Mahinder Singh vs State of Haryana

S.S. Dewan, J.

The two appellants namely Sultan and Mahinder Singh were bought to trial for the offences under Sections 392/397 and 392. Indian Penal Code before the Court of Sessions at Hissar. The learned Additional Sessions Judge, Hissar, found them guilty of the said offences and accordingly sentenced Sultan to seven years'' rigorous imprisonment and a fine of Rs. 200/ under Section 392 read with Section 397, Indian Penal Code and Mahinder Singh was sentenced to five years rigorous imprisonment and fine of Rs. 200/ under Section 392, Indian Penal Code. In the connected Arms Act cases Sultan appellant was convicted under Section 25 of the Arms Act and sentenced to one year''s rigorous imprisonment. The appellants appeal against their conviction and sentences and this judgment will dispose of both the appeals.

The prosecution case in brief is that Jagdish complainant who hails from village Rawatkhera, use to drive his auto rickshaw (three wheeler) HRB 9753. On the night intervening 23/24.1.1984, at about 10 p.m. two persons one Sikh and the other clean shaven came to him and hired his three wheeler for Rs. 40/ to go to Dhani Kumharan. Both the accused sat in the three wheeler and they started for the destination. When he covered a distance of about 2 kms. from village Badapati towards Barwala, the accused got the vehicle stopped on the pretext of asking themselves. The threewheeler was stopped on the bridge and both the accused came out of it. After urinating, the Sikh accused caught hold of the complainant from his neck and dragged him out of the threewheeler while saying that Sultan should fire from his pistol in case he (Jagdish) raised alarm. The other accused who was clean shaven took out his pistol and proclaimed that in case the complainant raised alarm, he will be done to death. Thereafter, both the accused took the complainant in the nearby pits and after removing his pant, tied it on his mouth. They also tied his legs and hands with a parna The sikh accused took out Rs. 30/ from his pocket and also removed his wrist watch from his left hand. Both the accused then fled away in that threewheeler towards Barwala. One blanket and one woolen Jarsi of green colour of the complainant were also lying in the threewheeler. After some time, the complainant freed himself and came out of the pits. A person met him on the way who untied his hands. After a little while, a truck from Hissar side came there and its driver gave him a life it upto Barwala, where the complainant made his statement Ex.PE before Sub Inspector Hukam Singh, on the basis of which formal First Information Report Ex.PE/2 was registered at 2.30 a.m. on January 24, 1984 at Police Station Barwala.

Sub Inspector Hukam Singh went to the spot and prepared its visual plan Ex.PG. He also taken into possession two pieces of Parna from the place of occurrence and recovered the auto rickshaw from Sultant accused in the presence of Lila Ram and Azad Singh Constable. The accused were arrested and the Investigating Officer got recovered one blanket, a Jarsi and a watch from the house of Mohinder Singh at Samana. All these articles were taken into possession. At the time of arrest, Sultan accused was having in his possession a countrymade 12 bore pistol and two live cartridges without, any permit or licence. A separate case under Section 25 of the Arms Act was get registered against him at Police Station, Barwala. After necessary investigation, the accused were challaned and committed.

In support of its case, the prosecution examined as many as eight witnesses. Gulshan PW1 is the owner of the three wheeler. Head Constable Fateh Singh PW2 is a witness to the recovery of a wrist watch and other articles at the instances of Mahinder Singh accused. Ishwar PW3 deposed that on hearing the cries of Jagdish PW. he was attracted to the spot and united his hands and legs. Jagdish PW.6 is the first informant. Hukan Singh Sub Inspector PW.7 and Zile Singh Sub Inspector PW8 are the Investigating Officers. When examined under Section 133, Cr.P.C. the accused denied the prosecution allegations and pleaded false complicity in the case but led no evidence in defence.

The trial Court on the basis of the material placed before it convicted and sentenced the accusedappellants and hence the appeals at their instance.

Mr. D.S. Bali, learned Counsel for the appellants has at the outset strenuously urged that all that the evidence of Jagdish PW6 would show was that Sultan appellant had carried a pistol in his hand and that merely showing it to him (Jagdish) would not amount to a `use'' of the pistol within the meaning of Section 397 of the Indian Penal Code. The learned Counsel has invited my attention to the language of Section 398 of the Indian Penal Code in which I find the words `armed with deadly weapon'' and to the language of Section 397 of the Indian Penal Code in which the words `uses any deadly weapon'' are found and he has argued upon this comparison of the language of the two sections that the word `uses'' in Section 397 would mean the actual use of the weapon and not merely the possession of the weapon and the show thereof to other persons.

I have considered this contention of Mr. Bali but I am unable to see force in it. It is difficult for me to hold that if Sultan appellant had armed a pistol at Jagdish for committing robbery, he would not be using that pistol within the meaning of Section 397, Indian Penal Code. In my view, when the Legislature used the word `uses'' in the Section they did not intend that the pistol must be actually used. If it was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to `using'' the weapon within the meaning of Section 397. The matter is now no longer res integra. The word `uses'' was interpreted by the Supreme Court in Phool Kumar v. Delhi Administration, AIR 1975 SC 905. It is laid down that it is not necessary that deadly weapon must be actually used by the culprit in the robbery or dacoity by way of causing hurt or brandishing the same and that it is `used'' within the meaning of Sections 397 if the deadly weapon is merely held out for terrorising or frightening a victim to obtain property. In the present case, threatening by Sultant appellant with a pistol was sufficient to constitute use of the same.

It is next contended that the trial Court fell into an error in convicting the appellants relying upon the testimony of Jagdish, a long witness and in support of this contention, reliance is placed on a decision in Wakil Singh v. State of Bihar, AIR 1981 SC 1392 and that this witness must have been completely perplexed and terrified and, therefore, his identification of the appellants should not be given much credence. It is borne out from the evidence of Jagdish PW that the appellants hired his autorickshaw at Nagori Gate, Hissar, for going to Dhani Kumharan and the fare was settled at Rs. 40/ that when he had covered about 2 kms. from Badapati towards Barwala, the appellants got the vehicle stopped on the pretext of easing themselves and that after urinating, both the appellants caught hold of Jagdish from his neck and dragged him out of the autorickshaw and removed his wrist watch and took away Rs. 30/ from his pocket. It also emerges from the evidence of this witness that the names were called by the appellants inter se and that was why he had given the description of the nonSikh assailant in the First Information Report. Jagdish had ample time to identify the appellants when they hired his autorickshaw at Nagori Gate. In these circumstances Jagdish had fully identified both the appellants. The evidence of this lone witness also comes to me to be quite trustworthy and free from any vice. In Wakil Singh''s case (supra), the conviction was based on identification of a single witness in test identification prade. It was observed, that in the absence of any description of the miscreants in the earlier evidence as to any identification marks e.g. statute of accused or whether they were fat or thin or of a fair colour or of black colour etc., it will be impossible to convict any accused on the basis of any single identification in which case the reasonable possibility of mistake in identification cannot be excluded. Here the question is whether the evidence of identification as given by Jagdish could or could not be believed. The trial Court has believed his evidence and I see no reason to disagree with the finding on that point.

For the foregoing reasons, this appeal fails and is hereby dismissed.

The learned Counsel for the appellants has not seriously pressed the appeal of Sultan appellant against his conviction and sentence recorded under Section 25 of the Arms Act. Affirming the judgment of the trial Court, I dismiss Criminal Appeal No. 62SB of 1985.