AJIT SINGHversusSTATE OF HARYANA

A                               "AJIT SINGH
                                  0
                                      v.
                                                                                    ·-
                             STATE OF HARYANA
                                                                                         1
                               FEBRUARY 8, 1996

B                       [G.N. RAY AND N.P. SINGH, JJ.)

          Indian Penal Code, 1860/TADA Act:

          Sections 392, 394, 397/!r-Two accused convicted for offences
C under-Country-made Pistol not used in robbery, but presumably by way of
  self-defence-Conviction of appellant -Accused under Sections 397 and 394
  unsustainable and hence unjustified-Conviction under S.392 sustained--
  However sentence reduced to five years impris01.zment-No appeal preferred
  by co-accused presumably due to pove1ty-He will also be entitled to the
  benefit of modification of sentence passed against the other accused in similar
D circumstances.
          Slui Phool Kumar v. Delhi Administration, (1975] 1 SCC 797 and
    Piara Singh' v. State of M.P., [1992] Suppl. 3 SCC 45, relied on.

E         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    782 of 1995.

          From the Judgment and order dated 11.12.93 of the Designated
    Court, Sonipat in Sessions Case No. 106. of 1992, Sessions Trial No. 161 of
    1993.
F         Sushil Kumar for the Appellant.

          LS. Goyal for the Respondent.

          The following Order of the Court delivered :
G         This is an appeal filed by the appellant from Jail under Section 19
    of the Terrorists and Disruptive Activities (Prevention) Act, 1987
    (hereinafter referred to as TADA). It appears that initially the charge-
    sheet was submitted against the appellant and the ·co-accused Raj Pal
    under Section 394, 392 and 397 IPC and Section 5 of TADA Act. But at
H   the trial the accused stood charged for offences under Sections 392, 397
                                        318
•                             ATITSINGHv. STATE            •
    and 394 IPC before the Designated Court, Rohtak at Sonepat.
                                                                            319

                                                                                  A

           The prosecution case in short is that on 12.4.90 when PW 7, Suresh
    being accompanied by his brother PW 8, Subhash was going on a scooter
    to village Gadwal from Gohana, both the said accused suddenly appeared
    armed with pistol and they made an attempt to stop the scooter, but his
    brother Subhash did not allow to do so. The accused however caught hold
                                                                                   B
    of the scooter by its handle and pointed pistol on the back of Suresh urging
    him to handover whatever valuable was in his possession. Out of fear,
    Suresh handed ovet a purse containing Rs. 1775 and his wrist watch and
    the wrist watch of his brother Subhash was also removed by the other
    accused Rajpal forcibly. Thereafter, an attempt was made to snatch the c
    scooter. PW 7, Suresh, then picked up an empty drum of milk and hit the
    accused Ajit with such drum. The accused Ajit thereafter opened fire from
    the pistol at Suresh which hit the left. hand of Suresh and thumb and first
    finger of left hand of Suresh were injured. Suresh and Ajit grappled with
    each other. At that stage, the accused Ajit inflicted a tooth bite on the left D
    arm of Suresh and challenged both the brothers by firing the pistol but
    Suresh and Subhash could escape. On the next day, an FIR was lodged
    with the police station Baroda in the district Rohtak.

           According to the prosecution case, both the accused were arrested
    on 16.5.90 and at the instance of the accused, the wrist watches snatched E
    from PWs 7 and 8 were recovered on 18.5.90 which are stated to have been
    buried in a garden. It is also the prosecution case that both the accused
    did not agree to attend the test identification parade and as such test
    identification parade was not held. Considering the evidences adduced in
    this case, the learned Designated Court convicted both the accused for F
    offences under Section 392 read with Section 397 IPC and also under
    Section 394 IPC and passed a sentence of 10 years rigorous imprisonment
    against both the accused and also a fine of Rs. 250 under Section 394 in
    default of making payment of fine, to undergo further rigorous imprison-
    ment for three months. Both the said accused were also sentenced to
    undergo rigorous_ imprisonment for seven years for offences under Section G
    392 read with section 397 IPC.

          Mr. Sushil Kumar, learned senior counsel appearing as amicus cwiae
    for the appellant in this case, has submitted that an accused cannot be
    convicted under Section 397 IPC if he had not used a weapon. In support       H
    320                   •SUPREME COURT REPORTS                  [i996] 2 S.C.R.

A of such contention, a decision of this Court in Shri Phool Kumar v'. Delhi
    Administration, [1975] 1 SCC 797. Mr. Sushil Kumar has also submitted
    that conviction under Section 397 IPC of co-accused who was unwarned,
    only indicates that there has been non application of mind to the facts of
    the case in convicting the accused. Mr. Sushil Kumar has also submitted
    that against the appellant, Ajit, no conviction under Section 397 was
B warranted even if the prosecution case is accepted on its face value. He
    has indicated that it appears from the evidence of the witnesses for the
    prosecution that for committing alleged robbery, the said pistol was not
    used but when a milk can w~s thrown by Suresh on the accused Ajit, he
    had opened fire from his country-made pistol presumably by way of self
C defence which hit the thumb and finger of the left hand of Suresh, PW 7.
    Accordingly, the conviction of Ajit under Section 397 is also unjustified.
    Mr. Sushil Kumar has submitted that the evidences adduced in this case
    do not inspire confidence'. It also does not appear now and when the said
    country-made pistol was recovered from the possession of the appellant
D Ajit. There is no reliable and unimpeachable evidence which may connect
    the appellant with the commission of the offence alleged against him. So
    far as the identification of the accused is concerned, it is an admitted         ....
    position that in the presence of PW 7, the accused were taken out from
    police lock-up and they were interrogated. Hence no reliance can be based
    on identification of the accused in Court. Mr. Sushil Kumar has submitted
E . that the accused should be acquitted by giving benefit of doubt. Mr. Sushil
    Kumar has further submitted that in any event, since from the date of their
    arrest, the appellant is in custody and by this time he has suffered detention
    for more thari five years. The appellant should be released even if his
    conviction under Section 392 is sustained by this Court.             ·
F
        It appears to us that there is force and justification in the contention
  of Mr. Sushil Kumar. In the facts and circumstances of the case, we do not
  think that appellant should be convicted under Section 397 and 394 IPC.
  But in our view, on the basis of depositions of PWs 7 and 8 the appellant's
  conviction under Section 392 IPC should be sustained. The convictions
G under Section 394 and 397 IPC do not appear to · be justified. Such
  convictions are set aside. We therefore allow the appeal in part by setting
  aside the convictions and sentences under Section 394 and 397 IPC but
  conviction under Section 392 is· affirmed. The appellant is stated to have
  undergone sentence for more than five years. In the facts of the case, justice
H will be met if the sentence for offence under Section 392 IPC is reduced
                                 AJITSINGHv. STATE                             321

       to the period of five years. The appellant would be released forthwith if he   A
       is not wanted in connection with any other criminal case provided 'by this
       time he has undergone detention for five years.

              So far as the co-accused Rajpal is concerned, it does not appear that
       he has preferred any appeal against his conviction. The learned counsel for
       the State is also not in a position to apprise this Court as to whether any B
       appeal has been preferred by the said accused, Rajpal. In view of our .
       finding in respect of the appellant Ajit Singh, the co-accused Rajpal is also
       entitled to the same benefit of conviction only under Section 392 and order
       of acquittal in respect of offence under Section 394 and 397 IPC. We order
       accordingly. In this connection, reference may be made to the decision of C
...L   this Court in Piara Singh v. State of M.P., [1992] Suppl. 3 SCC 45 where
       this Court has indicated that if any of the accused fails to prefer an appeal
       due to poverty or otherwise, he will be entitled to the benefit of the
       modification of sentence passed against the other accused in similar cir-
       cumstances by this Court. Such course of action by this court, in our view,
       will be consistent with the justice to be made in the facts of the case. We D
       may also indicate that it appears to us that presumably the co-accused has
       failed to prefer any appeal before this Court not out of his own accord but
       due to poverty. We, therefore, direct that the sentence for the offence
       under Section 392 IPC is reduced to a period of five years for Rajpal also.
       The co-accused Rajpal would also be released if he is not wanted in E
       connection with any other criminal case provided by this time he has
       undergone imprisonment for five years.

       G.N.                                                 Appeal party allowed.