Jagdish and another vs The State of Haryana

Pritpal Singh, J.—Six accused, namely, Umed Singh, Rajbir, Jagdish Kulwant, Krishan and Siri Om alias Hari Om were tried u/s 395 read, with Section 397, Indian Penal Code, in the Court of the Additional Sessions Judge, Bhiwani. Learned trial Court vide an ordre dated October 31, 1984, acquitted Krishan but convicated the remaining five accused under, the said Sections and-each of them was sentenced to undergo seven years'' rigorous imprisonment. Four separate appeals have been filed against this order. The first by Jagdish and Siri Om alias Hari Om (Cr. A. No. 670-SB of 1984), the second by Umed Singh (Cr. A. No 686-SB of 1984), the third by Rajbir (Crl. A 201-SB of 1985) and fourth by Kulwant (Cr. A. 80-SB of 1985). All these appeals having arisen from the same judgment of the trial Court are being disposed of together.

The prosecution has alleged that on the night intervening 30th and 31st August, 1983, Raj Kumar (PW 9) was dirving a truck from Kota to Hissar. He was accompanied by Naresh Kumar (PW 10) who was Cleaner of the truck. At about 4.00 a. m. they came across a blockade on the road near village Khorari. The truck had to be stopped because of the blockade. Immediately thereafter the accused armed with lathis and pistols surrounded the truck. Raj Kumar (PW 9) and Naresh Kumar (PW 10) were forcibly pulled out there from and were given a beating. Raj Kumar (PW 9) was robbed of Rs. 700/- in cash wrapped in a handkerchief and one HMT wrist watch. After this occurrence the dispreants took to their heels Naresh Kumar (PW 10) was left at the spot and Raj Kumar (PW 9) proceeded to lodge the report with the police. He met Head Constable Dalip Singh (PW 12) near Primary Health Centre, Bound, who recorded his statement (Exhibit PJ) on the basis of which a formal First Information Report (Exhibit PJ/1 was recorded at the Police Station. Raj Kumar (PW 9) and Naresh Kumar (PW 10) were medically examined by Dr. R. P. Sharma (PW 2). On the person of PW 9, five minor injuries and on the person of PW 10, four minor injuries were found. Umed Singh accused was arrested by S. I. Sube Singh (PW 19) on September 4, 1983. A pistol and two cartridges were recovered on his personal search. Rajbir, Jagdish, Kulwant and Krishan accused were arrested by the same Sub-Inspector on September 5, 1983. A pistol and one cartridge were recovered from the personal search of Kulwant. Jagdish was carrying a spear which was also taken into possession. Subsequently on September 11,1983, Siri Om alias Hari Om accused were arrested by S I. Sube Singh. A pistol and one cartridge were recovered from him as also a handkerchief (Exhibit P.1) and the wrist watch (Exhibit P.2). The hand-kerchief was identified by Raj Kumar (PW 9) to be the same in which his currency notes were wrapped which were robbed from him by the accused. The wrist watch (Exhibit P. 2) was also identified to be the same watch which was involved in this robbery. Some fingerprint impressions were found on the truck which tallied with those of Umed, Rajbir and Kulwant accused.

During the trial the prosecution story was supported by Raj Kumar (PW 9) and Naresh Kumar (PW 10). The medical evidence regarding the injuries sustained by these witnesses was provided by Dr. R. P. Sharma (PW 2).

The accused in their statements u/s 313, Code of Criminal Procedure, pleaded innocence and alleged false implication. The learned trial Court, however, placed reliance on the prosecution evidence and convicted and sentenced the Appellants as mentioned above. The participation in occurrence of the accused Krishan was considered doubtful and he was acquitted.

The occurrence took place at about 4.00 a. m. and the report was lodged by Raj Kumar (PW 9) at 4. 30 A. M. without any delay. The occurrence was narrated by Raj Kumar (PW 9) and Naresh Kumar (PW 10) and they identified the appellents to be the perpetrators of the crime. The police during the investigation made an effort to get the Appellants identified fron the eye-witnesses in the identification parade but the Appellants refused to join such a parade. Finger prints of the Appellants Umed, Rajbir and Kulwant were found on the mirror of the truck The incriminating handkerchief (Exhibit P. 1) and the wrsit watch (Exhibit P. 2) was recovered from the accused Siri Om alias Hari Om. From the evidence produced by the prosecution it is convincingly established that the Appellants had committed the offence of dacoity as stated by Raj Kumar (PW 9) and Naresh Kumar (PW 10 . I entirely agree with the appreciation of evidence by the learned trial Court in coming to the conclusion that the Appellants are unquestionably guilty of the commission of the offence of dacoity. The learned Appellants'' counsel had no criticism to offer against the veracity of the prosecution evidence and, therefore, did not challenge the conviction of the Appellants u/s 395. The only plea put forward by the learned Counsel is that Section 397, Indian Penal Code, has been wrongly applied. It is prayed that the sentence awarded to the Appellants be reduced.

Section 397, Indian Penal Code, is attracted when at the time of committing 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. In the present case no grievous hurt was caused by the Appellants nor is it alleged that an attempt was made by them to cause death or grievovs hurt either to Raj Kumar (PW 9) or Naresh Kumar (PW 10). It is alleged that some of the accused were armed with dangs and some with pistols. However, there is no evidence to indicate as to which of the Appellants were armed with dangs and which with pistols. No doubt pistols are deadly weapons but it cannot be said that a dang comes within this definition Even otherwise it is the prosecution case itself that while pulling out PW 9 and PW 10 from the truck the accused had put down their lathis on the ground and had not used the same while robbing PW 9. As held in Shri Phool Kumar Vs. Delhi Administration, the use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397, Indian Penal Code, for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In the present case, therefore, even if some of the accused were carrying pistols the other accused who were not so armed with deadly weapon cannot be punished with the aid of Sec 397, Indian Penal Code. There being no evidence to pinpoint as to which of the accused were armed with pistols, the Appellants could not be punished by applying Section 397, Indian Penal Code In my view, therefore, although the Appellants have been rightly convicted u/s 395, Indian Penal Code, but Section 397 has been wrongly applied. The order of conviction is, therefore, modified to the extent that the Appellants are convicted u/s 395, Indian Penal Code, without the application of Section 397 of the Code.

The Appellants have undergone more than two years'' rigorous imprisonment. Except Umed Singh they are now on bail. The Appellants are first offenders and not habitual dacoits. The occurrence having taken place in August 1983 they have been undergoing the stress and strain of criminal prosecution for nearly four years. All of them are in their early twenties and no useful purpose would be served to send them back to the prison to associate with hardened criminals. Taking all these factors into consideration the sentence of imprisonment imposed on the Appellants is reduced to already undergone but each one of them is sentenced to pay a fine of Rs. 1000/-, in default of payment of which to undergo further rigorous imprisonment for six months.

With this modification in the order of conviction and sentence these appeals are partly allowed