The High Court of Himachal Pradesh affirmed the conviction of the appellant under Sections 328 and 379 IPC but reduced the sentence for the former to the time already served, leading to the appellant's release.
Sentence under Section 328 IPC reduced to one already undergone; appellant released forthwith; record sent back.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.430 of 2016. Reserved on : 30.5.2017. Decided on : 12th June, 2017.
Waryam Singh .....Appellant. Versus State of Himachal Pradesh ……Respondent.
Coram The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1
For the appellant : Mr. Yudhvir Singh Thakur, Advocate. For the respondent : Mr. Virender K. Verma, Addl. AG, Mr. Pushpinder Jaswal, Dy. AG with Mr. Rajat Chauhan, Law Officer.
Chander Bhusan Barowalia, Judge.
The present appeal under Section 374 (2) of the Code of Criminal Procedure is maintained by the appellant against the impugned judgment dated 7.11.2015, passed by the learned Additional Sessions Judge-II, Una, District Una, (H.P) in Sessions trial No.34 of 2014, whereby the appellant (hereinafter referred to as ‘accused’) was convicted and sentenced to undergo rigorous imprisonment for a period of two years for the commission of offence punishable under Section 379 of the Indian Penal Code and to undergo rigorous imprisonment for a period of four years for the commission of offence punishable under Section 328 of the Indian Penal Code with a prayer to set aside the impugned judgment.
that on 13.3.2014, Parkash Kaur (PW-1), came to the Police Station,
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Amb, recorded her statement under Section 154 of the Code of Criminal Procedure, Ex.PW1/A, wherein she has alleged that she belonged to Krishana Nagar, Amritsar, Punjab and was coming to Holi fair, Dera Baba Barbhag Singh, Mairi, every year. On 9.3.2014, she had come to fair by bus and stayed at Manji Sahib Gurudwara, on the next day i.e. on 10.3.2014, she had paid obeisance at both the Gurudwaras. In the meanwhile, a short statured person wearing black pant and red and white colour cardinal and white shirt came there and gave her ‘Prasad’ in the form of sweetmeat (Karah) to eat. Upon eating the ‘Karah’, she fell unconscious and when she regained consciousness, she found herself at a hospital at Una. She also found that her two golden rings and a golden chain worn by her in the neck, as also ear rings were missing. On checking her bag, she also found that 11,900/- were missing there from. She further stated that she was certain that the person who had given her ‘Karah’ to eat had mixed some intoxicating substance in the same, on consuming which, she had fallen unconscious and thereafter, the said person had taken away her golden rings, ear rings and neck chain alongwith 11,900/-. Further, she after being discharged from the hospital in the evening of 12.3.2014, she had come on 13.3.2014 alongwith her son to Police Station to get her statement recorded. During the course of investigation, site plan was prepared and photographs of the spot were also taken. Statements of witnesses were recorded, as per their version. Thereafter, the search for the culprit was
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launched in the fair, after associating the victim. When MC Malkiat Singh alongwith the complainant and other police personnel and witnesses were going towards Baba Nahar Singh temple, Sector-5, Charan Ganga, then suddenly the complainant identified a person in the crowd and exclaimed that he was the same person, who had given her ‘Prasad’ to eat. On seeing the police party, the complainant turned around and tried to run away, upon which HC Malkiat Singh and Police Party alongwith other local person, nabbed the accused near gas plant Mairi. On inquiry, he disclosed his name, as Waryam Singh (accused) resident of District Ludhiana, Punjab. On being searched, two mobile phones were recovered from the right pocket of the trousers of the accused, whereas from the left pocket a ladies purse, black coloured was recovered, which contained currency worth `11,950/-. In the inner pocket of the trouser, a plastic packet, white coloured was recovered, which contained two golden ladies rings and a piece of gold chain. The complainant identified the purse containing the currency notes and the golden ornaments as belonging to her. The recovered articles were thereafter wrapped in a cloth parcel and sealed with three seals of impression “ M ”. The specimen of seal was taken on a separate piece of cloth Ex.PW8/A and the seal after use was handed over to witness Pranjay Kumar (PW-8). The parcel Ex.PA, was thereafter taken into possession by the police, vide memo Ex.PW1/B. The accused was arrested. During the course of investigation, it was found that the accused did not belong to District
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Ludhiana, Punjab, but belonged to District Gurdaspur, Punjab. The two pieces of broken golden chian i.e. one earlier recovered from the accused and the other subsequently produced by the complainant before the police, were sent for forensic examination to State Forensic Science Laboratory, Junga, which confirmed that both the pieces were that of the same chain. The blood sample of the complainant Parkash Kaur (PW-1) was also sent to Regional Forensic Science Laboratory, Dharamshala, for
chemical analysis and it was found in the report by the expert thereof that no poison/drug was detected in the contents of parcel. Police thoroughly investigated the matter and after conclusion of investigation challan was presented in the Court.
has argued that there is no evidence to connect the accused with the alleged offence. He has further argued that the sentence awarded to the appellant is very much on the higher side and is required to be reduced. On the other hand, learned Additional Advocate General has argued that
the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt and the accused has rightly been convicted and the
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sentence, as awarded by the learned lower Appellate Court is as per law and the appeal devoid of any merit, deserves to be dismissed.
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associated by the police to look for the culprit. She has categorically stated about her having recognized the person, who had administered ‘Karah’ to her, in the fair and that he was nabbed by the police. She has also stated about her belongings having been recovered from the accused. She has also stated about having got recorded her statement Ex.PW1/A, before the police and also about the police having taken into possession the articles recovered from the accused. She has also identified her belongings, when the parcel Ex.PA, containing the case property was opened in the Court. She has further stated that accused had forcibly made her to eat the substance. She had raised cries, whereupon many persons had gathered on the spot. She has admitted that the police had come to the spot immediately and nabbed the person. She has stated that she did not remember, as to where her thumb impression was taken by the police, whether at Mairi or at Police Station, Amb. She has also shown her ignorance to state whether on the date of incident the accused was already in custody by the police. She could not state as to what articles were recovered from which pocket of the accused. She has categorically denied the suggestion that the accused was not the person, who had given her the substance to eat and he was not the person, who had taken away her articles. PW-2, Prem Lal son of the complainant, deposed that the police had come to their house and told him that his mother was admitted in the hospital. He had reached Mairi, where he was asked to go to Police Station, Amb and he was told
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that his mother was at the house of a Police Official just near the Police Station. In his cross-examination, he has stated that his mother had come to Mairi fair on 9.3.2014 and received a telephonic information of his mother having been admitted to Una hospital on 11.3.2014. He had come to the hospital at Una on 12.3.2014, where he found his mother to be unconscious. He has further admitted that on 13.3.2014 his mother had told him that a person had given her some intoxicated sweetmeat and had taken away her ornaments and cash. He has also admitted that his mother was taken alongwith by the police to search for the culprit and had also associated Pranjay Kumar (PW-8) and Rafiq Mohammed in the proceedings. He has stated that he could not tell the date on which his mother had left for the fair. He has stated that the police had not come to his house, but telephonic information was received at the house of his neighbour regarding his mother being admitted in the hospital. He has admitted that the eye sight of his mother had become weak, owing to her old age. PW-3, Ajay Kumar, deposed that an old woman was lying unconscious, upon which, he had called up the ambulance, which had taken the unconscious woman to the hospital. Further, he has stated that police had come alongwith the said old lady to Mairi on 13.3.2014, upon which he has shown the place, where she was found unconscious. In his cross-examination, he has stated that he could not remember, as
to what was the police sector number of his shop in the fair and on 10.3.2014, there was rush of people due to the fair. PW-5 Dr. Usha
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Daroch, deposed that no poison or drug was found in the blood sample of the complainant and as such the cause of unconscious could not be ascertained. She had given another opinion, based on the expert opinion from RPGMC, Tanda and Regional Hospital, Una, that it was possible that the patient was administered intoxicating substance, which may not have been included in the drug panel list at Regional Forensic Science Laboratory, Dharamshala. In her cross-examination, she has been given a suggestion that it could not be stated with certainty that the intoxicating substance was administered to the complainant. PW-6 Dr. Ravinder Mohan, had examined the complainant on 11.3.2014 and deposed that she was in a confusional state and after treatment, the patient had regained full consciousness on 12.3.2014 and was discharged at about 1:00 PM. PW-7 Dr. Sushil Sharma, Assistant Professor, RPGMC, Tanda, had proved his opinion Ex.PW5/B and deposed that the exact cause of unconsciousness of the complainant could not be ascertained, but the possibility raised by the doctors, could not be ruled out since clinical diagnosis was more relevant than chemical analysis report. PW-8 Pranjay Kumar, has deposed that he was working in his fields while Mairi fair was going on in the village. Rafiq Mohammad was also present alongwith this witness at that time. He has stated that the police, accompanied by an old lady and her son passed by his house. The old lady had suddenly pointed out towards a person, who was startled to see the police and started running away, but was nabbed. He has stated
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about the accused having been searched by the police and the articles belonging to the complainant, in addition to two mobile phones, having been recovered from the accused. He has also identified his signature over seizure memo Ex.PW1/B. PW-9 HHC Paramjeet, has proved rapats regarding arrival and departure of the police officials, whereas, PW-10 HHC Amrik Singh, has proved rapat No.20, dated 10.3.2014 Ex.PW10/A. PW-11 Constable Ranjeev Jaswal, has deposed that two parcels comprising the case property to FSL Junga and about his having handed over the receipts qua the deposit to MHC Amb, after depositing the case property with the State Forensic Science Laboratory, Junga. PW-12 MHC Karnail Singh, has deposed that on 11.3.2014, he had entered the factum of a vial containing blood sample and another packet having been handed over to him by SI Ashwani Kumar for being sent to Regional Forensic Science Laboratory, Dharamshala. The said parcel was sent to Regional Forensic Science Laboratory, Dharamshala, through Constable Sanjay Kumar. He has further stated that on 13.3.2014, HC Malkiat Singh had handed over a parcel containing two mobile phones, a purse containing `11,950/-, a plastic bag containing two golden rings and a piece of broken gold chain, which parcel was sealed with three seals of impression ‘ M ’. PW-13 Constable Sanjay Kumar, has stated about his having deposited the blood sample and a bag addressed to Director, Regional Forensic Science Laboratory, Dharamshala. PW-14 SI Ashwani Kumar, deposed that he had got a telephonic information on 10.3.2014
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that an old lady was admitted at CHC, Amb, in an unconscious condition. This witness had moved an application for obtaining MLC of the old lady under treatment, at CHC, Amb and obtained MLC Ex.PW5/A. PW-15 Parveen Kumari, deposed that she comes to Dera Baba Barbhag Singh every year. On 15.3.2014, complainant Parkash Kaur (PW-1) had met her and both of them had gone to bathing ghat at Charan Ganga at about 8:00 AM in the morning. Parkash Kaur (PW-1) had found a piece of broken gold chain hanging by a threat in her neck, whereupon the complainant was brought by this witness to Police Post at about 3:15 PM, where the piece of chain was taken into possession by the police vide memo Ex.PW1/C, which was duly signed by this witness, as also the complainant. She has further stated that she had been told by the complainant that she had been rendered unconscious after consuming a substance, which was given by her by an unknown person. In her crossexamination, she stated that she had come to Baba Barbhag Singh on 14.3.2014. She has also stated that the complainant was taken by her to Police Post by taxi. PW-16 Inspector Om Parkash, has deposed about receiving rukka Ex.PW1/A, on the basis of which, FIR Ex.PW16/A was registered. PW-17 HC Malkiat Singh, deposed that on 13.3.2014, he had recorded the statement of complainant (PW-1) Ex.PW1/A. Thereafter, this witness had constituted a police party and taken the complainant and her son to Mairi fair, in search of the accused. He has stated about the complainant having indicated the place, where she had been rendered
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unconscious after having been given some intoxicating substance by an unknown person. He has deposed that two persons Rafiq Mohamad and Pranjay Kumar, were associated with the investigation. In the meanwhile, the complainant had pointed out towards a person in the crowd near the gas plant and stated that he was the same person, who had made her unconscious after administering her some intoxicating substance. On seeing the police and the complainant, the person had tried to run away, but was captured by the police with the help of other person present there. He has stated about the articles having been taken into possession, vide seizure memo Ex.PW1/B and the seal having been handed over to witness Pranjay Kumar (PW-8). In his cross-examination, he has stated that the road running between the gas plant and Gurudwara, is over crowded during the fair. PW-18 HC Sandeep Kumar, has partially conducted the investigation in the case. He has stated about the complainant Parkash Kaur (PW-1) having handed over to him piece of broken golden chain on 15.3.2014, which was found entangled by the complainant in her clothes. He has also stated about having obtained the treatment summary of the complainant Ex.PW6/A from the hospital and opinion of Dr. Usha Daroch (PW5) and after receipt of the report from Regional Forensic Science Laboratory, Dharamshala. In his cross-examination, he has stated that on 15.3.2014, HC Malkiat Singh was also on duty at Sector-2, Mairi, where this witness was deputed. He has stated that he was entrusted with the investigation of the case by
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Station House Officer, Police Station, Amb. PW-19 Naseeb Singh Patial, has proved rapat Ex.PY, relating to the forensic analysis of the case property and has also identified the case property.
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proved on record by the witness Pranjay Kumar (PW-8). The evidence with regard to the poisonous substance is clear from the fact that after administering the ‘Karah’ to PW-1, she has fell unconscious and thereafter accused has stolen the articles from his possession. Thus, the offence under Section 328 of the Indian Penal Code is also found to have been committed by the accused. It has also come on record that accused has administered only ‘Karah’ to the complainant (PW-1) and she fell unconscious and thereafter the accused has stolen the articles from the possession of complainant. Section 319 of the Indian Penal Code defines ‘hurt’ as causing of bodily pain, disease or infirmity. In the present case, although it has been established that the complainant had been rendered unconscious after the consumption of ‘Prasad’/’Karah’ given to her by the accused, but the exact substance, which was contained in the said ‘Prasad’/’Karah’, has not been proved. Moreover, no poisonous ingredient has been found in the blood of the complainant upon forensic examination. Hence, there is sufficient evidence that is clinical examination of the complainant, as to how the intoxicating substance had been induced by the accused. Therefore, it is safe to hold that the theft had been committed by the accused, after having made preparation to cause hurt to the complainant. However, the evidence led on record is sufficient to hold that the accused had committed theft of
the articles belonging to the complainant, which was recovered from his possession.
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aforesaid terms, so also the pending application (s) if any.
(Chander Bhusan Barowalia) 12th June, 2017 Judge (CS)
3 issues framed by the court
Whether the conviction of the appellant under Sections 328 and 379 of the IPC should be affirmed.
Whether the sentence awarded under Section 328 of the IPC requires reduction in light of the appellant having already undergone three years and three months of imprisonment.
Whether the appeal is disposed of with modification to the sentence.
4 provisions across 2 enactments
Waryam Singh
State of Himachal Pradesh
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
