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2004 DIGILAW 1262 (PNJ)

Sanjay v. State Of Haryana

2004-11-17

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. Appellant Sanjay has filed this appeal against the judgment of conviction and order of sentence dated 1.5.1992 passed by the Additional Sessions Judge, Jind vide which the appellant and his co-accused Tejbir have been convicted under Sections 452/394/397 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 100/- under Section 397 read with Section 34 IPC and to further undergo rigorous imprisonment for three months in default of payment of fine; to undergo rigorous imprisonment for two years and to pay a fine of Rs. 100/- under Section 452 read with Section 34 IPC and in default of payment of fine to further undergo rigorous imprisonment for three months, and to undergo rigorous imprisonment for five years and to a fine of Rs. 100/- under Section 394 IPC and in default of payment of fine, to further undergo rigorous imprisonment for three months. 2. Both the aforesaid accused filed separate Criminal Appeals bearing Crl. Appeal No. 196-SB of 1992 and Criminal Appeal No. 212-SB of 1992. During the pendency of these appeals, accused Tejbir had expired, therefore, the appeal filed by him i.e. Criminal Appeal No. 212-SB of 1992 was ordered to be dismissed as abated. 3. As per the prosecution story, on 17.7.1991, the complainant Satbir Singh, who was working as Assistant Development Officer in Sugarcane Agricultural Department, Jind, received information in his office at about 11.15 a.m. to the effect that some persons had entered into his house and caused injuries to his wife Santosh and had taken away his scooter. On receipt of the said information, he immediately came to his house along with his colleague Kapoor Singh where he found that his wife Santosh was lying in unconscious condition and blood was oozing out of her body. He immediately took his wife to the hospital where she was medico-legally examined. Dr. H.N. Sehgal (PW1), who medico-legally examined injured Santosh, sent a ruqa along with the copy of the Medico-Legal Report to the police. Immediately, SI Karam Singh reached the Civil Hospital, Jind and obtained the opinion of the doctor on application (Ex. PE) regarding the condition of the injured Santosh, who was declared unfit to make statement. Therefore, he recorded the statement of Satbir Singh (Ex. Immediately, SI Karam Singh reached the Civil Hospital, Jind and obtained the opinion of the doctor on application (Ex. PE) regarding the condition of the injured Santosh, who was declared unfit to make statement. Therefore, he recorded the statement of Satbir Singh (Ex. PC) in the Police Station and on the basis of which the formal FIR (Ex. PC/1) was recorded. 4. Subsequently, on 18.7.1991, the statement of Santosh was recorded by PW-9 Inspector Angrej Singh. In her statement, she disclosed that on 17.7.1991 she was present at her house and her daughter, who was aged about 3 years, was sleeping. At about 10 a.m. when she was about to go to bathroom to take bath, she heard the bell. On opening of the door, she saw two young persons standing at the gate. They asked her about the house of Ramesh Danda. She told them that she was not knowing Ramesh Danda. Then both the accused went away. Subsequently, when she came out of the bathroom after about 15/20 minutes, she heard the noise of the opening of the door. She saw two persons who had earlier come and entered in her house, and they started giving beating to her. One of the accused was armed with pistol like iron rod. In her statement, she had given description and age of the culprits. Subsequently, Santosh while appearing in the Court as PW-7 had identified both the accused, who had entered in her house on 17.7.1991 and caused injuries to her. 5. As per the Medico-Legal Report (Ex. PA), nine injuries were found on the person of Santosh. As per the opinion of Dr. H.N. Sehgal (PW-1), who had examined Santosh, injury No. 1 was of grevious nature and the other injuries, which were alleged to have been caused by blunt weapon, were simple in nature. 6. During the investigation, the police arrested Tejbir Singh and appellant Sanjay. They made the disclosure statements to the police on interrogation. In pursuance of the disclosure statement (Ex. PL) made by accused Tejbir Singh, one pair of earrings was recovered and further on the subsequent disclosure statement (Ex. PL) made by the said accused, the scooter was recovered and on the basis of disclosure statement (Ex. PQ) made by the appellant, two tyres and two seats of the scooter were recovered. Finally, challan was filed against both the accused by the police. PL) made by the said accused, the scooter was recovered and on the basis of disclosure statement (Ex. PQ) made by the appellant, two tyres and two seats of the scooter were recovered. Finally, challan was filed against both the accused by the police. On the basis of the material available on the record, charges were framed against both the accused under Section 452/394 read with Sections 34 and 397 IPC, to which they pleaded not guilty and claimed trial. 7. In support of its case, the prosecution examined 14 witnesses and placed on record various documents. In their statements under Section 313 of the Code of Criminal Procedure, both the accused pleaded false implication and denied all the allegations levelled by the prosecution. Though in defence they did not lead any evidence. 8. After considering all the evidence available on the record and hearing the arguments of the learned counsel for the respective parties, the trial Court convicted both the accused under Sections 452/394/397 read with Section 34 IPC. Hence, this appeal. 9. Learned counsel for the appellant contended that in this case the prosecution has failed to prove the alleged guilt against the appellant and the trial Court has convicted him without there being any cogent evidence against him. Learned counsel submitted that in this case the appellant has been convicted on the basis of the statements of Smt. Santosh (PW7) and the complainant Satbir Singh (PW10). In this case, there is no independent witness who has supported or corroborated the version of these two prosecution witnesses. Neither the person who initially informed Satbir Singh about the alleged occurrence has been examined nor the alleged recovery, which was made on the basis of the disclosure statement, has been witnessed by any independent person. He further contends that in this case no identification parade was conducted by the police at the time of investigation and the accused were identified by Smt. Santosh only at the time of trial in the Court. He further submitted that in her statement recorded under Section 161 Cr.P.C., Smt. Santosh (PW7) did not give full description of the culprits and the small description given by her is not tallying with the description of the accused. Therefore, the involvement of the accused in the case only on the basis of identification in the Court made the prosecution version doubtful. Therefore, the involvement of the accused in the case only on the basis of identification in the Court made the prosecution version doubtful. He further contends that in the instant case the weapon of the offence has not been recovered and even the recovery of the articles from the appellant has also not been established by the prosecution as no independent witness was associated at the time of the alleged recovery made in pursuance of the disclosure statement. Learned counsel for the appellant also contends that in this case there is delay of about 12 hours in lodging the FIR. Learned counsel for the appellant also referred to some contradictions in the statements of the prosecution witnesses. He further submitted that since no recovery of the weapon of the offence has been made, therefore, the appellant cannot be convicted under Section 397 IPC. 10. On the other hand, Shri Rajesh Bhardwaj, learned Assistant Advocate General submitted that in this case the prosecution has fully established its case. The medical evidence led by the prosecution fully corroborates the ocular version of PW-7 Smt. Santosh. He further contends that after the arrest, the police submitted an application for identification parade of the accused but both of them have refused to join the identification parade. Therefore, it cannot be said that the identity of the accused has not been established. Learned counsel for the respondent-State further submitted that in this case one of the injuries caused by the accused was of a grievous nature. Therefore, it cannot be said that the appellant cannot be punished under Section 397 IPC because no deadly weapon was used in the crime. Regarding joining of the independent witness, learned State counsel submitted that there was no other witness of the alleged occurrence, therefore, the question of joining of the independent witness does not arise. When the alleged robbery was committed, Smt. Santosh was alone in her house with her three years old daughter, who was sleeping at that time. Therefore, the version given by Smt. Santosh cannot be disbelieved particularly when she had received nine injuries on her person which were immediately noticed in the Medico-Legal Report by the doctor soon after the alleged occurrence. Those injuries cannot be said to be self-inflicted. Thus, the State counsel submitted that there is no merit in this appeal and the same is liable to be dismissed. 11. Those injuries cannot be said to be self-inflicted. Thus, the State counsel submitted that there is no merit in this appeal and the same is liable to be dismissed. 11. After hearing the arguments of the learned counsel for the parties and perusing the record of the case, I do not find any merit in this appeal. 12. In this case, the prosecution has fully proved the charges levelled against the appellant. From the statement of Smt. Santosh (PW-7), it has been established that both the accused had entered into her house, caused beating to her and taken away the scooter as well as the earrings by causing injuries. PW-10 Satbir Singh has proved that on receipt of the information, he reached to his house and found that his wife was lying unconscious and blood was oozing from her body. She was immediately taken to the hospital where PW-1 Dr. H.N. Sehgal medico-legally examined her and found nine injuries on her person soon after the alleged occurrence. The copy of the M.L.R. (Ex. PA) has been duly proved by PW-1, who has also categorically stated that injury No. 1 is grievous in nature. Further, identification of the accused has been established in this case. Both the accused were identified by Smt. Santosh in the Court where she had deposed that these accused had committed the robbery in her house and caused injuries to her. All the stolen articles have been recovered from the possession of both the accused on the disclosure statement made by them after their arrest. The making of the disclosure statements as well as the recovery of the stolen articles at the instance of the accused has also been proved. 13. PW-13 HC Duli Chand has deposed that on 25.10.1991 on interrogation, the appellant made disclosure statement (PQ) and in pursuance of the said disclosure statement, two tyres and two seats of the scooter were recovered from his residential house and those articles were taken into possession vide recovery Memo Ex. PR. 14. PW-14 ASI Ghisha Ram has stated that after the arrest the accused were produced before the Chief Judicial Magistrate, Jind with muffled faces. He further states that an application for joining the accused for identification parade was moved before the Chief Judicial Magistrate but the accused refused to join the investigation. PR. 14. PW-14 ASI Ghisha Ram has stated that after the arrest the accused were produced before the Chief Judicial Magistrate, Jind with muffled faces. He further states that an application for joining the accused for identification parade was moved before the Chief Judicial Magistrate but the accused refused to join the investigation. This fact has also been established by PW-11 V.P. Bishnoi, Chief Judicial Magistrate, Jind, who has stated that both the accused were produced before him with muffled faces for the purpose of identification parade but the accused refused to participate in the said identification parade. 15. In view of the afore-said facts, I do not find any force in the contention of the learned counsel for the appellant that in this case no identification parade was conducted and the identification of the accused in the Court itself is not sufficient to establish the involvement of the appellant in the crime. PW-7 Smt. Santosh in her statement under Section 161 Cr.P.C. made during the investigation and in her statement made before the Court, has mentioned about the broad description of the features of the accused. In the Court she had identified both the accused who had come to her house and caused injuries to her on the date of the alleged occurrence. The identification of the accused by Smt. Santosh cannot be said to be weak identification as she had seen the accused twice. Her statement cannot be disbelieved which is fully corroborated by the medical version. In her statement she has specifically stated the role attributed to each of the accused. There is no reason to disbelieve the statement of Smt. Santosh, who has fully stood the test of cross-examination. Neither the appellant has led any evidence to show that the accused were shown to the prosecution witnesses nor there is any evidence on the file from which it can be gathered that the appellant was shown to Smt. Santosh. It was further categorically stated by PW 11 Shri V.P. Bishnoi, CJM, Jind, that when the accused were produced in the Court at that time Smt. Santosh was not present. Further PW-14 ASI Ghisha Ram has denied the suggestion made to him by the defence that the accused were shown to the witnesses. 16. It was further categorically stated by PW 11 Shri V.P. Bishnoi, CJM, Jind, that when the accused were produced in the Court at that time Smt. Santosh was not present. Further PW-14 ASI Ghisha Ram has denied the suggestion made to him by the defence that the accused were shown to the witnesses. 16. Thus, from the evidence available on the record, it has been established that the accused has committed the offence under Sections 452/394/397 read with Section 34 IPC. 17. I also do not find any force in the contention raised by learned counsel for the appellant that in this case the offence under Section 397 has not been established against the accused. Undisputedly, the weapon used in the offence has not been recovered in this case. The prosecution has also not led any evidence which establishes that any deadly weapon was used in the offence. As per the statement of Smt. Santosh PW-7, an iron rod which was looking like pistol was used. On the basis of this material, learned counsel for the appellant while relying upon the judgment of the Honble Supreme Court in Dhanai Mahto and another v. State of Bihar, 2001 Criminal Law Journal 147, submitted that the iron road is not a deadly weapon. Therefore, no offence under Section 397 IPC is made out against the accused. In this case, though the deadly weapon was not used but the accused has inflicted the grievous hurt to PW-7 Smt. Santosh while committing the robbery. PW-1 Dr. H.N. Sehgal, has specifically stated in his statement that injury No. 1 is grievous in nature. Section 397 IPC clearly provides that, "If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years." Since in this case the grievous injury has been inflicted by the accused on Smt. Santosh, therefore, offence under Section 397 IPC has been clearly made out against the appellant. 18. In view of the aforesaid discussion, I do not find any merit in this appeal and the same is hereby dismissed.