IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 502-SBA of 1999 Date of decision: 4th August, 2009 State of Punjab … Appellant Versus Swaran Singh and another … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Abhishek Chautala, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Swaran Singh and Gurmukh Singh were tried by the Court of Additional Sessions Judge, Ludhiana in case FIR No. 88 dated 03.05.1993 registered at Police Station Focal Point Ludhiana under Sections 392, 397/ 34 IPC and sections 25, 27 of the Arms Act. Their co-accused Tarsem Lal alias Fauji was declared as Proclaimed Offender. The accused were tried and were acquitted. Aggrieved against their acquittal, the State had filed leave to appeal. The same was granted and thus, the present appeal is listed for final hearing and disposal. In the present case, FIR was registered on the statement made by Mohinder Singh. It was stated by him that on the day of occurrence, at about 2.00 p.m., he was coming from the Model Town to his house and when he reached the temple street, then three persons came, who were having pistols in their hands. They stopped him and after Criminal Appeal No. 502-SBA of 1999 showing the pistols, took away his scooter, make ‘Bajaj Chetak’ bearing registration No. PB-10-D-4501. They also threatened the complainant that in case information is given to the police, he will be liquidated. He disclosed the names of the persons, who committed the offence, to be Swaran Singh, Gurmukh Singh and Tarsem Lal, as he had seen them many times. On registration of the FIR, the matter was investigated. Report under Section 173 Cr.P.C. was submitted and accused respondents were charged for offence under Sections 392 and 397 IPC. Mohinder Singh complainant appeared as PW-1 and stated in the Court that three persons, who had muffled their faces, came running and had surrounded him. They snatched away the scooter on pistol point and ran away. He further stated that he is unable to identify those persons as they hurriedly snatched the scooter and ran away. He was declared hostile and was cross-examined by Additional PP. He had not supported the prosecution case and denied having made statement, Ex.PA, on the basis of which FIR was registered. Investigating Officer, SI Harbans Singh appeared as PW-2. He stated that the scooter was taken into possession from the accused vide recovery memo, Ex.PB. However, in cross-examination, he admitted that the place of recovery was a busy place and that no independent witness was associated, although the persons from public were present there. No identification parade of the accused was got conducted. PW-3 Head Constable Jaswant Singh is witness to arrest of the accused, recovery of scooter and the pistol. In cross-examination, he admitted that nakabandi was held at 2.15 p.m. No other scooter was checked before the arrival of the accused. Only above said three witnesses were examined. In his statement under Section 313 Cr.P.C., Swaran Singh denied the 2 Criminal Appeal No. 502-SBA of 1999 prosecution case, which emerged regarding the recovery of scooter from him. He stated that he was innocent and nothing was recovered from him. He was picked from his house by the police. Gurmukh Singh also made a similar statement. Learned trial Court held that the complainant, the only solitary witness, has not proved that any robbery was committed. The trial Court further formulated a view that even if recovery is believed, the Court cannot coin another story of theft against the accused. Taking into consideration that the accused respondents were charged for offences under Sections 392 and 397 IPC and there was no evidence to this effect, accused respondents were acquitted. I have heard counsel for the State. He is unable to state on what basis the charge under Sections 392 and 397 IPC is proved against the accused respondents, especially when the complainant had resiled from his previous statement and in the Court had not deposed anything incriminating. The recovery of the scooter from the accused also depends upon the testimony of PW-2 SI Harbans Singh and PW-3 HC Jaswant Singh. PW-2 Harbans Singh admitted that the place of recovery was a busy place and that no independent witness was joined. PW-3 HC Jaswant Singh, in his cross-examination, admitted that they laid nakabandi and accused were the first persons, whose scooter was searched. The accused were charged for offences under Section 392 and 397 IPC. Except the Investigating Officer and a police witness to the recovery, there is no evidence on the case file. I have perused the judgment of the trial Court. The respondents have been rightly acquitted. There is no material 3 Criminal Appeal No. 502-SBA of 1999 to set aside the judgment of acquittal. The view taken by the trial Court is one view which is possible. Hence, no interference is warranted and the present appeal against acquittal is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE August 4, 2009 rps 4