NAVEEN KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) The instant appeal has been preferred against the impugned Name of Offence Period of Fine Period of Convict sentence imposed sentence in default of payment of fine Naveen 393 IPC Rigorous Rs.2,000.00 RI for Six Kumar read with imprisonment months Teja @ Tej Sec. 398 (RI) for 07 IPC years Ram 471 IPC RI for 2 years Rs.1,000.00 RI for three months 25 Arms RI for 02 years Rs.500.00 RI for two Act months All the sentences were ordered to run concurrently.

(2.) The prosecution case was set in motion on the statement Ex.PC made by the complainant Jaswant Singh (PW-5) before ASI Jawahar Singh (PW-9) wherein he stated that while he was on duty at about 7/7/30 pm on 19/6/2003 at the petrol pump situated at Haryana Tourism Resort, Dharuhera, a red coloured Hero Honda motorcycle bearing registration No.HR-26E-0452 being ridden by two youths came for getting fuel filled up in their motorcycle. After the fuel had been filled up by PW-6 Ram Kishan, the youth, who was riding the motorcycle moved it closer to the showroom situated within the petrol station. The other youth, who was a pillon rider, went inside the showroom and asked the complainant -PW-5 Jaswant Singh for a tin of mobil oil. Immediately, thereafter this youth brandished a pistol at him and asked him to hand over all the cash to him. This led to an altercation between the two inside the showroom. During the scuffle, the complainant succeeded in snatching the loaded pistol of the youth and immediately raised an alarm upon which the youth fled away on the motorcycle along with the other youth, waiting outside the showroom. At the time of giving the aforementioned complaint, the complainant PW-5-Jaswant Singh gave a description of the two miscreants and also other details including that of the motorcycle on which the miscreants had come to the petrol station. The complainant PW-5-Jaswant Singh also handed over the weapon to the investigating agency, which he had managed to snatch from one of the miscreants. The complainant before giving the aforementioned statement Ex.PC, had also telephonically intimated the Police Station Dharuhera about the alleged occurrence. On the same evening at about 11.00 pm, during a naka laid by the police, both the miscreants i.e. accused-appellants Naveen Kumar and Teja @ Tej Ram were apprehended in the presence of complainant Jaswant Singh. The appellant Naveen Kumar was riding the motorcycle whereas appellant Teja @ Tej Ram was pillon riding. On search of person of accused-appellant Teja @ Tej Ram, an iron 'panch' from the left pocket and two live cartridges from the right pocket of his trouser were recovered. A 'khukhri' which had been concealed by the appellant Teja @ Tej Ram on his left calf was also recovered from his person. On search of the appellant Naveen Kumar, two live cartridges along with a loaded pistol of .315 bore, which was kept in his 'dub' were recovered. All these recovered articles used in the crime were sealed and seized vide recovery memo Exs.PC/2 and PC/3 including the motorcycle bearing registration No.HR-26E-0452. On the basis of statement Ex.PC, a formal FIR Ex.PE was registered. After completion of investigation, challan was presented. The charges were framed under Ss. 393/398 and 471 IPC and Sec. 25 of Arms Act against the accused to which they pleaded not guilty and claimed trial. In support of their case, the prosecution examined as many as 10 witnesses. After the conclusion of prosecution evidence, all the incriminating circumstances appearing against them in evidence were put to the appellants-accused under Sec. 313 Cr.PC to which they pleaded innocence and false implication. In their defence, the accused examined two witnesses. Learned trial Court convicted both the accused and sentenced them as already detailed above.

(3.) Learned senior counsel for the appellants strenuously argued that the learned trial Court gravely erred in relying upon the testimony of PW-5 Jaswant Singh and PW-6 Ram Kishan as no test identification parade was conducted and even the FIR revealed that except for a mention that the miscreants were young boys, no other description of the miscreants had been given by the complainant Jaswant Singh. Hence, the identification of the accused-appellants by them in the Court for the first time should not have been given any credence. He further submitted that the weapons allegedly recovered had in fact been planted by the investigating agency to create evidence so as to attract offence under Ss. 393 and 398 IPC. Learned senior counsel vehemently argued that during the alleged occurrence no damage or hurt had been caused to any of the persons present at the petrol station much less with the weapons allegedly recovered from the appellants-accused. While drawing the attention of this Court to the report Ex.PA of the Armourer PW-1 Jai Bhagwan, he urged that as per his own admission he did not test fire from any of the weapons from which it could be ascertained that the same had been used in the alleged occurrence or if they were even in working condition more so since the presence of "web and rust" in the barrel of the pistols allegedly recovered left no manner of doubt that they were unfit for firing. It was urged that the essential ingredients of Ss. 393 and 398 IPC were not attracted at all particularly so in the case of appellant Naveen Kumar as he had no role to play in the crime. As per the complainant PW-5 Jaswant Singh, it was the appellant Teja @ Tej Ram, who had allegedly walked inside the showroom to buy mobil oil and it was only he, who had demanded the cash to be handed over to him. Therefore, the appellant Naveeen Kumar neither had any intention nor knowledge to commit the offence of robbery. Learned Senior counsel lastly challenged the conviction of the appellants under Sec. 471 CPC for riding the said motorcycle with a fake number plate as the said fake number plate allegedly recovered from the motorcycle was neither produced nor exhibited before the trial Court.