JODHPAL Vs. STATE

JUDGEMENT

(1.) The facts leading to the filing of the present appeals are that on 9th January, 1991 when Inspector Rajinder Singh was on patrolling duty with Head Constable Shiv Kumar, Constable Puran Singh and Constable Nathu Lal in the area of Chandrawal at about 4:20 p.m., they heard a noise and saw that one person was being chased by the public who was later identified as Jodhpal Singh s/o Nawab Singh. On being asked, it was revealed that the accused Jodhpal Singh along with co-accused Ravinder Singh, Rajiv Solanki and Vinod Kumar had committed a robbery at House No. 101, Chandrawal and also outraged the modesty of PW3. The police apprehended Jodhpal Singh on the spot and on his personal search, a lady s wrist watch was recovered which was seized vide memo Ex. PW3/H. Statement of PW 3 was recorded, on which Case FIR No. 8/1991, Ex. PW3/A was registered at Police Station Civil Lines under Sections 397/354/120-B IPC and Section 27 of the Arms Act. PW3 in her complaint detailing the sequence of events, alleged, that two boys entered the house, threatened her with knives, molested her and when the neighbor rang up the bell, on hearing the voice of Harbans Kaur, took away the articles from the house and ran away. After completion of investigation, charge-sheet was filed. All the accuseds were charged for offences punishable under Sections 392/397/354/120B IPC and the Appellants were in addition charged for offence punishable under Section 27 Arms Act.

(2.) Co-accused Vinod Kumar and Rajiv Solanki were acquitted after the trial. Appellants Jodhpal and Ravinder Kumar @ Babloo were convicted for commission of offences under Section 397/354 read with 120B IPC and Section 27 of the Arms Act by the impugned judgment dated 28th March, 2001. They were awarded Rigorous Imprisonment for 7 years for offence punishable under Section 397 IPC, Rigorous Imprisonment for 1 year for offence punishable under Section 354 IPC and Rigorous Imprisonment for a period of 3 years and a fine of '1,000/- each and in default of payment of fine, simple imprisonment for three months for offence punishable under Section 27 of the Arms Act vide order dated 31st March, 2001.

(3.) Learned counsels for the Appellants contends that in total 19 witnesses were cited in the charge-sheet however, during trial, the prosecution examined only 10 witnesses and withheld 9 witnesses including the most material witness Smt. Harbans Kaur, who raised the alarm. As the prosecution withheld material witnesses, so not only an adverse inference shall be drawn under Section 114(g) of the Evidence Act but also the same casts a serious reflection on the fairness of the trial. Learned counsel places reliance on Habeeb Mohd vs. State of Hyderabad, 1954 AIR(SC) 5; S.P. Bhatnagar vs. State of Maharashtra, 1979 1 SCC 535 and Khushalbhai Mahijibhai Patel v. A Firm of Mohmadhussain Rahimbu, 1981 AIR(SC) 977.