Criminal Appeal No.46-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.46-SB of 1998 Date of decision : 12.12.2008 Sushil .....Appellant Versus The State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Vivek Verma, Advocate as Amicus Curiae for the appellant Mr. Surender Singh, Advocate for the appellant. Mr. Hemant Bassi, Advocate for the U.T., Chandigarh. S. D. ANAND, J. The appellant was prosecuted on the allegations which may be indicated as under:- On 20.7.94, PW-10 Smt. Mohini Sahota was sitting in the verandah of her house No. 63, Sector 18, Chandigarh. Her maid servant was working in the kitchen at that point of time. Smt. Mohini Sahota also went to the kitchen at about 2.30 P.M. In the meantime, the appellant entered the kitchen, aimed a pistol at her and required her to hand over whatever belonging she had. When she did not oblige, the appellant locked up the maid servant in a store room and pushed Smt. Mohini Sahota into bed room and demanded keys of the almirah. In that process, the appellant also tried to strangulate her with latter's gown. Ultimately, the appellant locked her up in a bath room. Prior thereto, he had snatched A Criminal Appeal No.46-SB of 1998 -2- **** gold chain she was wearing around her neck. Appellant was put it into the pocket of trouser he was wearing. While appellant locking up Smt. Mohini Sahota in side bath room, the pistol carried by him also fell inside the bath room. However, Smt. Mohini Sahota managed to come out of the bath room from another door and cried for help which brought her immediate neighbour PW-9 Virinder Issar to the spot. Yash Pal, a servant in the employment of Virinder Issar, also accompanied him. Shri Issar and his servant Yash pal over powered the appellant. On being telephonically notified by someone, the police reached over there and took the appellant into custody. The prosecution plea, at the trial, was supported by the statements of PW-1 Dr. K.Gaba, PW-2 ASI Mahi Chand, PW-3 Jaswant Singh, PW-4 HC Naphe Singh, PW-5 Constable Sudesh Kumar, PW-6 SI Karam Singh, PW-7 Constable Bal Krishan, PW-8 Dr. Munish Goyal, PW- 9 Virinder Issar PW-10 Smt. Mohini Sahota and PW-11 SI Ram Dayal. PW-1 Dr. K.Gaba, Associate Professor, Department of Surgery, PGI, Chandigarh had examined Smt. Mohini Sahota on 25.7.1994 as a out door patient. He advised her to undergo X-ray of lower four front teeth. He opined, on the basis of radiological examination, that “there was no injury to the bone or to the route of the death affected as a result of assault on her.” PW-2 ASI Mahi Chand, a police photographer had photographed the spot on 20.7.1994. He proved photographs Ex. P1 to Ex. P4 and also their negatives Ex. P5 to Ex. P8. PW-3 Jaswant Singh, an official Draftsman, had prepared scaled site plan of the spot on 27.8.94 on the pointing of Smt. Mohini Sahota. Criminal Appeal No.46-SB of 1998 -3- **** PW-4 HC Nafe Singh was posted as MMHC, PS Central on 20.7.1994. On that day, ASI Ram Dayal had deposited three sealed parcels Ex. P9 to Ex. P11 with him. He testified that the parcels were not tampered with as long as those were in his custody. PW-5 Constable Sudesh Kumar made a record-based statement to prove Ex. PB and Ex. PC, copies of DDR No.25 and 34 dated 20.7.1994. PW-6 SI Karam Singh had recorded formal FIR Ex. PD/2 on the receipt of ruqqa Ex. PD/1 through constable Bal Kishan who was examined as PW-7. PW-8 Dr. Munish Goyal had medico legally examined Smt. Mohini Sahota on 20.7.94 at about 4.20 P.M. and found the following injuries:- 1. Swelling on the left knee 3 cm x 2 cm x 1.5 cm painful movement of the knee (right). Advised x-ray right knee A.P. view lateral view. No change of skin colour. 2. Contusion over swelling 4 cm x 3 cm by 2 cm red colour on the left side of the forehead at the border of the hair line. No history of loss of consciousness, vomiting, or blurred vision was found. X-ray skull was advised. A.P. lateral view. 3. Abrasion 3 cm x 2 cm on the posterior aspect on the right elbow was found. There was no difficulty in moving the arm. 4. Abrasion 4 cm x 3 cm on the anterior surface of left wrist was found. 5. Complain of mobility of lower inciser. Contusion 2 cm Criminal Appeal No.46-SB of 1998 -4- **** x 2 cm on the lower lip mucosa was found. Referred to Dental Surgeon for opinion and management.” He declared all the injuries to be simple in nature and haing been caused by a blunt weapon. He also testified that the injuries aforementioned could have been caused if she was hit with a pistol like Ex. P12. PW-9 Virinder Issar is an eye witness. PW-10 Smt. Mohini Sahota is the star witness. PW-11 SI Ram Dayal is investigating officer of this case. The appellant raised the following plea in the course of the statement under Section 313 Cr.P.C.:- “I run a factory at Ambala on 20.07.94. I had come to Chandigarh from Ambala for business purposes. I alighted at the bus stand Chandigarh at about 1/1.15 p.m. and I went to the country liquor vend in front of the bus stand in Sector 222, Chandigarh. I bought one quarter. Some 3-4 boys were standing on that Thekka at that time who saw the currency notes worth Rs.4000/- (approximately) when I was making the payment of quarter. I consumed the quarter there and then and those boys asked me to make the payment for one bottle of liquor for them which I refused. There was exchange of hot words between us and I did not make payment and I started from that place, towards the side of KC Theater on foot. When I had passed about 1 -1/2 chowk from that place, I had at once turned behind and saw those boys following me. I turned towards my right hand side and then towards my left hand side. I found the gate of a kothi opened and I went Criminal Appeal No.46-SB of 1998 -5- **** inside that kothi. One Madam was found sitting inside the kothi. She became perplexed on seeing me and I told her that I had come inside for safety purposes because I was being followed by 3-4 persons but she pushed me aside and there was a scuffle between us. I did not have any pistol/revolver or toy with me. I did not push that Madam or her servant in any room or bath room and I did not try to go away by climbing the wall and was not chased and apprehended by Shri V. Issar or Yash Pal his servant. I have been falsely involved in this case. I did not pull the chain from the neck of Smt. Mohini Sahota and I did not produce any chain before the police. I also did not put any gown around the neck of Smt. Mohini. I had then become unconscious. I do not know who took out the money from my pocket. “ DW-1 Ramesh Jindal, DW-2 Suresh Kumar and DW-3 Ram Parkash were examined in defence. DW-1 Ramesh Jindal testified that the appellant is running a business of mixis and washing machines. This witness had undertaken the accounts job of the concern run by the appellant under the name and style of Goyal Enterprises on part time basis. He also testified that the appellant has turn over of Rs. 3 to 4 lacs and is an income tax payee. DW-2 Suresh Kumar also testified that the appellant, who is known to him for the last 15-20 years, is running a business of mixis and washing machines at Ambala city and is Jain by caste. He also testified that the appellant is running a good business. DW-3 Ram Parkash, an Administrative Officer in the office of LIC, Ambala, made a record-based statement to the effect that the Criminal Appeal No.46-SB of 1998 -6- **** appellant had taken out five insurance policies on his own life. On appraisal of the material obtaining on the file, learned Trial Court, affirmed the prosecution plea, negatived appellant's plea of innocence and proceeded to indict him. I have heard Mr. Vivek Verma, ;earmed Amicus Curiae, Mr. Surender Singh, learned counsel for the appellant and Mr. Hemant Bassi, learned counsel for the U.T., Chandigarh and carefully gone through the record. Learned Amicus Curie, appearing on behalf of the appellant, argues that the entire prosecution presentation is not acceptable because the appellant comes from a reputed business family and there was no reason why he would have resorted to commission of an act of dacoity, particularly when he was not facing any financial stringency. It is also argued that the appellant had no malafide intention in entering the house of the complainant and he had been compelled to do so only because he was being followed by some ruffian type elements who were after the money which he was carrying and about which those 'ruffians' had obtained knowledge while the appellant took out money to purchase liquour. The allegation in the context is that those boys were available at the liquor vend at that point of time. Learned State counsel resists the plea by arguing that Smt. Mohini Sahota and Virinder Issar did not have any animus against the appellant and there is no reason, even otherwise, why they would have framed the appellant in this case. It is also argued that an adverse inference against the interest of the appellant is validly drawable in view of the fact that the appellant had not opted to obtain the leave of the Court to enter the witness box, as his own witness. Criminal Appeal No.46-SB of 1998 -7- **** A perusal of the testimony of Smt. Mohini Sahota and Virinder Issar would indicate that there is no suggestion to them that they had any inimical inclination towards the appellant or they had any score to settle with him on account of which they may have been inclined to depose falsely against him. If the appellant had actually entered the house of Smt. Mohini Sahota under the circumstances indicated by him, she hardly had any time to coin a false story to the effect that the appellant robbed her. Further, in the absence of any animus, there is no reason why Virinder Issar PW-10 would have opted to go whole hog with Smt. Mohini Sahota for supporting a false story. Faced with the above facts, learned counsel appearing on behalf of the appellant argues that the appellant deserves exoneration as he was under the influence of liquor and, thus, in a state of intoxication. The plea raised deserves to be merely noticed to be discarded. It is not a case where the appellant had either got himself medically examined immediately after his apprehension or where the police got him medically examined. Though it is in evidence that the appellant was found to have consumed liquor, it does not ipso facto indicate that he was in a statement of intoxication. It is one thing to aver that the accused had been found to have consumed liquor and quite another thing to aver that he was found to be in the state of intoxication. The plea shall stand repelled accordingly. Learned counsel for the appellant, then, argues that the absence of any injury mark on the neck of Smt. Mohini Sahota would also be indicative of falsity of the prosecution story. Learned counsel is not on a firmer footing when he raises that plea. All that Smt. Mohini Sahota testified at the trial was that the Criminal Appeal No.46-SB of 1998 -8- **** appellant deprived her of gold chain which she was wearing at that point of time. It is not necessary that a robbed person would necessarily sustain an injury on the neck. There could be plenty of 101 reasons on account of which a person may get deprived of a chain she is wearing around the neck, without there being any injury on that body part itself. Learned counsel for the appellant, then, aruges that the weapon recovered in the case was a toy pistol and not a firearm, as was the presentation made by the complainant while notifying the offence to the police. It is argued that a toy pistol could not have scared the complainant to part with her gold chain. The plea is frivolous on the face of it. The fact that the appellant was carrying a toy pistol could not have been known to the robbed lady . That fact would have been to the notice of only the appellant himself. It is otherwise, not a part of the prosecution presentation that the appellant fired a shot. Even a toy pistol would be enough to scare a beguiled victim into submission. I also find force in the plea put forward by the learned State counsel that an inference adverse to the interest of the appellant is validly drawable because he did not enter the witness box as his own witness. Though there can be no dispute with the proposition that essentially the onus to prove a charge would always be upon the prosecution, it also cannot be denied that if a person accused of a such like charge raises the plea pertaining to his own state of mind, it will be for that accused himself to opt to enter the witness box to explain the circumstances under which he was found at the spot. Of course, no quarters could have compelled the appellant to step into the witness box as his own witness. That discretion has to be exercised by the appellant himself. In this case, the Criminal Appeal No.46-SB of 1998 -9- **** appellant did not exercise that discretion. An inference adverse to the interest of the appellant can, thus, be validly drawn by the Court. In the light of the fore-going discussion, it is held that the appeal is denuded of merit and is ordered to be dismissed. The impugned finding of conviction shall stand affirmed. However, in view of the fact that appellant has undergone the ordeal of trial/appeal since the year 1994, the interests of justice would served if substantive sentences awarded to him on each count is reduced to one half. It is so ordered accordingly. December 12, 2008 (S. D. ANAND) Pka JUDGE