SWARAN SINGH Vs. STATE

JUDGEMENT

(1.) By this appeal, the Appellant lays a challenge to the judgment dated 7 th August, 2001 convicting him for offence punishable under Section 398 IPC and order dated 3 rd September, 2001 awarding the sentence of Rigorous Imprisonment for seven years.

(2.) Briefly the prosecution case is that on 7 th February, 1996, accused Swaran Singh accompanied by 3/4 associates came to the house of Ram Niwas at Sangam Vihar with an intention to commit dacoity. They were armed with weapons and the Appellant was having one country-made pistol. On reaching the house of Ram Niwas they knocked the door and when Ram Niwas opposed their entry in his house all the accused persons on the instructions of Appellant forcibly entered into the house of Ram Niwas. He raised an alarm and his friend Dharambir who was sitting inside the house came out and the Appellant fired a shot. Then the Appellant along with his associates tried to flee away but after chasing, the Appellant was caught by the Complainant and Dharambir with his pistol while the others managed to escape. Police arrived at the spot and from the Appellant one country-made pistol and five live cartridges were recovered. Also one empty cartridge was found in the barrel of the katta and all the articles were seized and sealed. Thereafter on 10 th October, 1996 co-accused Kanwar Pal Singh was arrested in some other case and in his disclosure statement he disclosed about his involvement in the present offence. Investigation was conducted and a charge-sheet was filed. After recording the statement of witnesses and the accused under Section 313 Cr.P.C. the learned Trial Judge held as above.

(3.) Learned counsel for the Appellant contends that the Appellant is a handicapped person. There are many lacunas in the prosecution version and statements of the alleged eye-witnesses i.e. PW2 and PW3 are full of contradictions. There is no recovery of alleged robbed articles from the Appellant. The witnesses on the basis of whose testimony conviction has been based are interested witnesses and no public witness has been examined by the prosecution despite the fact that it is stated by the witnesses that on raising an alarm public got collected at the house of the Complainant. The coaccused, who were charged for the said offence, have been given the benefit of doubt and acquitted by the learned Trial Judge. However, the benefit of doubt has not been extended to the Appellant. The Appellant claims that he be acquitted on parity. It is further stated that no shell has been recovered, no finger prints or chance prints have been picked up from the place of occurrence. No photographs of the crime scene have been taken. Relying on Chinnadurai v. State of Tamil Nadu, 1996 AIR(SC) 546, it is contended that since no attempt of robbery has been proved, the Appellant cannot be convicted for an offence punishable under Section 398 IPC. The entire prosecution story is full of contradictions and improvements and hence the Appellant is entitled to be acquitted.