Punjab-Haryana High Court
Vinod Son Of Bahadur vs State Of Haryana on 26 April, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Appeal No.875-SB of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(i) Criminal Appeal No.875-SB of 2007
Date of decision : 26.04.2012
Vinod son of Bahadur
....APPELLANT
VERSUS
State of Haryana
....RESPONDENT
(ii) Criminal Appeal No.415-SB of 2007
Date of decision : 26.04.2012
Krishan @ Dholla son of Om Parkash
....APPELLANT
VERSUS
State of Haryana
....RESPONDENT
CORAM : HON'BLE MR.JUSTICE RANJIT SINGH
***
Present : Mr.Manoj Chahal, Advocate,
for the appellants.
Mr.Saurabh Mohunta, Deputy Advocate General, Haryana,
for the respondent-State.
***
RANJIT SINGH, J.
This order shall dispose of two Criminal Appeal Nos.875-SB of 2007 and 415-SB of 2007 filed by Vinod son of Bahadur and Krishan @ Dhola son of Om Parkash.
Vinod son of Bahadur and Krishan @ Dhola son of Om Parkash have filed two separate appeals to impugn the order of their conviction for an offence under Section 398 IPC and the award of sentence of seven years rigorous imprisonment.
Both the appellants were prosecuted for offences under Criminal Appeal No.875-SB of 2007 -2- Sections 398 and 401 IPC on the basis of FIR No.291 dated 16.09.2003 lodged against them at Police Station City Hansi. This FIR was registered on the basis of information sent by ASI Chand Singh who while present in the vicinity of Hansi received a secret information to the effect that appellants were hiding in the weeds near a gate of Nehru College, Barwala Bye-Pass and robbing the persons passing through that road. The information further was that if the raid was conducted, they could be intercepted. On the basis of this information, ASI Chand Singh constituted a raiding party. He also associated one person namely Hans Raj as bogus traveller so as to send him to the place where the appellants were statedly present and robbing the people. ASI Chand Singh alongwith other police officials followed the said traveller. When Hans Raj reached the place, two boys were seen emerging from the weeds and they tried to over-power the traveller. One of them also gave a blow with sword which the traveller could ward off. The police party following the traveller over-powered two boys immediately alongwith their weapons. One of them was found carrying three feet long iron rod. One person, disclosed his name as Krishan @ Dholia, and was noticed carrying a sword in his hand. The sketches of the recovered weapons i.e. rod and sword, were prepared separately and weapons were sealed in a parcel with the seal 'CS'. One motorcycle Hero Honda without number plate parked nearby was also taken in possession. The seal after use was handed over to Hans Raj. On this basis, allegation of offences under Sections 398 and 401 IPC were made against the appellants for robbing the passers-by by Criminal Appeal No.875-SB of 2007 -3- forming a group.
Investigation followed. Appellant Vinod suffered a disclosure statement to the effect that he alongwith Krishan had broken the shop and stolen mobile phones, stabilizer and C.D. Cassette. He further disclosed that he got five mobile phones whereas Krishan got two mobile phone, stabilizer and C.D. Cassette as his share. These mobile phones had been given to a shop-keeper at Rohtak to which he could point out. Similar disclosure statement was also made by appellant Krishan. On a search, two mobile phones were allegedly recovered from appellant Vinod and one mobile phone was recovered from appellant Krishan. They could not produce the document to show their ownership for these items.
After completion of investigation, challan was presented and prosecution followed. The prosecution produced five witnesses in support of its case which included three police officers i.e. ASI Chand Singh, SI Sajjan Kumar and ASI Shish Ram. After the closure of prosecution evidence, the appellants were examined under Section 313 Cr.P.C. All the incriminating circumstances and the evidence were put to them and they denied the allegations made against them. The appellants chose to produce evidence in their defence and in this regard had examined Charan Singh, Manager, Dainik Bhaskar, Hisar as sole defence witness. This DW was examined to place on record the news item which was published on 13.09.2003 to the effect that the appellants were arrested and taken in custody being accused for stealing mobiles. It is accordingly pleaded that the story set up by the prosecution to show interception Criminal Appeal No.875-SB of 2007 -4- of both the appellants in the manner as projected was false.
The trial Court on the basis of appreciation of evidence examined the stand taken by the respective parties but, however, did not believe the defence and accepted the prosecution story. The appellants were accordingly convicted and sentenced as already noticed.
Both the appellants have, thus, filed the present appeals. Learned counsel for the appellants contends that the evidence led by the prosecution did not show in any manner that any attempt was made by the appellants to rob Hans Raj. As per the Court, evidence would not show that attempt was to rob him. Besides, the counsel pleads that the prosecution case is supported by the evidence of police witnesses which cannot be considered reliable. The so-called alleged traveller Hans Raj was given up as having been won over. The counsel would further plead that the defence projected by the appellants of their false implication is receiving support from the independent evidence on record. In this regard reference is made to the news item produced on record by Charan Singh, Manager, Dainik Bhaskar, Hisar (DW1) which would show that both the appellants had been taken in custody on 12.09.2003 and news item in this regard appeared on 13.09.2003. In this background, the story shown by the prosecution in regard to interception of both the appellants on 16.09.2003 would stand falsified.
On the other hand, Mr. Saurabh Mohunta, DAG, Punjab appearing for the State refers to the evidence examined by the Criminal Appeal No.875-SB of 2007 -5- prosecution to submit that there is no reason to disbelieve the statement of the prosecution witnesses merely on the ground that Hans Raj was not examined. He further states that Hans Raj was not examined because he had been won over by the defence. As per the State counsel, there is no reason to doubt the version given by the police witnesses as no such allegation is made against them for which they could have made effort to falsely implicate the appellants. State counsel further submits that news item could not be proved in accordance with law as the witness examined by the defence did not even know the name of the correspondent, who had given this news and otherwise also was not in any position to authentically submit about the correctness of this news item. State counsel, accordingly, pleads that prosecution case was fully established and the appeals are liable to be dismissed.
I have considered the rival contentions raised by the counsel for the parties.
The sole independent witness named by the prosecution in this case is Hans Raj. He was shown as a traveller and the story of the prosecution starts with him. It is an attempt to rob Hans Raj that led to prosecution of both the appellants. No doubt that the police witnesses claims to have followed Hans Raj and has given the account of events that took place at the scene of occurrence as regard attempted robbery of Hans Raj. He was given up by the prosecution on the ground that he was won over. Thus, except for the evidence given by the police witnesses, there is no material on record to prove the story of prosecution. In this context, counsel for Criminal Appeal No.875-SB of 2007 -6- the appellants has referred to the evidence of both the witnesses to urge that even if this evidence is accepted as a truthful account still it would not show that an attempt was made to rob Hans Raj. The counsel contends that what all is stated is that the appellants appeared from the weeds and attacked Hans Raj with iron rods that they were allegedly carrying. More than that nothing is disclosed by the police witnesses, who has been examined as prosecution witnesses. Will that be sufficient evidence to prove that this was an attempt to rob Hans Raj? The version only shows that Hans Raj was attacked . No evidence is given as to how and if any attempt was made to rob him. This evidence may raise suspicion that this attempt to attack Hans Raj may be to rob him. In order to succeed, however, the prosecution was required to establish that attempt, if any, was made and it was only with the aim of rob and there is no other possibility of the attack as it would appear from the evidence.
In my view, the evidence as led by the prosecution even if believed to be true would only show that the appellant had made an attempt and in that attempt they attacked Hans Raj. No evidence is given to show that this attempt was made to rob Hans Raj. It 'may' be that this was the attempt to commit robbery but there is a long distance to travel by the prosecution between the 'may' and 'must', which the prosecution has to travel on its own. Thus, when examined in the light of the defence, evidence would go to create some doubt in regard to the veracity of prosecution version. It cannot be said that the news item appeared out of blue in the newspaper 2 or 3 days prior to the alleged incident naming the appellants to be Criminal Appeal No.875-SB of 2007 -7- one, who were taken into custody in connection with theft of mobiles. There may be something more than this in this news item. In the course of investigation, it has surfaced that few mobiles were recovered from the appellants. This will read in line with the news item. It has appeared in news that both the appellants had been taken in custody in connection with theft of mobiles. Possibility, thus, cannot be ruled out that the appellants were arrested in connection with theft of mobiles and then implicated in this case. The so called traveller also was given up. His evidence would have given assurance to the prosecution version. Rather his non-examination would put serious doubt on the prosecution case. The assertion that the defence was not able to prove the news item in a legal manner, may be so but the fact that the editor appeared to place on record this news item cannot be ignored altogether. Merely because he could not name the correspondent is not that material to show that this news item was not published at all. The defence could succeed by creating doubt on the prosecution story and the burden on the defence to succeed is much lighter compared to the prosecution. The prosecution can succeed in proving the case beyond reasonable doubt and if there is any doubt in the case of the prosecution that must be removed by the prosecution before it can seek conviction of an accused. No such heavy burden rests on the defence, which succeeds on preponderance of probabilities. The preponderance of probability would show that this news item had appeared. As per the news item some mobiles were recovered from the appellants, who are named therein. As per the prosecution, mobile phone was shown Criminal Appeal No.875-SB of 2007 -8- to have been recovered from them (appellants). This may give credence to the news item and would give lie to the prosecution version. I am of the considered opinion, that the prosecution was not be able to prove the case against the appellants beyond reasonable doubt. The benefit of this doubt would accrue to the appellants as per their legal rights. The further dent to the prosecution case is also received when offence under Section 401 IPC could not be proved against the appellants.
Considering the totality of evidence and circumstances as noticed above, the prosecution, in my view, has failed to establish the charge against the appellants. The appeals, therefore, succeed and the conviction and sentence imposed on the appellants is set aside.
The appeals are allowed.
(RANJIT SINGH) 26.04.2012 JUDGE mamta