Crl.Appeal No. 1205-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1205-SB of 1999 Date of decision: 24.12.2010 Diwan Singh … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Harish Aggarwal-II, Advocate, for the appellant. Mr.D.S.Brar, DAG, Punjab. … JORA SINGH, J. Diwan Singh filed this criminal appeal to challenge the judgment of conviction and order of sentence dated 29.11.1999 passed by Additional Sessions Judge, Amritsar, in Sessions Case No. 35 of 1994, arising out of FIR No.15 dated 11.2.1994 under Sections 307/392/34 IPC, PS Civil Lines, Amritsar. By the said judgment, he was convicted under Sections 307/392 IPC and sentenced to undergo RI for three years and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for two months under Section 307 IPC and to undergo RI for two years and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for two months under Section 392 IPC. However, both the sentences were ordered to run concurrently. Prosecution story, in brief, is that Sushil Kumar, complainant, reported to the police that he is resident of Green Avenue, Amritsar. On 11.2.1994 at about 8.30 PM, he was present in the office of his petrol pump situated near Dental College Chowk, Amritsar. Name of the petrol pump is Crl.Appeal No. 1205-SB of 1999 2 Barkat Ram Amrit Lal. Rajinder Pal, his employee, was also present in the office and rest of the employees were supplying petrol outside. In the meantime, two young men, who were having their bodies wrapped, came inside the office after parking their scooter outside. One of them was armed with a revolver and put the revolver at his ear. He was directed to hand over whatever he was having. He grappled with them and in that process, clothes with which they were wrapping their bodies fell down from their faces. He had identified both the assailants and one of them was Diwan Singh, resident of Mehal, and the other was Talwinder Singh, Goldsmith, resident of Islamabad. By calling by their names, he asked from them as to why they were doing so. Then Talwinder Singh exhorted the co-accused to eliminate him. Diwan Singh fired twice with his revolver but he sat down on the ground and saved himself. Fire did not hit him. Raula was raised but out of fear, his employee ran away. After firing, both the accused had fled away from the spot after leaving their scooter bearing No.PB-02-F, make Bajaj Chetak. Police party headed by ASI Surinder Kumar was holding nakabandi near Chowk Sant Singh Sukha Singh. At about 8.30 PM, they heard the noise of firing from the side of Dental College Chowk. After that, police party had gone to the petrol pump situated near Dental College Chowk, where Sushil Kumar was present. Statement of Sushil Kumar (Ex.PA) was recorded, who signed the same in token of its correctness. In the meantime, Brij Mohan came at the spot and reported to the police that when he was present near Company Bagh, then two assailants with the help of pistol after snatching his scooter No. PAE 5385 have gone towards Batala Road. In the meantime, through wireless message, ASI Surinder Crl.Appeal No. 1205-SB of 1999 3 Kumar came to know that two assailants of the same description on Scooter No. PF-02-F, make Bajaj Chetak have looted petrol pump situated near Chowk Thana Sadar and have gone towards the side of Railway Station. After making endorsement at 9.30 PM, statement was sent to the police station, on the basis of which, formal FIR was recorded. On the intervening night of 18/19.2.1994, police party headed by ASI Ranjit Singh was holding nakabandi near Dental College Chowk. Second police party headed by SI Gajinder Singh came there. They were in search of bad elements in the city. At about 10.00 PM, police party was near the Company Bagh, then sighted two persons coming on a scooter from the side of Ranjit Museum. SI Gajinder Singh signalled the accused to stop the scooter but instead of stopping the scooter, they started firing at the police party. In self defence, police party had also fired. Ultimately, the accused had surrendered before the police party. One of them was Talwinder Singh and other, on enquiry, disclosed his name as Diwan Singh. From personal search of Diwan Singh, one country made .12 bore pistol was recovered and on unloading the same, one empty cartridge was recovered. Two live cartridges were also recovered from Diwan Singh. Rough sketch of pistol was prepared. Pistol was taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in Court. Accused were charged under Sections 307/392/34 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 8 witnesses. Crl.Appeal No. 1205-SB of 1999 4 PW1 Rajinder Singh, Clerk, DTO Office, Amritsar, stated that Scooter No. PAE-5385 was registered in the name of Brij Mohan. Ex.P1 is the copy of RC. PW2 Onkar Nath, Clerk, DTO Office, Amritsar, stated that Scooter No. PB-02-F-9923 was registered in the name of Pushpa wife of Yashpal. Ex.P2 is the copy of RC. PW3 Sushil Kumar is the complainant. He has reiterated his stand before the police as per his statement (Ex.PA). PW4 Yashpal stated that Scooter No. PB-02-F-9923 was owned by him. Talwinder Singh was employed with him. On 11.2.1994, Talwinder Singh demanded his scooter to attend the Courts. Scooter was handed over to him but he failed to return. Later on, he came to know that his scooter was left by Talwinder Singh at petrol pump and ran away. PW5 ASI Ranjit Singh stated that on the intervening night of 18/19.2.1994, at about 10.00 PM, police party was present near Company Bagh, then sighted two persons while coming on a scooter from the side of Ranjit Museum. They were signalled to stop, but instead of stopping, they started firing at the police party. Police party also fired in self defence. Ultimately, both the accused were arrested. One of them was Talwinder Singh and other was Diwan Singh. On search of Diwan Singh, one country made pistol along with two live cartridges was recovered. One empty cartridge was recovered after unloading the pistol. Pistol along with cartridges was taken into police possession vide separate memos attested by the witnesses. Crl.Appeal No. 1205-SB of 1999 5 PW6 ASI Surinder Kumar was also with the police party headed by SI Gajinder Singh. He has supported the version of PW5 ASI Ranjit Singh. PW7 Des Raj stated that on 11.2.1994, he was Salesman with Jalandhar Motor Agency. At about 8.00 PM, he was in possession of Rs.3500/- collected after sale of petrol. When he was going to deposit the payment, then accused came armed with pistol. After pointing the pistol on his neck, they snatched Rs.3500/- from him. After snatching the payment, both the accused have fled away from the spot on scooter No. PB-02-F. PW8 Subhash Chander stated that he was the Incharge of petrol pump. At about 8.00, he was present at the petrol pump and two persons with muffled faces came and demanded cash. They pointed pistol at him and demanded whatever cash he was having at that time. Rs.23,000/24,000/- was snatched from him. After close of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that he was falsely implicated in this case. He was illegally detained at the police station. His mother has given applications/telegrams to the higher authorities about his illegal detention. When police came to know about the telegrams/applications, then he was falsely implicated in this case. In defence, DW1 Surinder Kumar, Senior Assistant, DC Office, Amritsar, appeared and stated that as per entry of register dated 15.2.1994, one Bachan Kaur gave a telegram that his son Diwan Singh was arrested by the police of Putlighar on 11.2.1994 at 8.00 PM. Crl.Appeal No. 1205-SB of 1999 6 After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned counsel for the appellant argued that according to the story, appellant along with one Talwinder Singh on Scooter No. PB-02-F had gone to the petrol pump of Sushil Kumar, complainant. Appellant had directed the complainant to hand over the cash, he had at that time. Appellant was having muffled face and had fired twice but no one was injured. No test identification parade was arranged. Earlier to the occurrence, appellant was not known to the complainant or police officials. No cash was snatched from the complainant. Complainant was also not injured. Appellant was apprehended on the intervening night of 18/19.2.1994. One country made pistol along with two live cartridges and one empty was recovered. Empties were not lifted from the spot. No report on the file that empties lifted from the place of occurrence were fired from the weapon recovered from the appellant. In fact, appellant was illegally detained by the police party on 11.2.1994. Mother of the appellant had sent telegrams to different authorities and this fact is clear from the statement of DW1 Surinder Kumar. To solve number of cases, appellant along with Talwinder Singh was implicated. Arrest of the appellant was on the intervening night of 18/19.2.1994 but certificate on the file is showing that appellant was arrested on 11.2.1994. On the back of certificate, there is report that earlier to the occurrence, there was no case against the appellant. If appellant had really gone at the petrol pump of the complainant on Crl.Appeal No. 1205-SB of 1999 7 Scooter No. PB-02-F, then there was no idea to leave the petrol pump without snatching cash or causing injuries to Sushil Kumar or any other employee. Arrest of the appellant on the intervening night of 18/19.2.1994 is doubtful because ASI Ranjit Singh in cross-examination admitted that there was a firing but no one was injured. Independent witnesses were available but no one was joined. Empty cartridges were not lifted from the spot. Appellant fired only one shot. Talwinder Singh fired twice. Two shots were fired by the police party. Surinder Kumar, PW, stated that empty cartridges were lifted from the spot. Both the accused had fired 2/3 shots, whereas police party had fired 10/12 shots One PW stated that appellant was handcuffed, whereas other stated that he was not handcuffed. Des Raj stated that Rs.3500/- was snatched from him. Subhash Chander stated that Rs.23,000/24,000/- was forcibly snatched from him, whereas the application on file shows that total cash was Rs.21,963/-. Argued that if the Court is of the opinion that appellant has committed the crime, then lenient view may be taken qua sentence as the occurrence was on 11.2.1994 and at that time, appellant was 30 years’ old and has three children to support. Learned State counsel argued that Sushil Kumar was owning petrol pump. On 11.2.1994, appellant along with Talwinder Singh on Scooter No. PB-02-F had gone to the petrol pump to snatch the collection but Sushil Kumar had grappled with the appellant, who was having muffled face. In that process, blanket fell down from the face of the appellant. Appellant was identified by the complainant. There was a firing by the appellant but fortunately, Sushil Kumar had saved himself. Scooter recovered from the spot was registered in the name of Pushpa wife of Yashpal. Yashpal appeared as PW4 and stated that Talwinder Singh was Crl.Appeal No. 1205-SB of 1999 8 employee with him. On the request of Talwinder Singh, scooter was handed over to him but he failed to return. In view of the statement of Sushil Kumar, FIR was registered. After making endorsement, statement was sent to the police station. Appellant was named by Sushil Kumar. Scooter recovered from the petrol pump of the complainant was borrowed from Yashpal. Minor discrepancies in the statements of police officials as to how many shots were fired by the appellant and police party. Witnesses are also discrepant regarding recovery of empties from the spot. But certificate sanakhat (identification) was not put to ASI Ranjit Singh or ASI Surinder Kumar when appeared in Court that as per certificate, date of arrest is 11.2.1994. Carbon copy of certificate by Jalandhar Motor Agency is also on the file but this certificate was also not put to Des Raj or Subhash Chander that actually cash was Rs.21,963/-. When cash was about Rs.21,000/-, then how Rs.3500/- was snatched from Des Raj and Rs.23,000/24,000/- from Subhash Chander. Occurrence is dated 11.2.1994 whereas PWs appeared in Court in 1997. Minor discrepancies were bound to occur with the passage of time. First submission of learned defence counsel for the appellant was that identity of appellant is in dispute. Test identification parade was not arranged. In the absence of test identification parade, no reason to opine that appellant along with another accused had gone to the petrol pump of Sushil Kumar and had fired twice when Sushil Kumar did not hand over cash. But after going through the evidence on the file, I am of the opinion that submission of learned defence counsel for the appellant carries little weight. Sushil Kumar was owning petrol pump situated near Dental College Chowk, Amristar. On 11.2.1994, he was present in his office. Crl.Appeal No. 1205-SB of 1999 9 Rajinder Pal was also in the office. At about 8.30 PM, two assailants came on Scooter No. PB-02-F, with muffled faces. After entering in the office, Sushil Kumar was directed to hand over the cash in his possession. Sushil Kumar had grappled with the assailants and in that process, blanket fell down from the faces of the assailants. Sushil Kumar had identified both the assailants. One of them was Diwan Singh and second was Talwinder Singh, who is Proclaimed Offender. When Sushil Kumar told the assailants as to why they were doing so, then Diwan Singh fired twice from his pistol but complainant saved himself. When there was raula, then both the assailants had fled away from the spot by leaving the scooter. Rajinder Pal was also present at the time of occurrence, but he was not examined by the prosecution as won over by the appellant. In case, story was not genuine, then Rajinder Pal could easily be produced in defence. Earlier to the occurrence, complainant had no enmity with the appellant. According to certificate regarding identification of the appellant, no other case was pending against him. When appellant was not wanted by the police in any other case and appellant had no enmity with the complainant or the police, then there was no idea to name the appellant while making statement before the police at about 9.30 PM on 11.2.1994. According to story, on the intervening night of 18/19.2.1994, police party was present near Company Bagh, then sighted two persons while coming on a scooter and were signalled to stop. Instead of stopping the scooter, they had started firing towards the police party. Police party had also fired in self defence. Ultimately, both the accused had surrendered before the police. One of them was the present appellant and other was Talwinder Singh. Arrest of the appellant was on the intervening night of Crl.Appeal No. 1205-SB of 1999 10 18/19.2.1994. After arrest, appellant was produced before the Court but no request to arrange test identification parade. When appellant was identified by the complainant at the time of occurrence and FIR was got registered on 11.2.1994, then story was not to be ignored if no test identification parade at the instance of prosecution. As per record maintained by the DTO Office, Amritsar, Scooter No. PB-02-F-9923 was registered in the name of Pushpa wife of Yashpal. Yashpal appeared as PW4 and stated that on 11.2.1994, Talwinder Singh came to him because he was employee with him. On the request of Talwinder Singh, he had handed over the scooter to him to visit Courts but he failed to return. Scooter handed over to Talwinder Singh was recovered from the petrol pump of Sushil Kumar. No question was put to the witness that Talwinder Singh was not known to him and on 11.2.1994, scooter was not handed over to him. Des Raj and Subhash Chander were employees of Jalandhar Motor Agency. As per Des Raj, Rs.3500/- was snatched from him by the appellant. Subhash Chander stated that Rs.23,000/24,000/- was snatched from him. Photocopy of the letter by Jalandhar Motor Agency was not put to Des Raj or Subhash Chander that, in fact, total cash at the relevant time was Rs.21,963/-. So, no question of snatching of Rs.23,000/24,000/-. As discussed earlier, when police party was present near Company Bagh at about 10.00 PM on 18.2.1994, then sighted two persons while coming on a scooter. After encounter, appellant had surrendered. Second accused was Talwinder Singh. Scooter No. PAE 5385 was recovered from their possession and this scooter was owned by Brij Mohan. Brij Mohan also reported to the police on 11.2.1994 that when he was present near Company Bagh, then two persons came and his Scooter No. Crl.Appeal No. 1205-SB of 1999 11 PAE 5385 was snatched from him with the help of pistol and after snatching the scooter, accused had gone towards Batala Road. No doubt, Brij Mohan was not examined by the prosecution, but he was not the eye witness to the first occurrence or the second occurrence. No dispute that Brij Mohan was not the owner of Scooter No. PAE 5385. Scooter owned by Brij Mohan was recovered from the appellant. No explanation by the appellant how he came in possession of above said scooter. According to story, appellant had fired twice with his pistol. Empties recovered from the spot should have been sent to the laboratory but if due to the negligence of the IO, no effort to send empties to the laboratory, then statement of Sushil Kumar is not to be ignored. In case, there was no firing and with the help of pistol, only Sushil Kumar was directed to hand over cash, when there was no raula and accused had fled away from the spot with the weapon, then question is whether no offence was committed by the appellant. Appellant along with Talwinder Singh on scooter had gone to the petrol pump of Sushil Kumar. With the help of pistol, Sushil Kumar was directed to hand over cash but instead of handing over cash, he had grappled with the appellant and other accused. By leaving scooter, both the accused had fled away from the spot. After snatching Scooter No. PAE 5385 from Brij Mohan, appellant had gone towards the side of Batala Road. After the police party came to know about the firing near petrol pump, police party was present at the petrol pump of Sushil Kumar. Brij Mohan had also gone there and reported to the police that his scooter was snatched by two persons when he was present near Company Bagh. Crl.Appeal No. 1205-SB of 1999 12 In defence, Surinder Kumar appeared and stated that telegram was sent on 15.2.1994 by Bachan Kaur that her son Diwan Singh was arrested by the police of Putlighar but Bachan Kaur failed to appear in Court to state that she had sent telegrams to different authorities. Case was not registered by Police Station, Putlighar, Amritsar. Case was registered by Police Station, Civil Lines, Amritsar. After committing the crime, appellant had fled away from the spot by leaving the scooter, then mother of the appellant had sent telegram to create defence because after the crime, one day, appellant was to be arrested by the police. When no case was pending against the appellant and he was not inimical towards the complainant, then there was no idea to send telegram on 15.2.1994. In fact, telegram was sent on 15.2.1994 to create defence because appellant and his mother were apprehending arrest at any stage because on 11.2.1994, Sushil Kumar had named the appellant. Filing of telegram on 15.2.1994 is an after thought. No other submission was put forward. Admittedly, occurrence is dated 11.2.1994 and at that time, appellant was 28 years’ old. He belongs to a poor family and has three children to support. Already he remained in custody for some time. In the light of above discussion, I am of the opinion that there is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld. Keeping in view the circumstances of this case, instead of directing the appellant to undergo imprisonment as ordered by the trial Court, he is directed to undergo RI for one year. All the sentences awarded in FIR No.15 dated 11.2.1994 under Sections 307/392/34 IPC, FIR No.24 dated 19.2.1994 under Sections Crl.Appeal No. 1205-SB of 1999 13 307/34 IPC and FIR No. 25 dated 19.2.1994 under Section 25 of the Arms Act, PS Civil Lines, Amritsar, are ordered to run concurrently. For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Amritsar, to issue re-arrest warrants to undergo the remaining period of sentence. 24.12.2010 (JORA SINGH ) pk JUDGE