IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision 3291 of 2009 Date of decision: 13.1.2010 Surjit Singh …Petitioner Versus State of Punjab …Respondent Present: Mr SS Rangi, Advocate for the petitioner. S.S. SARON, J. This revision petition has been filed against the order dated 21.11.2009 (P1) passed by the learned Additional Sessions Judge, Hoshiarpur, whereby the appeal of the petitioner – Surjit Singh filed against the judgment and order dated 8.8.2005 (P3) passed by the learned JMIC Dasuya has been dismissed. The petitioner was convicted by the learned trial Magistrate for the offence under Sections 392/34 IPC and was sentenced to RI for 2 years, besides pay a fine of Rs 500/- and in default of payment of fine, to undergo further imprisonment of one month. The learned Additional Sessions Judge, in appeal, however, convicted the petitioner for the offences under Sections 384/34 IPC and reduced the sentence from 2 years RI to one year RI; besides pay a fine of Rs 500/- and in default of payment of fine, to undergo RI for one month. Aggrieved against the same, the petitioner has filed the present petition. The case of the prosecution is that on 19.6.1998, Inspector Gian Singh along with other Police officials was present at the Thana 1 Criminal Revision 3291 of 2009 Chowk in connection with arrangement of duty at the Mela Baba Buta Bhagat, Thana Chowk. While the Police officials were present, Gurbachan Singh – complainant who is a retired Subedar from the Army, made a statement to the effect that he had a Bank Account with the Punajb National Bank, Tanda and on 19.6.1998 at about 12.15 p.m., he withdrew Rs 30,000/- from his account. He was returning to his house on his bicycle along with Ajit Singh. While riding the bicycle, the bag (Jhola) was tied with the handle of the cycle. At about 12.30 p.m., when they reached near Shimla Pahari, then 2 young Sikh men on scooter came from behind and stopped the scooter ahead of the complainant. The person sitting on the rear seat was about 45 years and 5’6-1/2” in height. He was wearing a shirt and a pant. On alighting from the scooter, he pulled out a 12 bore pistol from his ‘dub’ (front of the pant) and put the same on the chest of the complainant and stated that if he raised any hue and cry, he would be killed. With the left hand, he removed the bag (Jhola) from the handle of the cycle which contained Rs 30,000/- that had been withdrawn from the bank. The second peson aged 35 yars and 5’7/8” in height kept the scooter No. PB 08 J 2946 in motion and asked the other person – Tarsem Singh to sit on the scooter immediately so that there is no noise. Then both the accused went away with the amount towards Ahiyapur. The IO read over the statement to the accused-complainant who signed the same in token of its correctness. On the basis of the same, FIR was registered. The IO arrested accused – Tarsem Singh on 20.6.1998 in case FIR 135/98 and Surjit Singh succeeded in fleeing away. During investigation, accused – Tarsem Singh made a disclosure statement that on 19.6.1998, he along with Surjit Singh robbed Rs 30,000/- on scooter No. PB 08J 2946. The petitioner was apprehended on 23.6.1998 and from the boot of his scooter, an amount of Rs 30,000/- 2 Criminal Revision 3291 of 2009 was recovered vide a separate memo. The learned trial Magistrate, after considering the evidence and material on record, as already noticed, convicted the appellant for the offence under Sections 392/34 IPC and sentenced him to RI for 2 years; besides a fine of Rs 500/- and in default of payment of fine, to undergo further imprisonment for one month. In appeal, the learned Additional Sessions Judge has, however, convicted the petitioner for the offence under Section 384 IPC and reduced the sentence to one year. Learned counsel for the petitioner has contended that the petitioner and his co-accused – Tarsem Singh were implicated falsely as both of them are Carpenters and they were doing the work of Carpentry in the house of Mohinder Singh son of complainant – Gurbachan Singh. When the petitioner and Tarsem Singh demanded the wages, then Mohinder Singh refused to pay the same. Therefore, the complainant made a false complaint before the Police against the accused. It is also submitted that the application under Section 391 CrPC for leading additional evidence in defence that was filed before the learned Sessions Judge has not been considered. It is submitted that in fact the recovery was effected in the case FIR 135 dated 20.6.1998 for the offence under Section 25 of the Arms Act registered at PS Tanda. In this manner, in two cases, an amount of Rs 50,000/- was recovered whereas records of the Malkhana of the Police Station where the amount was deposited, does not tally with the total amount recovered. Besides, Register No.19 of 1998 was an important record which inadvertently could not be produced before the trial Court in defence. I have given my thoughtful consideration to the contentions of the learned counsel and perused the record which has been requisitioned. 3 Criminal Revision 3291 of 2009 After considering the contentions and perusing the record, I find no merit in the same. The case of the prosecution has been proved by the evidence and material on record. The withdrawal of the amount of Rs 30,000/- from the Bank has been proved by Gurbachan Singh who is a retired Subedar from the Army and aged about 70 years. Besides, the recovery of the amount has been effected from the boot of the scooter of the petitioner vide recovery memo Ex PC. The contention of the learned counsel that the petitioner was carrying out the work of Carpentry in the house of Mohinder Singh son of complainant – Gurbachan Singh, is not the stand taken by him in his statement under Section 313 CrPC. The learned trial Magistrate in her order dated 8.8.2005 (P3) has considered this aspect and no substance was found in the same because no witness has been examined by the accused in defence, to prove that they have worked in the house of Mohinder Singh as Carpenters. Moreover, it was observed that a perusal of the statement under Section 313 CrPC showed that in defence they had only stated that they were innocent and the story of the prosecution was incorrect. No specific plea had been taken by the accused in this regard. Moreover, no enmity had been alleged by the accused with the Police officials. In the cross-examination of Gurbachan Singh while appearing as PW3, a suggestion in this regard was put to him. A perusal of the suggestion that was put shows that it was denied whether Tarsem Singh does the work of a Mason It was also stated that he did not know as to whether the work had been done of a Mason in the house of Mohinder Singh. Therefore, it may be noticed that the suggestion put to Gurbachan Singh was that Tarsem Singh was doing the work of a Mason in the house of Mohinder Singh son of complainant – Gurbachan Singh whereas during the course of arguments 4 Criminal Revision 3291 of 2009 before the learned trial Magistrate, it was argued that they were working as Carpenters. In the circumstances, the plea that payment was due from Mohinder Singh on account of which the false case has been registered stands falsified inasmuch as the suggestion put to Gurbachan Singh – complainant was that Tarsem Singh – co-accused (non-petitioner) was doing the work of a Mason in the house of Mohiner Singh whereas during the course of arguments, it was contended that they both were Carpenters, which has rightly been not accepted by the learned trial Magistrate. The other contention that the application (P4) has not been considered, is also devoid of merit. The petitioner has not placed a copy of Register No.19 or any recovery memo of case FIR 135 dated 26.6.1998 in which the sum of Rs 30,000/- is stated to have been recovered. In the present case, the recovery memo (Ex PC) is on record which has been proved by the prosecution that the recovery was effected from the boot of the scooter of the petitioner in the presence of the witnesses. It is not even put to any of the witnesses that another sum of Rs 30,000/- had been recovered in case FIR 135 registered at PS Tanda for the offence under Section 25 of the Arms Act. The recovery memo in the said case has not been produced or shown to have been attached with the application under Section 391 CrPC for leading additional evidence. The recovery memo (Ex PC) in the present case shows that the recovery has been effected in the presence of ASI Suridnerpal Singh, HC Kewal Krishan by Gian Singh SHO of PS Tanda on 23.6.1998. Therefore, the other contention is also devoid of merit. Learned counsel for the petitioner has lastly contended that the IO in the case has not been examined. The same in my view is of no significance as the prosecution has proved its case on the basis of deposition made by Gurbachan Singh – complainant and he has no reason to falsely implicate 5 Criminal Revision 3291 of 2009 the petitioner. Besides, the amount that was robbed was recovered from Surjit Singh – petitioner. Keeping in view the aforesaid facts and circumstances of the case, there is no merit in this case and the same is accordingly dismissed. 13.1.2010. ( S.S.SARON ) ASR JUDGE 6