IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 136 of 2010 1. Malkeet Singh S/o Amreek Singh Jatsikh Kapurthala (Punjab) 2. Irfan @ Mohd. Irfan S/o Lal Mohammad Gram Navatiya, Kotwali – Milak Rampur (U.P.) 3. Harbhajan Singh @ Kala S/o Mahanga Singh Jatsikh Gram Pavma, Jalandhar (Punjab) ……… Appellants (in jail). Versus State of Uttarakhand ……… Respondent. Mr. Deep Joshi, Advocate for the appellants. Mr. T.C. Agrawal, leanred A.G.A. for the State / respondent. Date of Judgment: 10.06.2011 HON’BLE PRAFULLA C. PANT, J. This appeal, preferred under Section 374, Code of Criminal Procedure, 1973, is directed against judgment and order dated 31.05.2010, passed by Additional Sessions Judge / 1st F.T.C., Udham Singh Nagar in Sessions Trial Nos. 165 of 2005 and 165-A of 2005, whereby appellants, Malkeet Singh, Irfan @ Mohd. Irfan and Harbhajan Singh @ Kala, alongwith two others, were convicted under Sections 395 and 412, I.P.C. and each and 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. and rigorous imprisonment for a period of 10 years and directed to pay fine of ` 10,000/- under Section 412, I.P.C. Except accused – appellant, Irfan @ Mohd. Irfan, other two appellants are also convicted under Section 417, I.P.C. and each one of them has been sentenced to rigorous imprisonment for a period of one year. 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Prosecution’s story, in brief, is that on 18.03.2005, at about 09.15 p.m., complainant Dr. Mahendra Vikram Singh (PW1) alongwith his wife was going in his scooter, bearing Registration No. UP 53 E-7683. When he reached near culvert between Nayagaon and Biseya, a vehicle over took them, from which four persons got down and looted the complainant (PW1) and his wife by brandishing country-made pistol. A mobile phone No. 9412352163, cash of ` 1500/-, ATM card and driving licence were looted from the complainant. The earrings and mangal sutra (gold chain) was looted from the wife of the complainant. The complainant and his wife could see the faces of the accused with the headlight of the scooter. Immediately after the incident, Dr. Mahendra Vikram Singh (PW1) lodged First Information Report at Police Station Sitarganj (exhibit A –1). On the basis of said report, Crime Case No. 236 of 2005 was registered against four unknown persons, relating to offences punishable under Section 392, I.P.C. The investigation was taken up by Station House Officer, Prakash Chandra Pant (PW11), who immediately went to the spot and inspected the same and interrogated the witnesses. 4. On 22.05.2005, recovery in respect of the looted property was made from the accused – appellants, after their arrest on 21.05.2005, and recovery memos were prepared. After completion of investigation, charge sheet (Exhibit A – 9) was filed by the Investigating Officer against the accused – appellants and two others, relating to offences punishable under Sections 395, 412 and 420, I.P.C. 5. The Additional Judicial Magistrate, after giving necessary copies to the accused as required under Section 207, Cr.P.C., committed the case to the Court of Sessions for trial. The trial court, after hearing the parties, on 11.10.2005, framed charge of offences punishable under Sections 395 and 412, I.P.C. against the accused – appellants and other two accused, who pleaded not guilty and claimed to be tried. On this, prosecution got examined complainant - Dr. Mahendra Vikram Singh (PW1), Sundaram Sharma (Witness of recovery, PW2), Mahesh Kumar (another witness of recovery, PW3), Constable Matlub Khan (also a witness of recovery, PW4), Constable Laxman Dutt Joshi (PW5), Constable Dushyant Singh 3 (PW6), Constable Ashok Kandpal (PW7), Hukum Chand (witness of encounter with the police, PW8), Dharam Pal (PW9) Manbodh Kumar (PW10), Investigating Officer Prakash Chandra Pant (PW11), Sub Inspector K.R. Pandey (PW12), Boota Singh (PW13) and Harjinder Singh (PW14). 6. Oral and documentary evidences were 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 all the five accused, including the three appellants, Malkeet Singh, Irfan @ Mohd. Irfan and Harbhajan Singh @ Kala, guilty of charge of offences punishable under Sections 395 and 412, I.P.C. Except accused Irfan @ Mohd. Irfan, others were also found guilty of charge of offences punishable under Section 417, I.P.C. After hearing the sentence, each one of the convicts was sentenced rigorous imprisonment for a period of 10 years and directed to pay fine of ` 10,000/- on each count, i.e., under Section 395 and under Section 412, I.P.C. Under Section 417, I.P.C., each one of the two appellants, Malkeet Singh and Harbhajan Singh @ Kala, was sentenced to rigorous imprisonment for a period of one year. 7. Aggrieved by said judgment and order dated 31.05.2010, passed by the Additional Sessions Judge / 1st F.T.C., Udham Singh Nagar in Sessions Trial Nos. 165 of 2005 and 165 –A of 2005, this appeal is preferred by the convicts. 8. Dr. Mahendra Vikram Singh (PW1) has stated that on 18.03.2005, at about 09.15 p.m., he was going on a scooter with his wife and two children. When he reached near culvert between Nayagaon and Biseya, a vehicle over took his scooter, from which four persons got down from the vehicle and by pointing country-made pistol, looted him and his wife. The witness has further stated that his mobile phone No. 9412352163 and purse containing cash of ` 1500/-, an ATM card and driving licence were looted. The witness has further stated that two earrings and two mangal sutras (gold chains) of his wife were also looted. PW1 has further stated that he could see faces of the miscreants in the headlight of the scooter. 4 The witness has further disclosed that he lodged the First Information Report (Exhibit A –1) at the Police Station Sitarganj. PW1 has further stated that on 21.03.2005, he came to know that certain robbers are apprehended by the police and recoveries were made from them, whereafter he went there and identified the accused – appellants. 9. Sundaram Sharma, Sub Inspector, (PW2) has stated that after the incident of robberies on 18.03.2005 and 20.03.2005, the police party intercepted the miscreants, who were running in an indica car, after looting the vehicle of Dharampal Singh (PW9). The witness has narrated the encounter, which took place with the accused – appellants and recoveries made from them. Mahesh Kumar (PW3), Constable Matlub Khan (PW4) and Constable Laxman Dutt Joshi (PW5) have corroborated the said fact of encounter with the police and the recoveries. Dharampal (PW9) has stated about the robbery on 20.03.2005, in respect of which separate crime was registered. Hukum Chand (PW8) has affirmed the incident of encounter in the wee hours of 21.03.2005. 10. Having re-appreciated the entire evidence on record and after going through the papers on record, this Court concurs with the view taken by the trial court that prosecution has successfully proved charge of offences punishable under Sections 395 and 412, I.P.C. However, as to the offence punishable under Section 417, I.P.C., this Court is of the view that mere concealing the real name by the accused itself does not constitute offence of cheating. As such, the appellants should not have been convicted under Section 417, I.P.C. 11. Learned counsel for the appellants argued that the appellants are in jail for last more than 6 years during the trial and pendency of this appeal and at least the sentence recorded against them should be reduced to the period already undergone. 12. Considering the facts and circumstances of the case, this Court is of the view that this appeal deserves to be allowed partly. The conviction as recorded by the trial court under Section 395 and Section 412, I.P.C. does 5 not require any interference. The conviction recorded under Section 417, I.P.C. is not made out and appellants are entitled to acquittal from the said charge. On the point of sentence, this Court is of the view that rigorous imprisonment for a period of 7 years under Sections 395, I.P.C. and same period under Section 412, I.P.C. would meet the ends of justice. 13. Accordingly, the appeal is partly allowed. The conviction of the appellants under Sections 395 and 412, I.P.C. is affirmed. However, they are acquitted of the charge of offence punishable under Section 417, I.P.C. Each of the convicts / appellants, namely, Malkeet Singh, Irfan @ Mohd. Irfan and Harbhajan Singh @ Kala, are sentenced to rigorous imprisonment for a period of 7 years on each count, i.e., under Sections 395 and 412, I.P.C. Both sentences shall run concurrently. Sentence of fine is set aside. 14. With the above modification in the sentence, the appeal stands partly allowed in respect thereof. 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 awarded by this Court. Let lower court record be sent back. (Prafulla C. Pant, J.) 10.06.2011 Amit