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2018 DIGILAW 259 (HP)

Waryam Singh v. State Of Himachal Pradesh

2018-03-06

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Instant criminal appeal filed under Section 374 (2) Cr.PC, is directed against the impugned judgment of conviction and sentence dated 7.11.2015/24.11.2015, passed by the learned Additional Sessions Judge (II) , Una, District Una, H.P., in ST No. 33/2014, whereby the appellant/accused came to be convicted and sentenced to undergo rigorous imprisonment for two years, for having committed offence punishable under Section 379 of IPC and for having committed offence punishable under Section 328 IPC, to undergo rigorous imprisonment for a period of four years. 2. Briefly stated facts as emerge from the record are that on 13.3.2014, complainant Smt. Janak Bhardwaj (PW18) lodged a complaint with the police station that she alongwith her husband (PW19) had been coming to Mairi fair at Baba Barbhag Singh, for the last 30 to 35 years, for paying obeisance and for that purpose, they used to stay at Kujeshawr Sarai, Mairi. Complainant further alleged that she and her husband had reached Mairi on 11.3.2014 and had stayed at Kujheswar Sarai. On 12.3.2014, they went to Dhauli Dhar/Charan Ganga, for taking holy dip at about 12:30 pm. After having reached Charan Ganga at about 1:00pm, complainant took off her golden rings and watch, and put them in a bag along with Rs. 1,400/-. Complainant and her husband also placed their mobile phones bearing No. 09582577412, make Micromax belonging to the complainant and another bearing No. 09582576244, make Samsung, in a separate bag. At about 2:00 am, when the complainant was changing clothes, accused came there and offered her as well as her husband "Prasad" in the form of "Laddoos". After having consumed "Laddoos", complainant and her husband felt pain in their hands and feet and they fell unconscious. When couple regained consciousness on 13.3.2014, they found themselves admitted at the Hospital at Amb, being attended by their son namely Narender and nepheu Deepak. Complainant further alleged that when she checked her belongings in the hospital, her ear rings, watch and Rs. 1400/- were found intact, but two aforesaid mobile phones were found missing. Complainant in her statement stated that she has strong suspicion that person, who had given them "Prasad" to eat, had taken away their mobile phones after making them consume "Prasad" containing some intoxicating substance. 1400/- were found intact, but two aforesaid mobile phones were found missing. Complainant in her statement stated that she has strong suspicion that person, who had given them "Prasad" to eat, had taken away their mobile phones after making them consume "Prasad" containing some intoxicating substance. Complainant also gave some description of the person stating that person who had given them "Prasad" was slim with wheatish complexion and had scar on his face. She categorically stated in her statement that she can recognize the said person, if brought before her. On the basis of statement made by the complainant under Section 154 of Cr.PC., an FIR bearing No. 33/14 came to be lodged against the appellant-accused. After completion of investigation, police arrested the present accused and registered a case against him under Sections 328 and 379 IPC and during his search, recovered two mobile phones. Police also got accused identified from the complainant and her husband (PWs 18 and 19) at the police station vide memo of identification PW9/A in the presence of independent witnesses. Report of RFSL Dharamshala, reveals that traces of Benzodiazepine drug were found in the blood samples of complainant and her husband. After completion of investigation, police presented challan in the competent Court of Law. 3. Learned Additional Sessions Judge-II Una, District Una, H.P. on being satisfied that prima-facie case exists against the appellant accused, charged him under Sections 328 and 379 of the IPC, to which he pleaded not guilty and claimed trial. However, learned court below on the basis of evidence adduced on record by the prosecution, held the appellantaccused guilty of having committed offence punishable under the aforesaid sections and accordingly, convicted and sentenced him as per the description given supra. 4. In the aforesaid background, the appellant being aggrieved and dis-satisfied with the conviction recorded by the Court below, approached this Court by way of a communication praying therein for making him available services of some legal aid counsel. 5. This Court had appointed Mr. B.L. Soni, Advocate, as Legal Aid Counsel, who subsequently presented the appeal before this Court under Section 374 (2) of Cr.PC., laying therein challenge to judgment of conviction and sentence dated 7.11.2015/14.11.2015, passed by the learned Additional Sessions Judge-II, Una. 6. Mr. 5. This Court had appointed Mr. B.L. Soni, Advocate, as Legal Aid Counsel, who subsequently presented the appeal before this Court under Section 374 (2) of Cr.PC., laying therein challenge to judgment of conviction and sentence dated 7.11.2015/14.11.2015, passed by the learned Additional Sessions Judge-II, Una. 6. Mr. B.L. Soni, learned Legal Aid Counsel, representing the appellant while referring to the statements adduced on record by the prosecution made a serious effort to persuade this Court to agree with his contention that prosecution was not able to prove its case beyond reasonable doubt and as such, learned court below has fallen in grave error while holding the appellant-accused guilty of having committed offence punishable under Sections 328 and 379 of IPC. Mr. Soni, further contended that it is an admitted case of the prosecution that the accused was identified by the complainant and her husband (PW18 and PW19) in the Police Station and as such, there is no identification of the accused in the eye of law. Mr. Soni further contended that if statements of PWs are read in its entirety, it clearly suggests that there is no consistency at all in the depositions made by the prosecution witnesses and as such, no much reliance could be placed upon the same by the court below while ascertaining the guilt of the accused, who has been falsely implicated in the case. 7. Per contra, Mr. Dinesh Thakur, learned Additional Advocate General, while refuting the aforesaid contentions having been made by the learned Legal Aid Counsel representing the appellant-accused, strenuously argued that there is no illegality and infirmity in the judgment of conviction recorded by the court below and as such, same needs to be upheld. Learned Additional Advocate General further contended that bare perusal of the impugned judgment clearly suggests that court below has dealt with each and every aspect of the matter very carefully and meticulously and as such, there is no force in the submissions having been made on behalf of the appellant-accused. He further stated that all the material prosecution witnesses have categorically stated that on the alleged date of incident i.e. 12.3.2014, complainant PW18 and her husband PW19 were made to consume "laddoos" containing some intoxicating substance by the accused, who day prior to this incident, had also made another lady (i.e. PW13 Smt. Parkash Kaur) , victim of his nefarious design. Lastly, learned Additional Advocate General, contended that keeping in view the gravity of offence allegedly committed by the accused, who by offering "Prasad" to the complainant and other devotees in Mairi fair, not only robbed them but also put their lives at risk, no leniency can be shown to him, rather he needs to be dealt with severely. While seeking dismissal of the present appeal, learned Additional Advocate General, also informed this Court that the accused has already suffered sentence imposed by the Court below because no stay was ever granted by this Court against the conviction recorded by the court below. As per learned Additional Advocate General, sentence recorded by the court below would come to an end on 15.3.2018. Aforesaid information submitted by the learned Additional Advocate General has not been disputed by the learned Legal Aid Counsel, rather he has acknowledged the aforesaid fact. 8. I have heard the learned counsel for the parties and carefully gone through the record. 9. After having carefully perused material/evidence, be it ocular or documentary, adduced on record, by the prosecution, this Court is not in agreement with the contention of learned legal aid counsel that there is no evidence against the appellant accused, rather this Court after having carefully examined the statements of material prosecution witnesses, has no hesitation to conclude that prosecution has proved its case beyond reasonable doubt that on 12.3.2014, accused made complainant (PW18) and her husband (PW19) , consume poisonous substance in the form of "Laddoos" and thereafter, robbed them. Statement of PW13 further suggests that accused is/was habitual offender and had been indulging in such like activities prior to this incident also. As per statement of PW13, accused also made her to consume some poisonous substance and thereafter, he stole golden articles from the person of PW13. Since, poisonous substance was offered to her i.e. PW13, by the appellantaccused on 10.3.2014, she after having regained consciousness on 13.3.2014, again saw the appellant accused in fair and raised hue and cry on 13.3.2014, whereafter police nabbed the appellant-accused from the Mairi fair. But before he could be apprehended in connection with robbery committed against PW13, he had already robbed PW18 and PW19. But before he could be apprehended in connection with robbery committed against PW13, he had already robbed PW18 and PW19. If the statements of PWs13, 18 and 19 are read in its entirety, juxtaposing each other, there is no force in the contention of the learned legal aid counsel that there are major contradictions, rather all the aforesaid material prosecution witnesses have categorically stated that appellant-accused made them consume some poisonous substance and thereafter, he robbed them. 10. Another contention put forth by the learned legal Aid Counsel that identification, if any, made by the complainant (PW18) in police custody is no identification in the eye of law, deserves to be rejected outrightly in the given facts and circumstances of the case. Admittedly, PW18 in her complaint Ext. PW18/A, categorically stated that she can recognize accused, if he is brought before her. As has been taken note above, appellant accused before robbing complainant had already robbed PW13 and in this connection, he was arrested by the police and as such, police after having received complaint from PW18, made her to identify accused already arrested by them in connection with another FIR lodged by PW13. Since appellant accused was same person, who was arrested in connection with FIR lodged at the behest of PW13, PW18 rightly identified him when he was brought before her on 13.3.2014, in the police station. 11. Leaving everything aside, otherwise also there is no dispute with regard to the identity of the accused because it stands duly proved on record that accused was the same person, who had committed same crime two days'' prior to the alleged incident. 12. Consequently, in view of the detailed discussion made herein above, this Court sees no illegality and infirmity in the judgment of conviction /sentence recorded by the court below, which otherwise appears to be based upon proper appreciation of evidence available on record. Hence present appeal fails and dismissed accordingly.