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2008 DIGILAW 911 (PNJ)

Hanif Ali v. State Of Haryana

2008-04-23

A.N.JINDAL

body2008
Judgment A.N.Jindal, J. 1. This judgment shall dispose of two criminal appeals i.e. 871-SB and 1088-SB of 2005, as in both, challenge has been made to the same judgment dated 15/20.04.2005, passed by Additional Sessions Judge, Sirsa, whereby, the accused-appellants (hereinafter referred to as the appellants) were convicted and sentenced to undergo rigorous imprisonment for five years and fine of Rs. 2000/-, each under Section 392 IPC; to undergo rigorous imprisonment for seven years and fine of Rs. 5000/-, each under Section 397 IPC, and to undergo rigorous imprisonment for two years and a fine of Rs. 1000/-, each, under Section 25 of the Arms Act. 2. In nutshell, the prosecution version as unfolded by Pat Ram (hereinafter referred to as the complainant) alleging himself to be the Munim of M/s Krishna Dal Mill, Ellenabad owned by Ram Avtar, is that on 12.11.2002, he was accompanying Hanif Ali (Driver) on truck bearing No. HR-24GA/0247. On that day, after loading 160 bags of Dal (pulse) in the aforesaid truck, they started for Malerkotla. They unloaded 80 bags at Malerkotla and collected a sum of Rs. 68,000/-, while the remaining 80 bags of Dal were unloaded at Kapurthala and a sum of Rs. 1,47,000/- was received. The payments of these amounts was confirmed by the owners on telephone. On 13.11.2002, they loaded Yamuna Sand in the truck from Dharamkot and started return journey for Ellenabad. At about midnight, after taking tea at a hotel in the area of Dabwali, when they reached in the area of village Dhudhiawali from Sadewala Minor, three persons with muffled faces came on a motor cycle and directed Hanif Ali to stop the truck. They dragged the complainant and gave him fist and slap blows. They asked the complainant to hand over the keys of the tool box, but the complainant and Hanif Ali managed to escape. Then, the accused broke open the lock of the tool box and took away Rs. 2,15,000/-. However, the complainant and Hanif Ali reached Ellenabad with the truck and brought the incident to the notice of Ram Avtar. On the basis of the aforequoted statement, FIR No. 408 dated 14.11.2002 under Sections 392/394/397 IPC and Section 25 of the Arms Act was registered. The police swung into action and ASI Hans Raj visited the place of occurrence and prepared the rough site-plan of the place of occurrence. On the basis of the aforequoted statement, FIR No. 408 dated 14.11.2002 under Sections 392/394/397 IPC and Section 25 of the Arms Act was registered. The police swung into action and ASI Hans Raj visited the place of occurrence and prepared the rough site-plan of the place of occurrence. After some time, when accused Hanif Ali left the place, the complainant made supplementary statement that the accused as well as Hanif Ali had snatched the amount. He further told that on the said night, Hanif Ali stopped the truck at Mehta Hotel and took tea, whereas, he remained sitting in the truck. Accused Ali Sher and Munsaf Ali came thereon a Rajdoot Motorcycle and met Hanif Ali. When the complainant and Hanif Ali crossed Sadewala Canal, in the meantime, both accused Munsaf Ali and Ali Sher came on the motorcycle and stopped the truck. Hanif Ali applied the brakes and aimed his pistol on the complainant. Munsaf Ali and Ali Sher, who were also having pistols, inflicted butt blows on the eye, cheek, jaw, back and other parts of the body of the complainant. They asked the complainant to hand over the keys of the tool-box, but the complainant had already thrown away the same. The accused kept aiming the pistol on the complainant. They took out a sum of Rs. 1,47,000/- from a red colour bag and a sum of Rs. 68,000/- from another bag. Accused Munsaf Ali and Ali Sher went away with the entire amount. Hanif Ali threatened the complainant to eliminate him and his family members, if he disclosed the true facts and, therefore, he gave a coloured version, but having attracted by the courage, he disclosed the truth on the next day. 3. In the process of investigation, Hanif Ali was arrested on 15.11.2002 and in pursuance of his disclosure statement, he got recovered a sum of Rs. 68,000/- and a country-made pistol of .12 bore with two live cartridges from the area of village Hasslia, District Hanumangarh (Rajasthan). On the same day, accused Ali Sher was also arrested while riding motor cycle No. HRQ/8053 and pursuant to his disclosure statement, he got recovered a sum of Rs. 1,14,000/- and one country-made pistol of .315 bore with three live cartridges. On 16.11.2002, accused Munsaf Ali was produced by Devi Lal, Sarpanch of village Khod, District Hanumangarh (Rajasthan). On the same day, accused Ali Sher was also arrested while riding motor cycle No. HRQ/8053 and pursuant to his disclosure statement, he got recovered a sum of Rs. 1,14,000/- and one country-made pistol of .315 bore with three live cartridges. On 16.11.2002, accused Munsaf Ali was produced by Devi Lal, Sarpanch of village Khod, District Hanumangarh (Rajasthan). He was arrested and from his personal search a sum of Rs. 33,000/- and one country-made pistol of .12 bore along with three live cartridges were recovered. After completing the necessary formalities, the challan was presented against all the three accused. 4. On commitment, the accused were charged under Section 392/397 IPC and also under Section 25 of the Arms Act, to which they pleaded not guilty and claimed trial. 5. In order to substantiate its version, the prosecution examined as many as nine witnesses, namely Head Constable Guljari Lal (PW1), who on 14.11.2002 on receipt of ruqa Ex.PA sent by ASI Hans Raj had recorded formal FIR Ex.PA/1. Pat Ram (PW2) is the complainant and he has narrated about the facts of the case. Head Constable Bharat Singh (PW3) is a formal witness and he has tendered in evidence his affidavit Ex.P1. Krishan Kumar (PW4), Reader to District Magistrate, Sirsa has proved the sanction order Ex.PJ. Ram Avtar (PW5) is a witness to the recovery and has deposed about the recovery of cash amount and pistols with live cartridges made from the possession of Hanif Ali, Ali Sher and Munsaf Ali. Constable Karambir Singh (PW6) being a formal witness has tendered in evidence his affidavit Ex.PK. Nirmal Singh (PW7) is the Revenue Patwari, who prepared scaled site plan Ex.PL. ASI Hans Raj (PW8) is the Investigating Officer. Sub-Inspector Hawa Singh (PW9) had presented the report under Section 173 of the Code of Criminal Procedure. 6. When examined under Section 313 Cr.P.C, the accused denied all the allegations and pleaded their false implication. The accused Hanif Ali has alleged that an amount of Rs. 70,000/- was taken away by the police and Ram Avtar from his house situated in Ellenabad and out of this amount, a sum of Rs. 68,000/- was planted upon the other accused. Munsaf Ali has alleged that a sum of Rs. 1,50,000/- was lifted from his residence situated at village Khoda by the police. The amount belonged to his father and out of it, a sum of Rs. 68,000/- was planted upon the other accused. Munsaf Ali has alleged that a sum of Rs. 1,50,000/- was lifted from his residence situated at village Khoda by the police. The amount belonged to his father and out of it, a sum of Rs. 33,000/- has been planted upon him by the police. Similarly, accused Ali Sher has alleged that he was having a sum of Rs. 1,28,000/- at the time of his arrest. The police took the amount and out of it, a sum of Rs. 1,14,000/- was planted upon him by the police, whereas, the remaining amount was illegally kept by them. In defence, the accused examined Nazar Khan (DW1), Amar Singh (DW2), Vaida (DW3), Ahmaddeen (DW4), Iqbal Singh (DW5) and Devi Lal (DW6). Ultimately, the trial ended in conviction. Hence, the present appeals. Arguments heard. Record perused. 7 The complainant (Pat Ram ) while appearing in the witness box as PW2 stated that he along with Hanif Ali had gone after loading 160 bags of Dal in the truck for delivering the same at Malerkotla and Kapurthala. They unloaded 80 bags, each at Malerkotla and Kapurthala, from where they received an amount of Rs. 68,000/- and Rs. 1,47,000/-, respectively. The receipt of the amounts was confirmed by them to Ram Avtar. On the return journey, when they reached near Dhudhiawali, the accused came and stopped the truck. Hanif Ali had joined hands with them. It has been further stated by him that Munsaf Ali came towards the window and took out a pistol and tried to snatch the keys of the tool box by giving butt blows on the face of the complainant and on his refusal, they broke open the lock and took out a sum of Rs. 2,15,000/-, contained in two separate bags. He also threatened the complainant to kill him and his family, if true incident is disclosed to the owners. The complainant has withstood the test of cross-examination. The counsel for the appellants has urged that the complainant could not be a Munim as in the cross- examination, he admitted that he was illiterate and an illiterate man cannot be a Munim. Learned counsel further urged that the complainant in his cross- examination has taken contradictory stand that he was working as Conductor on the truck. Thus, this meterial contradiction is sufficient to demolish the case of the prosecution. Learned counsel further urged that the complainant in his cross- examination has taken contradictory stand that he was working as Conductor on the truck. Thus, this meterial contradiction is sufficient to demolish the case of the prosecution. The other submission is that since the money was lying in the tool-box, therefore, Hanif Ali, who was driver of the truck, could not be said to have snatched the money as he was in possession of the money, therefore, at the best, it could be said to be a case of breach of trust and not of robbery. Having examined the aforesaid arguments, I find no substance in the same. Hanif Ali, being the driver of the truck could be in the control of the vehicle and in the knowledge of the articles lying therein, but he could not be in possession and control of the said money. The complainant being the agent of M/s Krishna Dal Mill (owners) taken the goods, delivered the same and collected the payment and in this way, in fact, this was he, who was in-charge and custodian of the money, so received by him from two different dealers and he was accountable for the loss of such money. 8. As regards the other argument in respect of the employment of the complainant as Munim. May that as it be, the complainant claimed himself to be the Munim of M/s Krishna Dal Mill owned by Ram Avtar, but the said fact could not be established. However, it is proved on record that he was an employee of the aforesaid firm and had taken the goods for delivery to different dealers, in the capacity of an agent of the aforesaid firm. He in lieu of the delivery of the goods received payments on behalf of the firm. The complainant could be said to be an accomplice of the accused, if he had been a share-holder in the bounty, but he had the courage to come forward and depose the truth that Hanif Ali along with two other persons had robbed him of the said amount. The complainant could be said to be an accomplice of the accused, if he had been a share-holder in the bounty, but he had the courage to come forward and depose the truth that Hanif Ali along with two other persons had robbed him of the said amount. The mere fact that one day prior to the occurrence, he did not disclose the true facts by excluding Hanif All, is not sufficient to hold that he was also a perpetrator of the crime, as on the next day when Hanif Ali left the place, he made the picture clear and disclosed that Hanif Ali along with other accused had robbed him of the amount. The fear that prevailed over the complainant could be a cause for keeping him away from the truth at the initial stage. Therefore, an explanation has come-forth that after Hanif Ali had left the place, he made a supplementary statement to the police. 9. In order to confirm the receipt of the amount from the dealers, Ram Avtar (PW5) while appearing in the witness box disclosed that the amount was received by the complainant from the dealers at his instance, Besides the testimonies of aforesaid two witnesses with regard to the commission of robbery, there is ample evidence on record corroborating the said facts. The recoveries of the amounts and the weapons of the offence from the accused add to his guilt. Hanif Ali and Ali Sher were arrested on 15.11.1002. Hanif Ali in pursuance of his disclosure statement (Ex.PB), got recovered Rs. 68,000/- and a country-made pistol along with two live cartridges. Similarly, in pursuance of his disclosure statement, Ali Sher got recovered Rs. 1,14,000/- and a country-made pistol along with three live cartridges, while on arrest of the third accused, namely Munsaf Ali, a sum of Rs. 33,000/-, one country-made pistol and three live cartridges were recovered from him vide memo Ex.PH. The accused have no plausible explanation to make as to from where they received the amount and how they came in possession of the weapons of offence. Sufficient evidence has been led to connect the accused with the crime. The court below has rightly disbelieved the defence version, which is highly improbable. 10. Faced with the situation, Mr. Gurinder Pal Singh and Mr. Sufficient evidence has been led to connect the accused with the crime. The court below has rightly disbelieved the defence version, which is highly improbable. 10. Faced with the situation, Mr. Gurinder Pal Singh and Mr. Vivek K. Thakur, learned counsel appearing for the appellants urged that even on assuming that the prosecution version is correct, no case under Section 397 IPC is made out, since, there are no allegations of causing any grievous hurt or attempt to cause death or grievous hurt. While deliberating over the issue and the evidence on record, I agree with the contention that the offence does not fall within the ambit of Section 397 IPC as one of the essential ingredients of an offence to bring the case within the purview of the said Section is that the accused in the process of robbery must have used deadly weapons for causing grievous hurt or attempted to cause death or grievous hurt, but in the case in hand, the accused cannot be said to have used the deadly weapons as they did not make any attempt to cause any death or grievous hurt, much less simple hurt with the said weapon. Though, in some cases aiming of the pistol also amounts to use of the weapons, but in this case in view of the contradictory stand taken by the witnesses, it cannot be said that the weapon was used. One witness says that accused aimed the pistol at him and the other says that butt blows were inflicted upon him. As a matter of fact, if the accused wanted to use the pistol, then he would not have used it as a blunt weapon. The allegations are merely that the accused struck the butt of the pistol against the complainant, but in order to prove this fact even, no medical evidence has been brought on record. The witness has also not disclosed that the accused acted in such a manner or uttered such words intending to cause any grievous hurt or attempt to cause death or grievous hurt. As such, no offence under Section 397 IPC can be said to have been committed by the accused. 11. The witness has also not disclosed that the accused acted in such a manner or uttered such words intending to cause any grievous hurt or attempt to cause death or grievous hurt. As such, no offence under Section 397 IPC can be said to have been committed by the accused. 11. Now, coming to the quantum of sentence, the occurrence took place in the year 2002; the accused have already undergone more than one year and three months of the substantive sentence; the appellants are ready to compensate the owner of the truck for loss of money and that no case is made out under Section 397 IPC, some leniency could be extended towards them. Under these circumstances, to mind, interests of justice would be served, if the sentence under Section 392 IPC is reduced to rigorous imprisonment for three years. 12. As a result of the above discussion, the appeals are partly allowed, conviction and sentence of all the three accused under Section 397 IPC is set aside, while their conviction under Section 392 IPC and Section 25 of the Arms Act is upheld. However, the sentence under Section 392 IPC is reduced to rigorous `imprisonment for three years, without any alteration in the fine and its default clause, and the sentence u/s 25 of the Arms Act will remain intact. 13. The amount taken into possession from the accused during investigation be returned to Ram Avtar, owner of M/s Krishna Dal Mill, on proper identification and verification. 14. Copy of the order be sent to the Chief Judicial Magistrate, Sirsa for necessary compliance.