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PETITIONER: AJIT SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       08/02/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) SINGH N.P. (J)

CITATION:  1996 SCC  (3) 335        JT 1996 (2)   234  1996 SCALE  (2)94

ACT:

HEADNOTE:

JUDGMENT:                        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.

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    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

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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.