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2007 DIGILAW 189 (PNJ)

Parlhad v. State of Haryana

2007-01-31

MAHESH GROVER

body2007
JUDGMENT Mahesh Grover. J. (Oral):- Three appeals shall be disposed of by this order. The appellants were convicted in an offence under Sections 397, 395 and 342 IPC pursuant to a case having been registered against them vide FIR No.308 dated 15.6.1998 in Police Station Butana. The prosecution’s case as unfolding from the FIR and the consequent challan presented under Section 173 of the Cr.P.C. is that the complainant Surmukh Singh was coming in his truck bearing No. HR-07-A 1618 on 14.6.1998 with a consignment of 246 bags of sunflowers and was accompanied by his Cleaner Prem Singh. When the truck reached two kilometers ahead of Samanabahu, in the mid of the night, they found the road blocked by truck-trailer which was parked diagonally on the road. The complainant had to perforce stop his vehicle. It was about 1:00 A.M. at night and two persons of young age came. One of them opened the driver side window of the truck and the other opened the conductor side window and they put their respective pistols on the neck of the complainant and forced them to alight the truck. They thereafter took the complainant’s truck. 10 to 12 persons, who were their companions and who were standing a little ahead, assaulted the complainant when he tried to resist. He was beaten up with iron rods as a result of which his right leg was totally broken. A sum of Rs.500/- was forcibly snatched from him. Thereafter the complainant along with his companion Prem Singh was put in a room where one Harjinder Singh, Mehar Singh and Chaman Lal - three other persons who were also victims of similar incidents, were already tied up. The accused persons thereafter escaped with the truck and the consignment. The truck was allegedly having Rs 4,000/- in the compartment. Prem Singh somehow managed to break the ventilator and rescue all the persons. The complainant thereafter got his statement recorded before Hardwari Lal ASI and a formal FIR was registered. 2. Subsequent to the event, on 26.6.1998, the truck in question i.e. No.HR-07-A 1618 was taken into possession vide recovery memo Ex.P-B from Police Station Rishikesh by the police, who had found the same on 19.6.1998 in an abandoned position. 3. The accused were arrested and interrogated. 2. Subsequent to the event, on 26.6.1998, the truck in question i.e. No.HR-07-A 1618 was taken into possession vide recovery memo Ex.P-B from Police Station Rishikesh by the police, who had found the same on 19.6.1998 in an abandoned position. 3. The accused were arrested and interrogated. On the strength of the disclosure statements, the portions of the consignment of sunflowers were recovered vide recovery memos Ex.P-U, Ex.P-M, Ex.P-L, Ex.P-V, Ex.P-S, Ex.P-W, Ex.P-Y and Ex.P-T. As many as eight persons were arrayed as accused and challaned accordingly. The case was committed to the court of Sessions and they were charged for having committed offences under Section 395, 397 and 342 of the IPC. 4. The prosecution, in support of its case, examined as many as 17 witnesses which included the complainant PW-8, Harjinder Singh PW-6, Mehar Singh PW-7 (the persons who were allegedly found in the room in a tied up condition). The official witnesses who conducted the investigation sealed the goods, prepared the recovery memos, were also examined. All the accused persons in their statements under Section 313 of the Cr.P.C. pleaded false implication and contended that they were abducted from their homes and had no role to play in the commission of offence. However no evidence was led by them in their defence. 5. The trial court, after examining the evidence before it, acquitted five of the accused persons namely Sher Singh son of Parkash Chand, Mamu son of Kasim, Main Pal son of Shish Ram, Deepak son of Sunder, Kalu @ Usman son of Shamshad. However three persons namely Sunil Kumar, Phulla and Parlhad were convicted and sentenced to undergo RI for 7 years under Section 397 IPC, to undergo RI for and 5 years and to pay a fine of Rs.500/- each under Section 392, read with Section 34 of the IPC and to undergo RI for one year each for the offence under Section 342 read with Section 34 of the IPC. 6. The appellants are in appeal against the judgment awarding them the conviction and the aforesaid sentence. 7. It was contended by Shri Raj Mohan Singh that the learned trial court had disbelieved the factum of recovery qua the aforesaid five persons who were awarded the acquittal whereas the same evidence of recovery effected by the same official has been used to convict the appellants. 7. It was contended by Shri Raj Mohan Singh that the learned trial court had disbelieved the factum of recovery qua the aforesaid five persons who were awarded the acquittal whereas the same evidence of recovery effected by the same official has been used to convict the appellants. On the strength of this, it was sought to be contended that the case of the appellants could not have been distinguished, once there was identical evidence on record qua all the accused persons. Besides, no identification parade was conducted and witnesses namely PW-6, PW-7 and PW-8 did not support the prosecution version. This, in itself, should have been sufficient to create a doubt regarding the prosecution version. On the other hand, learned counsel for the State contended that the recovery was sufficient to establish the commission of offence by the appellants and the offence being heinous, no leniency can be shown to the appellants. Besides, they were armed with deadly weapons. 8. I have heard learned counsel for the appellants and have perused the record. PW -16 Amarjit Singh ASI had effected the recovery on the basis of the disclosure statements made by the accused persons. PW-9 Pritam Singh ASI is one of the attesting witnesses to the same. The trial court had disbelieved the evidence leading to recovery qua the acquitted persons on the ground that no cogent evidence had been led in support of the disclosure statement made by the accused persons but strangely enough, the same set of evidence was used to convict the appellants without giving any cogent reasons. According to the prosecution, some bags of sunflower seeds were recovered from all the accused persons including the appellants. It is not the case of the prosecution that sunflower seeds had been recovered only from the appellants and not from the other persons who have been acquitted of the offence. There is, thus, no reason why the same set of evidence should be used to convict the appellants. Besides, concededly no identification parade was held, even though it was offered to the appellants who had refused the same. The statements of PW-8 and PW-14 reveals that they had failed to identify the appellants in court. The narration of prosecution version reveals that there were about 10 to 12 other persons and none of them have been identified. Besides, concededly no identification parade was held, even though it was offered to the appellants who had refused the same. The statements of PW-8 and PW-14 reveals that they had failed to identify the appellants in court. The narration of prosecution version reveals that there were about 10 to 12 other persons and none of them have been identified. The complainant could have been the best witness to have identified those persons as he had the occasion to see their faces closely for a long time, if the prosecution version is to be believed. Nothing has been shown as to why the complainant did not identify the appellants or did not support the prosecution version. In any eventuality, once the prosecution case rests solely on the disclosure statements leading to recovery, it has to apply uniformly to all the persons who have been arrayed as accused. The sequence of events in such like incidents and the consequent recoveries are crucial and if the evidence is inseparable and indivisible, then it cannot be used selectively. For the reasons recorded above, I am of the opinion that the prosecution has failed to establish its case beyond reasonable doubt against the appellants. Consequently the appeals are allowed and the conviction and the sentence awarded by the trial court to the appellants is set aside. ———————————