Rajasthan High Court - Jaipur
Paramjeet Singh vs State Of Rajasthan on 22 August, 2000
Equivalent citations: 2001CRILJ757, 2001(4)WLC326, 2001(1)WLN43
JUDGMENT
1. This appeal has been filed by the accused appellant against the judgment and order dated 9-3-2000 passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar in Sessions Case No. 27/98 by which he convicted the accused appellant in the following manner :-
Name of accused offence u/s sentence awarded Paramjeet Singh 394 IPC Four Years R.I. and fine of Rs. 1000/-, in default of payment of fine to further undergo one month S.I. 397/34 IPC Seven years R.I. and fine of Rs. 1000/-, in default of payment of fine to further undergo one month S.I. Both the sentences were ordered to run concurrently.
2. The facts giving rise to this appeal in short are as follows :-
On 10-3-1998 at about 4.30 p.m. PW3 Ved Prakash gave a Parcha-bayan, Ex. P/9 while he was in Hospital, to PW6 Phularam stating that he has a Maruti Car bering No. DBD 4559, Taxi (hereinafter referred to as the Taxi) and on 9-3-1998 at about 9.30 p.m. when he was standing at the Taxi Stand of Abhor (Haryana), two persons came there and asked him that they wanted to go to Chak IC in Rajasthan and he allowed these two persons to sit in the Taxi and the fare agreed to was Rs. 400/-. Out of these two persons, one person sat with him meaning thereby nearby his seat and other person sat in the back seat of the Taxi. They first went to Shivpur, from where they asked about the way of IC and in the midnight when they reached near the Punjab pool, then, the person, who was sitting behind his seat, took up iron rod and gave blow on his head and at that time when he was being beaten by the person, who was sitting behind his seat, another person sitting nearby him, caught him and thereafter, both threw him out of the Taxi and took away the Taxi and he was severaly injured and then, he was taken to the hospital, where he was admitted. He was got medically examined.
On this Parchabayan Ex. P/9, FIR Ex. P/13 was chalked out and police started investigation. During investigation, PW6 Phularam came to know that these two persons are in lockup in Police Station Sapla District Rohtak. Then, he went there and met Mathu Ram. ASI and he was told by him that a Car was seized under Section 102, Cr.P.C. and the number of that Car is the same, which belongs to PW3 Ved Prakash. He recovered the Car through Ex. P/12. On being interrogated, it was told that the names of these two persons from whose possession Car in question was seized, are accused Paramjeet Singh and Siraj Ali.
Note :-That accused Siraj Ali has been declared absconder and whole proceedings have been conducted in his absence.
These two accused were arrested through Ex. P/21 and Ex. P/22. During investigation, accused Siraj Ali on 12-4-1998 gave information to PW6 Phularam about the place from where the Taxi was taken and the place where PW3 Ved Prakash was beaten. Similarly, accused appellant also gave information about the recovery of the iron rod, papers of the Taxi and driving license of Siraj Ali and that information was recorded in Ex. P/24 and pursuant to that information, articles were recovered through Ex. P/26.
After investigation, police submitted challan against both the accused.
The learned Additional Sessions Judge No. 1, Sri Ganganagar on 31-8-1999 framed charge under Section 394 and 397, IPC against the accused appellant Paramjeet Singh, who denied the charges and claimed trial.
In support of its case, the prosecution examined as many as 9 witnesses and got exhibited 20 documents. Thereafter, statement of accused appellant under Section 313, Cr.P.C. was recorded. No evidence was produced in defence, but two documents were exhibited by the accused-appellant in defence.
After conclusion of trial, the learned Additional Sessions Judge No. 1, Sri Ganganagar through his judgment and order dated 9-3-2000 convicted and sentenced the accused-appellant in the manner as stated above, holding inter-alia :-
1. That even in absence of identification parade, statement of PW3 Ved Prakash and PW9 Kewal Krishna, who have identified the accused-appellant for the first time in Court, is reliable.
2. That the evidence of PW8 Kitab Singh, who was ASI Police Station Maham District Rohtak is trustworthy.
3. That though accused-appellant was not charged specifically with the aid of Section 34, he can be convicted under Section 397/34, IPC.
4. That both accused Paramjeet Singh and Siraj Ali committed the robbery of the Taxi of PW3 Ved Prakash and they also beat PW3 Ved Prakash though grevious hurt was not caused by the present accused-appellant.
5. That the prosecution has been able to prove its case beyond reasonable doubt against the accused-appellant for the offence under Section 394 and 397/34, IPC.
Aggrieved from the said judgment and order dated 9-3-2000 passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar, the present appeal has been filed by the accused-appellant Paramjeet Singh.
3. In this appeal, the following submissions have been made by the learned counsel for the accused-appellant :-
1. That the evidence of PW3 Ved Prakash and PW9 Kewal Krishna with respect to identification of accused in Court, is inadmissible in evidence and carries no weight, as no identification parade was held after the arrest of the accused-appellant.
2. That accused-appellant cannot be convicted with the aid of Section 34, IPC for the offence under Section 397, IPC inasmuch as, no grevious injury was caused by accused-appellant on the person of PW3 Ved Prakash.
3. That in case the Court comes to the conclusion that any offence has been committed by the accused-appellant, lenient view be taken in awarding sentence to him.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar.
5. I have heard the learned counsel for the accused-appellant as well as the learned Public Prosecutor and perused the record of the case.
6. Before proceeding further, first I would like to discuss the medical evidence in this case.
7. The injury report of PW3 Ved Prakash is Ex. P/8 for which PW2 Dr. B.M. Sharma has been produced by the prosecution. He states in his statement that on 10-3-1998 he examined PW3 Ved Prakash in the Hospital and found as many as 12 injuries on his person. He has proved the injury report Ex. P/8. He has further stated that after seeing the X-ray report Ex. P/7, he states that injuries No. 6 and 7 of PW3 Ved Prakash were grevious in nature.
Note :-That these two injuries are on the head of PW3 Ved Prakash.
8. Similarly, in this respect, the statement of PW1 K.N. Markande, who was Radiologist at the relevant time, may also be seen. He has proved the X-ray report Ex. P/7.
9. Thus, from the statements of PW1 K.N. Markande and PW2 Dr. B.M. Sharma, it appears that PW3 Ved Prakash received 12 injuries and out of these injuries, injuries No. 6 and 7 were grevious in nature.
10. So far as the identification of accused-appellant by PW3 Ved. Prakash and PW9 Kewal Krishna in Court is concerned, it may be stated here that this identification in Court for the first time when the accused is not known to the person identifying is of very little importance. PW3 Ved Prakash in his statement has clearly admitted that he did not know the accused-appellant before this incident. On this point, decision of the Hon'ble Supreme Court in Kanan v. State of Kerala, AIR 1979 SCI 127: (1979 Cri LJ 919) may be seen, where the following proposition of law has been laid down :-
Where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous identification parade to test his powers of observations. The idea of holding T.I. parade under Section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.
11. From the above ruling, it appears that no importance can be attached to the identification of the accused-appellant which was made by PW3 Ved Prakash and PW9 Kewal Krishna in Court for the first time.
12. No doubt if this evidence is excluded, all the same there is ample evidence in the present case to connect the accused-appellant with the alleged offence.
13. So far as the happening of the incident is concerned, it is well proved from the statement of PW3 Ved Prakash.
14. The learned Additional Sessions Judge No. 1 has relied on the statement of PW8 Kitab Singh, who was ASI, Police Station Maham at the relevant time. He has clearly stated that on 11-3-1998 he found a Maruti Car No. DBI 4590, but when he checked, he found the correct number of the said Maruti Car as DBD 4559 and inside the Car, two persons were sitting and on being interrogated, they told their names as Paramjeet Singh and Siraj Ali and he also found that there was some spot of blood on the front seat of the Car and thereafter, he seized the Car under the provisions of Section 102, Cr.P.C. and prepared fard Ex. P/14 and these two persons were also arrested by him and fard of arrest of accused-appellant is Ex. P/18 and they also narrated the whole story to him about the commission of crime.
15. In my opinion, from the statement of PW8 Kitab Singh, the fact that soon after the incident, the Car was recovered from the possession of accused-appellant and another accused Siraj Ali itself goes to show that this Car was stolen by them as alleged by PW3 Ved Prakash. Therefore, the statement of PW8 Kitab Singh has been rightly believed by the learned Additional Sessions Judge No. 1, which connects the accused with the commission of offence of robbery of Car. The statement of PW6 Phularam further corroborates the statement of PW8 Kitab Singh about the fact that the place where the incident took place was identified by accused-appellant and another accused Siraj Ali.
16. Thus, in this case, there is ample evidence to connect the accused-appellant with the offence alleged and the findings of the learned Additional Sessions Judge No. 1 to the effect that accused-apellant Paramjeet and another accused Sirajali focibly took away the Taxi in question from the possession of PW3 Ved Prakash are correct one.
17. From the statement of PW3 Ved Prakash, it further appears that accused-appellant was sitting near his seat and accused Siraj Ali was sitting behind his seat and he was beaten by the person sitting behind his seat, meaning thereby he was beaten on head by accused Siraj Ali and not by the present accused-appellant Paramjeet Singh. Hence, grevious injury was caused by accused Siraj Ali not by accused-appellant.
18. The next question that arises for consideration whether in case of robbery, a person can be convicted with the aid of Section 34 of 149 IPC or not.
19. The ingredients of Section 397, IPC are as follows :-
(1) Commission of robbery or dacoity.
(2) The accused used a deadly weapon; or caused grevious hurt; or attempted to cause death or grevious hurt;
(3) He did the above acts during the commission of robbery or dacoity.
20. To prove the charge under Section 397 IPC, the prosecution has to establish that the accused was the person or one of the persons who used deadly weapon during commission of robbery. Section 397, IPC is a mere rider to offence under Section 394, IPC. Section 397, IPC only provides for enhancement of the term of imprisonment in certain cases. To render Section 397, IPC applicable, it must be proved that the offender himself committed the act and not that he was vicariously liable.
21. Section 397, IPC does not create substantive offence but merely prescribes minimum sentences for the accused who actually uses the dacoity weapon or causes or attempts to cause grevious hurt to a person in the course of committing dacoity. It thus postulates individual act of the accused. It has no scope for constructive liability. The individual act of an offence covered by Section 397 does not make his fellow miscreants liable under Section 397.
22. The term 'offender' in Section 397 is confined to the offender who uses any deadly weapon. The use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for imposition of the minimum punishment on another offender who has not used any deadly weapon.
23. Thus, it can be said that Section 397 cannot be applied constructively, and relates only to the offender who actually uses the weapon himself.
24. In view of the above, it can be held that Section 34 of 149, IPC has no application to a case covered by Section 397, IPC. For that purpose, reliance can be placed on the following decisions :-
1. re Arunachella Tevan, 1912 Cri LJ 42
2. Union Territory of Manipur v. Moirangthem Khomei Singh, AIR 1971 Manipur 43 : (1971 Cri LJ 1759).
3. Jang Singh v. State of Rajasthan, 1984 Cri LJ 1135 (Raj).
25. In the present case, it is very much held by the learned Additional Sessions Judge No. 1 that grevious hurt was not caused by the accused-appellant and, therefore, he made him liable for the offence under Section 397 with the aid of Section 34, IPC.
26. In view of the position of law as stated above, the conviction of the accused-appellant under Section 397 read with Section 34, IPC cannot be sustained. Thus, accused-appellant is entitled to acquittal of the offence under Section 397/34, IPC and the findings of the learned Additional Sessions Judge No. 1 convicting accused-appellant under Section 397/34, IPC are liable to be set aside.
27. The next question that arises for consideration is whether the case of the accused-appellant falls under Section 394, IPC or not.
28. For the purpose of convicting a person under Section 394 IPC, the following points are required :-
1. That the accused committed or attempted to commit, or was concerned in the commission of robbery.
2. That in doing so the accused or some other person so concerned caused hurt.
3. That the hurt was caused voluntarily.
29. In the present case, there is a statement of PW3 Ved Prakash that he was beaten severely by accused, who was sitting behind him, but he was also beaten by accused, who was sitting with him i.e. present accused-appellant Paramjeet Singh. Therefore, it can be said that simple hurt was also caused by accused-appellant and not the grevious hurt, as held earlier.
30. When this being the position, the conviction of the accused-appellant under Section 394, IPC can be sustained and thus, the findings of the learned Additional Sessions Judge No. 1 convicting the accused-appellant under Section 394, IPC are liable to be confirmed.
31. On the point of sentence, it may be stated that question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, the appellate Court should not interfere except in cases where strong reasons persist.
32. In the present case, it appears that in arrest memo Ex. P/21, the age of the accused-appellant is mentioned as 22 years. It means he is of very young age and looking to all the facts and circusmtances, for the offence under Section 394, IPC, the punishment of four years R.I., which has been awarded by the learned Additional Sessions Judge No. 1, is neither excessive nor unreasonable. Therefore, this Court would not like to interfere with the order of sentence passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar.
In the result :-
1. The appeal of the accused-appellant Paramjeet Singh is partly allowed and his conviction under Section 397/34, IPC and sentence for the said offence passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar through his judgment and order dated 9-3-2000 are set aside and he is acquitted of the offence under Section 397/34, IPC.
2. But, the appeal of the accused-appellant Paramjeet Singh against his conviction under Section 394 and sentence for the said offence is dismissed, after confirming the judgment and order dated 9-3-2000 passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar so far as they relate to the offence under Section 394, IPC.