Siri Shankar vs The State of NCT of Delhi

Sunil Gaur, J.—In this appeal, appellant Siri Shankar S/o Sh. Sone Lal, is assailing his conviction for the offences u/s 328/34 of the Indian Penal Code and u/s 380/34 of the Indian Penal Code vide impugned judgment of 25th November, 1999 and order of 1st December, 1999 of the trial court, vide which he has been sentenced u/s 328/34 of the IPC to Rigorous Imprisonment for four years and to pay a fine of rupees one thousand and in default of payment of fine, to undergo Simple Imprisonment for four months. In addition, appellant has also been sentenced u/s 380/34 of the IPC to RI for two years and to pay a fine of rupees five thousand and in default of payment of fine, to undergo Simple Imprisonment for a period of two months. Both these sentences have been ordered by the trial court, to run concurrently.

The facts of this case which needs to be noticed for disposal of this appeal are that on 9th September, 1997, when Complainant Hawaldar Nek Ram (PW-1) was coming from Kashmir and was at Old Delhi Railway Station, at about 9 p.m., two persons, met him, out of whom, one person was limping and he asked another one to bring tea and persuaded Nek Ram (PW-1) to have it. Both these persons told him that they were also going to Etava, and they disclosed their names as Kallan Singh and Siri Shankar. After having tea, the complainant Hawaldar Nek Ram (PW-1) felt giddy and fell asleep. When Nek Ram (PW-1) regained his senses, the train had reached Bhatna railway station and his luggage and other belongings, as well both those co-passengers, who boarded train with him were missing. He disclosed that his luggage contained One coloured Hot Shot Camera, an alarm watch, Rupees ten thousand only in cash and twelve bottles of rum, clothes for children, soap and tea while he also had one hold-all for bedding (bister-band) and a kit bag. Nek Ram (PW-1) reported this incident to GRP, Etawa, in writing (EX.PW1/A). On his return to his house from Jabalpur, after about a month, relatives of accused-Kallan, told him that accused-Kallan had sold the stolen articles in the village. He, along with his brother, reached Kallan''s village and recovered one shirt and water bottle from his possession. Accused-Kallan disclosed that the remaining stolen articles were with his companions Siri Shankar and Ram Kishan Tiwari and this fact was brought to the notice of the police, who searched the house of Siri Shankar and got recovered one kitbag, one hold-all of beddings (bister band), one quilt with over and uniform material in the presence of Shiv Shankar from his house vide Recovery Memo (Ex. PW1/B).

After completion of investigation, Appellant and his co-accused Kalan @ Rambir were put to trial for the offences u/s 328/32 and u/s 380/34 of the Indian Penal Code as they did not plead guilty to the aforesaid charges before the trial court.

Out of six witnesses examined at trial, the material ones are the Complainant/first informant - Ex. Hawaldar - Nek Ram (PW-1), Head Constable - Sohanbir Singh (PW-6) and Sub-Inspector Netrapal Singh, (PW-5), who is the Investigating Officer of this case. Appellant before the trial court had denied the prosecution case and had claimed to be falsely implicated in this case and alleged that the recovery of the articles from his house were planted upon him by the police to implicate him in this case. Appellant got his brother Shiv Shanker (DW-1) examined in his defence to show that he was not present at his house at the time of the alleged recovery. Mahesh Chand (DW-2) and Ram Singh (DW-3) are the witnesses to the recovery of the stolen articles from the house of the Appellant. However, they claim that the articles taken away by the police, belong to the family of the Appellant. The trial concluded, resulting into the conviction of the Appellant and his co-accused for the offences with which they were charged. Appellant has been convicted and sentenced vide impugned judgment as indicated above.

Both the sides have been heard in this appeal and the evidence on record has been perused.

The contentions raised on behalf of the Appellant are that there is discrepancy in the prosecution case in respect to the number of articles recovered. It is pointed out that as per the memo Ex.PW-1/B, 27 articles were recovered, whereas, as per another memo Ex. PW-1/C, the articles recovered in 30 numbers. It is stated that the prosecution case was that some of the articles were already sold and then, how can 30 articles be recovered. It is also pointed out by learned Counsel for the Appellant that the star witness (PW-1) has stated in his evidence that the writing work was done by the police on its own and the photographs of the Appellant were shown to the Complainant/first informant (PW-1) and therefore, his refusal to participate in the Test Identification Parade was justified. Lastly, it is submitted that the prosecution case is highly doubtful and the impugned judgment is unsustainable and so the Appellant deserves to be acquitted. Nothing else has been urged on behalf of the Appellant.

Mr. Amit Sharma, Additional Public Prosecutor for the State supports the impugned judgment and sentence and submits that the modus operandi adopted by the Appellant and his co-accused is quite common and there is nothing improbable about the prosecution case. It is pointed out that there is no reason as to why the Complainant (PW-1) would falsely implicate the Appellant in this case and the discrepancies pointed out by the defence in the prosecution case are natural and they do occur with the passage of time. It is submitted that the recovered stolen articles have been duly identified by the Complainant (PW-1) as the ones belonged to him and the prosecution case stands sufficiently proved from the evidence on record and there is no merit in this appeal.

After giving a thoughtful consideration to the submissions made by both the sides and upon scrutiny of the evidence of the Complainant (PW-1) of this case, I find that he is an Army personnel who had deposed in a straight forward manner and his testimony has got a ring of truth in it. No reason is forthcoming as to why he would falsely implicate the Appellant in this case. This witness (PW-1) has identified the recovered stolen articles as the ones belonging to him. It really does not matter, as to whether the number of stolen articles are 27 or 30, as I find there is no cross-examination of this witness on this aspect. Furthermore, Appellant''s refusal to participate in the Test Identification Parade is certainly an incriminating circumstance, which has been rightly used against him by the trial court as it is evident from the testimony of the Complainant (PW-1) that there is no cross-examination of this witness on the identity aspect of the Appellant.

Upon considering the prosecution case in its totality, I find that the trial court has rightly relied upon the prosecution evidence to convict the Appellant in this case.

On the aspect of the quantum of sentence, I find that neither offence u/s 328 of Indian Penal Code nor the offence u/s 380 of the Indian Penal Code carries a minimum sentence. It appears from the record of this case that Appellant was aged about 20 years at the time of this incident and it is evident from the impugned order on sentence that he is not a previous convict. Learned Counsel for the Appellant had urged for taking a lenient view on the point of sentence as the Appellant is stated to be a poor person and it is said that he has a family to support. The nominal roll of the Appellant reveals that as on 15th February, 2000, he had remained behind bars in this case for a period of four months and twenty two days and his conduct in the jail has been satisfactory. The sentence imposed upon the Appellant was suspended on 3rd August, 2000 during the pendency of this appeal. It becomes clear that from 15th February, 2000 to 3rd August, 2000 Appellant had remained behind bars. Thus, the substantive sentence undergone by the Appellant comes to about ten months. It has to be kept in mind that the Appellant has faced the agony of trial and the appeal proceedings in this case since September, 1997, i.e., for more than 12 years.

In the aforesaid facts and circumstances of this case, it would be in the fitness of things to reduce the substantive sentence of four years imposed upon the Appellant to the period already undergone by him. However, the sentence of fine is maintained.

This appeal is partly allowed to the extent indicated above. Appellant is granted three weeks time to deposit the fine, as awarded by the trial court, if not already deposited by him. In default of deposit of fine, appellant has to undergo sentence as already awarded to him. Trial court be apprised of this order to ensure its compliance.

This appeal is accordingly disposed of.