Punjab-Haryana High Court
Joginder @ Raj Kumar @ Raja vs State Of Haryana on 29 January, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 410-SB of 1998
Date of Decision : January 29, 2010
Joginder @ Raj Kumar @ Raja
....Appellant
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Gaurav Mohunta, Advocate
for the appellant.
Ms. Shalini Attri, Deputy Advocate General, Haryana
T.P.S. MANN, J. (Oral)
Vide judgment and order dated 19/20.3.1998, learned Additional Sessions Judge, Ambala convicted the appellant under Section 328 IPC and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.3,000/-, in default thereof, to undergo further rigorous imprisonment for six months. He was also convicted under Section 379 IPC and sentenced to undergo rigorous imprisonment for one and a half years and under Section 379 read with Section 511 IPC to undergo rigorous imprisonment for one year. All the sentences were ordered to run concurrently. Aggrieved of the same, the appellant filed the present appeal.
The FIR was registered on the basis of a statement made by Phool Singh PW5. He stated therein that on 26.6.1996, he came to Railway Station, Ambala Cantt. to take labourers for cultivating paddy. He Criminal Appeal No. 410-SB of 1998 -2- was sitting underneath a tree near Rickshaw stand outside Railway Station, Ambala Cantt. Pala PW7, a Rickshaw Puller, was also sitting near him and so was Karnail Singh PW6. In the meantime, the appellant, wearing pant and shirt, reached there and both, he and Karnail Singh, together took liquor. The accused put something in the liquor peg which Karnail Singh consumed and became unconscious. The accused took out money from the pocket of Karnail Singh and when he was trying to remove the wrist watch and the ring also, Phool Singh raised an alarm. The people gathered there. Both, Phool Singh and Pala, caught hold of the accused, who on enquiry told his name as Raj Kumar @ Raja son of Santuli, caste Balmiki, resident of village Kultaran, Police Station Kaithal. Both, Phool Singh and Pala then made the accused to sit in the Rickshaw and when they were taking him to GRP, they came across HC Hardev Singh before whom Phool Singh made the statement Ex.PD. He also stated that the occurrence had taken place at about 4.30 P.M. The said statement of Phool Singh was then transmitted to GRP, Ambala Cantt. on the basis of which FIR No. 274 dated 26.6.1996 was registered for offences under Sections 328/379 IPC. The accused was arrested. The search of the accused yielded an amount of Rs.305/- from him, which was taken into possession. The police, alongwith Phool Singh and Pala, then went to the spot where the complainant Phool Singh was sitting and one quarter containing small quantity of liquor was recovered.
During investigation of the case, the police learnt that the appellant and his associate Hawa Singh had assured Karnail Singh that they would arrange labour for him. Accordingly, Hawa Singh was also made an accused in the case. Later on, the appellant suffered a Criminal Appeal No. 410-SB of 1998 -3- statement before the police that he had mixed a pill in the liquor and he could get recovered such like pills from his house. However, nothing was recovered in pursuance of the said statement. After completion of the investigation, final report was submitted by the police against the appellant and Hawa Singh for offences under Sections 328/379 IPC. It was followed by commitment of the case to the Court of Sessions. On 7.4.1997, learned Additional Sessions Judge, Ambala found the appellant prima facie liable for offences under Sections 328, 379 and 379/511 IPC and charged him accordingly to which he pleaded not guilty and claimed trial. However, Hawa Singh accused was discharged from the case.
In support of its case, the prosecution examined PW1 Dr. Gajender Yadav, PW2 Inspector Satish Kumar, PW3 ASI Balbir Singh, PW4 HC Jagdish Lal, PW5 Phool Singh, PW6 Karnail Singh, PW7 Pala @ Gopal and PW8 HC Hardev Singh.
The prosecution case was then put to the accused under Section 313 Cr.P.C. He denied the prosecution allegations and claimed that on the day he was arrested, he and Hawa Singh had come to Ambala to take medicine from Dr. Sharda. However, they had a quarrel with a Rickshaw Puller on the question of charges and 3/4 Rickshaw Pullers gathered there, who handed them over to the police. However, in defence, the appellant did not examine any evidence.
Learned counsel for the appellant has submitted that even as per the prosecution, the appellant was stated to have served the liquor to Karnail Singh. As a result thereof, Karnail Singh became unconscious. However, Dr. Gajender Yadav, who had medico legally examined Karnail Criminal Appeal No. 410-SB of 1998 -4- Singh on 26.6.1996 at 6.45 P.M., opined that he was not intoxicated, although he had consumed alcohol. Though, according to the prosecution, the appellant had suffered a statement that he had kept some pills at his house yet nothing was recovered in pursuance thereof. Therefore, the appellant could not have been convicted under Section 328 IPC.
As per medico legal report Ex.PA in respect of Karnail Singh prepared by Dr. Gajender Yadav PW1, there was smell of alcohol present in his breath. He was slightly disoriented and his speech slightly slurred. According to the doctor, though Karnail Singh had consumed alcohol yet he was not intoxicated. It may be that Karnail Singh had not become intoxicated on account of consumption of alcohol, which was offered to him by the appellant but it had left some effect upon him as at the time of his medical examination, he was slightly disoriented and even his speech was slightly slurred. Smell of alcohol was present in his breath. It depends upon the individual as to how much liquor one may tolerate. In the present case, Karnail Singh had lost orientation on account of consumption of alcohol. Even his speech was effected. There was smell of alcohol in his breath. Cumulative reading of the evidence would reveal that the liquor served to him had its effect which facilitated the appellant to remove cash from the person of Karnail Singh. However, when he was trying to remove the wrist watch and the ring from the person of Karnail Singh, both, Phool Singh and Pala had raised an alarm, which attracted a number of persons there. Both of them apprehended the appellant at the spot and after his arrest by the police, his personal search yielded an amount of Rs.305/- from him.
Criminal Appeal No. 410-SB of 1998 -5-
Learned counsel for the appellant has further submitted that the prosecution had examined Pala PW7 in support of the ocular account but he did not support the case of the prosecution. He was declared hostile and cross-examined by the Public Prosecutor. Therefore, the appellant deserves to be acquitted of the charges against him.
Apart from the testimony of Pala PW7, the prosecution had relied upon the testimonies of PW5 Phool Singh and PW6 Karnail Singh. It is the quality of the evidence which matters and not the quantity. Both Phool Singh PW5 and Karnail Singh PW6 stood the test of cross- examination. No material could be brought on record to establish that they were not truthful witnesses. Even as per the appellant, he alongwith Hawa Singh had come to Railway Station, Ambala Cantt and they had a dispute with some Rickshaw Pullers regarding over-charging. None of the aforementioned two witnesses, namely, Phool Singh and Karnail Singh, were the Rickshaw Pullers. In fact, they had come to Railway Station, Ambala Cantt. so as to take labourers from there for cultivating their paddy crop. These two witnesses had no axe to grind by falsely deposing against the appellant. Therefore, the appellant does not deserve any concession in the matter of his conviction as recorded by the trial Court.
Learned counsel for the appellant finally submitted that the appellant has been undergoing the agony of criminal prosecution since June, 1996. He remained in jail as an under-trial for a period of about one month. He was again taken into custody upon his conviction and sentence by the trial Court and released on bail after he had spent a period of about four months in jail as a convict. He has, thus, undergone a period of about five months in jail out of the maximum sentence of three Criminal Appeal No. 410-SB of 1998 -6- years imposed upon him. He is a poor person and has a family to support. Therefore, his sentence of imprisonment be reduced to that already undergone by him.
Learned State counsel has opposed the prayer made on behalf of the appellant by submitting that such like incidents, as in the present case, are on the increase, where innocent persons/passengers are first administered some stupefying material and, thereafter, relieved of their belongings. Therefore, the appellant does not deserve any concession in the matter of sentence.
It is a fact that the appellant has been facing the agony of criminal prosecution since June, 1996. As per report Ex.PL of FSL, Haryana, no common poison except ethyl alcohol was detected in the glass quarter labelled Bonnie Scot, which was recovered by the police from the spot. Even in pursuance of the statement made by the appellant that he had kept some pills at his house, no such pills were recovered by the police. As per the jail custody certificate produced by learned State counsel today in the Court, the appellant remained in jail as an under-trial for one month and three days, and, thereafter as a convict for four months and one day. He has, thus, undergone an actual sentence of five months and four days. Taking into consideration all the circumstances, this Court is of the view that ends of justice would be amply met by reducing the sentence of imprisonment imposed upon the appellant to that already undergone by him. At the same time the fine of Rs.3,000/- imposed upon the appellant for the offence under Section 328 IPC can be enhanced to Rs.10,000/-.
Criminal Appeal No. 410-SB of 1998 -7-
Resultantly, conviction of the appellant, as recorded by the trial Court, is maintained and his sentence of imprisonment is reduced to that already undergone by him. However, sentence of fine of Rs.3,000/- imposed upon the appellant under Section 328 IPC is enhanced to Rs.10,000/-. In default thereof, he shall undergo rigorous imprisonment for one year.
The appeal is, accordingly, disposed of.
( T.P.S. MANN )
January 29, 2010 JUDGE
satish