STATE OF HARYANA v.

UTT AM ALIAS CHEAKU . r

APRIL 21, 1987

[A.P. SEN AND V. BALAKRISHNA ERADI, JJ.]

Indian Penal Code, 1860--Section 395-Highway robbery-Case >-- . of-Accused convicted-Trial Court judgment well reasoned and consi- / dered-Based on testimony of victims-High Court in appeal-Rejecting trial court judgment without proper consideration and discussion- ~

Accused acquitted-Supreme Court in appeal by State-Setting aside ' c High Court Judgment-Restoring conviction and sentence on accused- Necessity for seriousness and care to be bestowed in such cases- Pointed out. f-

The respondent, along with three others, was tried for offences D under sections 395, 397 and 412 of the Indian Penal Code. The prosecution alleged that the respondent had deliberately dashed his car against the car of P. W. Son the Delhi-Jaipur Road, while the latter was travelling to Jaipur alongwith his wife, PW 6 and daughter. Five persons, two or three of them armed with revolvers and others with daggers came out of the respondent's car. One of them gave a couple of knife blows in the 'f E chest of PW S, and anqther, who was armed with a pistol, fired shots In

the air and scared away drivers of some trucks who were passing along - that road and tried to come to the aid of PW S who was crying out for help. One of the assailants removed the ear rings, necklace and wrist watch from the person of PW 6, and in that process, one of her ear lobes

~~ was cut as under. The wrist watch and purse of PW S and three attache F cases on the luggage carrier of his car were also forcibly removed and taken away. Before the culprits left the spot in their car with all the booty, a shot was fired by one of them which hit PW S on the forehead.

PW S somehow managed to drive back his car to Gurgaon and narrated the whole incident to his partner and thereafter he and his wife were medically examined and treated at Gurgaon Civil Hospital, for the G various injuries that were found on them. Thereafter an F.I.R. was lodged with the Gurgaon Police. The accused were arrested after a ..,...-, fairly long delay and two test identification parades were held, one separately for the respondent-accused at his request and other for the remaining suspects. The respondent was identified hy the victims. On

H the basis of the information furnished by the accused some of the artides of the victims were recovered.

STATE OF HARYANA v. UTIAM 1065

The trial court held that the charge against the respondent under A -1 section 395 I.P.C. was proved beyond all reasonable doubt and convicted and sentenced him to undergo rigorous imprisonment for four years. The other three accused were acquitted on the ground that.their participation in the crime was not sufficiently proved and hence they were entitled to the benefit of doubt.

The High Court, however, allowed the appeal of the respondent B

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. by extending the benefit of doubt to him and set aside his conviction and sentence.

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Allowing the State's appeal by Special leave.

HELD: 1. A case of highway robbery, such as this, should have been dealt with much more seriousness and care than has been bestoc

wed on it by the High Court. Its approach to the case and the conclusion recorded by it cannot but be characterised as manifestly illegal and perverse. The trial court has rightly concluded that from the evidence of the victims the participation of the respondent in the commission of the offence had been proved beyond all doubt. [ 1069B-C] D

2.1 The High Court, by a most perfunctory judgment, set aside the judgment of the trial court, insofar as the trial court had convicted the respondent herein, and acquitted him. It has dealt with the case in a

-~ very superficial and casual manner and has not even taken care to discuss the evidence adduced in the case, before it proceeded to in- E --

terfere with the well considered judgment of the trial court. [I068G-H]

2.2. The trial court after an elaborate and analytical discussion of

~ the whole evidence recorded the conclusion that the participation of the respondent in the commission of the crime was established beyond all

doubt inasmuch as he had been identified by the both the victims, and their testimony narrating the details of the incident of robbery and F

assault was not shaken in cross-examination and deserved to be accepted as wholly truthful. [10680-E]

2 .3 Both the victims, PW 5 and 6, had clearly identified the respondent at the test identification parade as well as in the court and they had clearly and unequivocally desposed that -he was one of the G ----, assailants who took part in the robbery and assault. The trial court has given sound and convincing reasons for accepting and acting upon their testimony. The High Court has, however, not discussed in its judgment as to why it considered that the testimony of the victims of the crime could not be accepted and why it could not form the foundation for the conviction of the respondent. [I068H; 1069A-B] H

3. The judgment of the High Court is set aside and that of the trial court convicting the respondent under section 395 of the Indian )..

Penal Code and sentencing him to undergo rigorous imprisonment of four years is restored. Necessity for awarding severe purishment in such cases of proven highway robbery stressed. [1069F]

B CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 559of1983.

From the Judgment and Order dated 7. l.1982 of the Punjab and Haryana High Court in Cr!. Appeal No. 537 (SB) of 1980.

C Harbans Lal, LS. Goel and K. Chaudhri for the Appellant.

Govind Mukhoty (Amicus Curiae) for the Respondent.

The Judgment of the Court was delivered by

D BALAKRISHNA ERADI, J. Uttam alias Cheaku, the respondent-herein along with three others was tried by the learned Additional Sessions Judge, Gurgaon for alleged commission of offences under Sections 395, 397 and 412 of the Indian Penal Code. By judgment dated July 21, 1980, the learned Additional Sessions Judge held that the charge against Uttam under Section 395 I.P.C. was _proved E beyond all reasonable doubt and he was accordingly convicted and sentenced to undergo rigorous imprisonment for four years. The other three accused were acquitted on the ground that their participation in the crime was not sufficiently proved and hence they were entitled to the benefit of doubt. The respondent carried the matter in appeal to the High Court of Punjab and Haryana. The High Court by its F impugned judgment dated January 7, 1982 allowed the said appeal, extending the benefit of doubt to the respondent, and set aside his conviction and sentence. The State of Haryana has come up to this Court with this appeal against the said order of acquittal after obtaining Special leave from this Court.

G Briefly stated, the prosecution case ii; that on October 24, 1978,

Om Parkash (P.W. 5) accompanied by his wife Jai Rani (P.W. 6) and ',-- their daughter Nee lam left Delhi in the early hours of the morning for Jaipur by car. Om Park ash and his wife Jai Rani were in the front seat of the vehicle while their daughter was occupying the rear seat. When their car had reached about 10-12 Kms. beyond Gurgaon on the Delhi- H Jaipur Road, another car bearing registration No. DEA-2914 came

STATE OF HARYANA v. UITAM (ERADI, J.l 1067

from behind and attempted to overtake their vehicle. Even though Om A Parkash had made way for the other car to pass, that car deliberately swerved to the left side and stn1ck against the front wheel of his car, whereupon Om Parkash stopped his car on the left side of the road in the kacha portion. In the meantime, the other car also stopped at a distance of about ten paces ahead and five persons Glime out of that vehicle. It is stated that two or three out of them were armed with B revolvers and others with daggers. Om Parkash got out of the vehicle _J and asked the assailants as to why they had caused the accident. In the ' meantime, Jai Rani also came out of the car. One of the assailants then t

gave a couple of knife blows in the chest of Om Parkash, whereupon he tried to raise an alarm. Hearing the said cry for help, some trucks which were passing along that road tried to stop but one of the assailc ants who was armed with a pistol, fired shots in the air and scared away

~ those truck drivers. Thereafter one of the !lssailants removed the ear rings, necklace and wrist watch from the person of Jai Rani and in that process one of her ear lobes was cut as under. The wrist watch and purse of Om Parkash were also removed by one of the culprits. Apart from that, three attache cases which were on the luggage carrier bf the D car were also forcibly removed and taken away by the miscreants.

Before the culprits left the spot in their car with all the booty, a shot was fired by one of them which hit Om Parkash on his forehead. After

inflicting the said injury, the miscreants made good their escape.

Om Parkash somehow managed to drive back his car to Gurgaon E

~ and there he contacted his partner Joginder Singh (P. W. 7) to whom he narrated the whole incident. Om Parkash was immediately taken to

Civil Hospital, Gurgaon where he was medically examined and various injuries were found on his person. Jai Rani also medically examined and the injury on her right ear lobe was declared to be grievous. The ]I other injuries were found to be simple for which she was given first F aid. The first information report was thereafter lodged with the police by Om Parkash and Sub-Inspector Tilak Raj (P.W. 21) carried out the investigation. He recovered empty cartridge cases (Exhibits P. 15 and P. 16), one wad (Exhibit P. 17) and one Ball Point Pen (Exhibit P. 18) from the place of occurrence. During the investigation it was found that the car used by the culprits had been stolen on October 23, 1973 G --{ from the house of its owner, one S.K. Mahajan. Subsequently, on October 27, 1978, the car was found lying abandoned in the Ghaziabad factory area and it was taken into police custody.

The accused were arrested after a fairly long delay since it so H happened that subsequent to the occurrence in question the accuse.d

A. persons had been allegedly involved in the commission of other crimes in the State of Uttar Pradesh and they were lodged in the Meerut jail.

After the accused were brought from Meerut, two test identification parades were held, one separately for Uttam at his request and the other for the remaining suspects. In the first parade, Uttam was correctly identified by both Om Parkash and Jai Rani. In the second B identification parade, Om Parkash failed to identify any of the other accused whereas Jai Rani identified Triloli'Singh, who was accused No. 2. On the basis of the information furnished by the accused the Investigating Officer and the police party led by him recovered some of the articles which formed the contents of the suit"cases removed from the car of the victims. They consisted of new suit length cloths, C sarees, trousers, blouses, petticoats etc.

The Prosecution examined in all 22 witnesse~ in its endeavour to establish the guilt of the accused in relation to the the charges framed against them. The learned Additional Sessions Judge after an elaborate and analytical discussion of the whole evidence recorded the con- . n clusion that the participation of the respondent-Uttam in the commission of the crime was established beyond all doubt inasmuch as he had been identified by both Om Parkash (P.W. 5) and Jai Rani (P.W. 6), and the testimony given by these two witnesses narrating the details of the incident of robbery and assault was not in any manner shaken in cross-examination and deserved to be accepted as wh.olly truthful. The E remaining three accused were given the benefit of doubt mainly on the ground that excepting the second accused who had been identified only by Jai .Rani at the identification parade, the others were not identified either by Jai Rani or by Om Parkash and hence there was no satisfactory proof of their participation in the crime. In the light of the aforesaid conclusion reached by him, the learned Additional Sessions F Judge convicted the respondent-Uttam under Section 395 I.P.C. and sentenced him to undergo rigorous imprisonment of four years.

The High Court by a judgment which we are constrained to characte.ise as most perfunctory has set aside the judgment of the learned Additional Sessions Judge in so far as he was convicted the G respondent-herein and acquitted him. We regret to have to remark

that the High Court has dealt with the case in a very superficial and ycasual manner and has not even taken to trouble to discuss the evidence adduced in the case before it proceeded to interfere with the well considered judgment of the trial court. Both Om Parkash (P.W.

5) and Jai Rani (P.W. 6) had clearly identified the respondent at H the test identification parade as well as in the Courl and they had

STATE OF HARYANA v. UTIAM [ERADI, J.! • 1069

clearly and unequivocally deposed that he was one of the assailants A "-1 who took part in the robbery and assault. Their testimony has been discussed at length by the learned Additional Sessions Judge and he has given sound and convincing reasons for accepting and acting upon the same. The whole discussion of the case by the High Court is contained in one short paragraph of its judgment namely, paragraph 6. It B is not disclosed anywhere therein as to why the High Court considered

_...\ that the testimony of these two witnesses who were the victims of the crime could not be accepted and why it could not form the foundation

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for the conviction of the respondent. A case of highway robbery, such as this, should have been dealt with much more seriousness and care ' than has been bestowed on it by the High Court. The approach of the lfigh Court to the case and the conclusion recorded by it cannot but be c

characterised as manifestly illegal and perverse.

In the absence of any discussion of the evidence by the High Court, we have ourselves gone through the entire evidence adduced in the case with the assistance of the Counsel appearing in both sides. We .D are in complete agreement with the conclusion recorded by the learned Additional Sessions Judge that from the evidence of Om Parkash (P.W. 5) and Jai Rani (P.W. 6), the participation of the accused in the commission of the offence has been proved beyond all reasonable

-~- doubt. The respondent was, therefore, rightly convicted by the learned Additional Sessions Judge and the only mistake committed by E the learned Additional Sessions Judge was in not in awarding a more severe sentence commensurate with the gravity of the offence.

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In the result, we allow the appeal, set aside the judgment of the High Court and restore that of the learned Additional Sessions Judge

--1 convicting the respondent under Section 395 I.P.C. and sentencinf him to undergo rigorous imprisonment of four years. The Bail Bond o F

the respondent will stand cancelled. He shall be taken into custody forthwith to serve out the remaining portion of the sentence.

N.P.V.

Appeal allowed.

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