VIRENDER Vs. STATE OF HARYANA

JUDGEMENT

(1.) The present appellant Virender along with his co-accused Sunil was tried by the Court of Additional Sessions Judge, Fatehabad, in case FIR No. 218 dated 4.5.2002, registered at Police Station City Fatehabad, under Sections 392 and 398 IPC and 25 of the Arms Act, 1959 (hereinafter referred to as ''the Act''). The appellant along with his co-accused was charged for the offence under Section 392 IPC for having committed theft of Hero Honda Motorcycle belonging to PW.2 Lalit Kumar on 4.5.2002 in the area of Fatehabad and while committing the said theft, hurt was also caused to the said Lalit Kumar to compel him to deliver the motorcycle. The second charge stated that on the said date, time and place, while committing theft of Hero Honda Motor Cycle of Lalit Kumar, the accused used deadly weapon and caused grievous hurt to him and thereby committed an offence punishable under Section 398 IPC. The present appellant was also charged for having kept in his conscious possession, on 27.6.2002, one pistol .315 bore along with one empty and live cartridge without any permit or licence and thereby committed an offence punishable under Section 25 of the Act.

(2.) The trial Court held that the prosecution has failed to prove identity of the accused and thereby acquitted the appellant for the offence under Sections 398 and 392 IPC. The following finding given in paragraph No. 33 of the impugned judgment, reads as under:-

(3.) The trial Court further held that it is proved from the facts on the file of the case that the stolen motorcycle of the complainant was recovered from possession of appellant Virender alias Bandar. The trial Court placed implicit reliance upon the testimony of PW.12 Azad Singh, Inspector and PW.11 Jai Ram, Head Constable, to hold that the appellant suffered a disclosure statement and in pursuance thereof he got the motorcycle recovered and thus, he had committed the offence punishable under Section 411 IPC. The trial Court, however, acquitted the appellant of offence under Section 25 of the Act. Thus, the appellant was acquitted of offence under 392 and 398 IPC and 25 of the Act but was convicted, vide impugned judgment dated 11.3.2004 for the offence under 411 IPC. Vide a separate order of even date, the appellant was sentenced to undergo rigorous imprisonment for a period of three years for commission of the said offence.