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2013 DIGILAW 395 (UTT)

BALAM SINGH v. STATE OF UTTARAKHAND

2013-06-27

U.C.Dhyani

body2013
JUDGMENT Hon’ble U.C. Dhyani, J. (oral) Informant Pratap, Chowkidar of Block Development Officer, Haldwani (Nainital) wrote a complaint (Ext. Ka-4) on 22.11.1999, which was addressed to the Block Development Officer, Haldwani, on the basis of which an FIR was registered on 22.11.1999, at 01:45 P.M., as case crime no. 1891 of 1999, for the offence punishable under Section 459 of IPC. After the investigation, charge-sheets were submitted against the accused persons namely, Sanjay Arya and Balam Singh for the selfsame offence. Separate charges were framed against the accused persons for the offence punishable under Section 459 of IPC, to which they pleaded not guilty and claimed trial. 2. PW1 Ajit Singh, PW2 Smt. Munni, PW3 Sub Divisional Magistrate Neeraj Shukla, PW4 Pratap Singh, PW5 Dr. Shailendra Kumar Mishra and PW6 S.I. R.L. Gangwar were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was adduced in defence. After considering the evidence on record, accused persons namely, Sanjay Arya alias Sanju and Balam Singh were convicted of the offence punishable under Section 459 read with Section 34 of IPC. Each one of them was sentenced to undergo rigorous imprisonment for seven years alongwith a fine of Rs. 2,500/-, vide judgment and order dated 16.03.2001. Aggrieved against the impugned order, present criminal appeal was filed by convict Balam Singh only. 3. Informant Pratap was posted as Chowkidar in Block Development Office, Haldwani. He was on duty in the intervening night of 21st / 22nd of November, 1999. Some thieves entered into the Block Office in the night, around 01:00 A.M. They trespassed in the Block Office. They broke open the locks of the office. They attempted break to open the cash chest. Informant Pratap heard the noise of breaking of cash chest. He made an attempt to apprehend the thieves. One of the accused showed him a country made pistol. Another accused gave a blow of khukhri (a sharp edged curved weapon) on the head of informant. Pratap sustained injuries on his head. He raised an alarm. On his raising alarm, Asstt. Development Officer, Ajit Singh, driver Bhagwat Singh and many other people came on the place of occurrence. The thieves jumped from the wall of the Block Office and fled away. Pratap sustained injuries on his head. He raised an alarm. On his raising alarm, Asstt. Development Officer, Ajit Singh, driver Bhagwat Singh and many other people came on the place of occurrence. The thieves jumped from the wall of the Block Office and fled away. The thieves were seen by the informant and other witnesses in the light of lamppost. One of the accused i.e. Sanjay, was named in the FIR. The informant indicated that he could recognize other thieves also. Three chappals (bathroom slippers) of the thieves were lying on the place of occurrence. The accused persons also created ruckus in the office. The incident took place in the intervening night of 21st /22nd of November 1999, and the chik FIR (Ext. Ka-6) was registered on the selfsame day at 01:45 P.M., within a span of 45 minutes. 4. Prosecution led the evidence through PW4 Pratap Singh, who, in his examination-in-chief said, what was reported by him in the application addressed to the Block Development Officer. It was on the basis of such an application that the FIR was lodged. The examination-in-chief of PW4 was almost verbatim reproduction of the contents of complaint (Ext. Ka-4). In addition to the contents of the complaint, PW4 said that his injuries were examined in Government Hospital, Haldwani. He went to Sub Jail, Haldwani for identification proceedings. PW4 recognized accused Balam Singh correctly, when latter’s identification parade took place. PW4 also identified Balam Singh in the court, when he came to depose before the Addl. Sessions Judge, Haldwani. PW4 also proved identification memo (Ext. Ka-3). 5. In the cross-examination, PW4 said that he reached at the police station at around 01:15 A.M. He was accompanied with Mahendra Nagniyal, Bhagwat Singh and Ajit Singh. He reached the hospital at around 01:30 A.M. PW4 also said that all the four accused persons trespassed into the Block Office. PW4 fell on the floor, when he received injuries, but he recognized the accused persons before that. PW4 also said that, he mentioned the names of Balam Singh and other three accused in his complaint. Bhagwat Singh and Ajit Singh stayed in the Block Office, who reached on the place of occurrence after 15 minutes. Blood spread on the floor at the place where the informant was assaulted. PW4 did not see the accused persons breaking open the locks of the Block Office. Bhagwat Singh and Ajit Singh stayed in the Block Office, who reached on the place of occurrence after 15 minutes. Blood spread on the floor at the place where the informant was assaulted. PW4 did not see the accused persons breaking open the locks of the Block Office. They went to the police station on motorcycle and scooters. When the incident took place, the mother and wife of PW4, also reached on the place of occurrence. They started weeping. It took about half an hour to 45 minutes to conclude the identification proceedings of the accused. He did not knew Balam Singh before this incident. He knew Sanjay before this incident. Balam Singh was seen by this witness (PW4) for the first time in District Jail. Thus, nothing came in the cross-examination of PW4 to indicate that he was telling a lie. The testimony of PW4 was worth believing and accepting. He was the Chowkidar of the Block Office, who, upon hearing the noise of the miscreants, reached near the cash chest of the office, only to find that the accused persons were attempting to break open the same. He was a natural witness, who cannot be said to be a chance witness by any stretch of imagination. Heavy reliance can be placed on the testimony of PW4. 6. The next important witness is PW1 Ajit Singh, who was posted as Asstt. Development Officer in Block Office, Haldwani, on the fateful day. In his examination-in-chief, PW1 supported the prosecution story. He saw accused persons inflicting blow on the head of PW4. PW1 also saw the miscreants jumping from the wall of the Block Office. The miscreants not only caused injuries to PW4, but also broke open the locks of almirah and the gate of the Block Office. The accused persons also created ruckus inside the office. The handle of the cash chest was broken. The iron rods and scissors alongwith the chappals were found on the place of occurrence. PW4 was taken to hospital. In the cross-examination, PW1 said that he did not see the accused persons committing theft or running away. 7. PW2 Smt. Munni was the witness to the taking into possession of cash book cover by the police. She was signatory to such memo (Ext. Ka-1). Iron rods, scissors, broken locks and chappals were also taken by the police in their possession, a memo (Ext. 7. PW2 Smt. Munni was the witness to the taking into possession of cash book cover by the police. She was signatory to such memo (Ext. Ka-1). Iron rods, scissors, broken locks and chappals were also taken by the police in their possession, a memo (Ext. Ka-2) whereof was prepared. 8. PW3 Sub Divisional Magistrate Neeraj Shukla conducted identification parade of the accused persons in Sub Jail, Haldwani, on 30.03.2000. PW3 said that three witnesses namely, Pratap Singh, Bhagwat Singh and Ajit Singh were summoned for the identification parade. PW3 also proved the identification memo (Ext. Ka-3) which contained the signatures of the accused persons. In the cross-examination, he said that witnesses Bhagwat Singh and Ajit Singh did not identify anybody. The identification parade was conducted at around 04:00 P.M. 9. PW5 Dr. Shailendra Kumar Mishra examined the injuries of injured Pratap on 22.11.1999 and proved report (Ext. Ka-5). PW5 found three incised wounds on scalp in which fresh bleeding was present. The Medical Officer also found incised wound on the left eyebrow of the injured. Fresh bleeding was present in this injury too. Abraded contusion and contusion were also found. PW5 opined that injuries nos. 1, 2 and 3 were caused by sharp object. The duration of the injuries was fresh. Injury no. 4 was caused by hard blunt object. All the injuries were simple in nature. Thus the oral evidence tendered by PW4 was duly corroborated by the medical evidence of PW5. PW1, PW2 and PW3 provided support to the evidence of PW4 and PW5 and so was the evidentiary value of the testimony of PW6, who was the Investigation Officer of the case. In his examination-in-chief, PW6 said as to how he conducted the investigation and after being satisfied that the accused persons committed the crime, submitted chargesheet (Ext. Ka-10) against the present accused-appellant. In his statement under Section 313 of Cr.P.C., the accused said nothing except denying his involvement in the crime in question. 10. The prosecution story was proved beyond reasonable doubt, holding of the identification parade of the accused persons on the 61st day notwithstanding. 11. It is submitted by learned counsel for the appellant that the appellant was not assigned any weapon when he committed the offence. It was the main accused Sanjay, who inflicted injuries upon the victim (PW4). The appellant did not overpower the victim. 11. It is submitted by learned counsel for the appellant that the appellant was not assigned any weapon when he committed the offence. It was the main accused Sanjay, who inflicted injuries upon the victim (PW4). The appellant did not overpower the victim. Evidentiary value of the identification parade of the accused-appellants was 50 per cent. The Medical Officer found simple injuries on the person of the victim. Learned counsel for the appellant also contended that since the victim did not sustain grievous injuries therefore, offence punishable under Section 459 of IPC was not made out; instead offence punishable under Section 454 of IPC was made out. Although he was convicted with the aid of Section 34 of IPC, but the charge against him was Section 459 of IPC simplicitor. It is also submitted that the accused-appellant was arrested on 28.01.2000 and he remained in jail during trial and he was directed to be enlarged on bail vide order dated 24.05.2001. It is also submitted that the accused-appellant is not a previous convict. This Court is in agreement with the submission of learned counsel for the appellant that the accused-appellant should be held guilty for the offence punishable under Section 454 of IPC, instead of one punishable under Section 459 of IPC. 12. Whereas the finding of learned court below on the point of conviction is affirmed, the accused-appellant is held guilty and convicted of the offence punishable under Section 454 of IPC, instead of one punishable under Section 459 read with Section 34 of IPC. Accordingly, the sentence awarded to the accused-appellant by the court below is reduced. Accused-appellant is sentenced to the period already undergone by him alongwith an enhanced fine of Rs. 15,000/-, in default of payment of which, he shall further undergo simple imprisonment for one year. The accused-appellant is directed to deposit the enhanced fine in the court below by 30th July 2013, failing which, it will be open to the court below to issue warrant of arrest against accused-appellant in order to make him serve the sentence which is provided for default of payment of enhanced fine. The amount of fine already deposited by the accused-appellant before the court below shall be adjusted towards the enhanced amount of fine of Rs. 15,000/- awarded by this Court. If the entire amount of fine is realized, a sum of Rs. The amount of fine already deposited by the accused-appellant before the court below shall be adjusted towards the enhanced amount of fine of Rs. 15,000/- awarded by this Court. If the entire amount of fine is realized, a sum of Rs. 10,000/-, out of said amount of fine, be provided to PW4 Pratap as compensation. 13. With the modification in the sentence, the criminal appeal is finally disposed of. 14. Let a copy of this judgment alongwith the lower court records be sent to the court below for ensuring compliance as above.