Swaran Singh vs State
2011 Latest Caselaw 3125 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          Crl. Appeal No. 693/2001

%                                               Reserved on:19th May, 2011

                                                Decided on: 5th July, 2011

SWARAN SINGH                                                         ..... Appellant
                                    Through:   Mr. B. Deva Sekhar, Amicus Curiae.

                           versus

STATE                                                             ..... Respondent
                                    Through:   Mr. Pawan Bahl, APP for the State
                                               With SO Gurjeev Singh, P.S.
                                               Ambedkar Nagar.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may             Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                    Yes

3. Whether the judgment should be reported               Yes
   in the Digest?

MUKTA GUPTA, J.

1. By this appeal, the Appellant lays a challenge to the judgment dated 7th

August, 2001 convicting him for offence punishable under Section 398 IPC

and order dated 3rd September, 2001 awarding the sentence of Rigorous

Imprisonment for seven years.

2. Briefly the prosecution case is that on 7th 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 10th 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 co-

accused, 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, AIR 1996 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.

4. Per contra, learned APP for the State contends that the prosecution has

established its case beyond reasonable doubt. The Appellant was

apprehended at the spot with the katta and five live cartridges in the barrel and

one empty cartridge case which was used at the time of commission of

offence. The version of PW2 and PW3 who have deposed about the

Appellant firing a gun shot is corroborated by his apprehension and recovery

on the spot. The Appellant cannot claim parity with co-accused Kanwar Pal

as no overt act is attributed to the co-accused by the witnesses. It is, thus,

prayed that the appeal be dismissed being devoid of merit.

5. I have heard learned counsels for the parties. The moot question

involved in the present case is whether the ingredients of Section 398 IPC are

satisfied in the present case. PW 2 Dharambir in his testimony has stated that

on 7th February, 1996 when he was present at the house of Ram Niwas, 2/3

persons came and knocked at the door of the house of Ram Niwas. On Ram

Niwas opening the door, those persons shouted 'Loot Lo, Mar Do' and a

scuffle ensued. He rushed where Ram Niwas was standing but he could not

see the other persons while Ram Niwas caught hold of accused Swaran Singh,

he fired a shot from the revolver and the neighbours gathered. The shot did

not hit anyone. Somebody informed the police at 100 number and police

came at the spot and accused was handed over to the police. PW 3 Ram

Niwas in his testimony has deposed that on 7th February, 1996, while he was

present at his house, there was a knock at the door of his house. He opened

the door and found 4/5 persons present there. Three of them came inside the

room and one of them pointed out a katta on his chest on his right side. He

raised alarm and Dharambir rushed to his help. He caught hold of the person

who was having katta in his hand but that person fired a shot from the katta

and the shot did not hit anyone. The persons who attacked ran away from the

spot. He along with Dharambir chased those persons and after a distance of

10/15 steps, the Appellant was apprehended and katta was snatched from him.

Appellant was given beating by the public and on getting the information, the

police reached at the spot and arrested him with katta.

6. A perusal of the statement of PW 3 shows that he nowhere alleges that

the Appellant and his co-accused attempted to commit robbery. Even PW2

has only stated that when the Appellant and the other accused entered, they

shouted 'Loot Lo, Mar Do'. Thus, at best it can be said that Appellant came

with the intention to commit robbery, however, that intention did not fructify

into an attempt and it was at best the preparation. Further this statement of

PW 2 is not corroborated by PW3. From his testimony, it is evident that the

Appellant at best had the intention to kill Ram Niwas. Thus, the basic

ingredient of Section 398 IPC that is an attempt to commit robbery is not

made out in the present case. Therefore, the conviction of the Appellant for

offence under Section 398 IPC cannot be sustained. The Appellant has not

been convicted for the offence punishable under Section 307 IPC. No appeal

has been filed by the State on this count.

7. For the reasons mentioned above, the appeal is allowed. The Appellant

is acquitted of the charge under Section 398 IPC. The Appellant is in custody.

The Superintendent, Tihar Jail, is directed to release him forthwith, if not

required in any other case.

(MUKTA GUPTA) JUDGE

JULY 05, 2011 VKM