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2011 DIGILAW 137 (PNJ)

Bimlesh v. State of Haryana

2011-01-13

KANWALJIT SINGH AHLUWALIA

body2011
JUDGMENT Mr. Kanwaljit Singh Ahluwalia, J. (Oral):- By this common order, Criminal Appeal No.397-SB of 2002 preferred by Bimlesh son of Chet Ram and Criminal Appeal No.558-SB of 2002 preferred by Jagdish Kumar @ Pappu and Shiv Kumar son of Ram Nath shall be decided together. 2. The appellants were named as accused in a case FIR No.161 dated 27.2.1996 registered at Police Station City Ballabgarh under Sections 395, 342 IPC. The appellants were charged for offence under Sections 395, 342 IPC. The charge formulated by the Court of Additional Sessions Judge, Faridabad stated that on 27.2.1996 at about 1.45 A.M. in the area of Sector 25, Ballabgarh, the appellants had committed dacoity of aluminium pieces from the factory of S.P.A. Ferro Alloys Private Limited and thereby committed an offence under Section 395 IPC. The second charge stated that on the same day, time and place, they wrongfully confined Choman Singh, Chowkidar and thereby committed an offence under Section 342 IPC. The appellants pleaded not guilty and claimed trial. 3. After recording of the evidence, the trial Court concluded that offence under Sections 395, 342 IPC is not made out, as no evidence to this effect emerged from the prosecution evidence. However, for the recovery of aluminium notch bars from the appellants allegedly stolen from the premises of the factory, they were convicted under Section 412 IPC. 4. Before this Court examines the evidence, it will be necessary to notice the thrust of argument raised by learned counsel for the appellants. Counsel for the appellants has submitted that as stated by the trial Court prosecution has failed to prove the dacoity. Counsel states that if the entire prosecution case is taken as it is, it cannot be said that any dacoity was committed and, therefore, offence do not fall under Section 412 IPC but falls under Section 411 IPC. To appreciate this argument, it will be necessary to notice the prosecution evidence. 5. The FIR was lodged by Lal Chand Mehta, Managing Director, S.P.A. Ferro Alloys Pvt. Ltd. He stated that in the morning he received an information that a theft had been committed in his factory and information was relayed by Choman Singh, Chowkidar that in the night some persons came in the factory and took away aluminium ingots of small size and big size in a truck. As is apparent, Lal Chand Mehta is not an eye witness to the occurrence. He has only disclosed as to what was told to him by Choman Singh, Chowkidar. 6. Admittedly Choman Singh, Chowkidar has not been examined. Prosecution examined Mahender Singh as PW1. He stated that he is owner of the truck No.HNP-7571 and Kashinath was employed as driver of the truck and he had left the job before 15-20 days. He produced registration certificate of the truck which was taken into possession by the police. This truck is supposed to have been used to carry stolen goods. 7. PW2 L.C. Mehta has reiterated the version as to what was stated in the FIR. 8. PW3 T.C.Biswom, Manager, S.P.A. Ferro Alloys Pvt. Ltd. stated that he visited the police station on 27.5.1996 and identified 560 number of aluminium notch bars of the small size, 52 aluminium alloy ingots of big size. He is also not a witness of the theft or dacoity. 9. Sakuldev Singh PW4 was employed as Supervisor in the factory. He was also called by the police to identify the stolen property. He is also not an eye witness of the theft or dacoity. 10. SI Madan Lal PW5 on receipt of ruqa Ex.PA/1 had registered the FIR Ex.PC. 11. Constable Ravinder Kumar PW6 has taken into possession the truck bearing HNP-7571 alongwith its registration certificate. 12. ASI Siri Bhagwan PW7 stated that accused were arrested by him. During interrogation, they made a disclosure statement and got recovered the aluminium notch bars of small size and big size. 13. PW8 Anoj Kumar, Draftsman had prepared the scaled site plan Ex.PP of the spot. 14. Constable Krishan Kumar PW9 reached at the place of occurrence and took into possession Harrison brand lock which was lying broken. He also found other broken locks and took them into possession. 15. SI Dharam Pal PW10 carried the investigation and prepared the recovery memos of the articles seized from the spot. 16. Thereafter, the prosecution closed its evidence. Statements of the accused were recorded under Section 313 Cr.P.C and all incriminating circumstances were put to them. 17. The learned trial Court held that in view of non-examination of Choman Singh, Watchman, charge under Sections 395 and 342 IPC is not proved. The findings recorded by the trial Court read as under:- “16. Thereafter, the prosecution closed its evidence. Statements of the accused were recorded under Section 313 Cr.P.C and all incriminating circumstances were put to them. 17. The learned trial Court held that in view of non-examination of Choman Singh, Watchman, charge under Sections 395 and 342 IPC is not proved. The findings recorded by the trial Court read as under:- “16. Chamand Singh the watchman of the complainant factory was the only person who had seen the dacoits who were allegedly nine in number and took away ingots and notch bars in a truck. He could not be examined by the prosecution. The remaining witnesses could not prove the factum of dacoity and the involvement of the accused in that offence. The charge in this case was framed in respect of commission of offence punishable under Sections 342 and 395 I.P.C. There was also allegations that Chamand Singh was illegally confined by the dacoits. In view of the absence of Chamand Singh from the array of witnesses, the charge, in respect of the commission of offence punishable under Sections 395 and 342 I.P.C. Cannot be sustained.” 18. Once the accused have been acquitted of the offence of dacoity, what is material to say that any dacoity was committed. From the statement made by PW9 Krishan Kumar, it transpires that locks were broken and goods were stolen. 19. Section 390 IPC defines robbery. It states that in all robbery, there is theft or extortion. It further states that theft is robbery only where accused committing theft voluntarily causes death, hurt, wrongful restraint or fear of such death or put in fear or instant hurt. 20. Section 391 IPC states that five or more persons conjointly commit or attempt to commit a robbery, then dacoity is committed. 21. From the entire prosecution evidence, no material is discernible that any of the accused was armed and had made an attempt to cause injuries, hurt or death or wrongful restraint. Even number of accused who came to the factory and took away the goods is not known. Once this essential ingredients are lacking, this Court has to presume that theft had taken place and stolen articles were recovered. Only recovery of articles has been effected. Same was identified by PW3 T.C.Biswom and PW4 Shakuldev Singh, Supervisor of S.P.A. Ferro Alloys. Even number of accused who came to the factory and took away the goods is not known. Once this essential ingredients are lacking, this Court has to presume that theft had taken place and stolen articles were recovered. Only recovery of articles has been effected. Same was identified by PW3 T.C.Biswom and PW4 Shakuldev Singh, Supervisor of S.P.A. Ferro Alloys. In these circumstances, it can only be stated that the appellants have committed the offence under Section 411 IPC. Thus, the conviction is altered from Section 412 IPC to Section 411 IPC. 22. Section 411 IPC prescribes maximum sentence of three years. In the present case, the occurrence had taken place in the year 1996. Considering the fact that the appellants have suffered mental pain and agony of the protracted trial, they are sentenced to undergo rigorous imprisonment for 1½ years under Section 411 IPC. 23. In view of the observations made above, the present appeals are disposed of. ------------T.0.S.0.K.0.--------------