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2013 DIGILAW 1308 (PNJ)

Balbir Singh v. State of Haryana

2013-09-26

JITENDRA CHAUHAN

body2013
Judgment Jitendra Chauhan, J. This judgment shall dispose of both the abovementioned appeals, which are directed against the judgment and order dated 3/4.8.2010, passed by the learned Additional Sessions Judge, Fast Track Court, Karnal, vide which, all the appellants were convicted and sentenced to undergo RI for seven years and to pay fine of Rs.2000/each; in default of payment of fine, the defaulter to further undergo RI for one year under Section 307/149 of the Indian Penal Code; further sentenced to undergo RI for a period of two years under Section 379/511 of IPC; and accused Dharminder alias Monu was also sentenced under Section 25 of the Arms Act to undergo RI for a period of two years and to pay a fine of Rs.1000/; in default of payment of fine, to further undergo RI for a period of three months. 2. The facts necessary for adjudication of the matter as narrated in para no.2 of the impugned judgment are as under: “On 28.2.2010 at 9.50 P.M. SI Jaspal Singh Incharge CIA Karnal, moved an application to the SHO, PS Butana on the allegations that on that day at about 9.50 p.m., he alongwith ASI Mukesh Kumar, EHC Ashok Kumar, Constable Wajinder Singh were patrolling in the official vehicle TATA SUMO No.HR45A8000, which was being driven by EHC Balwinder Singh and they were present at the bus stand, Jamba Karsa Road. Then, the informer gave a secret information to the SI that on Bhukha Pari Sanwal bus stand to Karsa Nigdu side about 11/2 acre away on both sides of the road there is panchayati land and in both the sides, two electricity transformers are affixed and in the south side of the road one Kargo vehicle No.PB04G9996 is standing in which accused Dharminder alias Monu, Kashmir Singh alias Kala residents of village Kotli Dhole Shah District Amritsar alonwith his fellow friends used to steal the transformers of electricity department. The standing vehicle belongs to them and they all have gone towards Bhukha Pari Panchayati land in order to steal the electric transformer and if the raid is conducted, then the accused can be nabbed red handed. The standing vehicle belongs to them and they all have gone towards Bhukha Pari Panchayati land in order to steal the electric transformer and if the raid is conducted, then the accused can be nabbed red handed. After getting the secrete information, raiding party was prepared and they reached about 2 acres from bus stand to Nigdu Karsa side and found that in the south side of the road one Kargo bearing No.PB04G9996 was found standing and about one acre towards south side of the road, someone was present over the transformer by lighting the battery. SI got stopped the vehicle and alighted from the vehicle alongwith all the employees and challenged in the loud voice that they should raise their hands as they have been rounded up by the police. Commando torch was alighted and in the light, they saw one person who jumped from the transformer with the torch and SI along with his colleague tried to catch him and then all the accused who were present on the spot started running here and there. In the meantime, one fellow fired on the police and SI alongwith his colleague sat down on the ground and rescued themselves from the fire and that fire crossed above the police party. Then SI along with ESI Mukesh Kumar nabbed one person and EHC Ashok Kumar nabbed the person who had jumped from the transformer. Constable Wajinder Singh also caught hold of one person and Constable Satyawan also nabbed another person and EHC Suresh Kumar also nabbed another person. All the accused who were nabbed by the police party told their names Dharminder alias Monu r/o Kotli Thole Shah District Amritsar and in his search one pistol 315 bore was found in his right hand and two live cartridges were found in the front pocket of his shirt. Pistol was checked which was found loaded and one empty cartridge 315 bore was found in the barrel and the same was measured and marked with monogram JS and pistol and cartridge were taken into custody vide recovery memo separately prepared.” 3. After completion of the investigation, the challan was presented in the Court against all the accused-appellants. The accused were charged under Sections 307, 379/511 IPC and Section 25 of the Arms Act, to which, they did not plead guilty and claimed trial. 4. After completion of the investigation, the challan was presented in the Court against all the accused-appellants. The accused were charged under Sections 307, 379/511 IPC and Section 25 of the Arms Act, to which, they did not plead guilty and claimed trial. 4. In order to substantiate the charges, the prosecution has examined the following witnesses: PW1 MHC Ramesh Kumar, tendered his affidavit stating therein that he deposited the recovered articles with the Malkhana. PW2 Constable Balkar Singh tendered his affidavit stating therein that he deposited the pistol, one empty and two cartridges with FSL, Madhuban. PW3 Ashok Behal, Reader to DM Karnal, who proved the sanctioned order Ex.P3. PW4 EHC Vir Shakti Singh, who proved the scaled site plan Ex.P5. PW5 ASI Mukesh Kumar, who was also a member of raiding party. He corroborated the version of SI Jaspal Singh. PW6 SI Jaspal Singh, who was Investigating Officer. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused-appellants denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. Without adducing any evidence in defence, they closed the evidence. 6. The learned trial Court by observing that prosecution has successfully proven that the appellants were trying to steal the electric transformers and while the police officials challenged the accused, then they fired to kill the police persons. Therefore, the accused appellants were convicted and sentenced as noticed at the outset. 7. Feeling dissatisfied with the same, the accused-appellants preferred the present appeals. 8. Learned counsel for the appellants submits that the learned trial Court has committed a grave error while convicting and sentencing the appellants. He further submits that Section 307 of IPC is not made out against any of the accused, as there was no injury on any police person. There are contradictions in the statements of the prosecution witnesses. He further submits that there was no recovery of any transformer or other material, which could be termed as stolen article. 9. On the other hand, the learned State counsel submits that the prosecution case is fully established and therefore, the learned trial Court has rightly convicted and sentenced the accused-appellants. 10. I have heard the learned counsel for the parties and perused the record carefully. 11. Section 307 of the Code reads as under: 307. 9. On the other hand, the learned State counsel submits that the prosecution case is fully established and therefore, the learned trial Court has rightly convicted and sentenced the accused-appellants. 10. I have heard the learned counsel for the parties and perused the record carefully. 11. Section 307 of the Code reads as under: 307. Attempt to murder Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, and shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts when any person offending under this section is under sentence of [imprisonment for life] he may, if hurt is caused, be punished with death]. 12. In the present case, the allegation that the accused fired shot on the police party, while they were being chased by the police. But this fact is highly improbable as there is nothing on record to suggest that police party did not react to the shot fired by the accused. In the police party, a large number of police officials with ammunition were there and not even a single shot was fired by them in retaliation. Not a single police person was injured. Sometimes, the police personnel act overjealously and exaggerate the story to win appreciation from the superiors or to get commendation letters. So this part of story is disbelieved. Therefore, the offence under Section 307/149 of IPC is not made out. 13. However, all the accused were nabbed by the police during raid. One pistol was recovered from Dharminder alias Monu, one torch, two cells, one strong wire cutter were recovered from accused Gurmit Singh, one pipe big screw driver, one pliers , one wire cutter, four spanners were recovered from Kashmir Singh alias Kala, eighteen keys, two iron plates for cutting the bolts were recovered from accused Sandeep Singh alias Sony, one bundle of string, one poker, one rope and two jute bags were recovered from accused Balbir Singh alias Bira. However, no recovery of the stolen transformers and any other electric items were effected from the appellants, but, from the custody certificates of the appellants, wherein they are involved in large number of cases of similar nature, it appears that the appellants were habitual offenders. A large number of instruments were recovered from the appellants, which are being used in committing theft. 14. In view of the forgoing discussion, both these appeals are partly allowed to the extent that conviction and sentence awarded by the trial Court to all the accused under Section 307/149 of IPC is set aside. However, the conviction and sentence under Sections 379/511 of IPC and Section 25 of the Arms Act are hereby maintained.