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2005 DIGILAW 598 (PNJ)

Bostar v. State Of Haryana

2005-05-13

BALDEV SINGH

body2005
Judgment Baldev Singh, J. 1. This judgment would dispose of 3 appeals, mentioned above as the same are arising out of the same judgment. 2. The appellants were convicted for the offence punishable under Section 395 IPC vide impugned judgment dated 6.1.1993 in case FIR No. 6 dated 5.1.1992 registered at Police Station Sadar Palwal and each of them was sentenced to undergo R.I. for 4 years and to pay Rs. 200/- each as fine and in default of payment of fine to further undergo R.I. for 2 months vide impugned sentence order dated 8.1.1993 passed by Sh. M.P. Mehndiratta, the then Additional Sessions Judge, Faridabad. 3. The prayer of the appellants is to set aside the impugned judgment of conviction and the sentence order by way of acceptance of this appeal and to acquit them of the charge framed against them under Section 395 IPC. 4. The facts of the prosecution case are that PW9 Joginder Kumar, who was resident of Uttam Nagar, Delhi used to ply his Maruti Van No. HYW-3025 as a taxi. On 5.1.1992, the appellants hired his taxi for Palwal. From there, they went to Hodal. On their way back towards Delhi from Hodal, one of the appellants namely Bostar pointed out a pistol to Joginder Kumar - complainant and directed him to stop the Maruti Van. The appellants pushed out Joginder Kumar and they then drove away the Maruti Van towards Delhi. Joginder Kumar - complainant received injuries when he was pushed out of the Maruti Van. He went to Police Station Sadar Palwal and lodged report regarding this incident. On the basis of his statement, case FIR No. 6 dated 5.1.1992 under Sections 395 and 397 IPC was registered at Police Station Sadar Palwal. 5. The investigation of the case was taken up by Amir Singh SI, the then SHO Police Station Sadar Palwal. He inspected the place of occurrence and prepared the site-plan. Then on 7.1.1992 after getting information from PW10 Ajit Singh that the Maruti Van involved in this case was lying parked near village Dholagarh, PW Amir Singh SI went there and took into possession Maruti Van No. HYW-3025 vide recovery memo Ex. PL. Site plan showing the place of recovery was also prepared. 6. The appellants were arrested by the police of Police Station Shahdra in connection with some other case. PL. Site plan showing the place of recovery was also prepared. 6. The appellants were arrested by the police of Police Station Shahdra in connection with some other case. PW5 Pritam Singh, the then ASI at Police Station Sadar Palwal went to Shahdra and formally arrested the accused on 13.1.1992. PW11 Amar Singh SI produced the appellants on 14.1.1992 before Sh. Ashok Bhardwaj, the then Judicial Magistrate, Palwal. An application Ex. PA was moved requiring the appellants to participate in the Test Identification Parade, in which Joginder Kumar was supposed to identity them. The appellants refused to participate in the Test Identification Parade. Their statements were recorded, which are Exs. PB, PC, PD, PE and PF. 7. On the night intervening 7/8.1.1992, the appellants were interrogated in connection with case FIR No. 10/92 under Sections 399 and 402 IPC registered at Police Station Shahdra by A.Q. Khan SI, Delhi Police in the presence of Kailash Kumar ASI and Siri Chand ASI. They disclosed that they had committed a dacoity in respect of Maruti Van No. HYW-3025 in the area of Police Station Sadar Palwal. Their disclosure statements Ex. PW7/1 to Ex. PW7/5 were recorded. Then on 15.1.1992, the appellants had pointed out the place of occurrence as well as the place whereat the Maruti Van was left and was recovered by the Police. Site plans Ex. PM and Ex. PN were prepared in this respect. 8. On completion of the investigation challan was put in against the appellants for the offences punishable under Sections 395 and 397 IPC. 9. The case was committed to the Court of Session for trial. Charge was framed against the appellants for the offences punishable under Sections 395 and 397 IPC. They did not plead guilty to the charge and claimed trial. 10. The prosecution at the trial examined 11 witnesses, namely; PW1 Sh. Ashok Bhardwaj, PW2 Dr. B.S. Sharma, PW3 Dr. Krishan Kumar, PW4 Hari Singh, PW5 Pritam Singh, PW6 Ajay Kumar HC, PW7 A.Q. Khan SI, PW8 Siri Chand ASI, PW9 Joginder Kumar - complainant, PW10 Ajit Singh and PW11 Amir Singh SI. They proved various documents on the file. 11. On the conclusion of the prosecution evidence, all the incriminating evidence was put to the appellants and their statements were recorded under Section 313 Cr.P.C. They denied the prosecution version and complained of their false implicity in this case. They proved various documents on the file. 11. On the conclusion of the prosecution evidence, all the incriminating evidence was put to the appellants and their statements were recorded under Section 313 Cr.P.C. They denied the prosecution version and complained of their false implicity in this case. They, however, adduced no evidence in their defence. 12. The arguments of the Ld. counsel for the appellants and of Assistant Advocate General, Haryana were heard and the evidence was scrutinised with their help. 13. It was argued by the Ld. counsel for the appellants that on 7.1.1992 the appellants were shown to PW Joginder Kumar in Police Station Shahdra, Delhi and that was the reason that on 14.1.1992 they had refused to take part in the Test Identification Parade. PW9 Joginder Kumar identified the appellants at the time of making his deposition on 29.10.1992 and his statement does not inspire confidence. Statement of PW9 Joginder Kumar reveals that on 7.1.1992 he went to Police Station Shahdra where the appellants were arrested in some other case. He identified them while they were in police custody. So when the appellants were produced on 14.1.1992 before Sh. Ashok Bhardwaj Judicial Magistrate, they had refused to participate in the Test Identification Parade. That was a valid reason for the appellants for not participating in the Test Identification Parade. But Joginder Kumar - complainant identified the appellants unerringly when he saw them on 13.1.1992. They all had travelled in his Maruti Van right from 12.30 P.M. to 8.00 P.M. on 5.1.1992. He had spent sufficient time with them and had the occasion to see them closely. so he identified the appellants in the Court who had hired his Maruti Van and who had pushed him out of the same and driven it away towards Delhi. His statement inspires confidence. The trial Court relied upon his statement in fixing the identity of the appellants as the culprits. There is nothing which calls for interference in the finding recorded which calls for interference in the finding recorded by the trial Court. 14. Joginder Kumar - complainant was medically examined by PW 3 Dr. Krishan Kumar on 7.1.1992 at 2.50 P.M. He had found the following injuries on his person :- 1. There was a linear abrasion on the left side of his forehead. 8 cm upper limb, 5 cm right limb and 4 cm left limb red in colour. 14. Joginder Kumar - complainant was medically examined by PW 3 Dr. Krishan Kumar on 7.1.1992 at 2.50 P.M. He had found the following injuries on his person :- 1. There was a linear abrasion on the left side of his forehead. 8 cm upper limb, 5 cm right limb and 4 cm left limb red in colour. 2. Linear abrasion 10 cm long on the left side of face in the zygomatic region. Red in colour. 3. Multiple linear abrasion on the maxillary region of left side of face. 6 cm to 3 cm. Red in colour. 4. There was contusion on the midline at the level of collar bone and extending towards the right side. 7 cm x 1 cm red in colour and was painful. Advised x-ray. 5. Linear abrasion on the upper part of left thigh 1 cm long. Red in colour. Injuries No. 1 to 3 and 5 were declared simple in nature. Injury No. 2 was kept under observation for X-ray report. Injuries No. 1 to 3 to 5 were found to have been caused by pointed weapon, while injury No. 4 was found to have been caused by blunt weapon. The probable time of injuries was 24 hours to 72 hours. Ex. PI is the copy of the medico-legal report. The presence of the injuries on Joginder Kumar - complainant corroborates his version that he was pushed out of the Maruti Van when the appellants had driven it away towards Delhi and at that time he had received the said injuries. Since Joginder Kumar did not suffer any grievous injury, so no case was made out against the appellants under Section 397 IPC and this charge was not proved against them. There is no delay in lodging the FIR by the complainant. Occurrence had taken place at about 8.00 P.M. and the FIR was registered on 9.00 P.M. 15 There is no infirmity in the impugned judgment. The appellants were rightly convicted under Section 395 IPC. So the impugned judgment of conviction is upheld. 16. The Ld. counsel for the appellants submitted that lenient view be taken regarding sentence. All the appellants were aged about 20 years at the time of their conviction. They were sentenced to undergo R.I. for 4 years and to pay Rs. 200/- as fine and in default of payment of fine to further undergo R.I. for 2 months. 16. The Ld. counsel for the appellants submitted that lenient view be taken regarding sentence. All the appellants were aged about 20 years at the time of their conviction. They were sentenced to undergo R.I. for 4 years and to pay Rs. 200/- as fine and in default of payment of fine to further undergo R.I. for 2 months. Each of them has already suffered incarceration for about 1 year. They were arrested in this case on 13.1.1992. Ashok Kumar and Angrej were ordered to be released on bail on 15.1.1993. Bostar was ordered to be released on 13.1.1993, while Rakesh and Rajesh were ordered to be released on bail on 21.1.1993. The occurrence relates to the year 1992 (5.1.1992). They have been suffering the agony of this case for the last more than 13 years. Sending them back to jail after such a long time would be a harsh step and would disturb their peaceful life. So, the sentence of imprisonment is reduced to already undergone. However, each of the appellants would pay Rs. 2,000/- as fine and the entire amount of fine shall be paid to Joginder Kumar - complainant by way of compensation. In default of payment of fine, each of the appellants would undergo R.I. for 6 months. 17. l Except the above modification in the sentence order, the appeal fails and is dismissed.