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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: UTTAM ALIAS CHEAKU

DATE OF JUDGMENT21/04/1987

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) SEN, A.P. (J)

CITATION:  1987 SCR  (2)1064        1987 SCC  (3) 485  JT 1987 (2)   336        1987 SCALE  (1)1177

ACT:    Indian    Penal   Code,    1860---Section    395--Highway robbery--Case  of--Accused convicted--Trial  Court  judgment well   reasoned  and  considered--Based  on   testimony   of victims--High  Court in appeal--Rejecting trial court  judg- ment  without  proper consideration  and  discussion-Accused acquitted--Supreme Court in appeal by State---Setting  aside High  Court Judgment--Restoring conviction and  sentence  on accused-Necessity for seriousness and care to be bestowed in such cases-Pointed out.

HEADNOTE:     The  respondent. along with three others, was tried  for offences under sections 395,397 and 412 of the Indian  Penal Code. The prosecution alleged that the respondent had delib- erately  dashed  his car against the car of P.W.  5  on  the Delhi-Jaipur Road, while the latter was traveling to  Jaipur alongwith his wife, PW 6 and daughter. Five persons, two  or three  of them armed with revolvers and others with  daggers came out of the respondent’s car. One of them gave a  couple of  knife blows in the chest of PW 5, and another.  who  was armed with a pistol, fired shots in the air and scared  away drivers of some trucks who were passing along that road  and tried  to  come to the aid,of PW 5 who was  crying  out  for help. One of the assailants removed the ear rings,  necklace and  wrist watch from the person of PW 6. and in that  proc- ess, one of her ear lobes was cut as under. The wrist  watch and  purse  of PW 5 and three attache cases on  the  luggage carrier  of  his car were also forcibly  removed  and  taken away.  Before the culprits left the spot in their  car  with all the booty. a shot was fired by one of them which hit  PW 5  on the forehead. PW 5 somehow managed to drive  back  his car to Gurgaon and narrated the whole incident to his  part- ner  and thereafter he and his wife were medically  examined and  treated  at  Gurgaon Civil Hospital,  for  the  various injuries  that were found on them. Thereafter an F.I.R.  was lodged  with the Gurgaon Police. The accused  were  arrested after  a fairly long delay and two test  identification  pa- rades  were held. one separately for the  respondent-accused at  his  request and other for the remaining  suspects.  The respondent  was identified by the victims. On the  basis  of the  information furnished by the accused some of the  arti-

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cles of the victims were recovered. 1065     The  trial  court held that the charge against  the  re- spondent  under  section 395 I.P.C. was  proved  beyond  all reasonable doubt and convicted and sentenced him to  undergo rigorous  imprisonment for four years. The other  three  ac- cused were acquitted on the ground that their  participation in the crime was not sufficiently proved and hence they were entitled to the benefit of doubt.     The  High  Court,  however, allowed the  appeal  of  the respondent by extending the benefit of doubt to him and  set aside his conviction and sentence. Allowing the State’s appeal by Special leave.     HELD: 1. A case of highway robbery, such as this, should have been dealt with much more seriousness and care than has been  bestowed on it by the High Court. Its approach to  the case  and the conclusion recorded by it cannot but  be  cha- racterised  as  manifestly illegal and perverse.  The  trial court  has rightly concluded that from the evidence  of  the victims  the participation of the respondent in the  commis- sion  of  the  offence had been  proved  beyond  all  doubt. [1069B-C]     2.1 The High Court, by a most perfunctory judgment,  set aside the judgment of the trial court, insofar as the  trial court  had  convicted the respondent herein,  and  acquitted him.  It has dealt with the case in a very  superficial  and casual  manner  and has not even taken care to  discuss  the evidence adduced in the case, before it proceeded to  inter- fere  with the well considered judgment of the trial  court. [1068G-H]     2.2.  The trial court after an elaborate and  analytical discussion  of  the whole evidence recorded  the  conclusion that  the participation of the respondent in the  commission of the crime was established beyond all doubt inasmuch as he had  been  identified  by the both the  victims,  and  their testimony  narrating the details of the incident of  robbery and assault was not shaken in cross-examination and deserved to be accepted as wholly truthful, [1068D-E]     2.3 Both the victims, PW 5 and 6, had clearly identified the respondent at the test identification parade as well  as in the court and they had clearly and unequivocally disposed that  he  was  one of the assailants who took  part  in  the robbery  and  assault. The trial court has given  sound  and convincing  reasons  for  accepting and  acting  upon  their testimony. The High Court has, however. not discussed in its judgment  as to why it considered that the testimony of  the victims of the crime could not_be accepted and why it  could not  form the foundation for the conviction of the  respond- ent. [1068H; 1069A-B] 1066     3. The judgment of the High Court is set aside and  that of  the trial court convicting the respondent under  section 395  of the Indian Penal Code and sentencing him to  undergo rigorous  imprisonment of four years is restored.  Necessity for  awarding  severe  punishment in such  cases  of  proven highway robbery stressed. [1069F]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 559 of 1983.     From the Judgment and Order dated 7.1.1982 of the Punjab and Haryana High Court in Crl. Appeal No. 537 (SB) of 1980. Harbans Lal, I.S. Goel and K. Chaudhri for the Appellant.

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Govind Mukhoty (Amicus Curiae) for the Respondent. The Judgment of the Court was delivered by     BALAKRISHNA  ERADI, J. Uttam alias Cheaku, the  respond- ent-herein along with three others was tried by the  learned Additional Sessions Judge, Gurgaon for alleged commission of offences under Sections 395,397 and 4 12 of the Indian Penal Code. By judgment dated July 21. 1980, the learned Addition- al  Sessions Judge held that the charge against Uttam  under Section  395 I.P.C. was proved beyond all  reasonable  doubt and  he was accordingly convicted and sentenced  to  undergo rigorous  imprisonment for four years. The other  three  ac- cused were acquitted on the ground that their  participation in the crime was not sufficiently proved and hence they were entitled to the benefit of doubt. The respondent carried the matter  in appeal to the High Court of Punjab  and  Haryana. The  High  Court by its impugned judgment dated  January  7, 1982 allowed the said appeal, extending the benefit of doubt to  the  respondent, and set aside his conviction  and  sen- tence.  The State of Haryana has come up to this Court  with this  appeal against the said order of acquittal  after  ob- taining Special leave from this Court.     Briefly stated, the prosecution case i.s that on October 24,  1978, Om Parkash (P.W. 5) accompanied by his  wife  Jai Rani  (P.W. 6) and their daughter Neelam left Delhi  in  the early hours of the morning for Jaipur by car. Om Parkash and his  wife  Jai Rani were in the front seat  of  the  vehicle while their daughter was occupying the rear seat. When their car  had  reached  about 10-12 Kms. beyond  Gurgaon  on  the Delhi-Jaipur  Road,  another car  bearing  registration  No. DEA-2914 came 1067 from  behind and attempted to overtake their  vehicle.  Even though  Om Parkash had made way for the other car  to  pass, that  car deliberately swerved to the left side  and  struck against  the  front wheel of his car, whereupon  Om  Parkash stopped  his car on the left side of the road in  the  kacha portion.  In the meantime, the other car also stopped  at  a distance of about ten paces ahead and five persons came  out of that vehicle. It is stated that two or three out of  them were  armed with revolvers and others with daggers. Om  Par- kash  got out of the vehicle and asked the assailants as  to why they had caused the accident. In the meantime, Jai  Rani also came out of the car. One of the assailants then gave  a couple of knife blows in the chest of Om Parkash,  whereupon he tried to raise an alarm. Hearing the said cry’ for  help, some trucks which were passing along that road tried to stop but one of the assailants who was armed with a pistol, fired shots in the air and scared away those truck drivers. There- after one of the assailants removed the ear rings,  necklace and  wrist  watch from the person of Jai Rani  and  in  that process  one  of her ear lobes was cut as under.  The  wrist watch  and purse of Om Parkash were also removed by  one  of the  culprits.  Apart from that, three attache  cases  which were  on the luggage carrier of the car were  also  forcibly removed  and taken away by the miscreants. Before  the  cul- prits left the spot in their car with all the booty, a  shot was  fired by one of them which hit Om Parkash on his  fore- head. After inflicting the said injury, the miscreants  made good their escape.     Om  Parkash  somehow managed to drive back  his  car  to Gurgaon  and there he contacted his partner  Joginder  Singh (P.W. 7) to whom he narrated the whole incident. Om  Parkash was  immediately taken to Civil Hospital, Gurgaon  where  he was  medically examined and various injuries were  found  on his person. Jai Rani also medically examined and the  injury

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on her right ear lobe was declared to be grievous. The other injuries  were  found to be simple for which she  was  given first  aid.  The  first information  report  was  thereafter lodged with the police by Om Parkash and Sub-Inspector Tilak Raj  (P.W. 21) carried out the investigation.  He  recovered empty  cartridge cases (Exhibits P. 15 and P. 16),  one  wad (Exhibit P. 17) and one Ball Point Pen (Exhibit P. 18)  from the  place  of occurrence. During the investigation  it  was found  that the car used by the culprits had been stolen  on October  23,  1973  from the house of its  owner,  one  S.K. Mahajan.  Subsequently,  on October 27, 1978,  the  car  was found  lying abandoned in the Ghaziabad factory area and  it was taken into police custody.     The  accused  were arrested after a  fairly  long  delay since  it so happened that subsequent to the  occurrence  in question the accused 1068 persons  had  been allegedly involved in the  commission  of other  crimes  in the State of Uttar Pradesh and  they  were lodged  in the Meerut jail. After the accused  were  brought from Meerut, two test identification parades were held,  one separately  for Uttam at his request and the other  for  the remaining suspects. In the first parade, Uttam was correctly identified  by both Om Parkash and Jai Rani. In  the  second identification parade, Om Parkash failed to identify any  of the other accused whereas Jai Rani identified Trilok  Singh, who  was  accused  No. 2. On the basis  of  the  information furnished  by the accused the Investigating Officer and  the police party led by him recovered some of the articles which formed  the contents of the suit-cases removed from the  car of  the victims. They consisted of new suit  length  cloths, sarees, trousers, blouses, petti coats etc.     The  Prosecution  examined in all 22  witnesses  in  its endeavour to establish the guilt of the accused in  relation to  the the charges framed against them. The  learned  Addi- tional  Sessions  Judge after an  elaborate  and  analytical discussion  of  the whole evidence recorded  the  conclusion that  the participation of the respondent-Uttam in the  com- mission of the crime was established beyond all doubt  inas- much  as he had been identified by both Om Parkash (P.W.  5) and Jai Rani (P.W. 6), and the testimony given by these  two witnesses  narrating the details of the incident of  robbery and  assault was not in any manner shaken in  cross-examina- tion  and  deserved to be accepted as wholly  truthful.  The remaining  three  accused were given the  benefit  of  doubt mainly  on the ground that excepting the second accused  who had  been identified only by Jai Rani at the  identification parade, the others were not identified either by Jai Rani or by  Om Parkash and hence there was no satisfactory proof  of their participation in the crime. In the light of the afore- said  conclusion  reached  by him,  the  learned  Additional Sessions Judge convicted the respondent-Uttam under  Section 395  I.P.C. and sentenced him to undergo rigorous  imprison- ment of four years.     The High Court by a judgment which we are constrained to characterise as most perfunctory has set aside the  judgment of the learned Additional Sessions Judge in so far as he was convicted the respondent-herein and acquitted him. We regret to  have  to remark that the High Court has dealt  with  the case  in  a very superficial and casual manner and  has  not even taken to,trouble to discuss the evidence adduced in the case before it proceeded to interfere with the well  consid- ered  judgment of the trial court. Both Om Parkash (P.W.  5) and Jai Rani (P.W. 6) had clearly identified the  respondent at  the test identification parade as well as in  the  Court

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and they had 1069 clearly  and  unequivocally deposed that he was one  of  the assailants  who took part in the robbery and assault.  Their testimony has been discussed at length by the learned  Addi- tional Sessions Judge and he has given sound and  convincing reasons  for accepting and acting upon the same.  The  whole discussion of the case by the High Court is contained in one short  paragraph of its judgment namely, paragraph 6. It  is not  disclosed  anywhere therein as to why  the  High  Court considered  that  the testimony of these two  witnesses  who were the victims of the crime could not be accepted and  why it  could not form the foundation for the conviction of  the respondent. A case of highway robbery, such as this,  should have been dealt with much more seriousness and care than has been  bestowed on it by the High Court. The approach of  the High  Court  to the case and the conclusion recorded  by  it cannot  but be characterised as manifestly illegal and  per- verse.     In the absence of any discussion of the evidence by  the High  Court, we have ourselves gone through the entire  evi- dence adduced in the case with the assistance of the Counsel appearing  in both sides. We are in complete agreement  with the  conclusion recorded by the learned Additional  Sessions Judge that from the evidence of Om Parkash (P.W. 5) and  Jai Rani  (P.W.  6),  the participation of the  accused  in  the commission of the offence has been proved beyond all reason- able doubt. The respondent was, therefore, rightly convicted by  the learned Additional Sessions Judge and the only  mis- take committed by the learned Additional Sessions Judge  was in not in awarding a more severe sentence commensurate  with the gravity of the offence.     In the result, we allow the appeal, set aside the  judg- ment  Of  the  High Court and restore that  of  the  learned Additional  Sessions Judge convicting the  respondent  under Section  395 I.P.C. and sentencing him to  undergo  rigorous imprisonment of four years. The Bail Bond of the  respondent will stand cancelled. He shall be taken into custody  forth- with to serve out the remaining portion of the sentence. N.P.V.                                                Appeal allowed. 1070