Jitinder Kumar and anr. vs State of Haryana

M.M. Punchhi, J.

This is an appeal against the judgment and order of Shri S.K. Jain, Sessions Judge, Gurgaon.

The two appellants are Jatinder Kumar and Harbans, both aged 23 years residents of Rewari. They have been convicted under section 394 read with section 397, Indian Penal Code, for which they have been sentenced to seven years'' rigorous imprisonment. They have also been convicted under section 307/34, Indian Penal Code, and sentenced to seven years'' rigorous imprisonment each. Harbans has further been convicted under section 27 of the Arms Act and sentenced to six months'' rigorous imprisonment. The sentences of the respective appellants have been ordered to run concurrently.

The appellants are accused of having committed a bank robbery in broad day light. The details of the prosecution story are that on 7.9.1981, two masked persons respectively armed with a countrymade pistol each entered the building of the State Bank of India at village Manesar. Having parked their unmembered motor cycle `Yezdi'' outside the building and brandishing their weapons they entered the hall through the door meant for the staff members and challenged them with the words "hands up we want cash". One of than (Harbans appellant) by displaying his pistol kept the staff members frightened whereas the other (Jatinder appellant) rushed in the Cashier''s Cabin and put the muzzle of his pistol on the temporal region of Miss Asha Jain, the Cashier, asking for cash. Simultaneously he pulled out the cash drawer, removed currency notes worth Rs. 2235/ and placed them in his helmet which he was carrying in his hand bag. Simultaneously, the other (Harbans appellant) demanded from Sohan Lal Talwar, Manager of the Bank, keys of the safes but he was told by the latter that since it was a village branch, no cash was kept there. In the meantime, Bansi Lal Sharma, one of the employees of the Bank, jumped over the counter and fled in the open raising alarm. He was followed by one of the culprits (Harbans appellant) aiming his pistol towards Bansi Lal Sharma who, in order to save himself, started encircling the latrine. Then the other culprit (Jatinder appellant) too come out of a Bank Hall with the robbed property. Thereafter followed him the staff members of the Bank. The culprit (Jatinder appellant) aimed to shoot at Sohan Lal Talwar, the Bank''s Manager, but despite triggering his pistol, it did not emit any bullet. As Ram Singh PW came forward, the other culprit (Harbans appellant) fired a shot hitting him in the right armpit. Thereupon, a Kassia blow was given by Ram Singh to the culprit (Harbans appellant) when he tried to run towards the motor cycle to ride it. As a result of two more Kassia blows given by Ram Singh, the culprit (Harbans appellant) fell down. Similarly, the other culprit (Jatinder appellant) was overpowered by the villagers gathered in the meantime. Both the culprits were belaboured by the villagers and the Bank employees. At that stage, masks from their faces were removed and the identities of the culprits were established as being the present appellants. Their pistols were snatched. The police was informed telephonically.

The telephonic message was received by A.S.I. Ram Singh PW11 at 12.30 noon at Gurgaon. He went to village Manesar which is situated at a distance of 16 Kms. from Gurgaon on the DelhiJaipur National Highway. Having reached there, he recorded the statement, Exhibit P.J., of Sohan Lal Talwar, Manager of the Bank. He arrested both the appellants, took stock of the robbed property, the weapons and other incriminating material like Helmet, bag, motor cycle etc. and took all investigatory steps relevant for the purpose. Before his arrival, however, Ram Singh had been taken to the hospital for medical help which was given to him by Dr. Prem Kumar DW2 at General Hospital, Gurgaon at 12.30 P.M. that day. He found on Ram Singh two injuries out of which one was possibly due to a firearm and the other with the blunt weapon; the injuries being fresh. On the other hand, the accused were sent up for medical examination by the Investigating Officer to Gurgaon where Harbans was examined at 3.30 P.M. and Jatinder at 4.15 P.M. the same day by Dr. S.P. Singh PW1. There were as many as 13 injuries on Harbans inclusive of a fracture in his right hand and as many as 6 injuries on Jatinder inclusive of a fracture on his left arm and right leg. Those injuries were fairly extensive and the evidence has come causing them to some extent disabilities.

The appellants, when sent up for trial had to face the evidence of three eyewitnesses namely that of Sohan Lal Talwar, the Bank Manager (PW6), Miss Asha Jain, the Bank Cashier (PW7) and Ram Singh, the owner of the Bank building living close by (PW8). Besides that, the other evidence led by the prosecution was there to complete the entire picture. The defence of the appellants was simple. They claimed that they had gone to village Manesar to collect dues on account of credit sale of cloth made by the brother of Harbans appellant to some villagers and for the purpose were near the scene of occurrence. According to them, two culprits with masks on their faces had come to loot the Bank but they were successful in running away. They claimed that the villagers on suspicion considered the two appellants to be the culprits of the crime and in a frenzy caused them extensive injuries. They led defence evidence to show the disabilities suffered by them as also to prove that they had reason to be in village Manesar in order to recover dues.

The controversy in the present appeal thus centres around to the point as to whether the appellants were those culprits who had committed the robbery. It is in this light that evidence of the three eyewitnesses assumes importance. I was taken through the evidence led by the prosecution as also the defence with particular emphasis on the evidence of the eyewitnesses together with the comments on them by the learned trial Judge. So far as Sohan Lal Talwar PW6, the first informant, is concerned he did not fully support the prosecution case and had to be declared hostile. Need arose to confront him with the first information report, Exhibit P.J. The learned trial Judge had to pass remarks against him as are reflected in the judgment under appeal. At the trial, he wanted to give the impression that the villagers suspected him also as the culprit in the crime and had pelted him with stones. Later, however, they realised that he was the new Bank Manager. Yet, he did not mention any of those facts in the first information report and gave such a twist at the trial. If what he said at the trial was true, then, adjudged from his conduct in lodging the first information report, he cannot be said to be a reliable witness. At the trial he even avoided to specifically name the two appellants as the culprits despite the fact that they were arrested at the spot by the police and in his presence. Thus, his evidence has to be kept apart and not to be relied upon as it is totally worthless.

The learned counsel for the appellants laid emphasis that the evidence of Miss Asha Jain should not be accepted as she had denied of her knowing the two appellants, who were in College at the time when she was a student at Gurgaon. It was further stressed that this stood proved by defence evidence that she was an active member of the Dramatic Club of the College in which Jatinder appellant was a member. It was asserted that if Miss Asha Jain PW had the cheek to deny the acquaintanceship of the appellants with her, she was not a reliable witness. Furthermore, it was asserted that as far as Ram Singh was concerned, he is said to have been injured with a pistol shot but the injury did not corroborate his assertion and on that score he too was unreliable. I have given my careful thought to these two submissions but I am not impressed by them.

The occurrence took place in 1981. Miss Asha Jain was a College student of the first year in 197576, as admitted by her. Suggestedly, in that year both the appellants were students in the College. According to Miss Asha Jain, she had never seen either of the two accused studying in the Prep class in the same college where she was studying at Rewari. The comments she has attracted are on an assumption that she must be presumed to know the two appellants when they were in the College with her. To my mind, no such presumption can be raised for girls in small towns even if going to High Schools and college still tend to remain shy and refrain from taking notice of each and every student in the Session. The appellants may have been aware of her but it does not mean that Asha Jain too was aware of them. In any case, as the suggestion has been put, there was no reason for her to falsely implicate the appellants merely because there was election rivalry between her and the appellants while they were in College. Reading her statement as a whole gives the clear impression that she has been bold enough to step into the witnessbox besides stand grilling crossexamination.

So far as Ram Singh PW8 is concerned, he claimed that he was injured at the hands of Harbans appellant. Dr. Prem Kumar declared his injury as a lacerated wound 1 cm. x 1 cm. x muscle deep, margins contused, blackening present around the wound in an area of half centimeter, fresh bleeding in the anterior maxillary fold on the front of right upper arm, and to be due to firearm. Rather the doctor said that "it may be due to firearm". An Xray report was sought of the injury. On receipt of it, the opinion was that no radio opaque shadow of metallic density could be seen in the part x rayed. Therefrom it was sought to be urged that the injury did not disclose that it had been caused by a firearm and thus Ram Singh was a liar. Furthermore, it was pointed out that the opinion of the Surgical Specialist was asked for by Dr. Prem Kumar but none was made available to him and this was commented as a deliberate concealment by the prosecution. I am not impressed with the comments offered. The wounds as described had margins contused with blackening around it. The pellet of the cartridge may have hit there and fallen off and not necessarily kept embedded at the seat of the wound especially when it was in the anterior of the maxillary fold. I find no reason to disbelieve the ocular version of Ram Singh PW8 and Miss Asha Jain PW7 that a pistol shot fired by Harbans appellant had hit him. Even otherwise it does not stand to reason that the robbers would come brandishing pistols and not use them in case of necessity. The evidence of both the prosecution witnesses is consistent on the count that both the culprits used their respective weapons. Harbans being successful in causing an injury to Ram Singh and Jatinder being unsuccessful as he missed the fire in causing injury to the Bank Manager. Thus, I am of the considered view that the trial Judge has rightly believed the aforesaid two eyewitnesses with regard to the occurrence of the complicity of the appellants in the crime.

It was then urged by the learned counsel that the offence under section 397, Indian Penal Code, was not made out and at best the offence was that under section 394, Indian Penal Code, simpliciter. He also urged that in view of the extensive injuries on the accused persons, they had suffered much and every nerve should be strained to bring down the offence to section 394, Indian Penal Code. I have applied my mind thereto but I can find no way out. Section 390, Indian Penal Code, notices that in robbery, there is either theft or extortion. Now in the process of committing theft (here Jatinder himself picked up the money) or in carrying away or attempting to take away the property in theft, the offender for that end if causing voluntary hurt or attempts to cause voluntary hurt to any person or wrongful restraint, or fear of instant death or instant hurt or instant wrongful restrain, he is said to commit robbery. Extortion, on the other hand, is practised on the person put in the fear of harm. Both situations are covered under section 394, Indian Penal Code, if any person in committing or in attempting to commit robbery voluntary causes hurt to "such person" and any other person is jointly concerned or attempting to commit such robbery. Thus, persons of both kind are equally guilty that is the person voluntarily causing hurt for the purpose and the other person jointly concerned in that purpose. Both are treated to have voluntarily caused hurt in committing robbery. Both are thus offenders within the meaning of section 397, Indian Penal Code. Applying that test, there is no distinguishing feature between the acts committed by both the appellants which were differentiated by the learned counsel to be that Jatinder committed the robbery by putting to fear Miss Asha Jain but Harbans committed no such robbery and suggestedly thus was not the offender within the meaning of section 397, Indian Penal Code. I cannot accept such an argument in face of the sweep of section 394, Indian Penal Code, which is to be read in conjunction with section 397, Indian Penal Code, in order to fix the guilt of the appellants. As held by the Supreme Court in Phool Kumar v. Delhi Administration, A.I.R. 1975 Supreme Court 905 when an accused at the time of committing robbery possesses in his hand a knife open to the view of the victim, it is sufficient to frighten or terrorise him and he can be convicted under section 397, Indian Penal Code. Further, it has been held that any other overt act such as brandishing knife or causing grievous hurt is not necessary to bring the offender under section 397, Indian Penal Code. As has been noticed earlier, both the appellants entered the bank simultaneously brandishing their pistols and since they in furtherance of common intention were successful in robbering the Cashier, may be by the hands of one of them, both are guilty for offence under section 397, Indian Penal Code. In the same strain, both of them have to be held guilty for offence under section 307/34, Indian Penal Code as the said offence was committed in furtherance of the common intention of both. On the taking of such a view, there is no escape but to maintain the sentences of the appellants under section 394 read with section 397, Indian Penal Code, at 7 years'' rigorous imprisonment. However, the reduction of sentence under section 307/34, Indian Penal Code, would be purely academic, especially when it has been ordered to run concurrently with the main sentence under section 394/397, Indian Penal Code. No concession whatsoever can be given to the appellants for the injuries they suffered when nabbed at the spot.

For the view aforesaid taken, there is no merit in this appeal which fails and is hereby dismissed.