Surender And Others vs State Of Haryana

CRA-S-56-SB-2008 1
325
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-56-SB-2008
Surender and others ...Appellants
Vs.
State of Haryana ...Respondents
1. Date when Order was reserved 10.08.2026
2. Date of Pronouncement of Order 05.11.2026
3. Date of uploading order 12.11.2026
4. Whether operative part or full FULL
order is pronounced
5. Delay, if any, in pronouncing of Not Applicable
full order, and reasons thereof
CORAM: HON’BLE MR. JUSTICE DEEPAK MANCHANDA
Present: Mr. Kanisth Ganeriwala, Advocate (Amicus Curiae)
for the appellants.
Ms. Shaveta Sanghi, DAG, Haryana.
*
DEEPAK MANCHANDA , J.
The present appeal has been preferred against judgment and order
of sentence dated 21.12.2007 passed by learned Sessions Judge, Gurgaon
whereby appellants were convicted under Sections 411 IPC and were sentenced
to undergo rigorous imprisonment for a period of three years and fine of
Rs.20,000/- each and in case of default of payment of fine, to further undergo
rigorous imprisonment for a period of six months.
2. The facts in brief emanating from the pleadings are that on
16.11.2005, at about 3:30/4 a.m., 7-8 persons (including accused, Bhole and
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CRA-S-56-SB-2008 2
Raju) committed dacoity at the premises of M/s Sigma Industries, Plot No.769,
Phase-V, Udyog Vihar, Gurgaon. They confined company helpers-Virender,
Suresh and Inder Sahu in a room and tied up security guard-Partap Singh and
loaded brass material into two three wheelers and fled. Guard Partap Singh
untied himself, released the helpers after which Virender informed the Chief
Executive of the Company, Sanjeev Mehra, who subsequently lodged a FIR.
On 19.11.2005, accused-Raj Kumar, Devinder, Deepak, Surender and Lokesh
were arrested and the alleged looted brass articles were recovered pursuant to
their disclosure statements. On 25.11.2005, accused Bhole @ Vikram and
Vicky @ Sunil were arrested.
3. Thereafter, during trial, the prosecution examined as many as 12
witnesses in support of its case, namely, ASI Nahar Singh as PW-1, ASI Hawa
Singh as PW-2, SI Daya Nand as PW-3, Draftsman Sarwan Kumar as PW-4,
Constable Kuldeep Singh as PW-5, Suresh as PW-6, Virender as PW-7, Inder
Kumar Sahu as PW-8, Sanjeev Mehra as PW-9, Inspector Shamsher Singh as
PW-10, Constable Naresh Kumar as PW-11 and SI (retired) Chand Singh as
PW-12. Subsequently, the learned Public Prosecutor closed the prosecution
evidence.
4. Thereafter, the statements of the accused were recorded under
Section 313 Cr.P.C., wherein all the incriminating circumstances appearing
against them in the prosecution evidence were put to them. The accused denied
the allegations levelled against them and pleaded false implication in the present
case. In their defence, they did not lead any evidence and the accused closed
their defence evidence.
5. Upon conclusion of the trial, the learned Trial Court, vide
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CRA-S-56-SB-2008 3
judgment dated 21.12.2007 held that prosecution has failed to prove the charge
under Section 395 IPC. Thus, the Court convicted the accused for offence
punishable under Section 411 of the Indian Penal Code, 1860 as the looted
brass articles have been stated to be recovered pursuant to the disclosure
statements of the accused.
6. Aggrieved by the aforesaid judgment of conviction, the appellants
have preferred the present appeal, challenging the findings recorded by the
learned trial Court and seeking their acquittal.
7. Learned counsel for the appellants submits that the learned trial
Court failed to appreciate that the prosecution evidence itself does not establish
the involvement of the present appellants in the alleged offence. Learned
counsel contends that the trial Court rightly found that no offence of dacoity
was committed, therefore, the basic factum of theft or dacoity was not legally
established against the appellants, thus, consequential charge under Section
411 IPC cannot stand. Learned counsel further contends that none of the
independent or official witnesses supported the prosecution version and were
declared hostile as nothing incriminating was extracted from their cross
examinations.
8. After arguing for some time, learned counsel for the appellants
submits that, out of the substantive sentence awarded, the appellants have
already undergone incarceration for a period of 02 years and one month, and
have remained on bail pursuant to the order passed by this Court suspending
the sentence during the pendency of the present appeal. It is further submitted,
on instructions, that having regard to the nature of the offence and the
appellant’s clean antecedents, this Court may, while maintaining the
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CRA-S-56-SB-2008 4
conviction, reduce the substantive sentence to the period already undergone by
them, subject to enhancement of the fine, in order to meet the ends of justice.
9. On the other hand, learned State counsel has opposed the prayer
made by learned counsel for the appellants and submit that the appellants have
rightly been convicted based upon the evidence available on record and do not
deserve any concession and prays that the present appeal be dismissed on
merits.
10. I have heard learned counsel for the parties and have gone through
the record with their able assistance.
11. The relevant extract of the impugned judgment is extracted
hereunder:-
“13. Hence, the prosecution has failed to prove charge under
section 395 IPC and this fact was rightly conceded by during
the arguments. the learned Public Prosecutor during the
arguments.
14. Any how. has proved of the prosecution recovery of the
brass articles which were looted during the night of
16.11.2005 from the premises Sigma Industries, beyond
reasonable doubt. SI (retired) Chand Singh (PW12) has stated
that on 19.11.2005, he along with constable Naresh Kumar,
Deepak Kumar and Rajesh was present at Dundahera Border
where complainant Sanjeev Mehra also met him. In the
meantime, one three wheeler No.HR-55-C-2295 came from
side of Dundahera in which accused Raj Kumar and Devinder
were sitting and looted brass articles were loaded. Both these
accused were having three bags each i.e bags No. 1. 3 and 5
weighing about 100 Kgs. were in possession of accused Raju
whereas bags bearing Nos. 4, 7 and possession of accused
Devinder (juvenile). 10 were in These bags were taken into
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CRA-S-56-SB-2008 5
possession vide memos Exs. PG and PH. respectively. bearing
Thereafter, one another three wheeler No. HR-55-A-0299
articles contained in 10 bags came loaded with looted brass
there in which accused Deepak, Surender and Lokesh
(juvenile) sitting. Accused Deepak and Lokesh were having
three were bags each whereas accused Surender was in
possession of four bags and the same taken into possession
vide memos Exs. PI, PK and PJ respectively. He also deposed
to have prepared rough site plan Ex. PQ of the place of said
recovery.
15. On the request of learned Public Prosecutor. this witness
was cross-examined by declared hostile and allowed him. In
cross-examination, to be he testified that on 28.11.2005, he
interrogated accused Bhole alias Vikram and Vicky alias Sunil
who made disclosure statements Ex.PL and PN respectively.
pursuance of his disclosure statement Ex.PL. In accused Bhole
got recovered two bags bearing Nos.19 and 21 vide memo
Ex.PM pursuance of while accused his Vicky Sunil. alias in go
t disclosure statement Ex. PN, recovered three bags bearing
No. 3, 18 and 20 vide memo Ex.PL (exhibit mark PL has been
put on two documents i.e disclosure statement of accused
Bhole and recovery memo of accused Vicky alias Sunil,
inadvertently). also stated about preparation Exs. PR and PS
of the places of He rough site plans of the aforesaid were
bearing recoveries. He further clarified that, in fact, the bags
recovered from accused Raju Kumar 3 and 4, from accused
Devidner were bearing 10. from accused Deepak were
bearing Nos. 1, Nos. 5, 7 and Nos. 12, 13 and 14, from
accused Surender three bags were recovered and not four as
stated by him in examination-in-chief and the same were
bearing No.6, 8 and 9 and the three bags recovered from
accused Lokesh were bearing Nos. 15, 16 and 17.
16. The above testimony of PW12 was corroborated by
Constable Naresh Kumar (PW11) and Sanjeev Kumar (PW9),
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CRA-S-56-SB-2008 6
though in cross-examination conducted by learned Public
Prosecutor.
17. There is no contradiction in the statements of the above
mentioned three witnesses i.e PW9, pw11 and PW12 about the
recovery of three bags containing looted Deepak, brass the
articles, each from accused Raj Kumar, as and Surender,
facing trial in this court, well as from accused Devinder and
Lokesh, juveniles, PW12 has given except that in examination-
in-chief wrong number of one bag each in case of accused Raj
Kumar and Devinder stating that bags Nos. 1,3 and 5 were
recovered from the former while from the latter bags 7 and 10
He rectified the No.4. recovered. were mistake in cross-
examination stating that bag No.4 was recovered from
accused Raju whereas bag 5 was recovered from accused
Devinder. There is also a minor contradiction about the
number of bags recovered from accused Surender, juvenile,
because in examination-in-chief he stated that four bags were
recovered from his possession but in cross-examination he
rectified this mistake as well by stating that the number of the
bags recovered from that accused was three and not four. It is
well settled law that cross-examination has also to be treated
as part of the statement.
18. Though PW9 has stated that one three wheeler he
already been apprehended by the police when reached the
spot whereas the other one was apprehended in his presence
but simply on the basis of this minor contradiction, the case Of
the otherwise proven prosecution can not be thrown out
because human memory fades with the passage of can not be
time and it expected even from a truthful witness to give parrot
like narration of the occurrence.
19. So far accused Bhole alias Vikram and Vicky alias Sunil
are concerned, the re are consistent and cogent statements of
PW9, PW11 and PW12 that they made disclosure statements
Exs.PL and PN respectively and in pursuance of the same got
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CRA-S-56-SB-2008 7
recovered bags No.19 and 21 (by accused Bhole) and bags
Nos.3, accused Vicky alias Sunil). 18 and 20 (by Non- joining
of independent witness at the time of the recovery any or
minor contradictions in the statement of PW12 vis-a-vis
statements of the number of PW9 and PWll regarding rooms
in the houses of accused Bhole and Vicky not treated fatal be
particularly when to the prosecution case the statements of
can more these witnesses were recorded in the court after a
period of more than one year, therefore, one can not be
expected to remember each and every minute detail after lapse
of such a long period.”
12. As per record, the FIR was registered in the year 2005 and the
appellants have already faced a protracted criminal proceedings of more than
20 years.
13. In the instant case, learned trial Court has held that the prosecution
has failed to prove the charge under Section 395 of IPC, however, Court
convicted all the appellants under Section 411 IPC for dishonestly receiving
the stolen property, for failing to explain the possession of stolen brass articles
recovered from them and ordered them rigorous imprisonment as explained
above. A perusal of the impugned order reveals that the company helpers
Suresh (PW-6), Virender (PW-7), and Inder Kumar Sahu (PW-8) turned hostile
and failed to identify any of the accused or support the dacoity. The security
guard, Ram Partap was given up by the prosecution as having been won over.
The learned Trial Court convicted the appellants based upon the recoveries
made from them of looted brass articles. The learned trial Court relied
primarily on the consistent police testimonies of PW-11 (Constable Naresh
Kumar) and PW-12 (SI Chand Singh) along with complainant-Sanjeev Mehra,
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CRA-S-56-SB-2008 8
who identified the stolen property on the spot and held that minor discrepancies
in bag numbering were clarified during cross examination and accordingly
came to the conclusion that though charges under Section 395 IPC were not
made out, but convicted appellants under Section 411 IPC for failing to explain
the possession of stolen brass articles recovered from them.
14. While considering the appellant’s prayer for reduction of sentence,
this Court finds that the considerable lapse of time since the commission of the
offence, coupled with the prolonged pendency of the proceedings, is a relevant
mitigating factor. Further, during this period, as per the learned State counsel,
the appellants have not been involved in any other criminal case and have
maintained a clean record, indicating their reformation. Moreover, the offences
are not so heinous as to disentitle them from the relief sought. Further, as per
the custody certificate dated 05.08.2026, the appellants Deepak, Surender have
already undergone 02 years, 01 month and 05 days, and Vicky @ Sunil have
already undergone 2 years and 26 days, of the substantive sentence out of the
total sentence of 3 years. These factors deserve due weightage while
determining the alteration of sentence awarded by the trial Court.
15. A similar issue came up for consideration before the Hon'ble
Supreme Court in Israfil @ Pappu @ Naimuddin Khan Versus State of
Madhya Pradesh, 2026 INSC 654 , wherein, having regard to the peculiar facts
and circumstances of the case, including the long lapse of time and other
mitigating factors, the sentence awarded to the accused was reduced. The ratio
of the said decision lends support to the course being adopted in the present
case. The relevant extract of the said judgment is reproduced hereunder:
“23. This Court, in catena of cases before it, while
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CRA-S-56-SB-2008 9
maintaining conviction, had exercised its discretion and had
reduced the substantive sentence considering long passage
of time, absence of criminal antecedents and other
mitigating circumstances. For instance, in Padum Kumar
vs. State of Uttar Pradesh , while maintaining conviction for
offences including Sections 467 and 468 of the IPC, this
Court reduced the sentence considering the age of the
matter, the sentence already undergone and taking into
account the peculiar facts and circumstances of the case.
The long lapse of time without any material indicating
repetition of similar criminal conduct is also a relevant
consideration while moulding sentence. The appellant has
already undergone the rigours of criminal proceedings for
over a decade since 2014.”
16. The Hon'ble Supreme Court has also recognized that prolonged
criminal litigation is in itself a relevant mitigating circumstance while
determining the appropriate sentence. Where an accused has lived for years, or
even decades, under the shadow of criminal proceedings, facing the uncertainty
of the outcome and the social stigma associated with such prosecution, the said
experience constitutes a significant factor that deserves to be taken into account
while moulding the sentence. The Hon'ble Supreme Court has further observed
that such a principle is particularly applicable in cases involving non-heinous
offences, where the ends of justice can be adequately served by adopting a
reformative and proportionate approach to sentencing rather than a purely
retributive one.
17. Given the above discussion and without opining on the merits of
the case, the present appeal is accordingly partly allowed and the jail sentence
as awarded by the trial Court is altered to the extent that the same is reduced to
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CRA-S-56-SB-2008 10
the period already undergone by the appellants subject to deposit of enhanced
fine of Rs.10,000/- each to be deposited with the trial Court concerned within a
period of two months from receipt of certified copy of this order.
18. Bail bonds/surety bonds furnished by the appellants stand
discharged.
19. It is clarified that in case the aforesaid fine amount is not
deposited within the stipulated period, the same would result in reviving the
jail sentence awarded by the trial Court and the appellants will have to
undergo the remaining jail sentence.
20. The pending miscellaneous application, if any, is also disposed of
as such.
(DEEPAK MANCHANDA)
JUDGE
05.11.2026
vanita
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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