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2010 DIGILAW 3013 (PNJ)

Mukesh v. State Of Haryana

2010-11-10

JORA SINGH

body2010
Judgment Jora Singh, J. 1. This common judgment shall dispose of Crl.Appeal No. 1858- SB of 2002, Crl. Appeal No. 1873-SB of 2002 and Crl. Appeal No. 246-SB of 2004 filed by the appellants to impugn the judgment of conviction dated 23.10.2002 and order of sentence dated 26.10.2002 rendered by Additional Sessions Judge, Gurgaon, in Sessions Case No. 32 of 1.7.2000, arising out of FIR No. 66 dated 24.3.2000 under Sections 395/397 IPC, Police Station Bilaspur, District Gurgaon. 2. By the said judgment, appellants were convicted under Section 395 read with Section 397 IPC and sentenced to undergo RI for seven years and to pay a fine of Rs. 200/-, in default of payment of fine, to further undergo RI for one month each. 3. Prosecution story, in brief, is that Deepak Kumar and Ram Avtar were serving as Salesmen on the Petrol Pump of Murlidhar Vijay Kumar situated at Bilaspur Chowk and were on duty during the intervening night of 23/24.3.2000. Ishwar Singh, Clerk, Dharampal, Salesman, and Suresh, Driver, were sleeping at the same petrol pump. During night time at about 12.30 AM, a Maruti Car bearing No. HR-06-C-4585 came and six persons including Mukesh @ Sonu were in the car. Mukesh @ Sonu had served at the petrol pump for 3-4 days about 3-4 months earlier. Mukesh @ Sonu was known to the complainant. Car was stopped for getting the fuel. Petrol worth Rs. 300/- was filled in the tank of the car. Driver after alighting from the car demanded Rs. 200/- from Ram Avtar by saying that he was to give him a currency note of the denomination of Rs. 500/-. Ram Avtar was having a bag containing cash in his hand. Bag was opened to return Rs. 200/-. Then driver of the car attempted to snatch the bag. On seeing this, complainant came to help Ram Avtar and tried to catch hold the driver of the car. All the remaining five occupants of car came out of the car to help their companion and had grappled with Ram Avtar and Deepak Kumar, complainant. Ram Avtar did not allow them to snatch his bag. In the meantime, one of the assailants armed with a knife gave blow on the forearm of Ram Avtar. Bag was snatched from Ram Avtar. Ram Avtar did not allow them to snatch his bag. In the meantime, one of the assailants armed with a knife gave blow on the forearm of Ram Avtar. Bag was snatched from Ram Avtar. Raula was raised, then accused had fled away from the spot in their car without number plate on its back side. Complainant and Ram Avtar gave information to Ishwar Singh, Dharampal and Suresh about the occurrence. Ram Avtar was shifted to General Hospital, Gurgaon, for treatment, where he was medico legally examined at 1.30 AM on 24.3.2000. Ruqa was sent to concerned police station. Injured was referred to Safdarjung Hospital, Delhi, after first aid. 4. Police party headed by ASI Mahabir Singh at about 1.00 AM during night time was present near Bilaspur Chowk while on patrol duty. He received secret information about the occurrence that after committing the crime, accused had gone towards Gurgaon side. IO with party had gone to General Hospital, Gurgaon, where complainant had met him near the gate of hospital. Statement of complainant (Ex.PB) was recorded. After making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. 5. IO along with party had gone the place of occurrence. Rough site plan with correct marginal notes was prepared. After that, IO left for Delhi to record the statement of the injured but at Panchgaon Chowk, Ram Avtar, Ishwar, Suresh and Dharampal had met the IO, where their statements under Section 161 Cr.P.C. were recorded. IO in search of the accused was present near HSIDC Chowk, Manesar, then sighted Maruti Car No. HR-06-C-4585 while coming from the side of Manesar. Car was signalled to stop. Accused were arrested from the car and on search of the accused, currency notes were recovered from them. A gupti was also recovered from Jitender. Rough sketch of gupti was prepared and made into a sealed parcel sealed with the seal bearing impression `MS. Sealed parcel was taken into police possession vide separate memo. After completion of investigation, challan was presented in Court. Accused were charged under Section 395 read with Section 397 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined 14 witnesses. 6. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. 7. Accused were charged under Section 395 read with Section 397 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined 14 witnesses. 6. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. 7. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. 8. I have heard learned counsel for the appellants, learned State counsel and have gone through the evidence on file. 9. Learned defence counsel for the appellants argued that according to story, one of the accused gave knife blow to Ram Avtar but injury was found to be simple in nature. Appellants are to be convicted under Section 397 IPC if while committing robbery or dacoity, appellants had used any deadly weapon or caused grievous hurt or death. PW11 Dr. Ginni Lamba stated that he had medico legally examined P.W. 3 Ram Avtar and found two injuries on his person. Doctor did not state a word that any of the injuries was grievous in nature. Argued that appellants were wrongly convicted under Section 397 IPC. Occurrence was on the intervening night of 23/24.3.2000. Appellants are the first offenders. Appellants Mukesh, Jitender Kumar and Om Parkash have already undergone one year, six months and some days, Dilbahar has undergone one year, five months and some days, Krishan Kumar has undergone four years, four months and some days whereas, Mukesh Kumar @ Sonu has undergone two years, eight months and some days of sentence. Requested to take lenient view. 10. Learned State counsel frankly admitted that no offence punishable under Section 397 IPC is made out because injuries noticed on the person of Ram Avtar were not found to be grievous in nature. Appellants were liable for punishment under Section 397 IPC, if while committing robbery or dacoity, they had used any deadly weapon and caused grievous hurt or attempted to cause death or grievous hurt. Argued that appellants were rightly convicted under Section 395 IPC. 11. According to story, appellants are liable for punishment under Section 397 IPC, whereas allegation of defence was that no offence punishable under Section 397 IPC is made out. Argued that appellants were rightly convicted under Section 395 IPC. 11. According to story, appellants are liable for punishment under Section 397 IPC, whereas allegation of defence was that no offence punishable under Section 397 IPC is made out. Now the question is whether the appellants were rightly convicted under Section 397 IPC or not. Section 397 IPC is reproduced as under :- "Section 397 IPC. Robbery, or dacoity, with attempt to cause death or grievous hurt. - 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." 12. As per evidence on the file, only one of the appellants was named in the FIR. Out of six appellants, one of the appellants gave knife blow on the person of Ram Avtar. Ram Avtar was medico legally examined by Dr. Ginni Lamba. Two injuries were noticed but the doctor did not state a word that any of the injuries was grievous. No x-ray report is on the file. No PW stated a word that injuries on the person of Ram Avtar were grievous in nature. In examination-in-chief, learned PP should have put a question to the doctor as to whether any of the injuries was grievous in nature or not and if any of the injuries was grievous in nature, then where is the x-ray report. When injuries noted on the person of Ram Avtar were not grievous in nature, then I am of the opinion that appellants are not liable for punishment under Section 397 IPC. 13. Occurrence was on the intervening night of 23/24.3.2000. Appellants are the first offenders and are of young age. Appellants Mukesh, Jitender Kumar and Om Parkash have already undergone one year, six months and some days, Dilbahar has undergone one year, five months and some days, Krishan Kumar has undergone four years, four months and some days whereas, Mukesh Kumar @ Sonu has undergone two years, eight months and some days of sentence. 14. In 2005(3) AICLR 225, Raj Kumar and another v. State of Punjab, conviction was under Sections 392/397/411 IPC. Appeal was pending for the last 14 years. 14. In 2005(3) AICLR 225, Raj Kumar and another v. State of Punjab, conviction was under Sections 392/397/411 IPC. Appeal was pending for the last 14 years. One of the accused has already undergone 3 years and 3 months of imprisonment and the other remained in custody only for two months. Appellants were directed to undergo imprisonment already undergone. 15. In 2008(1) RCR (Crl.) 586, Ajit Singh and another v. State of Haryana, conviction was under Sections 392/397/34 IPC. Appellants were directed to undergo RI for 7 years. Appellants had undergone 6 years and 4 months during trial and appeal. Appellants were young and living in twenties. They were directed to undergo imprisonment already undergone. In 2003(2) AICLR 735, Tilak Raj v. State of Haryana, conviction was under Sections 392/397 IPC. Appellant was the first offender and of young age and was facing criminal trial for the last more than 14 years. Sentence was reduced to already undergone. 16. In the present case also, appellants are the first offenders and of young age. They are to become hard criminals if again sent to jail to undergo imprisonment as ordered by the trial Court. 17. Keeping in view the facts of the present case, I am of the opinion that ends of justice would be fully met if lenient view is taken. Appellants are directed to undergo imprisonment already undergone (one year, six months and some days in case of Mukesh, Jitender and Om Parkash, one year, five months and some days in case of Dilbahar, four years, four months and some days in case of Krishan Kumar and two years, eight months and some days in case of Mukesh Kumar @ Sonu. Appellants are further directed to deposit Rs. 1,000/- each as fine within two months before the trial Court. 18. For the reasons recorded above, Crl. Appeal No. 1858-SB of 2002, Crl. Appeal No. 1873-SB of 2002 and Crl. Appeal No. 246-SB of 2004 without merit are dismissed with modification qua sentence.