KALU SINGH Vs. STATE

JUDGEMENT

(1.) On 12 th May, 1996 at about 2.30 p.m. an information was received at P.S. Tilak Nagar that two thieves have been apprehended near 20-Block Gurdwara, Tilak Nagar, and police be sent. SI S.S.Yadav reached the spot along with Constable Rajender and found many people, present there. Sardool Singh, the complainant had caught hold of the Appellant as well as one Mahinder @ Machhu with the public present at the spot and Sardar Saran Singh father of complainant was lying in an unconscious condition nearby. Accused Mahinder @ Machhu was having a gold kara in his hand. SI S.S.Yadav recorded the statement of the complainant who stated that at about 2.50 p.m. he came to the spot where he found his father Sardar Saran Singh in an unconscious condition. Two boys Kalu Singh s/o Pyara Singh and Mahinder @ Machhu were removing a gold kara from the right hand of his father. Kalu Singh removed the kara and handed the same to Mahinder Singh. Both of them ran away on which he raised an alarm. People gathered there and apprehended both of them. They were beaten by the public and their heads were tonsured. According to him the incident was also witnessed by Bishan Singh s/o Issar Singh, Mahinder Singh s/o Harbans Singh, Mahinder Singh s/o Harbhajan Singh besides other persons. Kalu Singh and Mahinder Singh were apprehended by the police personnel. The gold kara recovered from Mahinder Singh was seized. On the statement of Sardool Singh FIR No.359/1996 under Section 328/379/411/34 IPC was registered. On completion of the investigation, charge sheet was filed and both the accused were charged for offences punishable under Section 328/34 IPC and 379/34 IPC. The statement of the prosecution witnesses and the accused under Section 313 Cr.P.C. were recorded. The Appellant and co-accused were acquitted for offence punishable under Section 328/34 IPC, however convicted of offence punishable under Section 379/34 IPC and awarded a sentence of rigorous imprisonment for three years with a fine of '5,000/- each and in default of payment of fine to further undergo simple imprisonment for three months. The present appeal was filed by both the convicts, however, before this appeal could be finally heard, Appellant No.2 Mahinder Singh died on 5 th March, 2007 and vide order dated 12 th November, 2010 the appeal qua the Appellant No.2 stands abated. Thus, the only Appellant now before this Court in the present appeal is Kalu Singh.

(2.) Learned counsel for the Appellant challenging the judgment of conviction and sentence contends that none of the witnesses has identified the Appellant or supported the case of the prosecution. Sardar Saran Singh, the victim implicates Mahinder co-convict as the person who gave the intoxicant and removed the kara. He states that there were 2-3 other persons with accused Mahinder who managed to run away. Testimony of PW5 Mahinder Singh s/o Harbhajan Singh and PW6 Mahinder Singh s/o Harbans Singh only implicates Mahinder Singh as the person from whom the gold kara was recovered. Both these witnesses have not ascribed any role or overt act to the Appellant Kalu Singh. It is stated that the testimony of PW4 Sardool Singh, the complainant does not inspire confidence, as he says that he saw both the accused surrounding his father and both removing the gold kara from the hand of his father when they were apprehended by the public, while his father lay unconscious. The testimony of this witness is wholly unreliable as this statement of the complainant is an improvement from his earlier statement recorded by the police. Though he has deposed that he saw the accused surrounding his father and taking off the kara, he does not try to save his father nor makes any attempt to apprehend the accused. Nobody except the complainant has implicated the Appellant. None of the persons who apprehended and who had allegedly beaten the Appellant & co-accused Mahinder have been made witnesses. The witnesses examined including PW4 were not present at the spot and they have been planted as witnesses. PW2 Dr. K.K.Arya and PW-10 Dr. Y.N.Chhabra contradict each other as both the doctors claim to have examined the victim on the date of incident i.e. 12.05.1996. PW 10 in his testimony has deposed that the victim was brought to his clinic by his daughter-in-law and thereafter was got admitted to Singh Heart Clinic, and in support thereof has produced the prescription Ex. PW 10/A whereas PW 2 has deposed that the victim was examined by him on 12.05.1996 with a suspected diagnosis of narcotic poisoning and stated that the victim was initially treated at M.P. Heart Centre for eight hours. He further deposed that the victim was discharged on 14.05.1996. Prescription in this regard is exhibited as Ex.PW2/A. It is thus prayed that the prosecution has not been able to prove the charges against the Appellant and he be acquitted. In the alternative it is also prayed that the incident is of the year 1996 and the Appellant has faced the ordeal of the pendency of the trial and the appeal for 14 years, therefore, he be released on the period of sentence already undergone.

(3.) Learned APP, on the other hand contends that the testimony of PW2 and PW10, the two doctors proves that the victim i.e. PW3 Sardar Saran Singh was admitted on 12 th May, 1996. The presence of the Appellant at the spot as he was beaten by the public and apprehended at the spot stands proved by the testimony of PW1, PW3, PW4, PW5 and PW6 beyond reasonable doubt. PW3, the victim could not identify Appellant Kalu Singh in the Court as he was 80 years of age when he appeared as a witness in the Court. The Appellant in his statement under Section 313 Cr.P.C. has taken the plea of alibi, however, this plea has neither been put as a suggestion to the prosecution witnesses nor proved by the Appellant by way of defence evidence. Thus, the appeal is liable to be dismissed.