Allowed

Rajesh Kumar v. St of Hy

Punjab & Haryana HC8 Aug 2012CRA-S/1029/2000

Case brief

AI extract

What is this about?

The High Court set aside the conviction and sentence of the appellants in two appeals against a conviction for armed robbery under Section 398 IPC, due to contradictions in prosecution evidence and failure to conduct a TIDP.

What did the court decide?

Conviction and sentence set aside; appellants acquitted; bail bonds discharged.

Rajesh Kumar Vs St of Hy — Cheating and Forgery | Punjab & Haryana HC (2012)

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CRA No. 1029 SB of 2000 CRA No. 1048 SB of 2000 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRA No. 1029 SB of 2000 Date of decision: 8.8.2012

Rajesh Kumar

...Appellant

Versus

State of Haryana

...Respondent

2. CRA No.	1048 SB of 2000
Date of d	ecision: 8.8.2012

Bharat Bhushan

...Appellant

Versus

State of Haryana

...Respondent

CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN

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Present: Mr.SS Khurana, Advocate for the appellants

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Mr.Rudraneel Bhardwaj, AAG, Haryana

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Jitendra Chauhan, J. (Oral)

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This judgment shall dispose of both the aforementioned appeals as the same have been arisen out of the common judgment dated 12.10.2000, passed by the learned Additional Sessions Judge, Faridabad, whereby both the appellants were convicted and sentenced to undergo rigorous imprisonment for seven years each and to pay fine of Rs.1000/-

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CRA No. 1029 SB of 2000 CRA No. 1048 SB of 2000

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each; in default of payment of fine to further undergo RI for one year for the offence punishable under Sections 392 read with Section 398 of the Indian Penal Code. However, Ajit Singh, who was also an accused in this case, was declared proclaimed offender.

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2 Briefly stated, the facts necessary for adjudication of the case as narrated in the impugned judgment are that on 9.1.1996, Prithvi Singh, the complainant, driver alongwith Sudhir Kumar Swami, the conductor was going from Noida to Gurgaon by driving his truck bearing No.HR-29/1298. At bus stand Sohana, he gave lift to six passengers, who were going to Palwal. When they reached near village Meghpur, one person took out a pistol and put on the temple of Prithvi Singh and said him to stop the truck and whatever he has with him, gave him. The two other persons also said that if anybody raised alarm, he would be shot. Due to fear, Prithvi Singh took out Rs.1400/- and Sudhir Kumar Swami took out Rs.500/- from their pockets and gave the same to the three persons. Thereafter, they got down from the truck and fled away from the spot. The other passengers sitting in the truck got frightened and did not speak anything. All the three persons muffled with their faces with clothes. Thereafter, he was taking the truck towards the Police Station at Palwal. The remaining three passengers got down at Palwal and he did not know their names. Upon his statement, FIR No.28 dated 9.1.1996 under Sections 392/398/401/34 of the Indian Penal Code was registered at Police Station City Palwal. After investigation, the challan was presented. The accused were charge sheeted under Sections

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CRA No. 1029 SB of 2000 CRA No. 1048 SB of 2000 3

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392/398/401 of IPC to which the accused did not plead guilty and claimed trial.

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In order to bring home guilt to the accused, the prosecution examined Sudhir Kumar Swami, the second driver as PW1, Sumer Singh, the driver as PW2, Constable Anooj Kumar as PW3, HC Rattan Singh as PW4, Prithvi Singh, the driver as PW5. One PW Bishram won over by the accused.

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In her statement under Section 313 Cr.P.C., the accused person denied all the incriminating circumstances against them in the prosecution case and pleaded innocence. They did not lead any defence evidence and closed it. Accused Ajit Singh did not cause appearance and he was declared proclaimed offender.

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After hearing the learned counsel for the parties and perusing the material evidence on record, the learned trial Court convicted and sentenced both the appellants Rajesh and Bharat Bhushan as noticed at the outset of this judgment.

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Learned counsel for the appellants contends that the learned trial Court has committed a grave error in convicting the appellants. There are material contradictions in the statements of the PW1 and PW5, who are the eye witnesses. He further submits that no test identification parade was conducted by the police. He further submits that in support of the prosecution evidence, none of the three persons, who were also sitting on the truck was examined. No recovery of weapon was effected

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CRA No. 1029 SB of 2000 CRA No. 1048 SB of 2000 4

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from the appellants. Therefore, the prosecution case under Section 398 of IPC is not made out.

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On the other hand, the learned counsel appearing for the respondent-State contends that the case of the prosecution is duly proved. Therefore, no leniency should be shown and the appeal may be dismissed.

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I have heard the learned counsel for the parties and perused the record carefully.

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Section 398 of the Indian Penal Code read as under:-

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“398. Attempt to commit robbery or dacoity when armed with deadly weapon.-If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.”

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The relevant extract of statement of PW5 Prithvi Singh, the driver of the truck is reproduced as under:-

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“9.1.1996, I was going from Delhi to Ranchi in a truck bearing No.HR39/1298. I was coming from Gurgaon via Sohna to Palwal. I gave lift to three persons who were in the guise of policemen. Three more passengers also boarded the truck alongwith them. Out of those policemen, one instructed me to stop the truck two kilometers short of a village which was situated at a distance of 5 Kilometers short of Palwal. I told them I would not stop the vehicle in the secluded place. In the meanwhile, I arrived in the village. I stopped the truck in the

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CRA No. 1029 SB of 2000 CRA No. 1048 SB of 2000

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village told them that anyone who is eager to get down may get down in the village. However, they had shown their reluctance and told me that they would go to Palwal. When I had hardly gone two kilometers, one of them caught hold of my left hand and put pistol on my temple and threatened me to stop the vehicle. He threatened to take out which I was possessing failing which I would be killed. I stopped the vehicle and got up from the seat and took out whatever was with me and handed it over to him. The money was taken by two other policemen, who were with him.”

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The relevant extract of statement of Sudhir Kumar Swami PW1 is reproduced as under:-

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“The truck was loaded from Noida and we were proceeding to Ranchi. From the round about of Sector 16, Faridabad, six passengers boarded our truck. One passenger dropped on the way and we were further travelling with five passengers, in our loaded truck. The accused present in the court suddenly (Rajesh) took out his country made pistol and he pointed out the same on the head of the driver. He asked the driver to stop the truck.”

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However, in cross-examination, he has deposed that “six persons including accused present in the court were boarded our truck from Sohana. I never visited Faridabad, prior to this case and since the date of

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CRA No. 1029 SB of 2000 CRA No. 1048 SB of 2000

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occurrence till now.”

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In the aforementioned statements of both the eye witnesses, there are material contradictions. Sudhir Kumar Swami has stated that the passengers boarded from Faridabad, whereas, Prithvi Singh has stated that the passengers boarded from Sohana. Prithvi Singh in his statement has deposed that the alleged three passengers were in the guise of police dress, whereas Sudhir Kumar Swami has stated nothing in this regard. However, the prosecution case is doubtful as there was no recovery of weapon of offence, whereas the appellants have been convicted with the aid of Section 398 of IPC. No independent witnesses has been examined as the complainant has stated that there were three other passengers. No test identification parade was conducted by the police to identify the accused persons.

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In the above and various other circumstances, both the appeals are allowed and the judgment of conviction and order of sentence dated 12.10.2000, passed by the learned Additional Sessions Judge, Faridabad is set aside and the appellants are acquitted of the charges. The bail bonds stand discharged.

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(JITENDRA CHAUHAN) JUDGE

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8.8.2012

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gsv

Rajesh Kumar v. St of Hy

Case brief

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Rajesh Kumar v. St of Hy

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