Vinod Kumar vs U.T.Chandigarh

Harbans Singh Rai, J.

This order will dispose of Criminal Appeals Nos. 508SB of 1985 (Vinod Kumar v. U.T. Chandigarh) had 540SB of 1988 (Paramjit v. U.T. Chandigarh), as they arise out of same judgment.

Vinod Kumar and Paramjit appellants in both the appeals were convicted by Additional Sessions Judge, Chandigarh, under Section 392 read with Section 397, I.P.C. and sentenced to seven years R.I. each and a fine of Rs. 200/ each and in default of payment of fine further R.I. for two months vide his order dated October 14/16, 1985. Feeling aggrieved they have filed these appeals.

Prosecution case, as deposed by Sham Sunder P.W.7, is that he was running a shop of general merchant in village Darua. The shop is owned by Parkash Chand Sarpanch. On February 8, 1983, at about 8.45 P.M. Sham SUnder P.W. was closing his shop by locking the same as he was to go to his house. One person approached him on the pretext of purchasing wheat flour. He opened the lock and the shutter and went inside the shop. The said person followed by two others also entered the shop. According to prosecution, the other two persons are appellants. All the three had knives. They appointed knives towards Sham Sunder P.W. and asked him to hand over whatever he had. Sham Sunder was assaulted with knives. He raised an alarm. The noise raised by him attracted Parkash Chand, Sardev Singh P.W. and others. Two out of those three persons ran away taking purse of Sham Sunder, which had Rs. 1500/ in it and his wrist watch. Some change lying in the cashbox was also removed. But one out of them was apprehended and he was Vinod Kumar appellant. When Vinod Kumar was being taken to Police Station by the P.Ws., A.S.I. Krishan Chand, who was on patrol duty, met them on the way. Sham Sunder gave his statement Exhibit P.I. and F.I.R. Exhibit P1/A was recovered on the basis of his statement.

Vinod Kumar, who was produced by the P.Ws. before the police, was arrested. He had a knife Exhibit P.1. and a watch Exhibit P.2 belonging to Sham Sunder. These were taken into possession.

Sham Sunder P.W.7 was sent for medical examination and he was examined by Dr. A.P. Garg, P.W.1, at 10.45 p.m. on the same day in Primary Health Centre, Mani Majra. He had six incised injuries on his person.

On September 10, 1983, the other accused, namely, Paramjit and Raj Kumar, were arrested. They were produced before Judicial Magistrate, Chandigarh, and request for test identification was made. They did not participate in the identification parade.

On December 11, 1983, Paramjit accusedappellant was interrogated. He disclosed that he had kept a knife, purse containing Rs. 400/ and a photo of the complainant in a trunk in his house. The knife and the purse were recovered as a result of the disclosure statement made by Paramjit appellant.

After investigation, all the three were challaned. After trial, Raj Kumar was acquitted, while Vinod Kumar and Paramjit were convicted and sentenced, as mentioned in the earlier part of the judgment.

Prosecution in support of its case examined Dr. A.P. Garg, P.W.1, Medical Officer, Primary Health Centre, Mani Majra, U.T. Chandigarh, who had medicolegally examined Sham Sunder on February 8, 1983, at 10.45 p.m. He found the following six injuries on his person :

Incised wound 1/2 cm. x 1 cm. on the parietal region right side.

Incised wound 1/2 cm. x 1 cm. on the right ear on the upper part.

Incised wound 1/2 cm. x 11/2 cm. on the frontal forehead.

Incised wound 1/2 cm. x 1/2 cm. on the upper arm.

Incised wound 1/2 cm. x 1/2 cm. on the tip of left scapula.

Incised wound 1/2 cm. x 1/2 cm. on the right scapula.

P.W.2 Jaswant Singh Draftsman prepared scaled plan Exhibit PC. P.W.3 Shri V.P. Aggarwal, C.J.M. Bhiwani, who was posted as Judicial Magistrate, Chandigarh, on February 10, 1983, deposed that Paramjit accusedappellant and his coaccused Raj Kumar declined to join identification parade. P.W.4 Sardev Singh stated that on February 1, 1983, at 8.30 p.m. he was sitting inside his house when he heard the noise of "CHOR, CHOR''. This noise was coming from the shop of Sham Sunder. He saw two persons running from the shop and found Sham Sunder and other person scuffling with each other in the shop. He identified Vinod Kumar as the person who was scuffling with Sham Sunder in the shop. He further stated that Vinod Kumar was searched and a knife and a wrist watch were recovered from him. As he did not support the entire prosecution case, he was declared hostile and Public Prospector crossexamined him. P.W.5 Nageshwar deposed that in his presence Paramjit made a disclosure statement to the effect that he had kept concealed a knife and a purse in his house. Knife and the purse were recovered by the police from the house of Paramjit. P.W.6 Mohan Lal did not support the prosecution and was declared hostile. P.W.7 Sham Sunder complainant gave the prosecution version and supported the same. Krishan Chand P.W.8 is the investigating Officer.

After close of the prosecution case, the accusedappellants were examined. They denied the prosecution allegations. Vinod Kumar gave the following version :

"I am innocent. We used to purchase thread, buttons, for our tailoring work on credit from Sham Sunder. There was some account for which there was a dispute. My bother was a tenant in a shop owned by Sarpanch Parkash Chand who wanted the shop to the vacated. Parkash Chand wanted to sell it to Sham Sunder. For that purpose I have been implicated in this case. Sham Sunder is a tenant of Parkash Chand."

Paramjit appellant gave the following version :

"I am innocent. I used to work at his shop. I have been implicated due to the said fact. I was not there at that time. I was not present at the time of alleged occurrence, if any. I was taken away from house No. 683A. Section 20, Chandigarh, on February 10, 1983, and was implicated in this case falsely."

I have gone through the evidence with the help of the learned Counsel.

Vinod Kumar was arrested at the spot and the version given by Sham Sunder is supported by prompt lodging of the F.I.R. and injuries on his person. Nothing has been brought on the file to discredit the testimony of Sham Sunder. In defence, Vinod Kumar stated that a false case has been registered as there was some dispute regarding the tenancy of the shop. The authenticity of Sham Sunder''s version is established by the incised injuries found on his person by the doctor immediately after the occurrence. It is further corroborated by the fact that Vinod Kumar was arrested at the spot. The trial Court has rightly convicted Vinod Kumar and I do not find any justification in interfering with the findings of the learned trial Court. His conviction and sentence are affirmed and his appeal No. 508SB of 1985 is dismissed.

As far as participation of Paramjit is concerned, he was not arrested at the spot and his nonparticipation in the test identification parade is attributed to the fact that he had no counsel to advise him at that time. No identification marks about the companion of Vinod Kumar are given in the F.I.R. by Sham Sunder. Even if it is taken that he has not participated in the test identification parade, that will not successfully prove the prosecution case.

As far as recovery of purse and knife are concerned, according to prosecution purse contained Rs. 400/ in cash and a photograph of the complainant. It is not understandable as to why the accusedappellant will carry on his person a photograph of the complaint which may be very damaging to his defence after so many days of the occurrence. It obviously appears to be padding. The recovery of currency notes and the knife will not be incriminating against him, as no identity of the currency notes and the knife is fixed.

As there is no satisfactory evidence against Paramjit, I am of the view that he is entitled to benefit of doubt. Consequently, his appeal No. 508SB of 1985 is accepted and his conviction and sentence are set aside and he is acquitted of the charge.