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2007 DIGILAW 229 (PNJ)

Hardwari v. State of Haryana

2007-02-07

MAHESH GROVER

body2007
JUDGMENT Mahesh Grover, J 1. The present appeal is directed against judgment of conviction dated 29.10.2002 and order of sentence dated 6.11.2002 passed by the Additional Sessions Judge, Fast Track Court, Sonepat (hereinafter described as `the trial Court') whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay an amount of Rs.2000/-as fine and in default of payment of fine, to further undergo rigorous imprisonment of two months for an offence punishable under Section 394 read with Section 397 of the Indian Penal Code,1860 (for short, `the I.P.C.'). 2. The prosecution story as unfolded on the statement of complainant-Smt.Pushpa Devi is that on the night intervening 21st and 22nd April,1998, she was sleeping in her house situated in Himgiri Colony, Janti Road, Kundi. Her husband's younger brother, Balbir Singh and his wife-Veena and their children were also living with her in the said house. On the fateful night, her husband's younger brother had gone to the factory for his duty and her husband had gone to the village. She was sleeping in a room with Veena and her nephew Rakesh, while other nephew Deepak was sleeping in another room. At about 2.00 A.M., she heard noise of barking of dogs. She got up with Veena and saw four youths armed with iron rods standing in the courtyard of her house. All of them were dark complexioned. As soon as the door was opened, they trespassed into the house and started giving rod blows to the complainant and Veena. They also ransacked the house of the complainant. The assailants were calling out to each other by names of Tara, Lali (subsequently identified as appellant-Hardwari), Jailer and Mahender. The persons who gave rod blows on the head and ear of the complainant were being called as Tara and Jailer. Tara snatched the gold ring half tola which the complainant was wearing in her finger. One of them snatched gold ear rings of Veena weighing half tola and they also snatched a hearing aid machine, a handkerchief of red colour on which the name of the complainant was embroided and some money. They also caused injuries on the face of Deepak after opening the door. One of them snatched gold ear rings of Veena weighing half tola and they also snatched a hearing aid machine, a handkerchief of red colour on which the name of the complainant was embroided and some money. They also caused injuries on the face of Deepak after opening the door. Subsequently, the complainant came to know that these gangsters had committed robbery at 2-3 places after causing injuries to several persons and one Guljar Singh also lost his life. 3. After the incident at 2.00 A.M., the F.I.R. was lodged at 5.30 A.M. in the morning of 22.4.1998, which was registered by A.S.I. Jorawar Singh. A.S.I. Virender Singh inspected the spot and prepared a site plan. The police also learnt that the injuries were caused to Sunil and two more persons at Khumbi farm in the area of Kundli by the gangsters. Thereafter, the police went to Vardhman Chemicals Factory at Janti Road and recorded the statement of Nirmal Singh, Chowkidar, who told that 3-4 gangsters caused injuries to him and Guljar Singh, who was lying unconscious. A.S.I.Virender Singh learnt that injuries were also caused to some labourers in the fields and they were taken to General Hospital, Sonepat. Separate statements of the labourers were also recorded. Guljar Singh, who was initially found unfit to make statement, later succumbed to the injuries. 4. The police apprehended the appellant along with others on a secret information that the accused, who were involved in robbery, were moving on foot. Upon search, appellant-Hardwari was found in possession of a wrist watch, one gold ear ring and one gold ring. These articles were taken into possession and converted into a sealed parcel. On interrogation, the appellant made a declaratory statement Exhibit PA to the effect that about six months back, he along with Gogi son of Bhanwar Singh, Jailer son of Mohar Singh committed theft in a farm house by scaling over the wall. After that, they had trespassed some other farmhouses and removed money from the iron box. Similarly, other incidents of robbery in which he had indulged were disclosed by the appellant. He also admitted that on the night intervening 21st and 22nd April,1998, he along with other accused,namely, Tara Chand son of Laxman Bawaria, Jailer son of Mohar Singh Bawaria and Mahender son of Lal Singh Bawria had trespassed into the house of the complainant. 5. Similarly, other incidents of robbery in which he had indulged were disclosed by the appellant. He also admitted that on the night intervening 21st and 22nd April,1998, he along with other accused,namely, Tara Chand son of Laxman Bawaria, Jailer son of Mohar Singh Bawaria and Mahender son of Lal Singh Bawria had trespassed into the house of the complainant. 5. The police, after completion of investigation, filed a challan against the appellant. On the basis of the allegations contained in the report under Section 173 of the Code of Criminal Procedure,1973 (for short, `the Cr.P.C.'), the appellant was charge sheeted by the trial Court under Section 395 and 397 of the I.P.C. vide order dated 20.1.2000 to which he pleaded not guilty and claimed trial. An additional charge was also framed against the appellant on 20.9.2002 for an offence punishable under Section 396 of the I.P.C. to which also he pleaded not guilty and claimed trial. 6. To prove its case, the prosecution examined as many as 24 witnesses. In his statement recorded under Section 311 of the Cr.P.C., the appellant alleged false implication and examined H.C. Jagdish Chander as DW1 and Kali Ram as DW2. 7. After hearing the learned counsel for the parties and perusing the evidence on record, the trial Court, vide the impugned judgment of conviction and order of sentence, convicted and sentenced the appellant in the manner mentioned hereinabove. 8. It has been contended by the learned counsel for the appellant that there are a number of discrepancies in the statement of complainant-Smt.Pushpa Devi (PW18) and the statement of Deepak (PW19) as the complainant had stated that Deepak was injured after the accused had opened the door, whereas Deepak has testified that he received injuries when he tried to intervene. That apart, the appellant was never identified. 9. On the other hand, learned counsel for the State vehemently opposed the contentions raised by the learned counsel for the appellant to state that the appellant is a part of gang, which is involved in a number of robberies in the area and his complicity in the offence has been established beyond doubt. 10. I have heard learned counsel for the parties at length and have perused the record. 11. The minor discrepancies are a natural phenomenon which appears in the testimony of witnesses whose statements are recorded after some time. 10. I have heard learned counsel for the parties at length and have perused the record. 11. The minor discrepancies are a natural phenomenon which appears in the testimony of witnesses whose statements are recorded after some time. Each discrepancy in itself is not to be an indicator of the innocence of the accused. It has to be seen as to whether the discrepancies go to the very root of the matter and shakes the case of the prosecution. The discrepancies pointed out by the learned counsel for the appellant can hardly be termed to be of this nature. Therefore, not much can be read into the same. 12. The crucial evidence against the appellant is the recovery of gold ornaments from him. The articles recovered from the accused persons were mixed up and the complainant was able to correctly identify the same. There is no other evidence which has been referred to by the learned counsel for the appellant to establish the innocence of the appellant. There is, thus, no reason to differ with the findings recorded by the trial Court. 13. On the basis of the above discussion, there is no merit in the appeal. Hence, it is dismissed and the impugned judgment of conviction and order of sentence are maintained. Appeal dismissed.