Jasveer Singh vs State of Uttarakhand

Prafulla C. Pant, J.—These appeals, preferred u/s 374, Code of Criminal Procedure, 1973, are directed against judgment and order dated 31.05.2010, passed by Additional Sessions Judge / 1st F.T.C., Udham Singh Nagar in Sessions Trial No. 165 of 2005, whereby appellants Jasveer Singh and Gurcharan Singh were convicted under Sections 395 and 412 of I.P.C. and have been sentenced to rigorous imprisonment for a period of 10 years and directed to pay fine of Rs. 10,000/- u/s 395 I.P.C. and rigorous imprisonment for a period of 10 years and directed to pay fine of Rs. 10,000/- u/s 412 I.P.C. Accused/appellant Gurcharan Singh is also convicted u/s 417 IPC and has been sentenced to rigorous imprisonment for a period of one year. (Criminal Appeal No. 128 of 2010 and Criminal Jail Appeal No. 45 of 2011 are directed against same judgment, one sent through jail another through counsel)

Heard learned counsel for the parties and perused the lower court record.

Prosecution''s story, in brief, is that on 18.03.2005, at about 09.15 p.m., complainant Dr. Mahendra Vikram Singh (PW1) alongwith his wife was going in his scooter, bearing Registration No. UP 53 E-7683. When he reached near culvert between Nayagaon and Biseya, a vehicle over took them, from which four persons got down and looted the complainant (PW1) and his wife by brandishing country-made pistol. A mobile phone No. 9412352163, cash of Rs. 1500/-, ATM card and driving licence were looted from the complainant. The earrings and mangal sutra (gold chain) was looted from the wife of the complainant. The complainant and his wife could see the faces of the accused with the headlight of the scooter. Immediately after the incident, Dr. Mahendra Vikram Singh (PW1) lodged First Information Report at Police Station Sitarganj (exhibit A -1). On the basis of said report, Crime Case No. 236 of 2005 was registered against four unknown persons, relating to offences punishable u/s 392, I.P.C. The investigation was taken up by Station House Officer, Prakash Chandra Pant (PW11), who immediately went to the spot and inspected the same and interrogated the witnesses.

On 22.05.2005, recovery in respect of the looted property was made from the accused - appellants, after their arrest on 21.05.2005, and recovery memos were prepared. After completion of investigation, charge sheet (Exhibit A - 9) was filed by the Investigating Officer against the accused - appellants and two others, relating to offences punishable under Sections 395, 412 and 420, I.P.C.

The Additional Judicial Magistrate, after giving necessary copies to the accused as required u/s 207, Cr.P.C., committed the case to the Court of Sessions for trial. The trial court, after hearing the parties, on 11.10.2005, framed charge of offences punishable under Sections 395 and 412, I.P.C. against the accused-appellants. Against the accused/appellant Gurcharan Singh, charge of offence punishable u/s 420 of I.P.C. was also framed, who pleaded not guilty and claimed to be tried. On this, prosecution got examined complainant - Dr. Mahendra Vikram Singh (PW1), Sundaram Sharma (Witness of recovery, PW2), Mahesh Kumar (another witness of recovery, PW3), Constable Matlub Khan (also a witness of recovery, PW4), Constable Laxman Dutt Joshi (PW5), Constable Dushyant Singh (PW6), Constable Ashok Kandpal (PW7), Hukum Chand (witness of encounter with the police, PW8), Dharam Pal (PW9) Manbodh Kumar (PW10), Investigating Officer Prakash Chandra Pant (PW11), Sub Inspector K.R. Pandey (PW12), Boota Singh (PW13) and Harjinder Singh (PW14).

Oral and documentary evidences were put to the accused, who pleaded the same to be false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that all the five accused, including the two appellants, Jasveer Singh and Gurcharan Singh @ Charan Singh @ Pradhan, guilty of charge of offences punishable under Sections 395 and 412, I.P.C. Accused/appellant Gurcharan Siingh @ Charan Singh @ Pradhan was also found guilty of charge of offence punishable u/s 417 I.P.C. After hearing the sentence, each one of the convicts was sentenced rigorous imprisonment for a period of 10 years and directed to pay fine of Rs. 10,000/- on each count, i.e., u/s 395 and u/s 412, I.P.C. u/s 417, I.P.C., accused/appellant Gurcharan Singh @ Charan Singh @ Pradhan was sentenced to rigorous imprisonment for a period of one year.

Aggrieved by said judgment and order dated 31.05.2010, passed by the Additional Sessions Judge / 1st F.T.C., Udham Singh Nagar in Sessions Trial Nos. 165 of 2005, these appeals are preferred by the convicts.

Dr. Mahendra Vikram Singh (PW1) has stated that on 18.03.2005, at about 09.15 p.m., he was going on a scooter with his wife and two children. When he reached near culvert between Nayagaon and Biseya, a vehicle over took his scooter, from which four persons got down from the vehicle and by pointing country-made pistol, looted him and his wife. The witness has further stated that his mobile phone No. 9412352163 and purse containing cash of Rs. 1500/-, an ATM card and driving licence were looted. The witness has further stated that two earrings and two mangal sutras (gold chains) of his wife were also looted. PW1 has further stated that he could see faces of the miscreants in the headlight of the scooter. The witness has further disclosed that he lodged the First Information Report (Exhibit A -1) at the Police Station Sitarganj. PW1 has further stated that on 21.03.2005, he came to know that certain robbers are apprehended by the police and recoveries were made from them, whereafter he went there and identified the accused - appellants.

Sundaram Sharma, Sub Inspector, (PW2) has stated that after the incident of robberies on 18.03.2005 and 20.03.2005, the police party intercepted the miscreants, who were running in an indica car, after looting the vehicle of Dharampal Singh (PW9). The witness has narrated the encounter, which took place with the accused - appellants and recoveries made from them. Mahesh Kumar (PW3), Constable Matlub Khan (PW4) and Constable Laxman Dutt Joshi (PW5) have corroborated the said fact of encounter with the police and the recoveries. Dharampal (PW9) has stated about the robbery on 20.03.2005, in respect of which separate crime was registered. Hukum Chand (PW8) has affirmed the incident of encounter in the wee hours of 21.03.2005.

Having re-appreciated the entire evidence on record and after going through the papers on record, this Court concurs with the view taken by the trial court that prosecution has successfully proved charge of offences punishable under Sections 395 and 412, I.P.C. However, as to the offence punishable u/s 417, I.P.C., this Court is of the view that mere concealing the real name by the accused itself does not constitute offence of cheating. As such, the appellant Gurcharan Singh @ Charan Singh @ Pradhan should not have been convicted u/s 417, I.P.C.

Learned counsel for the appellants argued that the appellants are in jail for last more than 6 years during the trial and pendency of this appeal and at least the sentence recorded against them should be reduced to the period already undergone.

Considering the facts and circumstances of the case, this Court is of the view that these appeals deserve to be allowed partly. The conviction as recorded by the trial court u/s 395 and Section 412, I.P.C. does not require any interference. However, the conviction recorded u/s 417, I.P.C. is not made out and appellant Gurcharan Singh @ Charan Singh @ Pradhan is entitled to acquittal from the said charge. On the point of sentence, this Court is of the view that rigorous imprisonment for a period of 7 years u/s 395, I.P.C. and same period u/s 412, I.P.C. would meet the ends of justice.

Accordingly, the appeals are partly allowed. The conviction of the appellants under Sections 395 and 412, I.P.C. is affirmed. Accused/appellant Gurcharan Singh @ Charan Singh @ Pradhan is acquitted of the charge of offence punishable u/s 417, I.P.C. Each of the convicts / appellants, namely, Jasveer Singh and Gurcharan Singh are sentenced to rigorous imprisonment for a period of 7 years on each count, i.e., under Sections 395 and 412, I.P.C. Both sentences shall run concurrently. Sentence of fine is set aside.

With the above modification in the sentence, the appeals stand partly allowed in respect thereof. Let a copy of this judgment be sent to the Superintendent of the jail concerned. The period spent by the appellants during trial and during the pendency of this appeal shall be adjusted from the sentence awarded by this Court. Let lower court record be sent back.