IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Criminal Appeal No. 189 of 2010 Jasvir Singh S/o Shri Paramjeet Singh Jat Sikha, R/o Village Simra, Police Station Kaimari, District Rampur (U.P.) ……… Appellant (in jail). Versus State of Uttarakhand ……… Respondent. Mr. Lalit Sharma, Advocate, present for the appellant Mr. Hari Om Bhakuni, Brief Holder present for the State alongwith (2) Criminal Appeal No. 127 of 2010 Gurcharan Singh @ Charan Singh @ Pradhan S/o Prem Singh Jatsikh R/o Village Seham, Thana Nakodar, District Jallandhar, Punjab ……… Appellant (in jail). Versus State of Uttarakhand ……… Respondent. Mr. Siddhartha Sah, Advocate, present for the appellant Mr. Hari Om Bhakuni, Brief Holder present for the State and 2 (3) Criminal Jail Appeal No. 46 of 2011 Gurcharan Singh @ Charan Singh @ Pradhan S/o Prem Singh Jatsikh R/o Village Seham, Thana Nakodar, District Jallandhar, Punjab ……… Appellant (in jail). Versus State of Uttarakhand ……… Respondent. Mr. Ghanshyam Joshi, amicus curiae present for the appellant Mr. Hari Om Bhakuni, Brief Holder present for the State Dated: 15.12.2011 HON’BLE PRAFULLA C. PANT, J. These appeals, preferred under Section 374 Code of Criminal Procedure, 1973, are directed against judgment and order dated 26.05.2010, passed by Additional Sessions Judge/1st F.T.C., Udham Singh Nagar in Sessions Trial No. 166 of 2005, whereby appellants, Jasvir Singh and Gurcharan Singh, alongwith three other accused, were convicted under Sections 395, 397 and 412, I.P.C. and each one of the appellants has been sentenced to rigorous imprisonment for a period of 10 years and directed to pay fine of ` 10,000/- under Section 395, I.P.C., rigorous imprisonment for a period of 7 years under Section 397, I.P.C. and rigorous imprisonment for a 3 period of 10 years and directed to pay fine of ` 10,000/- under Section 412, I.P.C. Appellant Gurcharan Singh @ Charan Singh @ Pradhan is also convicted and sentenced to rigorous imprisonment for a period of one year, under Section 417, I.P.C. (Criminal Appeal No. 127 of 2010 and Criminal Jail Appeal No. 46 of 2011 are directed against same judgment, one sent through jail another through counsel). 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution’s story, in brief, is that Dharampal Garg (PW1) was going in his Indica car, bearing Registration No. UA 06 / 5169, from Lakhimpur to Bajpur. At about 11.00 p.m. on 20th March, 2005, when he reached near Chikaghat bridge, a vehicle over took the car of Dharampal Garg (complainant) and a miscreant came down from his car and brandished a country-made pistol on the head of the complainant. The vehicle of the complainant was being driven by Manbodh Kumar (PW2). The miscreant, who brandished the country-made pistol, and his associates looted the complainant of ` 9,000/- cash, a Nokia - 1100 mobile, a gold chain and two earrings of the niece of the complainant, who was also travelling in the car. The miscreants also snatched watch and purse of the driver (Manbodh Kumar). The vehicle, in which the miscreants came, was without number. Dharampal 4 Garg (PW1), after the incident, lodged First Information Report at Police Station Sitarganj on that very day, soon after the incident, against unknown persons. On the basis of the said report, Crime Case No. 244 of 2005 was registered, relating to offences punishable under Sections 395 and 397, I.P.C. The investigation was taken up by Sub Inspector Prakash Chandra Pant (PW 10). The Investigating Officer interrogated the witnesses and inspected the spot. A hunt was made and after encounter miscreants were arrested. The recovery of the looted items was made from the accused–appellants Gurcharan Singh and Jasvir Singh. Some recovery was also made from other co-accused. After completion of the investigation, charge sheet (exhibit A10) was filed against five accused persons. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Criminal Procedure Code, committed the case to the Court of Sessions for trial. Learned trial court, after hearing the parties, on 11.10.2005, framed charge of offences punishable under Sections 395, 397 and 412, I.P.C. against the accused/appellants, who pleaded not guilty and claimed to be tried. Against the accused/appellant Gurcharan Singh @ Charan Singh @ Pradhan, charge of offence punishable under section 420 of I.P.C. was also framed, to which also he pleaded not guilty and claimed to be tried. 5 5. On this, prosecution got examined Dharam Pal (Complainant, PW1), Manbodh Kumar (Eyewitness, PW2), Sub Inspector Sundaram Sharma (PW3), Mahesh Kumar (PW4), Constable Matlub Khan (PW5), Constable Laxman Dutt Joshi (PW6), Constable Dushyant Singh (PW7), Head Constable Narendra Singh Rawat (PW8), Investigating Officer Prakash Chandra Pant (PW10), Boota Singh (PW11) and Harijinder Singh (PW12). 6. Oral and documentary evidence was put to the accused, who pleaded the same to be false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that charge of offences punishable under Sections 395, 397 and 412, IPC are proved against accused Gurcharan Singh and Jasvir Singh. The accused/appellant Gurcharan Singh was also found guilty of charge of offence punishable under Section 417, I.P.C. Each one of the convicts was sentenced to rigorous imprisonment for a period of 10 years and directed to pay fine of `10,000/- under Section 395, I.P.C., rigorous imprisonment for a period of 7 years under Section 397, I.P.C. and rigorous imprisonment for a period of 10 years and directed to pay fine of ` 10,000/- under Section 412, I.P.C. As to the offence punishable under Section 417 I.P.C, accused/appellant Gurcharan Singh was sentenced to rigorous imprisonment for a period of one year. 7. Aggrieved by said judgment and order dated 26.05.2010, passed by the Sessions Judge in Sessions 6 Trial No. 166 of 2005, these appeals are filed by the appellants Jasvir Singh and Gurcharan Singh. 8. Dharampal Garg (PW1) and Manbodh Kumar (PW2) have narrated the prosecution story that on 20.03.2005, at about 11.00 p.m., when they were passing through Chikaghat bridge within the limits of Police Station Sitarganj, in their indica car, bearing Registration No. UA 06 / 5169, an unnumbered vehicle over took them and stopped their car. A miscreant came down from the car and brandished a country- made pistol. The other miscreants also got down from the car and looted the complainant (Dharampal Garg, PW1) and Manbodh Kumar (PW2) of ` 9,000/- cash, a gold chain and Nokia mobile. The witness has further stated that the earrings of niece of Dharampal Garg were also looted. It has also stated that purse and watch of Manbodh Kumar was also snatched. It is further proved by Dharampal (PW1) that he lodged First Information Report at Police Station Sitarganj immediately after the incident. Sub Inspector Sundaram Sharma (PW3) has stated that after the First Information Report was lodged, the police immediately took action and the accused–appellants were intercepted at the wee hours, i.e., 03.45 p.m. on 21.03.2005, and recoveries were made from the accused – appellants and the other three accused of the looted property. 7 9. Mahesh Kumar (PW4) has corroborated the said fact and proved the recoveries memos. The recoveries from the appellants were further corroborated by Constable Matlub Khan (PW5). Hukum Chand (PW8), an independent witness, has affirmed the fact that police had an encounter with the accused – appellants. He has further stated that he heard sound of fires in the wee hours of 21.03.2005 and went towards the place where the police apprehended the accused. 10. Having re-appreciated the entire evidence on record, this Court concurs with the trial court that the charge of offences punishable under Sections 395, 397 and 412, I.P.C. are proved against the accused– appellants. However, as far as offence punishable under Section 417 of I.P.C. is concerned, in the opinion of this Court, the same is not made out on the record. Merely concealing one’s identity without retaining any property or causing delivery of any property does not constitute the offence punishable under Section 417 of the Indian Penal Code. 11. Learned counsel for the appellants submitted that appellants are in jail for last more than 6 years. It is further pleaded that at least the sentence recorded by the trial court be reduced in view of the period spent by the appellants in jail during the trial and during the pendency of this appeal. 8 12. Considering the facts and circumstances of the case, this Court thinks it just and proper to reduce the sentence of imprisonment from 10 years to 7 years under Section 395, I.P.C. and under Section 412, I.P.C. The sentence recorded by the trial court under Section 397, I.P.C. is the minimum sentence provided under law. 13. Accordingly, the appeals stand partly allowed. The appeals are dismissed, so far as they relate to the conviction recorded by the trial court against the accused–appellants, Jasvir Singh and Gurcharan Singh @ Charan Singh @ Pradhan, relating to offences punishable under Sections 395, 397 and 412, I.P.C. However, from the charge of offence punishable under Section 417 I.P.C. the appellant Gurcharan Singh stands acquitted. The sentence awarded by the trial court is reduced to rigorous imprisonment for a period of 7 years under Sections 395 and 412, I.P.C. The sentence awarded by the trial court under Section 397, I.P.C. is not interfered with. The sentences of imprisonment shall run concurrently. The sentence of fine is set aside. With the above modification in the sentence, the appeals stand disposed of. 14. Let a copy of this judgment be sent to the Superintendent of the jail concerned. The period spent by the appellants during trial and during the pendency of this appeal shall be adjusted from the sentence 9 awarded by this Court. Let lower court record be sent back. (Prafulla C. Pant, J.) 15.12.2011 Rajni