Partly allowed

Bohar Singh v. State of Punjab

Punjab & Haryana HC20 Feb 2014CRA-S/3020/2011

Case brief

AI extract

What is this about?

The High Court disposed of three criminal appeals challenging dacoity convictions. It distinguished appellants who did not personally wield weapons from those who did, setting aside wrongful Section 397 convictions while maintaining others. The court also reduced excessive prison sentences to time already served.

What did the court decide?

Section 397 IPC convictions set aside for two appellants; secretion of others upheld. Sentences of imprisonment for all reduced; fines maintained. Convictions for robbery and wrongful confinement uphe

Bohar Singh Vs State of Punjab — Murder and Culpable Homicide | Punjab & Haryana HC (2014)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Appeal No.S-3020-SB of 2011 Date of Decision : February 20, 2014

Bohar Singh @ Bohra

....Appellant

Versus

State of Punjab

.....Respondent

CORAM : HON'BLE MR. JUSTICE T.P.S. MANN

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Present : Mr. P.S. Brar, Advocate for the petitioner.

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Mr.Gurinderjit Singh, Deputy A.G., Punjab.

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T.P.S. MANN, J.

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Alongwith the present appeal filed by Bohar Singh @ Bohra, the Court intends to dispose of Criminal Appeal No.S-2598-SB of 2011 filed by Ranjit Singh @ Sonu and Criminal Appeal No.S-2720-SB of 2011 preferred by Dalbir Singh as all the appellants have challenged their conviction and sentences as recorded by Sessions Judge, Faridkot vide judgment and order dated 9/11.8.2011.

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The three appellants, alongwith Harbhajan Singh @ Kala were tried for offences under Sections 395, 397 and 342 IPC on the allegations that on 21.1.2008 at about 2.30 p.m. they, alongwith another person committed dacoity, while carrying deadly weapons and while doing so, wrongfully confined complainant Prem Kumar and, thus, committed offences punishable under Sections 395,

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397 and 342 IPC. Vide judgment and order dated 9/11.8.2011, learned Sessions Judge, Faridkot convicted the three appellants and Harbhajan Singh @ Kala under Section 395 IPC and sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.25,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of two years each. They were further convicted under Section 397 IPC and sentenced to undergo similar term of sentence of imprisonment and fine alongwith the default clause. They were also convicted under Section 342 IPC and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for one month each. The substantive sentences of all the convicts were ordered to run concurrently.

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The case of the prosecution was that complainant-Prem Kumar used to work with M/s Gurinder Gas Agency, Faridkot since the year 1995 and on 21.1.2008 at about 2.30 p.m., he was present at the godown of the gas agency situated at Veerewala Road, Faridkot and counting cash when one white car came and stopped on the road. From the said car, two persons dressed as Mulla and wearing blue coloured jeans and light colourd jackets, came out and after entering the premises of the godown told the complainant that they wanted a gas cylinder. The complainant replied that the stock of the gas cylinder had finished and would be

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available only on the following day. One of the persons came towards the back side of the complainant at which the complainant put the money in the pockets of his pant and placed rexine bag under his armpit. The person standing behind the complainant took out a revolver and told the complainant to hand over the entire cash. The other person also took out a revolver and three more persons came out of the car parked outside. They were wearing turbans, pants and shirts. They also came inside. They were aged between 30 and 35 years, having wheatish complexion and of medium height and the complainant could identify them if brought before him. Out of the three persons, who entered later on, two were armed with revolvers and fearing for his life, the complainant, who was having Rs.50,000/- in cash alongwith the bag and the gas slips handed over the same to those persons, who took the complainant inside the godown and bolted the door from outside and then managed to run away alongwith the aforementioned articles and the mobile phone of the complainant provided by his employer. After about 20 minutes, Gagandeep Singh, Harjit Singh and Harvir Singh came to the agency for buying gas and on hearing the knock given by the complainant at the door, opened the same. The complainant apprised them as to what had happened and after taking the mobile phone from them informed Gurinder Singh Bawa, owner of the gas agency, who also came at the spot. Both of them then left for Police Station to lodge a report but came across ASI Rachhpal Singh, who happened to be on checking duty near the bridge of the

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canals on Kotkapura Road, Faridkot. Statement Ex.PC of the complainant was recorded and sent to Police Station City, Faridkot, where FIR Ex.PC/2 was registered by SI Sukhdev Singh.

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Further case of the prosecution is that during investigation, ASI Rachhpal Singh alongwith complainant and others went to the place of occurrence and prepared rough site plan, besides recording the statements of the witnesses. During the course of investigation, Bohar Singh @ Bohra and Ranjit Singh @ Sonu-appellants as well as Harbhajan Singh @ Kala were arrested by the Ludhiana police and on receiving the information, ASI Rajinder Kumar moved an application and obtained orders for production of those accused. They were formally arrested. While in police custody, Bohar Singh @ Bohra suffered disclosure statement that he had kept concealed a bag alongwith receipts of gas agency and amount of Rs.400/in the rented room in village Machaki Kalan of which only he knew and could get the same recovered. Similarly, Harbhajan Singh @ Kala accused was interrogated, who suffered disclosure statement that he had kept concealed four gas receipts and Rs.500/- in the rented accommodation in village Machaki Kalan, of which only he knew and could get the same recovered. Both these accused, thereafter, independently led the police party to the disclosed place and got the articles recovered. Ranjit Singh @ Sonu-appellant suffered disclosure statement that he had kept concealed one SIM card of mobile in the rented premises in village Machaki Kalan, of which only he knew and could get the same recovered. He then led

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the police party to the disclosed place and got the SIM recovered. Dalbir Singh-appellant could not be arrested initially and was declared a proclaimed offender. Subsequently, he was arrested by HC Shagan Singh. During the course of investigation, Gurcharan Singh Gill, landlord of the tenanted premises made a statement before the police that Harbhajan Singh @ Kala and Ranjit Singh @ Sonu-appellants, alongwith one lady, had hired his house at a monthly rent of Rs.1,200/- on the pretext that they had come from Uttar Pradesh and were in search of some agricultural land. At that time, they were having one Tavera vehicle. On 21.1.2008 at about 7.00 p.m. when he went to his house to look for the things, he saw the accused sitting and having drinks. They made him to sit with them. At that time, the accused were having countrymade pistols and a bag of blue colour, which contained money and gas agency slips. They disclosed to him that they had looted a gas agency. Dalbir Singh-appellant took out a pistol and threatened him not to disclose to anyone or else they would kill him. He asked the accused to vacate his house who promised to do so within 2/3 days.

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It is also the case of the prosecution that the police took into possession other FIRs pertaining to the accused in Ludhiana District and on the request of the police, the Court ordered holding of test identification parade. The three appellants, however, gave in writing that they did not want to undergo such a parade, which requests were forwarded by the Superintendent of Jail to the Court. On completion of investigation, challan was

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presented against the three appellants as well as Harbhajan Singh @ Kala. Subsequently, they were charged for the aforementioned offences, to which they pleaded not guilty and claimed trial.

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In support of its case, the prosecution examined PW1 Gurcharan Singh Gill, landlord of the accused, who did not support the prosecution version and was declared hostile. PW2 Pardeep Kumar, an employee of M/s Gurinder Gas Service, identified the cash memos./slips Ex.MO1 to Ex.MO9. PW3 Rajesh Kumar, Additional Ahlmad of the Court of Chief Judicial Magistrate, Faridkot proved from the Court record orders Exs.PB/1 and PB/3 and application Ex.PB/2 moved by the police. PW4 ASI Rachhpal Singh, who was the investigating officer proved the statement Ex.PC made by complainant Prem Kumar, endorsement Ex.PC/1 and FIR Ex.PC/2, besides the rough site plan Ex.PC/3 of the place of occurrence. PW5 Prem Kumar, who was the complainant, reiterated the allegations against each of the accused and proved his statement Ex.PC as well as the slips of the gas agency which he identified as Ex.MO/1 to Ex.MO/9. PW6 ASI Rajinder Kumar, who had partly investigated the case and arrested the accused, proved the various documents and deposed about the arrest of the accused.

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When examined under Section 313 Cr.P.C., the three appellants and their co-accused Harbhajan Singh @ Kala denied the prosecution allegations and pleaded that they were falsely implicated. However, they did not lead any evidence in their defence.

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The trial Court, after hearing learned counsel for the parties and perusing the evidence brought on the record, accepted the prosecution case and convicted and sentenced the appellants and Harbhajan Singh @ Kala accused, as mentioned above.

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Learned counsel for the appellants have submitted that as the prosecution has not been able to establish that the three appellants alongwith Harbhajan Singh @ Kala were accompanied by one more person, the conviction of the appellants under Section 395 IPC cannot be sustained. It is also submitted that no such recovery as alleged by the prosecution was ever effected from the appellants which could connect them with the crime. Further, the identity of the appellants has also not been established as they were not subjected to test identification parade.

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Learned State counsel has submitted that the prosecution has led sufficient evidence to prove the guilt of the appellants and, accordingly, prayed for the dismissal of their appeals.

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Having heard learned counsel for the parties and scanning the evidence minutely with their able assistance, this Court finds that before the trial Court, PW5 Prem Kumar had duly identified the three appellants and their co-accused Harbhajan Singh @ Kala, who had committed the crime. The fifth accused could not be arrested during the investigation of the case. However, it was the categorical statement of PW5 Prem Kumar that the

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aforementioned four accused alongwith one unidentified person had come to the spot and committed dacoity by taking Rs.50,000/- from him, besides the gas receipts and his mobile phone. Even during the investigation of the case when Bohar Singh @ Bohra, Ranjit Singh @ Sonu and Harbhajan Singh @ Kala were arrested by the police, after obtaining production warrants and were remanded in judicial custody so as to hold test identification parade, they submitted their written requests through the Jail Superintendent informing the Court that they were not interested in participating in such a parade. When the accused had refused to join the identification parade, they cannot challenge their identification by PW5 Prem Kumar when the latter was in the witness-box.

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It was the consistent case of complainant Prem Kumar, first in his statement Ex.PC made before ASI Rachhpal Singh on 21.1.2008 and, thereafter, before the trial Court as PW5 that in the first instance two accused had come inside his godown after getting down from a car and later on three more persons came out of the said car and also entered the godown. Merely because the identity of the fifth accused could not be established and for that reason the fifth accused could not be put up for trial is no ground to hold that only four accused persons were present at the time of the commission of the crime and, therefore, offence under Section 395 IPC was not made out.

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It was the case of the prosecution that while committing the crime, the accused had taken an amount of

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Rs.50,000/-, slips of gas agency and a mobile from PW5 Prem Kumar. Subsequently, cash and various slips of the gas agency were got recovered by Bohar Singh @ Bohra and Harbhajan Singh @ Kala accused, whereas the SIM card of the mobile phone taken away by the accused was got recovered by Ranjit Singh @ Sonu accused. The recovery of the slips of the gas agency which have been proved by PW5 Prem Kumar as well as by PW2 Pardeep Kumar, another employee of M/s Gurinder Gas Service establishes beyond doubt that the three appellants, alongwith Harbhajan Singh @ Kala and one unidentified person had participated in the commission of the crime.

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Merely because 21.1.2008 happened to be a Sunday and, thus, no transactions of sale of gas cylinders could have taken place, is no ground to reject the prosecution case. It is a matter of common practice that in order to earn more profits some unscrupulous persons carry on business activities on Sundays also. That by itself is not sufficient to hold that no such incident as alleged by PW5 Prem Kumar had taken place on 21.1.2008.

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In his initial statement Ex.PC, complainant Prem Singh had stated that in the first instance, two accused had come inside the godown and they were having fire arms with them and subsequently, three more accused had come out the car and entered the godown and they were also carrying fire arms. However, while deposing before the trial Court as PW5 he stated that Harbhajan Singh @ Kala and Bohar Singh @ Bohra, who had first come inside the godown were armed with pistols and had snatched an

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amount of Rs.50,000/- from him. At that time three other persons were at some distance outside the godown, who were in a car. Out of them, he identified Ranjit Singh @ Sonu and Dalbir Singh, who were present in the Court. He did not state that Ranjit Singh @ Sonu and Dalbir Singh were also armed with fire arms. Under these circumstances, the conviction of Ranjit Singh @ Sonu and Dalbir Singh under Section 397 IPC, as recorded by the trial Court, cannot be maintained. Only such an offender, who uses the deadly weapon at the time of committing of the dacoity or robbery, can be convicted under Section 397 IPC and not the other accused accompanying him. Reference in this regard can be made to a judgment of Delhi High Court in the case of Kalu @ Saleem Vs. State, 2013(1) AD(Delhi) 401. Para 6, as culled out from the said judgment, is reproduced here-in-below:-

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“6. Section 397 Indian Penal Code provides that if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished, shall not be less than seven years. Meaning thereby Section 397 Indian Penal Code envisages minimum sentence to be awarded to an offender who uses deadly weapon while committing robbery. It is only such

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offender who uses the deadly weapon can be handed down the minimum sentence as envisaged under Section 397 Indian Penal Code and not the other accused accompanying such accused.”

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In view of the above, the conviction of Bohar Singh @ Bohra-appellant under Sections 395, 397 and 342 IPC is liable to be maintained, whereas the conviction of Ranjit Singh @ Sonu and Dalbir Singh-appellants under Section 397 IPC is to be set aside. However, their conviction for the offences under Sections 395 and 342 IPC is liable to be maintained.

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Coming to the quantum of sentences, this Court is of the considered view that sentence of imprisonment of 10 years awarded to Bohar Singh @ Bohra-appellant under Sections 395 and 397 is on the higher side. Ends of justice would be amply met by reducing the same to seven years. The sentence of imprisonment and fine imposed upon him for the offence under Section 342 IPC does not call for any interference. As regards Ranjit Singh @ Sonu and Dalbir Singh-appellants, it is made out from their custody certificates that they have already undergone an actual period of 4 years, 3 months and 14 days and 2 years, 2 months and 28 days, respectively. They have been facing the agony of criminal prosecution for the last more than six years. Under these circumstances, their sentences of imprisonment for the offences under Sections 395 and 342 IPC can be reduced to a period already undergone by them.

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Resultantly, the conviction of Bohar Singh @ Bohra-appellant under Sections 395 and 397 IPC is maintained. However, his substantive sentences of imprisonment on both the counts are reduced from ten years to rigorous imprisonment for seven years. The sentences of fine on both the counts alongwith their default clauses are maintained. His conviction under Section 342 IPC as well as the sentence of imprisonment and fine alongwith its default clause is maintained. The conviction and sentence of Ranjit Singh @ Sonu and Dalbir Singh-appellants under Section 397 IPC are set aside. Their conviction for the offences under Sections 395 and 342 IPC is maintained. However, their substantive sentences of imprisonment for the said offences are reduced to that already undergone by them. The sentences of fine alongwith their default clauses for the said offences are maintained. The substantive sentences of imprisonment shall run concurrently.

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The three appeals are, accordingly, disposed

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of.

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February 20, 2014 satish

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( T.P.S. MANN ) JUDGE

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Satish Kumar 2014.06.16 11:53 I attest to the accuracy and integrity of this document Chandigarh

Bohar Singh v. State of Punjab

Case brief

What is this about?

What did the court decide?

Bohar Singh v. State of Punjab

Case brief

What is this about?

What did the court decide?

What the court decided

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