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CASE NO.: Appeal (crl.)  345 of 2005

PETITIONER: Surender Singh                                                   

RESPONDENT: State of Haryana                                                         

DATE OF JUDGMENT: 17/01/2006

BENCH: H.K. SEMA & DR.A.R.LAKSHMANAN

JUDGMENT: J U D G M E N T WITH CRIMINAL APPEAL NO. 74   OF  2006 (Arising out of S.L.P.(Crl.)No.1491 of 2005)

Vikas                                                                   \005  Appellant

Versus

State of Haryana                                                          \005   Respondent                                  

H.K.SEMA,J

                Leave granted in S.L.P (Crl.) No.1491 of 2005.

               Criminal Appeal No. 345 of 2005 is preferred by Surender  Singh (A-1) and Criminal Appeal 74 of 2006 @ S.L.P. (Crl.) No.1491 of  2005 is preferred by Vikas (A-3).  The appellants Surender Singh and Vikas  were convicted by the Trial Court along with one accused Dharmender (not  before us) for an offence under Section 392 and sentenced to undergo RI for  seven years and to pay a fine of Rs.5000/- each and in default of payment of  fine to further undergo RI for one year.  They were also convicted for an  offence under Section 394 IPC and sentenced to undergo life imprisonment  and to pay a fine of Rs.5000/- each and in default of payment of fine to  further undergo RI for one year.  They were further convicted for an offence  under Section 397 IPC and sentenced to undergo RI for ten years and to pay  a fine of Rs.5000/- each and in default of payment of fine to further undergo  RI for one year.  The appellant Surender Singh was also convicted for an  offence under Section 25 of the Arms Act and was sentenced to undergo RI  for two years and to pay a fine of Rs.2000/- and in default of payment of fine  to further undergo RI for six months.  All the sentences, however, were  ordered to run concurrently.   The High Court, on appeal, preferred by the  accused, reduced the sentence to seven years under Sections 394 and 397  IPC albeit without assigning any reasons.   The sentence of the appellants  under Sections 392 IPC and 25 of the Arms Act were, however, maintained.   Aggrieved thereby, the accused-appellants preferred these appeals by special  leave.                  Briefly stated the facts are as follows:-                 On 7.2.2000 at about 12.20 p.m. complainant Ramesh Batra  (PW-9) along with Baldev Raj (PW-2) were going to deposit the sale  proceeds of the petrol pump amounting to Rs.62,000/- with Oriental Bank of  Commerce, Gannaur.  When they were in front of the bank, three young  boys confronted them.  One of them was armed with pistol, another was  having knife and the third one was empty handed.  The scooter by which  they were travelling was stopped and the boy who was empty handed tried to  snatch the bag from Baldev Raj (PW-2).  When PW-2 resisted, the boy who

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was armed with knife gave a knife blow on his person.  Thereafter, the  unarmed boy snatched the bag and tried to run away.  On alarm being raised  many persons came at the spot and overpowered the boy armed with knife.   The boy who was caught at the spot told his name as Dharmender A-2 (not  the appellant).  He also disclosed the names of other two boys who had  escaped with the bag as Vikas (Appellant in Crl.Appeal No.74/06 @  S.L.P  (Crl.) No.1491/05  and Surender (Appellant in Crl.A.No.345/05).    Thereafter, PW9 Ramesh Batra after sending PW-2 to the hospital went to  lodge the complaint and also produced  accused-Dharmender.  The knife  stained with blood was taken into possession by SI Jagdish Chander and on  his statement FIR was recorded.   At the same time when Inspector Prithvi  Singh (PW-13) was coming from Lalheri side in a jeep, he received a  wireless message that the accused Vikas and Surender fled with bag and  they are being chased by the public.  Then he saw the two accused Vikas and  Surender being chased by the public.  He apprehended them and took them  into custody and they disclosed their names as Surender and Vikas.  It was  further disclosed from the search of Surender, a pistol, two live cartridges of  12 bore and a bundle of currency notes of the denomination of Rs.50/- each  total amounting to Rs.5000/- having a chit of Oriental Bank of Commerce  were recovered while two bundles of currency notes of the denomination of  Rs.50/- each having the chit of Oriental Bank of Commerce, total amounting  to Rs.10,000/- were recovered from the bag which was being carried by  Vikas.                        These two appeals are directed against a concurrent finding of facts  recorded by two courts.  In the case of Bharwada Bhoginbhai Hirjibhai v.  State of Gujarat   AIR 1983 Supreme Court 753, it has been held by this  Court:  

"A concurrent finding of fact cannot be reopened  in an appeal by special leave unless it is  established: (1) that the finding is based on no  evidence or (2) that the finding is perverse, it being  such as no reasonable person could have arrived at  even if the evidence was taken at its face value or  (3) the finding is based and built on inadmissible  evidence, which evidence, if excluded from vision,  would negate the prosecution case or substantially  discredit or impair it or (4) some vital piece of  evidence which would tilt the balance in favour of  the convict has been overlooked, disregarded, or  wrongly discarded."

       Learned counsel for the appellants has taken us through the evidence  and we do not find that the circumstances as laid down by this Court as  referred to above are available in the present case.   The present case is not  of such a nature, which would require our interference in Special Leave.   The finding of guilt recorded by the Session’s Court and confirmed by the  High Court has been challenged mainly on the basis of PWs 3 and 4 who are  panch witnesses turned hostile and even PW-2 who is an injured witness  and PW-9 the complainant turned hostile.  The challenge to the concurrent  finding of guilt is also on the basis of minor discrepancies in the evidence of  prosecution witnesses.          So far the minor discrepancy, which has been pointed to us, we are of  the view that it is not of such a nature, which creates infirmity in the  prosecution’s case.   It is a well-established principle of law that every  discrepancy in the witness statement cannot be treated as a fatal to the  prosecution case.  The discrepancy, which does not affect the prosecution  case materially, does not create infirmity.          With regard to PWs 3 and 4 panch witnesses being turned hostile, this  contention was also well considered by the Trial Court and the High Court.  And both the courts held that their statements do not affect materially the  prosecution story. PW-3 stated that pistol or cartridges or currency notes  mentioned in Ex.PC were not recovered in his presence.  He, however,  admitted his signatures over Ex.PC and Ex.PD.  PW-4 also stated that the  pistol, cartridges or currency notes mentioned in Ex.PC were not recovered

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in his presence.  He also admitted that Ex.PC and Ex.PD bear his signatures.  Therefore, both the courts correctly held that the Ex.PC and Ex.PD were  recovered in the presence of PWs 3 and 4 who were panch witnesses.         P.W.2 who is an injured witness was examined by P.W.5 (Dr.) on  7.2.2000 and found the following injuries on his person:

"1.  An incised wound 2 cm x = cm on the left  side of the back 24 cm from left shoulder joint.  17  cms from left axillary line.  Fresh bleeding present.   Advised x-ray.

2.  An incised wound 2 cm x = cm on left side of  the back 2 cm from midline 5 cm medial to first  injury.  Fresh bleeding present.  Advised x-ray.

3.  An incised wound 2 cm x = cm on left side of  the back 12 cm from the left illisecrast 8 cm from  midline fresh bleeding present. Advised x-ray.     4.  An incised wound 2 cm x = cm on the right  side of the back 2 cm right to the midline 5 cm  away from injury No.2.  Fresh bleeding present.   X-ray advised.

5.  An incised wound 2 cm x = on the right side of  the chest 19 cm from anterior superior alliscrast 30  cm from midline.  Fresh bleeding present.   Advised x-ray.  

6.  An incised wound 2 cm x = cm on the right  side of the chest 31 cm from midline 10 cm from  anterior superior illise spins.  Fresh bleeding  present.  Advised x-ray."

        The testimony of an injured witness has its own relevancy and  efficacy. The fact that the witness is injured at the time and in the same  occurrence lends support to the testimony that the witness was present  during occurrence and he saw the happening with his own eyes.  Curiously  enough even the injured witness PW-2 has turned hostile.  Learned counsel  for the appellants strenuously urged that PW-2 Baldev Raj stated that the  accused were not the persons who attacked him and, therefore, the appellants  are entitled to the benefit of doubt.   This submission was considered by both  the Trial Court and the High Court and rejected, in our view, rightly.   Although PW-2 was declared hostile, he has categorically stated that he had  gone to Oriental Bank of Commerce, Gannaur, to deposit the amount.  He  has also stated that 4-5 persons attacked him.  He has also stated that they  gave knife blows to him and snatched the bag from him.  This statement is  well corroborated by the injuries suffered by him on his person, which is  proved by PW-5 as well as seizure of the bag along with the money.     PW-2  even denied that he had gone to the bank with PW-9 Ramesh Batra.  The  statement of PW-2 was belied by the statement of PW-9 who categorically  stated that he had gone to the bank along with P.W.2 Baldev Raj.  The next  submission of the counsel for the appellants is that the allegation of  snatching of Rs.62,000/- by the accused is not proved inasmuch as only  Rs.15,000/- has been recovered from the bag.  This contention in our view  has also no substance.  The factum of recovery of pistol along with  cartridges and the currency notes of the denomination of Rs.50/- amounting  to Rs.5000/- from the possession of Surender and the currency notes of the  denomination of Rs.50/- each amounting to Rs.10,000/- from the bag which  was being carried by Vikas is proved.  The other contention of the learned  counsel for the appellants that the money so recovered from the accused  Vikas and Surender was not the amount, which is stated to have been  snatched away from PW-2 as the whereabouts of rest of Rs.47,000/- has not  been explained by the prosecution but it was implanted by the police for

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false implication.  It is nobody’s case that the accused and the police had any  previous enmity.  It is also nobody’s case that the complainant PW-9 and the  injured PW-2 had any previous enmity with the accused which would  warrant for foisting a false complaint against the accused.  While it is true  that the prosecution has failed to explain the whereabouts of rest of the  amount, this itself would not vitiate the factum of recovery of Rs.15,000/-  from the possession of the accused along with other incriminating materials.   It must be grasped that the two appellants herein were apprehended along  with the incriminating materials while fleeing and the accused No.2  Dharmender was apprehended on the spot.            For the reasons afore stated the two appeals are devoid of merits and  are accordingly dismissed.