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2011 DIGILAW 8 (PNJ)

Pawan Kumar v. State of Haryana

2011-01-03

M.JEYAPAUL

body2011
JUDGMENT Mr. M. Jeyapaul, J. (Oral):- The accused Pawan Kumar was convicted for offence under Section 394 of the Indian Penal Code and was sentenced to undergo four years rigorous imprisonment and to pay a fine of Rs. 2,000/-, in default to undergo a further period of six months rigorous imprisonment. He was also convicted for offence under Section 25 of the Arms Act, 1959 and was sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default to undergo a further period of three months rigorous imprisonment. Hence, the appeal preferred by the accused/appellant. 2. The brief case of the prosecution as spoken to by the witnesses examined on its side is as follows :- a) Anil Kumar Jain (PW2) was a businessman residing at Hisar. He having purchased articles for his shop, boarded Sirsa bound train on 14.04.1995. He remained all alone in the compartment after almost all the passengers got down from the train when it reached Bhiwani. Two young boys entered into his compartment at Bhiwani Railway Station. They sat on the seat in front of him. He had a bag containing his bed sheet, light carpet, pillow cover and three coins. Putting the bag underneath his head, he was sleeping. Accused Pawan Kumar snatched his bag when the train was running. The juvenile co-accused Deepak Kumar inflicted knife blows on Anil Kumar Jain on his waist. Thereafter accused Pawan Kumar and the juvenile accused Deepak Kumar having stopped the train by pulling the chain, jumped out of the train and escaped. Unfortunately, Anil Kumar Jain who had received injuries could not get the help of the guard of the train on duty, but a Sardarji passenger who was travelling in the train extended him help to reach his home. PW1 Dr. S.M. Mehta, attached to B.D. Sharma Medical College and Hospital, Rohtak, medico legally examined the injured Anil Kumar jain. He found a stab wound in the waist slightly lateral to the mid line. Both lungs were found punctured. After treatment Anil Kumar Jain was discharged on 21.04.1995. The discharge slip issued by PW1 was marked as Ex.PA. b) On information the Assistant Sub Inspector Sajjan Singh (PW8) reached the house of Anil Kumar Jain and recorded his statement. A formal FIR was registered by him. Both lungs were found punctured. After treatment Anil Kumar Jain was discharged on 21.04.1995. The discharge slip issued by PW1 was marked as Ex.PA. b) On information the Assistant Sub Inspector Sajjan Singh (PW8) reached the house of Anil Kumar Jain and recorded his statement. A formal FIR was registered by him. He took up the case for investigation and examined the witnesses and recorded their statements. c) On the basis of the disclosure statement given by the accused Pawan Kumar, the knife, bed sheet, light carpet and pillow cover were recovered from him. PW8 having completed the investigation filed final report as against the accused. 3. The trial Court relieved the accused/appellant of the charge under Section 397 of the Indian Penal Code, but it held the accused guilty of the offence under Section 394 of the Indian Penal Code and Section 25 of the Arms Act, 1959. 4. The trial Court having relied upon the evidence of PW2, the injured witness in this case, in the background of the medical evidence and recovery of the material objects returned a finding that the accused committed the offence punishable under Section 394 of the Indian Penal Code and under Section 25 of the Arms Act, 1959 (in short ‘the Arms Act’). 5. The learned proxy counsel appearing on behalf of the learned counsel for the appellant/accused would submit that there was a delay of eight days in lodging the First Information Report, but the same was not explained by the prosecution. No test identification parade was conducted to identify the accused by PW2. It is his further submission that the recovery of the material objects could not be established by the prosecution. It is lastly submitted that as there is no evidence to show that the knife alleged to have been recovered from the accused falls within the description of the term ‘arm’ under the Arms Act, the accused also cannot be convicted under Section 25 of the Arms Act. 6. Per contra, the learned public prosecutor for the State would submit that the delay has been properly explained by PW2 who is none other than the injured witness in this case. No corroboration is required to establish the injury received by PW2, inasmuch as the injured has himself spoken to the injury sustained by him in the occurrence. 6. Per contra, the learned public prosecutor for the State would submit that the delay has been properly explained by PW2 who is none other than the injured witness in this case. No corroboration is required to establish the injury received by PW2, inasmuch as the injured has himself spoken to the injury sustained by him in the occurrence. He would further submit that the accused, as per the case of the prosecution, chatted with the injured/PW2 and, therefore, there was an occasion for PW2 to register the image of the accused in his mind. The failure to conduct the test identification parade does not go to the root of the case. Referring to the evidence of PW4, he would submit that the Assistant Sub Inspector of Police has cogently spoken to the identification of the accused by PW2 which led to the arrest of the accused by PW8. The weapon knife had been used in this case for committing the offence and therefore, such a weapon falls within the description of the term ‘arm’ under the Arms Act. 7. As rightly pointed out by the learned public prosecutor for the State, I find that the delay in lodging the First Information Report has been properly explained by the prosecution. True it is that there is a delay of eight days in lodging the First Information Report. The evidence of PW2, the injured in this case, in the background of the evidence of PW1 who gave treatment to PW2 would go to show that PW2 was hospitalized for about seven days and he was discharged from the hospital only on 21.04.1995. PW2 has come out with a version that he was under total shock as he had to plead before the accused to spare his life. It was only PW7 who had reported to the police about the occurrence. Based on such information, a statement from PW2 was recorded by PW8. The complaint was not lodged forthwith as PW2 was hospitalized and he was in the process of recovery from the shock he received in the occurrence. Therefore, the delay in lodging the First Information Report has been properly explained by the prosecution. 8. The occurrence had unfolded as early as on 14.04.1995. PW2 was examined before the trial Court on 18.09.1997. Therefore, the delay in lodging the First Information Report has been properly explained by the prosecution. 8. The occurrence had unfolded as early as on 14.04.1995. PW2 was examined before the trial Court on 18.09.1997. PW2 has categorically deposed before the trial Court that he had no acquaintance with the accused prior to the occurrence. Though, the accused having boarded the train and offered a beeri to PW2, it appears that the occurrence had taken place within a short while. In all fairness, the investigating official should have proceeded to conduct test identification parade by associating PW2, the injured in this case. 9. Very strangely PW4 without any corroboration from PW2 or PW8 would come out with a version that PW2 was associated when the accused was arrested near the Civil Hospital, Bhiwani. PW2 does not speak anything about his presence or identification of the accused at the time when the arrest was effected by PW8. PW8 who effected the arrest of the accused also does not whisper anything about the presence of PW2 and his identification which led to the arrest of the accused. Therefore, the unsupported version of PW4 gives rise to a doubt as to whether the accused was arrested based on the identification made by PW2 in the presence of PW8. 10. Even assuming for the sake of argument that the accused was arrested on the basis of the identification made by PW2, the whole story of the arrest effected by the investigating official appears to be totally artificial. It is not the version of the prosecution that the accused resisted or made an attempt to escape from the clutches of the police when he was spotted by PW4 and PW8. A very abnormal conduct of the accused has been projected by the prosecution. 11. The identification of the accused by PW2, the arrest of the accused, the disclosure statement given by him and the recovery of the material objects based on such disclosure statement projected by the prosecution are found to be totally untrustworthy. 12. Of course, the prosecution could establish through the evidence of PW2 in the background of evidence of PW1 that PW2 did sustain injury, but the prosecution failed to establish that it was only the minor co-accused who caused injury on the person of PW2. 12. Of course, the prosecution could establish through the evidence of PW2 in the background of evidence of PW1 that PW2 did sustain injury, but the prosecution failed to establish that it was only the minor co-accused who caused injury on the person of PW2. Further, recovery of the material objects could not also be established by the prosecution beyond reasonable doubt. A knife is ordinarily used for domestic purposes. There is no evidence to show that the knife which was allegedly recovered from the accused was not meant for domestic purpose. 13. For all these reasons, I find that the prosecution has not established that the minor co-accused caused injury on the person of PW2 at the time when the robbery was committed by the accused and the co-accused. It was also not established that the accused possessed a weapon which falls within the description of the term ‘arm’ under the Arms Act. Therefore, it is held that the trial Court has not properly appreciated the evidence on record. 14. In view of the above, the judgment of conviction recorded by the trial Court for the offence punishable under Section 394 of the Indian Penal Code and under Section 25 of the Arms Act, 1959, and the sentence imposed thereunder is set aside and the accused is acquitted of the aforesaid charges. Consequently, the appeal is allowed. The bail bond, if any, executed by the accused/appellant shall stand annulled. ---------0.J.S.K.0-----------