Criminal Revision No. 712 of 2004 · Punjab And Haryana High Court · 2010

CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.G.P.S.Bal, Advocate with Mr.K.G.Chaudhary, Advocate, for the petitioners. Mr.J.S.Rattu, Deputy Advocate General, Haryana, for the respondent-State. ***** A.N.JINDAL, J: This judgment shall dispose of aforesaid two connected petitions, preferred by the accused-petitioners (herein referred as 'the accused') against the judgment dated 09.03.2004, passed by Additional Sessions Judge, Kaithal. Vide judgment dated 14.12.2001/03.01.2002, passed by the trial Court, the accused were convicted and slapped with the sentence of two years and to pay a fine of Rs.1,000/- under Section 394 IPC. However, the appeal, preferred by them was dismissed on 09.03.2004. In brief, the facts are that the complainant Gurmeet Singh (PW4) was working as a driver on a Maruti Car bearing registration No.HR- Criminal Revision No.712 of 2004 2 29-B-9500, owned by Rajinder Kumar, Lambardar, resident of Pehowa. On

03.02.1995, at about 6:00 p.m. when he was present at Pehowa Chowk, the accused unknown to him, who were wearing pent-shirt and khakhi jackets, came there and hired the car of the complainant @ Rs.200/-. At about 6:30 p.m., they proceeded from Pehowa to Peedal. When they reached the destination, then on the request of the accused to proceed further, the complainant took them further at a kacha passage in the area of village Balbehra. Thereafter, one of the boys, wearing khaki jacket, asked the complainant to stop the car. At this, when he stopped the car, one of the boys opened the door of the car and dragged the complainant. In the meantime, the other boy alighted from the car and inflicted fist blows to him and injured him on his neck, eyes and other parts of the body. After throwing him in water channel, they escaped with the said car. After sometime, he stood up and went to the farm-house of Joginder Singh and narrated him about the incident. Then Balbir Singh, Lambardar and Pritam Singh came to the police station Cheeka where the complainant recorded his statement, on the basis of which FIR was registered on the same day at 9:25 p.m. Thereafter, he was medico legally examined. On 02.03.1995, Padam Parkash, Inspector, CIA, apprehended the car involved in the case, which was being driven by Jitender Singh whereas the accused Sukhwinder Singh was sitting by his side. Both were arrested and the car was taken into possession vide memo Ex.PB. He also recorded the statements of witnesses and prepared the rough site plan of the place of occurrence. On completion of investigation, challan against the accused was presented in the Court. Criminal Revision No.712 of 2004 3 They were charged for the aforesaid offence to which they pleaded not guilty and opted to contest. The prosecution, in order to substantiate the charges, examined Balbir Singh (PW1), Pritam Singh (PW2), Dr.Usha Dogra (PW3), complainant Gurmeet Singh (PW4), Inspector Khazan Singh (PW5), Padam Parkash, Investigating Officer (PW6) and Rajinder Kumar (PW7). When examined under Section 313 Cr.P.C., both the accused denied all the allegations and pleaded their false implication. The trial resulted into conviction. Their appeal also failed. Arguments heard. Record perused. Dr.Usha Dogra (PW3), while appearing in the witness box, has described the injuries on the person of Gurmeet Singh, while testifying that he was having eight injuries on his person and duration of the injuries was six hours. She proved the MLR Ex.PW3/A. This testimony of Dr.Usha Dogra (PW3) stands corroborated by complainant Gurmeet Singh (PW4), who states that the accused had beaten him and threw him in the water channel. Since it was evening time when the accused had taken the injured at a secluded place, therefore, no question of independent corroboration could arise. In order to establish the offence under Section 394 IPC, I am left with the statement of complainant Gurmeet Singh (PW4). He, while appearing in the witness box, has stated that the person, wearing khaki jacket, asked him to stop the car. Then one of them put a string around his neck and dragged him outside. He also pushed him on the ground and inflicted injuries. From above, it appears that though, this witness has been able to describe the incident yet he has not stated as to what the specific part, played by which individual accused. Criminal Revision No.712 of 2004 4 As regards the identity, complainant has stated that 'the accused are present in the Court', which is hardly sufficient to prove that these were the accused persons who had committed robbery upon him. The essential ingredients of Section 394 IPC are reproduced as under:-

1. There should be an attempt to commit robbery;

2. In committing robbery voluntarily hurt;

3. That he did so voluntarily. No doubt, complainant Gurmeet Singh (PW4) has stated that one of the accused caused hurt but in the absence of specific mention made by the accused, it is very difficult to pin point as to which of the accused caused hurt. No test identification was got conducted. As such, in the absence of cogent evidence, it would be difficult to indict the accused for the offence under Section 394 IPC. However, for the mere reason that he has not pointed out the specific role as played by the accused, the prosecution has failed to prove the offence of robbery, yet it is duly established on the record that the said car was stolen property and was recovered from the accused Jitender Singh. Inspector Balwan Singh while appearing as PW5, has stated that on 02.03.1995 when he was holding a picket, at about 4:30 p.m., the accused Jitender Kumar, while driving the car in question came from Kaithal side whereas Sukhwinder Singh was sitting by him. They were apprehended and the car was recovered from them vide recovery memo Ex.PB. Padam Parkash, Inspector CIA (PW6) has also corroborated this fact. The accused have also not claimed the ownership over the car. Again the question arises whether accused Sukhwinder Singh could be said to be identically guilty if he was found sitting along side the accused Jitender Singh in the car. In this regard, it may be observed that Criminal Revision No.712 of 2004 5 neither the Investigating Officer nor any other witness has stated anything if the accused Sukhwinder Singh tried to run away or he did any overt act with regard to car. Under these circumstances, he could be said to have taken lift with Jitender Singh. In the absence of any evidence that he had participated in the commission of crime with Jitender Singh, his complicity in the commission of crime cannot be said to be proved beyond reasonable doubt. As an upshot of the aforesaid discussion, the petition, preferred by Sukhwinder Singh is accepted; impugned judgment qua him is set aside and he is acquitted of the charges framed against him. He is directed to be set at liberty forthwith. Fine, if any deposited, be refunded. However, the petition preferred by Jitender Singh is dismissed. Copy of the judgment be sent to Chief Judicial Magistrate, Kaithal, for compliance.

12.11.2010 mamta-II (A.N.Jindal) Judge