satish Kumar complainant to bring on record an eye-witness-account of the occurrence, PW1 ASI Babu Lal to prove releae of case property, Exhibits P1, P2, P3 and P4 to the complainant on supardari, PW8, ASI Braham Parkash to prove registration of the FIR, Exhibit PG on the basis of complaint, Exhibit PC, PW6 Constable Narender in proof of despatch/delivery of the special report, PW9, Subhash Balan in proof of pledging of the case property with Muthoot Finance Ltd., Mahipal Pur, by the appellants on March 20, 2010, PW5 Girish Kumar, Draftman to prove scaled site plan, Exhibit PD, PW14 Inspector Narender Singh, PW7 EHC Mahender Singh, PW10 SI Hawa Singh, PW11 HC Chand Ram, PW12 SI Manjeet Tomar, and PW13 Inspector Ram Avtar to bring on record various stages/aspects of the investigation.
After the witnesses for the prosecution had been examined, learned trial Court questioned the accused generally on the case of the prosecution so as to enable them to put forth their version qua the incriminating circumstances brought on record in the evidence of the prosecution, as required by Section 313 Cr.P.C. The accused denied all the circumstances as false and incorrect and reiterated their plea of innocence Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 6 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 and false implication.
After taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence, learned trial judge considered that in view of the evidence available on record, it was not possible to record a finding of acquittal and, accordingly, called upon the accused to enter on their defence and adduce any evidence they might have in support thereof. However, the accused did not lead any evidence in their defence.
After evidence in defence was closed, learned trial judge heard the learned Public Prosecutor sum up the case and the learned defence counsel replying to it; came to the conclusion that the prosecution was able to prove guilt of the accused beyond reasonable doubt; held them guilty; and convicted and sentenced each one of them to undergo rigorous imprisonment for 08 years and to pay a fine of Rs.10,000/- under Section 392 read with Section 397, IPC, and in default of payment of fine, to undergo further rigorous imprisonment for 01 year, vide judgment of conviction dated 14.12.2011 and order of sentence dated 20.12.2011.
To challenge said judgment of conviction dated 14.11.2011 and order of sentence dated 20.12.2011, convicts have brought these appeals under sub-section (2) of Section 374, Cr.P.C.
State is contesting the appeals.
I have heard learned counsel for the appellants and learned Deputy Advocate General, Haryana for the respondent-State. Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 7 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 It is argued on behalf of the appellants that investigating agency did not hold a test identification parade to fix identity of the appellants as the persons involved in the occurrence and that being so their identification by PW/1 and PW/2, Amit and Sunita, before the learned trial Court is inconsequential. It is also argued that recovery of pistols from possession of three of the appellants has been held to be not proved by Additional Chief Metropolitan Magistrate-2, North, Delhi, vide judgment dated 28.07.2011 passed in case 338/CB/04 and the judgment so passed by that Court having not been challenged by the State, has attained finality and that being so, the offence under Section 397, IPC, is not made out.
Learned State counsel, on the contrary, defends the judgment of conviction and order of sentence passed by the learned trial Court and submits that the appellants have been sufficiently identified before the learned trial Court and that being so, the absence of test identification parade has no impact. As regards the recovery of weapons from the possession of three appellants, learned State counsel points out that recovery of the same has been duly proved and the judgment of learned Additional Chief Metropolitan Magistrate-2, Noth, Delhi, referred to above, is based on the benefit of doubt and is of no consequence as regards the instant case.
Nothing more has been urged on behalf of either side. The appellants, it is seen, donot challenge the occurrence. Their only challenge is to their conviction and consequent award of punisment Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 8 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 under Section 397, IPC, on the plea that the recovery of weapons from them has remained unproved. Absence of test identification parade is sought to be used as a circumstance to doubt their involvement in the episode.
There is no provision in Cr.P.C. which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. Still, it would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The appellants are not shown to have raised a demand for such a parade at any stage of the investigation. Were it so even then failure to hold Test Identification Parade even after demand by the accused, would not have been fatal, for, it is only one of the relevant factors to be taken into consideration alongwith other evidence on record. PWs Sunita and Amit were face to face with the appellants for quite some time and were, thus able, to have an imprit of the faces and other identifying features of their tormentors, rather, one of them has been identified in the First Information Report by such identifying features. Both the above-said witnesses, on the basis of their memory, have identified the appellants before the learned trial Court and, incidentally, the eye-witness account is admitted by the appellants to be true. Therefore, failure to hold Test Identification Parade is Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 9 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 inconsequential.
Even otherwise, identification parade belongs to the stage of investigation. Question whether a witness has or has not identified the accused during investigation is not one which is in itself relevant at the trial, actual evidence regarding identification is that which is given by the witness in the Court. Fact that a particular witness has been able to identify the accused at the identification parade is only a circumstance corroborative of the identification in Court and Failure to hold Test Identification Parade does not make inadmissible the evidence of identification in Court. The contention based on non-holding of test identification parade, in my view, is, thus, wholly untenable.
Section 390, IPC, defines "Robbery" as under:
"Section 390. Robbery: In all robbery there is either theft or extortion.
When theft is robbery.--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 to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 10 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
"Dacoity" is defined by Section 391, IPC, thus:
"Section 391. Dacoity: When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
Section 392, IPC, provides, besides award of fine, a punishment of "rigorous imprisonment for a terms which may extend to ten years" and if the robbery is committed on a highway between sunset and sunrise, the punishment of imprisonment may extend to fourteen years. Section 397, IPC, comes into play only If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person. It runs as under:
"397 . Robbery or dacoity, with attempt to cause death or grievous hurt.-- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so 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."
The offenders, as per case of the prosecution itself, were four in Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 11 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 number and occurrence took place at 05.00 p.m. in the month of March. It, therefore, cannot be said to have occurred between sunset and sunrise. This takes the occurrence out of definition of "Dacoity" as defined in Section 391, IPC, as also second part of Section 392, IPC. As aforesiad, to attract Section 397, IPC, the prosecution was required to prove use of deadly weapons or causing of grievous hurt to the victims(s). The weapons, viz., the pistols, undisputedly, were not recovered in the present proceedings and instead these were recovered by Delhi Police and on the basis of the recovery so effected, FIR No.39 of 2010 came to be recorded at Police Station Crime Branch, New Delhi, under Section 25 of the Arms Act. Incidentally, the trial, that emanated from the aforesaid FIR, culminated into the judgment dated 28.07.2011 (copy retained). Concluding part of the said judgment reads as under:-
"18. Two motorcycles were also allegedly recovered from the accused persons. One of the motocycle was reported to be stolen vide FIR No.58/10, PS Kapashera. As noted above, Ld. MM has already acquitted accused Praveeen in that case. Ld. MM has held that recovery of the motorcycle is very much doubtful. In very clear words, Ld.MM has observed that there was delay in lodging of the FIR. The circumstances were such that FIR was lodged after the motocycle in that case goes against the prosecution in this case as well. The facts are so interconnected that this judgment of Ld. MM cannot be ignored and is relevant. In the present case also prosecution has alleged that all the three accused persons came on two motorcycles which were stolen. On search of accused persons fir arms and ammunition were recovered. When recovery of motorcycle has been held to be doubtful it will not be prudent to hold that any fire arm and ammunition were recovered. Allegations of the prosecution regarding recovery of fire arms and ammunition remain doubtful in this case also. Ld.APP Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 12 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 has not stated that judgment of Ld MM has been set aside by any appellate or revisional court. As on today this judgment stands.
19. Taking into consideration the entire material on record, it is held that prosecution has not been able to prove the charge beyond reasonable doubt. Consequently, all the three accused are hereby acquitted. They may be released from JC if not wanted in any other case. Case property be confiscated."
Learned State counsel has not been able to controvert an assertion made by leatrned counsel for the appellants that this judgment has not been set aside or reversed by the appellate or revisional Court. That being so, the judgment dated 28.07.2011 of learned Additional Chief Metropolitan Magistrate (2) North Delhi holds the field and as such, recovery of the weapons from the possession of three of the appellants is found to have remained un-substantiated. Strangely, the learned trial Court has thought it unnecessary and wasteful to record reasons in support of its findings as regard the commission of offence under Section 397, IPC, in the absence of evidence to show recovery of deadly weapns from the appellants. It is nobody's case that Sunita and/or Amit received any injuries, much less grievous injuries, in the occurrence.
It may be relevant to refer here the judgment of Delhi High Court in case Rajinder Yadav Vs. State (NCT of Delhi), 2013(7) AD (Delhi) 359 wherein it was held as under:
"8. In the instant case, prosecution case itself is that only a vegetable knife was found in possession of the accused. The Investigating Officer did not prepare its sketch. The Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 13 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 complainant-PW-2 (Ranjeet Pandey) did not describe the specific dimensions of the knife recovered from the accused. PW-2 (Ranjeet Pandey), the victim did not specifically depose that Rajender Yadav was the assailant who had shown him the knife while committing robbery. Mere recovery of knife from the pocket of the accused is not enough to infer that it was the knife used to commit robbery. No injuries with the knife were inflicted on the victim's body. Even when the appellant was being chased by the complainant and his associate, he did not attempt to take out the knife to resist his apprehension. Appellant's associate could not be arrested during the investigation and his identity could not be established. Appellant's MLC on record reveals that he was given beating by the public. He had also consumed alcohol. Daily Diary (DD) No.60B (Ex.PW1/A) did not record if the assailant was caught with a knife. Taking into consideration all these discrepancies, recovery of knife from the possession of the accused is doubtful. Moreover, the knife allegedly recovered from the possession of the accused cannot be considered a deadly weapon to award RI for seven years which is a minimum sentence to be given with aid of Section 397 IPC. There is no cogent evidence on record that the appellant had used the deadly weapon at the time of committing robbery. Conviction of the appellant with the aid of Section 397 IPC cannot be sustained and is set Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh CRA-S-799-SB of 2012 & 14 CRA-S-435-SB of 2012 & CRA-S-174-SB of 2012 aside."
Nothing to the contrary has been shown during the course of hearing.
In view of the above, conviction of, and award of punishment to, the appellants under Section 397, IPC, cannot be allowed to stand.
However, no illegality or irregularity could be pointed out on behalf of the appellants as regards conviction of the appellants under Section 392, IPC.
Therefore, conviction of the appellants and order of sentence under Section 397, IPC, are set aside but their conviction under Section 392, IPC, is maintained. However, punishment awarded to the appellants under Section 392, IPC, is found to be on the higher side, more particularly, in view of the fact that they have been facing agony of investigation and trial since March, 2010. I am told that the appellants have already served imprisonment for a term of 03 years and 10 months but have not paid the amount of fine as it was stayed by this Court.
In view of the circumstances, order of sentence is modified and substantive sentence awarded to the appellants is reduced to the period already spent by them in custody. However, sentence regarding fine and default clause are maintained.
[ Mahavir S. Chauhan ] Judge 29.01.2014 sd Kumar Sudhir S 2014.02.07 16:01 I attest to the accuracy and integrity of this document chandigarh