Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment Reserved on: 18 November, 2009
rd
Judgment Delivered on: 23 November, 2009
+ CRL.A.28/2008
BRAHM SINGH ..... Appellant
Through: Mr.G.P.Thareja, Advocate.
versus
THE STATE (N.C.T. OF DELHI) ..... Respondent
Through: Mr.Manoj Ohri, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J.
1. D.D.No.6 dated 8.7.1989 Ex.PW-2/A was received in Police
Post Okhla, Phase II intimating that driver Kishan Bahadur of
Rajeshwar Kumar had been robbed of Rs.1,90,000/-; police force
be sent to the spot. Ex.PW-2/A was marked to ACP Rajbir Singh
PW-11. PW-11 accompanied by HC Shiv Charan PW-8 and
Const.Brahm Prakash PW-4 reached at Y-47, Okhla, Phase II;
injured i.e. Kishan Bahadur PW-1 had been removed to the
hospital; his statement Ex.PW-1/A was recorded.
Crl.A.28/2008 Page 1 of 14
2. In Ex.PW-1/A it had been detailed by PW-1 that he is the
driver of Rajeshwar Kumar and was residing in his servant
quarter. On the fateful day at about 11.45 AM, he dropped his
employer on the gate of Y-47, Okhla, Phase II, thereafter parking
his car in front of the factory while he was lifting the brown
briefcase from the car a boy aged about 22 to 28 years, 5‟ 6” tall
came from behind and snatched the briefcase from his right hand
and fled away; PW-1 raised alarm; meanwhile another boy aged
about 20 to 22 years having a desi katta in his hand came from
front side and threatened PW-1; one Raju had apprehended the
first assailant but he managed to flee; the second assailant
attacked PW-1 with the butt of his countrymade pistol; PW-1
started bleeding.
3. Endorsement Ex.PW-11/A was made on this complaint
Ex.PW-1/A and was handed over to PW-4 who took rukka to the
police station. The FIR was registered by ASI Baldev Singh PW-9
Ex.PW-9/A. Site plan Ex.PW-11/B was prepared at the pointing out
of PW-1; accused persons, however, could not be traced.
4. On 17.7.1989, pursuant to a secret information a raiding
party was organized by PW-11 comprising of himself, Const.Kartar
Singh and PW-8. Kanhiya Lal PW-10 a public person was
requested to join the raid. Two persons at the pointing out of the
secret informer i.e. the accused Brahm Singh and Ajeet Singh
were apprehended. Brahm Singh was arrested and his personal
Crl.A.28/2008 Page 2 of 14
search was conducted vide memo Ex.PW-8/A. His disclosure
statement Ex.PW-8/C was recorded. From the possession of the
co-accused Ajeet Singh one desi katta and one live cartridge and
five other cartridges were recovered which were taken into
possession. Pursuant to the disclosure statement of the present
appellant, he pointed out his house vide memo Ex.PW-6/B and
from a plastic bag lying inside the house a cash amount of
Rs.70,000/- was recovered which was taken into possession vide
memo Ex.PW-6/C. This cash was seized and sealed with the seal
of RBS. Witness to this recovery was PW-10. Yudhister Kumar
PW-6 had also joined these proceedings. The personal belongings
of the appellant including his pant and shirt worn at the time of
the offence were also seized vide memo Ex.PW-6/G.
5. On 18.7.1989 PW-11 moved an application Ex.PW-5/A before
the Magistrate for Test Identification Parade of the accused. TIP
was fixed for 21.7.1989; PW-1 correctly identified the present
appellant in the said proceedings.
6. Accused in his statement under Section 313 of the Cr.PC
pleaded innocence. It was submitted that he has been falsely
implicated in the present case; the police had detained his family
members and his father was forced to deposit Rs.70,000/- which
he did so under force.
7. In defence two witnesses were produced; Khadak Singh
DW-1 was the father of the co-accused Ajit; Brahm Singh had also
Crl.A.28/2008 Page 3 of 14
come into the witness box as DW-2; the defence witness had
corroborated the version as set up by the appellant in his
statement under Section 313 of the Cr.PC.
8. In view of the aforestated evidence collected by the
prosecution, Brahm Singh was convicted vide judgment dated
14.12.2007 for the offence punishable under Section 392/34 of the
IPC. His co-accused Ajeet Singh had died; proceedings against
him stood abated. The third accused Giriraj Singh had been given
benefit of doubt and was acquitted.
9. Vide order of sentence dated 18.12.2007 the appellant was
sentenced to undergo RI for three years and to pay a fine of
Rs.2000/-, in default of payment of fine to undergo SI for two
months.
10. On behalf of the appellant it has been pointed out that the
judgment of the Trial Court suffers from a grave infirmity and
infallibility.
(i) Distinction between Section 392 and 379 of the IPC has not
been appreciated. Attention has been drawn to the
definition of „robbery‟ as contained in Section 390 of the
IPC. It is submitted that the essential ingredients for this
offence is either to cause or attempt to cause to any person
death or hurt or wrongful restraint or fear of instant death
or of instant hurt or of instant wrongful restraint. Attention
has also been drawn to the first illustration i.e. Illustration
Crl.A.28/2008 Page 4 of 14
(a) appended to this Section. It is submitted that the
testimony of PW-1 has categorized the role of the present
appellant as the person who had snatched the brief case
from PW-1; appellant was admittedly unarmed; even
presuming the version of PW-1 is taken as the gospel truth
at best the ingredients of the offence as contained in
Section 379 of the IPC are made out and not an offence
under Section 392 of the IPC.
(ii) For an offence under Section 379 of the IPC the maximum
penalty imposed is imprisonment which may extend three
years or with fine or with both. Intention of the legislature
in promulgating this provision clearly shows that this
offence is punishable either with an imprisonment or with
fine and keeping in view the fact of the instant case is more
than 20 years old; the appellant has since become an
advocate and is practicing at the bar since the year 2000;
he is a first offender; having no criminal background;
benefit of probation as contained in Section 4 and 6 of the
Probation of Offenders Act be extended to him. Reliance
has been placed upon N.M.Parthasarthy v. The State of by
S.P.E. AIR 1992 SC 988, Hira Lal @ Vicky v. The State 2003
Cri. L.J. 1009 (Delhi), State vs. Maharashtra v. Nababai
Ahdul Hasan & Anr. 1989 Cri.L.J. 1283 (Bombay), to
support this arguments for grant of probation. Reliance has
Crl.A.28/2008 Page 5 of 14
also been placed upon Bishnu Deo Shaw v. State of West
Bengal AIR 1979 SC 964. It is stated that the provisions of
Section 360 and 361 of the Cr.PC which are provisions
dealing with the release of an offender on probation of good
conduct necessarily postulates that, when not granting
probation the special reasons for not adhering to this
provision have to be so stated at the time of judgment. This
manifests the intention of the legislature that reformation
and rehabilitation of the offender and not mere deterrence
are the foremost objects of the administration of criminal
jurisprudence in our system. In these circumstances, the
observations of the Supreme Court that the personality of
the offender as revealed by his age, character, antecedents
and other circumstances and the tractability of the offender
to reform must necessarily play the most prominent role in
determining the sentence to be awarded. In this
background appellant is entitled to the benefit of grant of
probation.
(iii) Trial Court has relied upon the TIP proceedings Ex.PW-5/B
where the appellant had been allegedly identified by the
complainant. It is submitted that TIP had been conducted
on 21.7.1989. PW-1 has admitted that he had gone in the
jail on 21.7.1989 and there was every possibility of the
Crl.A.28/2008 Page 6 of 14
accused persons having been shown to PW-1 at this time;
TIP loses its sanctity.
(iv) The recovery of Rs.70,000/- is belied; PW-10 has not
supported the version of the prosecution of this count; PW-6
is also hostile. This sum of Rs.70,000/- had been claimed by
the appellant as his money and in fact an application to the
said effect had been moved before the magistrate. This
money had thereafter been returned to PW-2 conditionally
only subject to the final judgment.
(v) This case property of Rs.70,000/- did not have any
identification mark; the said notes were neither produced
and nor exhibited in the court.
(vi) Accused has produced two witnesses in defence including
the father of co-accused Ajit and himself. Defence witnesses
have to be given the same treatment as that of the
prosecution.
(vii) It is a fundamental rule of the criminal jurisprudence that
the prosecution has to prove its case beyond reasonable
doubt; correspondingly the accused only has to create a
dent in the version of the prosecution. A preponderance of
probabilities in his favour is sufficient for him to obtain an
order of acquittal.
11. Submissions have been countered by the learned PP.
Crl.A.28/2008 Page 7 of 14
12. Arguments have been heard and the record has been
perused.
13. Version of PW-1 the complainant is categorical and clear;
incident had occurred at 11.45 PM; statement of the complainant
was recorded by mid afternoon and the rukka had been sent at
2.30 PM on the same day. In the first instance i.e. in the complaint
Ex.PW-1/A itself a detailed version had been given by the
complainant and the role assigned to each of the accused
including the present appellant. As per Ex.PW-1/A his brown
briefcase was snatched by Brahm Singh who had way-laid him; he
had thereupon been attacked by his co-accused with a desi katta
which had caused injury on his head; MLC Ex.PW-7/A has
advanced this ocular version of PW-1. No ulterior motive or
purpose has been ascribed to PW-1 for falsely implicating or
maligning the accused persons. Version of PW-1 on oath in court
in spite of a long and detailed cross-examination remained clear
and cogent. He had described Brahm Singh as the person who
had snatched the briefcase from his hand; when PW-1 had raised
alarm the appellant grappled with him; meanwhile co-accused
Ajeet Singh attacked him with a desi katta.
14. The line of distinction between „robbery‟ as defined under
Section 390 of the IPC and „theft‟ as defined in Section 378 of the
IPC is thin but nevertheless distinct. Theft becomes robbery if in
the process of committing the theft the offender causes or
Crl.A.28/2008 Page 8 of 14
attempts to cause either death or hurt or a wrongful restraint.
Death is admittedly excluded in this case; „hurt‟ has been suffered
by the victim; Ex.PW-7/A which is the MLC of PW-1 shows that he
had suffered injuries on the back of his head and four stitches
were applied thereon. This is encompassed within the definition of
„hurt‟ as contained in Section 319 of the IPC. „Wrongful restraint‟
has been defined under Section 339 of the IPC which necessarily
entails a voluntary obstruction of any person so as to prevent that
person from proceeding in any direction in which that person has a
right to proceed. Testimony of PW-1 clearly has established that
he was wrongfully restrained by the present appellant and had
been prevented from going towards the factory when his briefcase
was snatched by the appellant. Ocular and medical evidence as
discussed supra has established the ingredients of Section 390 of
the IPC.
15. Section 390 of the IPC in fact contemplates that the accused
should have from the very start the intention to deprive the
complainant of the property and should for that purpose either
hurt him or place him under wrongful restraint. Where A and B
were stealing mangoes from a tree, C surprised them, on which A
knocked him down senseless with a stick; where a person, in
snatching a nose-ring, wounded the woman in the nostril and
caused her blood to flow, this offence was committed. Where the
accused slapped the victim after dispossessing him of his watch in
Crl.A.28/2008 Page 9 of 14
order to silence him an offence under Section 390 was made out.
These are instances of robbery for which the accused stood
convicted. See Husrut Sheikh (1866) 5 WR (Cr) 85, Teekai Bheer
(1866) 5 WR (Cr) 95 and Harish Chandra AIR 1976 SC 1430.
16. TIP proceedings Ex.PW-5/B revealed that Brahm Singh along
with his co-accused had been produced in muffled face before the
Magistrate; seven other persons of similar structure as of the
accused had been mixed with the accused persons and had joined
these TIP proceedings. Proceedings were conducted in the jail.
PW-1 Kishan Bahadur had correctly identified the person as the
appellant. These proceedings run into 10 pages. PW-1 was cross
examined on this score at length but no suggestion was given to
him in his cross-examination that the accused had been shown to
the prosecution witnesses; no such submission had also been made
by the accused persons who had voluntarily agreed to join the TIP
proceedings. This circumstance is a relevant fact under Section 9
of the Indian Evidence Act.
17. The Test Identification Parade is not a substantive piece of
evidence. It is done only for the satisfaction of the prosecution
that the investigation was moving in the right direction. However,
it becomes a substantive piece of evidence when it is corroborated
on oath in court.
Crl.A.28/2008 Page 10 of 14
18. In Suresh Chandra Bahri v. State of Bihar with Gurbachan
Singh case (A 1994 SC 2420: 1994 Cri LJ 3271) the Supreme
Court observed that:
“It is well settled that substantive evidence of the witness is his evidence
in the court but when the accused persons is not previously known to the
witness concerned then identification of the accused by the witness soon
after his arrest is of great importance because it furnishes an assurance
that the investigation is proceeding on right lines in addition to
furnishing corroboration of the evidence to be given by the witness later
in court at the trial.”
19. This piece of evidence was corroborated on oath by PW-1 in
his version when he again correctly identified Brahm Singh as his
assailant.
20. PW-2 was the employer of PW-1 who had been dropped by
PW-1 at the gate of factory before he had been accosted and
attacked by the appellant and his co-accomplices. He was not an
eye witness; he had reached the spot after the incident was over;
he had identified the briefcase Ex.P-1containing the money as
belonging to him; he had seen his driver PW-1 in an injured
condition. His version is corroborative of this part of the
testimony of PW-1.
21. The accused was apprehended and arrested in this case
pursuant to a secret information on 17.7.1989. The disclosure
statement of the appellant Ex.PW-8/C was recorded. Pursuant to
his disclosure appellant had got recovered Rs.70,000/- contained
in a plastic bag from his house. Recovery memo Ex.PW-6/C was
Crl.A.28/2008 Page 11 of 14
recorded. This document has been attested by PW-6, PW-10, HC
Hasim Khan and PW-8.
22. The submission of the appellant that his sum of Rs.70,000/-
was the illegal gratification which the accused had paid to the
police officials for his false implication did not find favour with the
Trial Court and rightly so; if such a huge amount of Rs.70,000/-
had been paid by way of an illegal gratification to the police
officials some complaint or note to the said effect would have been
made to the higher authority which had not been done so in the
instant case. The first information of this case recorded in
DD no.6 Ex.PW-2/A at 1.05 AM had clearly mentioned that a sum
of Rs. 1,90,000 belonging to Rajeshwar Kumar had been robbed
from the briefcase carried by his driver Kishan Bahadur. It was at
the stage itself that this amount of Rs. 1,90,000 was reported to
have been missing. On 03.12.1990 this money had been ordered to
be released to PW 2 on his furnishing a bank guarantee; the claim
of the appellant staking a claim on this money had been rejected;
no revision or appeal had been filed against the said order which
had attained finality. DW-2 in his deposition has nowhere detailed
the date, time and place when his father had handed over the
money to ACP Rajbir Singh and to the SHO Bhag Singh. Actual
giver of the money i.e. father of the appellant did not come into the
witness box. DW-1 Kharak Singh is the father of co-accused Ajit
Singh and his version that the father of Brahm Singh had also paid
Crl.A.28/2008 Page 12 of 14
a sum of Rs.70,000 is only a hearsay testimony. This stand of the
accused as propagated in his defence and in his statement under
section 313 Cr.PC did not find mention in the cross examination of
either PW-1 or PW-2. It is clear that this defence has been built up
as an afterthought.
23. Version of the prosecution has been fully established; the
judgment of the trial court suffers from no infirmity.
24. Offence is related to the year 1989 i.e. almost two decades
old.
25. It is also not in dispute that the appellant as on date is an
advocate practicing at the bar; he is a first offender; he has
suffered incarceration of about 7 months out of the total sentence
of 3 years which had been awarded to him; fine has since been
deposited.
26. In Hira Lal‟s case (supra) the coordinate bench of this court,
on the policy of sentencing and the concept of releasing of person
on probation had observed that
“……. The concept of releasing a person who is 21 years of age on
probation arises out of reforming youthful offenders who are first
convicts and commit an offence punishable with imprisonment of 7 years.
Such offenders have to be necessarily granted probation as such
offenders if kept in the company of hardened criminals, there is
likelihood of their turning into obdurate criminals. Releasing of such a
convict on probation always keeps him on the tenderhook as he is always
conscious of the fact that if he indulges in any criminal activity during
the period of probation, no more option is left with the Court than to
send him to jail for serving sentence.”
27. In this background keeping in view the role ascribed to the
present appellant, the fact that he is a first offender having no
Crl.A.28/2008 Page 13 of 14
criminal antecedents, he had in the intervening period of two
decades proved that he has reformed himself as he has educated
himself and become a lawyer and is practicing at the bar as on
date; he already having remained in custody for about seven
months, this would be a fit case for exercising powers for the grant
of the benefit of probation.
28. While maintaining the conviction under Section 392 of the
IPC, the sentence is modified and the sentence of imprisonment is
set aside. The appellant is directed to be released on probation for
a period of one year on his furnishing a personal bond of
Rs.10,000/- with one surety of the like amount to the satisfaction of
the Trial Court with an undertaking that he has maintain peace
and good behaviour.
29. Appeal disposed of in the above terms.
(INDERMEET KAUR)
JUDGE
rd
23 November, 2009
rb
Crl.A.28/2008 Page 14 of 14
th
% Judgment Reserved on: 18 November, 2009
rd
Judgment Delivered on: 23 November, 2009
+ CRL.A.28/2008
BRAHM SINGH ..... Appellant
Through: Mr.G.P.Thareja, Advocate.
versus
THE STATE (N.C.T. OF DELHI) ..... Respondent
Through: Mr.Manoj Ohri, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J.
1. D.D.No.6 dated 8.7.1989 Ex.PW-2/A was received in Police
Post Okhla, Phase II intimating that driver Kishan Bahadur of
Rajeshwar Kumar had been robbed of Rs.1,90,000/-; police force
be sent to the spot. Ex.PW-2/A was marked to ACP Rajbir Singh
PW-11. PW-11 accompanied by HC Shiv Charan PW-8 and
Const.Brahm Prakash PW-4 reached at Y-47, Okhla, Phase II;
injured i.e. Kishan Bahadur PW-1 had been removed to the
hospital; his statement Ex.PW-1/A was recorded.
Crl.A.28/2008 Page 1 of 14
2. In Ex.PW-1/A it had been detailed by PW-1 that he is the
driver of Rajeshwar Kumar and was residing in his servant
quarter. On the fateful day at about 11.45 AM, he dropped his
employer on the gate of Y-47, Okhla, Phase II, thereafter parking
his car in front of the factory while he was lifting the brown
briefcase from the car a boy aged about 22 to 28 years, 5‟ 6” tall
came from behind and snatched the briefcase from his right hand
and fled away; PW-1 raised alarm; meanwhile another boy aged
about 20 to 22 years having a desi katta in his hand came from
front side and threatened PW-1; one Raju had apprehended the
first assailant but he managed to flee; the second assailant
attacked PW-1 with the butt of his countrymade pistol; PW-1
started bleeding.
3. Endorsement Ex.PW-11/A was made on this complaint
Ex.PW-1/A and was handed over to PW-4 who took rukka to the
police station. The FIR was registered by ASI Baldev Singh PW-9
Ex.PW-9/A. Site plan Ex.PW-11/B was prepared at the pointing out
of PW-1; accused persons, however, could not be traced.
4. On 17.7.1989, pursuant to a secret information a raiding
party was organized by PW-11 comprising of himself, Const.Kartar
Singh and PW-8. Kanhiya Lal PW-10 a public person was
requested to join the raid. Two persons at the pointing out of the
secret informer i.e. the accused Brahm Singh and Ajeet Singh
were apprehended. Brahm Singh was arrested and his personal
Crl.A.28/2008 Page 2 of 14
search was conducted vide memo Ex.PW-8/A. His disclosure
statement Ex.PW-8/C was recorded. From the possession of the
co-accused Ajeet Singh one desi katta and one live cartridge and
five other cartridges were recovered which were taken into
possession. Pursuant to the disclosure statement of the present
appellant, he pointed out his house vide memo Ex.PW-6/B and
from a plastic bag lying inside the house a cash amount of
Rs.70,000/- was recovered which was taken into possession vide
memo Ex.PW-6/C. This cash was seized and sealed with the seal
of RBS. Witness to this recovery was PW-10. Yudhister Kumar
PW-6 had also joined these proceedings. The personal belongings
of the appellant including his pant and shirt worn at the time of
the offence were also seized vide memo Ex.PW-6/G.
5. On 18.7.1989 PW-11 moved an application Ex.PW-5/A before
the Magistrate for Test Identification Parade of the accused. TIP
was fixed for 21.7.1989; PW-1 correctly identified the present
appellant in the said proceedings.
6. Accused in his statement under Section 313 of the Cr.PC
pleaded innocence. It was submitted that he has been falsely
implicated in the present case; the police had detained his family
members and his father was forced to deposit Rs.70,000/- which
he did so under force.
7. In defence two witnesses were produced; Khadak Singh
DW-1 was the father of the co-accused Ajit; Brahm Singh had also
Crl.A.28/2008 Page 3 of 14
come into the witness box as DW-2; the defence witness had
corroborated the version as set up by the appellant in his
statement under Section 313 of the Cr.PC.
8. In view of the aforestated evidence collected by the
prosecution, Brahm Singh was convicted vide judgment dated
14.12.2007 for the offence punishable under Section 392/34 of the
IPC. His co-accused Ajeet Singh had died; proceedings against
him stood abated. The third accused Giriraj Singh had been given
benefit of doubt and was acquitted.
9. Vide order of sentence dated 18.12.2007 the appellant was
sentenced to undergo RI for three years and to pay a fine of
Rs.2000/-, in default of payment of fine to undergo SI for two
months.
10. On behalf of the appellant it has been pointed out that the
judgment of the Trial Court suffers from a grave infirmity and
infallibility.
(i) Distinction between Section 392 and 379 of the IPC has not
been appreciated. Attention has been drawn to the
definition of „robbery‟ as contained in Section 390 of the
IPC. It is submitted that the essential ingredients for this
offence is either to cause or attempt to cause to any person
death or hurt or wrongful restraint or fear of instant death
or of instant hurt or of instant wrongful restraint. Attention
has also been drawn to the first illustration i.e. Illustration
Crl.A.28/2008 Page 4 of 14
(a) appended to this Section. It is submitted that the
testimony of PW-1 has categorized the role of the present
appellant as the person who had snatched the brief case
from PW-1; appellant was admittedly unarmed; even
presuming the version of PW-1 is taken as the gospel truth
at best the ingredients of the offence as contained in
Section 379 of the IPC are made out and not an offence
under Section 392 of the IPC.
(ii) For an offence under Section 379 of the IPC the maximum
penalty imposed is imprisonment which may extend three
years or with fine or with both. Intention of the legislature
in promulgating this provision clearly shows that this
offence is punishable either with an imprisonment or with
fine and keeping in view the fact of the instant case is more
than 20 years old; the appellant has since become an
advocate and is practicing at the bar since the year 2000;
he is a first offender; having no criminal background;
benefit of probation as contained in Section 4 and 6 of the
Probation of Offenders Act be extended to him. Reliance
has been placed upon N.M.Parthasarthy v. The State of by
S.P.E. AIR 1992 SC 988, Hira Lal @ Vicky v. The State 2003
Cri. L.J. 1009 (Delhi), State vs. Maharashtra v. Nababai
Ahdul Hasan & Anr. 1989 Cri.L.J. 1283 (Bombay), to
support this arguments for grant of probation. Reliance has
Crl.A.28/2008 Page 5 of 14
also been placed upon Bishnu Deo Shaw v. State of West
Bengal AIR 1979 SC 964. It is stated that the provisions of
Section 360 and 361 of the Cr.PC which are provisions
dealing with the release of an offender on probation of good
conduct necessarily postulates that, when not granting
probation the special reasons for not adhering to this
provision have to be so stated at the time of judgment. This
manifests the intention of the legislature that reformation
and rehabilitation of the offender and not mere deterrence
are the foremost objects of the administration of criminal
jurisprudence in our system. In these circumstances, the
observations of the Supreme Court that the personality of
the offender as revealed by his age, character, antecedents
and other circumstances and the tractability of the offender
to reform must necessarily play the most prominent role in
determining the sentence to be awarded. In this
background appellant is entitled to the benefit of grant of
probation.
(iii) Trial Court has relied upon the TIP proceedings Ex.PW-5/B
where the appellant had been allegedly identified by the
complainant. It is submitted that TIP had been conducted
on 21.7.1989. PW-1 has admitted that he had gone in the
jail on 21.7.1989 and there was every possibility of the
Crl.A.28/2008 Page 6 of 14
accused persons having been shown to PW-1 at this time;
TIP loses its sanctity.
(iv) The recovery of Rs.70,000/- is belied; PW-10 has not
supported the version of the prosecution of this count; PW-6
is also hostile. This sum of Rs.70,000/- had been claimed by
the appellant as his money and in fact an application to the
said effect had been moved before the magistrate. This
money had thereafter been returned to PW-2 conditionally
only subject to the final judgment.
(v) This case property of Rs.70,000/- did not have any
identification mark; the said notes were neither produced
and nor exhibited in the court.
(vi) Accused has produced two witnesses in defence including
the father of co-accused Ajit and himself. Defence witnesses
have to be given the same treatment as that of the
prosecution.
(vii) It is a fundamental rule of the criminal jurisprudence that
the prosecution has to prove its case beyond reasonable
doubt; correspondingly the accused only has to create a
dent in the version of the prosecution. A preponderance of
probabilities in his favour is sufficient for him to obtain an
order of acquittal.
11. Submissions have been countered by the learned PP.
Crl.A.28/2008 Page 7 of 14
12. Arguments have been heard and the record has been
perused.
13. Version of PW-1 the complainant is categorical and clear;
incident had occurred at 11.45 PM; statement of the complainant
was recorded by mid afternoon and the rukka had been sent at
2.30 PM on the same day. In the first instance i.e. in the complaint
Ex.PW-1/A itself a detailed version had been given by the
complainant and the role assigned to each of the accused
including the present appellant. As per Ex.PW-1/A his brown
briefcase was snatched by Brahm Singh who had way-laid him; he
had thereupon been attacked by his co-accused with a desi katta
which had caused injury on his head; MLC Ex.PW-7/A has
advanced this ocular version of PW-1. No ulterior motive or
purpose has been ascribed to PW-1 for falsely implicating or
maligning the accused persons. Version of PW-1 on oath in court
in spite of a long and detailed cross-examination remained clear
and cogent. He had described Brahm Singh as the person who
had snatched the briefcase from his hand; when PW-1 had raised
alarm the appellant grappled with him; meanwhile co-accused
Ajeet Singh attacked him with a desi katta.
14. The line of distinction between „robbery‟ as defined under
Section 390 of the IPC and „theft‟ as defined in Section 378 of the
IPC is thin but nevertheless distinct. Theft becomes robbery if in
the process of committing the theft the offender causes or
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attempts to cause either death or hurt or a wrongful restraint.
Death is admittedly excluded in this case; „hurt‟ has been suffered
by the victim; Ex.PW-7/A which is the MLC of PW-1 shows that he
had suffered injuries on the back of his head and four stitches
were applied thereon. This is encompassed within the definition of
„hurt‟ as contained in Section 319 of the IPC. „Wrongful restraint‟
has been defined under Section 339 of the IPC which necessarily
entails a voluntary obstruction of any person so as to prevent that
person from proceeding in any direction in which that person has a
right to proceed. Testimony of PW-1 clearly has established that
he was wrongfully restrained by the present appellant and had
been prevented from going towards the factory when his briefcase
was snatched by the appellant. Ocular and medical evidence as
discussed supra has established the ingredients of Section 390 of
the IPC.
15. Section 390 of the IPC in fact contemplates that the accused
should have from the very start the intention to deprive the
complainant of the property and should for that purpose either
hurt him or place him under wrongful restraint. Where A and B
were stealing mangoes from a tree, C surprised them, on which A
knocked him down senseless with a stick; where a person, in
snatching a nose-ring, wounded the woman in the nostril and
caused her blood to flow, this offence was committed. Where the
accused slapped the victim after dispossessing him of his watch in
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order to silence him an offence under Section 390 was made out.
These are instances of robbery for which the accused stood
convicted. See Husrut Sheikh (1866) 5 WR (Cr) 85, Teekai Bheer
(1866) 5 WR (Cr) 95 and Harish Chandra AIR 1976 SC 1430.
16. TIP proceedings Ex.PW-5/B revealed that Brahm Singh along
with his co-accused had been produced in muffled face before the
Magistrate; seven other persons of similar structure as of the
accused had been mixed with the accused persons and had joined
these TIP proceedings. Proceedings were conducted in the jail.
PW-1 Kishan Bahadur had correctly identified the person as the
appellant. These proceedings run into 10 pages. PW-1 was cross
examined on this score at length but no suggestion was given to
him in his cross-examination that the accused had been shown to
the prosecution witnesses; no such submission had also been made
by the accused persons who had voluntarily agreed to join the TIP
proceedings. This circumstance is a relevant fact under Section 9
of the Indian Evidence Act.
17. The Test Identification Parade is not a substantive piece of
evidence. It is done only for the satisfaction of the prosecution
that the investigation was moving in the right direction. However,
it becomes a substantive piece of evidence when it is corroborated
on oath in court.
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18. In Suresh Chandra Bahri v. State of Bihar with Gurbachan
Singh case (A 1994 SC 2420: 1994 Cri LJ 3271) the Supreme
Court observed that:
“It is well settled that substantive evidence of the witness is his evidence
in the court but when the accused persons is not previously known to the
witness concerned then identification of the accused by the witness soon
after his arrest is of great importance because it furnishes an assurance
that the investigation is proceeding on right lines in addition to
furnishing corroboration of the evidence to be given by the witness later
in court at the trial.”
19. This piece of evidence was corroborated on oath by PW-1 in
his version when he again correctly identified Brahm Singh as his
assailant.
20. PW-2 was the employer of PW-1 who had been dropped by
PW-1 at the gate of factory before he had been accosted and
attacked by the appellant and his co-accomplices. He was not an
eye witness; he had reached the spot after the incident was over;
he had identified the briefcase Ex.P-1containing the money as
belonging to him; he had seen his driver PW-1 in an injured
condition. His version is corroborative of this part of the
testimony of PW-1.
21. The accused was apprehended and arrested in this case
pursuant to a secret information on 17.7.1989. The disclosure
statement of the appellant Ex.PW-8/C was recorded. Pursuant to
his disclosure appellant had got recovered Rs.70,000/- contained
in a plastic bag from his house. Recovery memo Ex.PW-6/C was
Crl.A.28/2008 Page 11 of 14
recorded. This document has been attested by PW-6, PW-10, HC
Hasim Khan and PW-8.
22. The submission of the appellant that his sum of Rs.70,000/-
was the illegal gratification which the accused had paid to the
police officials for his false implication did not find favour with the
Trial Court and rightly so; if such a huge amount of Rs.70,000/-
had been paid by way of an illegal gratification to the police
officials some complaint or note to the said effect would have been
made to the higher authority which had not been done so in the
instant case. The first information of this case recorded in
DD no.6 Ex.PW-2/A at 1.05 AM had clearly mentioned that a sum
of Rs. 1,90,000 belonging to Rajeshwar Kumar had been robbed
from the briefcase carried by his driver Kishan Bahadur. It was at
the stage itself that this amount of Rs. 1,90,000 was reported to
have been missing. On 03.12.1990 this money had been ordered to
be released to PW 2 on his furnishing a bank guarantee; the claim
of the appellant staking a claim on this money had been rejected;
no revision or appeal had been filed against the said order which
had attained finality. DW-2 in his deposition has nowhere detailed
the date, time and place when his father had handed over the
money to ACP Rajbir Singh and to the SHO Bhag Singh. Actual
giver of the money i.e. father of the appellant did not come into the
witness box. DW-1 Kharak Singh is the father of co-accused Ajit
Singh and his version that the father of Brahm Singh had also paid
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a sum of Rs.70,000 is only a hearsay testimony. This stand of the
accused as propagated in his defence and in his statement under
section 313 Cr.PC did not find mention in the cross examination of
either PW-1 or PW-2. It is clear that this defence has been built up
as an afterthought.
23. Version of the prosecution has been fully established; the
judgment of the trial court suffers from no infirmity.
24. Offence is related to the year 1989 i.e. almost two decades
old.
25. It is also not in dispute that the appellant as on date is an
advocate practicing at the bar; he is a first offender; he has
suffered incarceration of about 7 months out of the total sentence
of 3 years which had been awarded to him; fine has since been
deposited.
26. In Hira Lal‟s case (supra) the coordinate bench of this court,
on the policy of sentencing and the concept of releasing of person
on probation had observed that
“……. The concept of releasing a person who is 21 years of age on
probation arises out of reforming youthful offenders who are first
convicts and commit an offence punishable with imprisonment of 7 years.
Such offenders have to be necessarily granted probation as such
offenders if kept in the company of hardened criminals, there is
likelihood of their turning into obdurate criminals. Releasing of such a
convict on probation always keeps him on the tenderhook as he is always
conscious of the fact that if he indulges in any criminal activity during
the period of probation, no more option is left with the Court than to
send him to jail for serving sentence.”
27. In this background keeping in view the role ascribed to the
present appellant, the fact that he is a first offender having no
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criminal antecedents, he had in the intervening period of two
decades proved that he has reformed himself as he has educated
himself and become a lawyer and is practicing at the bar as on
date; he already having remained in custody for about seven
months, this would be a fit case for exercising powers for the grant
of the benefit of probation.
28. While maintaining the conviction under Section 392 of the
IPC, the sentence is modified and the sentence of imprisonment is
set aside. The appellant is directed to be released on probation for
a period of one year on his furnishing a personal bond of
Rs.10,000/- with one surety of the like amount to the satisfaction of
the Trial Court with an undertaking that he has maintain peace
and good behaviour.
29. Appeal disposed of in the above terms.
(INDERMEET KAUR)
JUDGE
rd
23 November, 2009
rb
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