Brahma Nand alias Babbar vs State of Haryana

S.S. Grewal, J.

Brahma Nand alias Babbar and Balbir appellants were jointly tried and convicted under Section 392 read with Section 397 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 3,000/ each vide order of Additional Sessions Judge, Jind, dated 6.3.1992. In default of payment of fine each of them was ordered to undergo further rigorous imprisonment for six months.

In brief facts of the prosecution case are that on 9.1.1991, Zile Singh, Cashier of the Haryana State Electricity Board, along with Rattan Lal, Assistant Lineman were present in the premises of Veterinary Hospital in village Bibipur for collection of electricity bills. At about 12 noon that day, two persons armed with country made pistols came there on motor cycle bearing registration No. DEV 9244. Immediately thereafter one of those persons (whose name later on was found to be Brahma Nand) fired in the air from his pistol. The name of other person was found to be Balbir. Both Brahma Nand and Balbir threatened that if anybody tried to intervene, he would be shot dead. They were able to snatch the bag of cash lying in front of Zile Singh PW. As both the appellants were in the process of moving a way, Zile Singh caught hold of Brahma Nand appellant who was able to release himself by causing injuries to Zile Singh with the Butt of the pistol. Both the appellants then went towards the motor cycle and were about to start the same and on the noise raised by the standers, Dharam Pal and Inder Singh me to the spot and they along with others including villagers and some students were able to overpower both the appellants who could not start their motor cycle and escape. Both the appellants were kept in the premises of the Hospital whereas Zile Singh and Rattan Lal went to General Hospital, Jind for treatment of injuries received by Zile Singh. After receiving the first aid, Zile Singh was proceeding towards the Police Station when SI Prem Singh and other members of the Police party met him on the way. The said Sub Inspector recorded the statement of Zile Singh and on its basis formal first information report was subsequently registered at the police station. SI Prem Singh accompanied by Zile Singh and Rattan Lal came to the spot and both the appellants were arrested. Receipts and cash amounting to Rs. 21,400/ along with pistols and live cartridges which had earlier to been snatched from the appellants were handed over the Investigating Officer. After completion of the investigation both the appellants were challenged, tried convicted and sentenced as stated earlier. Aggrieved against the order of their conviction and sentence passed by the trial Court Brahma Nand appellant filed Crl.A. No. 132SB of 1992 whereas Balbir appellant filed CrI.A. No. 170SB of 1992. As common questions of law and fact are involved both these appeals shall be disposed of by one order.

The learned counsel for the parties were heard.

The learned counsel for the appellants submitted that the learned trial Court has erred in placing implicit reliance on the testimony of Zile Singh PW as far as the presence and participation of the present appellants at the time of the main occurrence is concerned. It was further submitted that the learned trial Court has gravely erred in not placing any reliance on the testimony of Inder Singh P.W. 7 and Dharam Pal P.W. 8 who did not support the prosecution story in its entirety and the very presence and participation of the present appellants at the time of the alleged occurrence seems highly improbable.

Zile Singh PW had categorically stated that on 9.1.1991 he along with Rattan Lal, Assistant Lineman was present in the Veterinary Hospital at village Bibipur and was collecting Electricity bills from the consumers in the village. At about noon time both the appellants stopped the motor cycle near the gate of the boundary wall of the Hospital, went inside and came near the place whereas Zile Singh and Rattan Lal were receiving cash deposits from the consumers. Both the appellants who were armed with pistols came near them and Brahma Nand alias Babbar appellant fired in the air from his pistol and raised lalkara that whosoever intervenes would be shot dead. Brahma Nand appellant then picked up the bag containing money, Zile Singh PW grappled with him. Thereupon Brahma Nand alias Babbar gave two blows with the Butt of his pistol to Zile Singh on his head. Both the appellants were able to release themselves and went along with the bag containing cash near the place where they had parked their motor cycle and tried to run away from the spot. However, on the hue and cry raised by Rattan Lal and Ran Singh (who too was present there) along with other covillagers working in the nearby Cooperative Store came to the spot including Dharam Pal and Inder Singh PWs. Meanwhile Inder Singh pushed the motor cycle on which the two appellants wanted to escape. Both the appellants and the motor cycle fell down and shortly thereafter the appellants tried to run away from the spot along with the bag of money. They were, however, surrounded by the villagers and some students who were attracted to the spot from nearby school. Both the appellants were apprehended along with the bag containing Rs. 21,400/ and the two pistols were handed over to the police at the spot on its arrival.

Testimony of Zile Singh PW on all the material aspects of the prosecution case referred to above is creditworthy and finds independent corroboration from the medical evidence on the record which reveals two injuries on his person, on 2 cm x 2 cm irregular abrasion over an area of 4 cm superior to lateral half of left eye brow and the second a lacerated wound over the right side of the scale measuring 2 cm x .5 cm. These injuries on the person of Zile Singh could be caused with a Butt of the pistol as per the testimony of Dr. P.K. Gupta who appeared as P.W. 1 in this case.

Testimony of Inder Singh PW further supports the testimony of Zile Singh PW to the effect that he along with Dharam Pal reached near the place of occurrence and saw Zile Singh PW and Rattan Lal, Assistant Lineman and Ran Singh pointed towards the motor cycle on which the appellants were trying to escape. According to Inder Singh, PW, he rushed towards those persons and caught hold one of them from his coat and then pushed the motor cycle which fell down and meanwhile many other villagers and school children came there and apprehended the appellants.

It is significant to note that both the appellants were apprehended at a short distance from the place of occurrence while they were in the process of running away. The appellants obviously could not succeed in running away and were overpowered. Besides, Zile Singh PW had grappled with Brahma Nand appellant and the latter gave him two blows with the Butt of his pistol. Zile Singh PW is not in any manner inimical towards the appellants and he had the opportunity to see both the appellants from close quarters in broad day light during the occurrence. In these circumstances testimony of Inder Singh PW. 7 that he cannot recognise Brahma Nand as he was clean shaven whereas he has grown beard and was wearing different dress when he appeared in the Court cannot be safely relied upon or preferred to the testimony of Zile Singh concerning the identity of the two appellants.

Dharam Pal P.W. 8 is a hostile witness who did not support the prosecution story on material aspects except that when he along with Inder Singh PW went to the spot he heard Zile Singh proclaiming that his cash had been looted. The learned trial Court which had the added advantage of watching the demanour of the witnesses has rightly weighed the evidence and placed implicit reliance on the testimony of Zile Singh PW.

The defence plea that both the appellants were falsely implicated by the police or that Zile Singh was robbed by some unknown persons is a cock and bull story which in the absence of any legal, cogent or plausible material on the record does not inspire confidence. I have thus not the least hesitation in rejecting the defence plea about false implication of the appellants who were overpowered and caught red handed near the spot by the bystanders. Besides, the bag containing Rs. 21,400/ in cash, both the pistols along with live cartridges carried by the appellants were recovered from their possession and later on handed over to the police. Both the appellants have rightly been convicted by the learned Trial Court under Section 392 read with Section 397 of the Indian Penal Code.

Lastly, it was submitted by the learned counsel for the appellants that the appellants underwent agony of trial in the trial Court for more than a year and their appeal remained pending in this Court about 11/2 years; that sentence awarded to the appellants is excessive and that a lenient view may be taken in view of the young age of the appellants.

Taking into consideration the overall circumstances of the case particularly the fact that the appellants underwent agony of trial and their appeal also remained pending for a considerable time, the sentence of imprisonment awarded to the appellants is reduced from rigorous imprisonment for ten years to rigorous imprisonment for seven years. The sentence of fine and in default thereof awarded by the trial Court is maintained.

Except with this modification, I do not find any merit in either of the two appeals and the same are hereby dismissed.