Ajit
Singh Vs. State of Haryana [1996] INSC 217 (8 February 1996)
Ray,
G.N. (J) Ray, G.N. (J) Singh N.P. (J)
CITATION:
1996 SCC (3) 335 JT 1996 (2) 234 1996 SCALE (2)94
ACT:
HEAD NOTE:
O R D
E R
This
is an appeal filed by the appellant from jail under Section 19 of the
Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as TADA). It appears that intially the charge-sheet was submitted
against the appellant and the co-accused Raj Pal under Section 394.392 and 397
IPC and Section 5 of TADA Act. But at the trial the accused stood charged for
offences under Sections 392.397 and 394 IPC before the Designated Court, Rohtak at Sonepat.
The
prosecution case in short is that on 12.4.90 when PW 7, Suresh being
accompanied by his brother PW 8, Subhash was going on a scooter to village Gadwal
from Gonana, both the said accused suddenly appeared armed with pistol and they
made an attempt to stop the scooter, but his brother Subhash did not allow to
do so. The accused however caught hold of the scooter by its handle and pointed
pistol on the back of Suresh urging him to handover whatever valuable was in
his possession. Out of fear, Suresh handed over a purse containing Rs.1775/-
and his wrist watch and the wrist watch of his brother Subhash was also removed
by the other accused Rajpal forcibly. Thereafter, an attempt was made to snatch
the scooter, PW 7, Suresh, then picked up an empty drum of milk and hit the
accused Ajit with such drum. The accused Ajit thereafter opened fire from the pistol
at Suresh which hit the left hand of Suresh and thumb and first finger of left
hand of Suresh were injured. Suresh and Ajit grappled with each other. At that
stage, the accused Ajit inflicted a tooth bite on the left arm of Suresh and
challenged both the brothers by firing the pistol but Suresh and Subhash could
escape. On the next day, an FIR was lodged with the police station Baroda in the district Rohtak.
According
to the prosecution case, both the accused were arrested on 16.5.90 and at the
instance of the accused the wrist watches snatched from PWs 7 and 8 were
recovered on 18.5.90 which are stated to have been puried in a garden. It is
also the prosecution case that both the accused did not agree to attend the
test identification darade and as such test identification darade was not held.
Considering the evidences adduced in this case, the learned Designated Court
convicted both the accused for offences under Section 392 read with Section 397
IPC and also under Section 394 IPC and based a sentence of 10 years ignorous
imprisonment against both the accused and also a fine of Rs.250/- under section
394 in default of making payment of fine, to undergo further rigorous
imprisonment for three months. Both the said accused were also sentenced to
undergo rigorous imprisonment for seven years for offences under Section 392
read with section 397 IPC.
Mr. Sushil
Kumar, learned senior counsel appearing as amicus curiae for the appellant in
this case, has submitted that an accused cannot be convicted under Section 397
IPC if he had not used a weapon. In support of such contention, a decision of
this Court in Shri Phool Kumar versus Delhi Administration (1975 (1) SCC 797).
Mr. Sushil Kumar has also submitted that conviction under Section 397 IPC of co-accused
who was unwarned, only indicates that there has been non application of mind to
the facts of the case in convicting the accused. Mr. Sushil Kumar has also
submitted that against the appellant. Ajit, no conviction under Section 397 was
warranted even if the prosecution case is accepted on its face value. He has
indicated that it appears from the evidence of the witnesses for the
prosecution that for committing alleged robbery, the said pistol was not used
but when a milk can was thrown by Suresh on the accused Ajit, he had opened
fire from his country-made pistol presumably by way self defence which hit the
thumb and finger of the left hand of Suresh, PW 7. Accordingly, the conviction
of Ajit under Section 397 is also unjustified. Mr. Sushil Kumar has submitted that
the evidences adduced in this case do not inspire confidence. It also does not
appear how and when the said country-made pistol was recovered from the
possession of the appellant Ajit. There is no reliable and unimpeachable
evidence which may connect the appellant with the commission of the offence
alleged against him. So far as the identification of the accused is concerned.
It is an admitted position that in the presence of PW 7, the accused were taken
out from police lock-up and they were interrogated. Hence no reliance can be
based on identification of the accused in Court. Mr. Sushil Kumar has submitted
that the accused should be acquitted by giving benefit of doubt. Mr. Sushil
Kumar has further submitted that in any event, since from the date of their
arrest, the appellant is in custody and by this time he has suffered detention
for more than five years. The appellant should be released even if his
conviction under Section 392 is sustained by this Court.
It
appears to us that there is force and justification in the contention of Mr. Sushil
Kumar. In the facts and circumstances of the case, we do not think that
appellant should be convicted under Section 397 and 394 IPC. But in our view,
on the basis of depositions of PWs 7 and 8 the appellant's conviction under
Section 392 IPC should be sustained. The convictions under Section 394 and 397
IPC do not appear to be justified. Such convictions are set aside. We therefore
allow the appeal in part by setting aside the convictions and sentences under
Section 394 and 397 IPC but conviction under Section 392 is affirmed. The
appellant is stated to have undergone sentence for more than five years. In the
facts of the case, justice will be met if the sentence for offence under
Section 392 IPC is reduced to the period of five years. The appellant would be
released forthwith if he is not wanted in connection with any other criminal
case provided by this time he has undergone detention for five years.
So far
as the co-accused Rajpal is concerned. It does not appear that he has preferred
any appeal against his conviction. The learned counsel for the State is also
not in a position to apprise this Court as to whether any appeal has been
preferred by the said accused, Rajpal. In view of our finding in respect of the
appellant Ajit Singh, the co-accused Rajpal is also entitled to the same
benefit of conviction only under Section 392 and order of acquittal in respect
of offence under Section 394 and 397 IPC. We order accordingly. In this
connection, reference may be made to the decision of this Court in Piara Singh
versus State of M.P. (1992 Suppl. (3) SCC 45) where this Court has indicated
that if any of the accused fails to prefer an appeal due to doverty or
otherwise, he will be entitled to the benefit of the modification of sentence
passed against the other accused in similar circumstances by this Court. Such
course of action by this court, in our view, will be consistent with the
justice to be made in the facts of the case. We may also indicate that it
appears to us that presumably the co-accused has failed to prefer any appeal
before this Court not out of his own accord but due to doverty. We, therefore,
direct that the sentence for the offence under Section 392 IPC is reduced to a
period of five years for Rajpal also. The co-accused Rajpal would also be
released if he is not wanted in connection with any other criminal case
provided by this time he has undergone imprisonment for five years.
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