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2017 Supreme(HP) 451
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sureshwar Thakur, J.
Ajay Kumar – Appellant
Versus
State of Himachal Pradesh – Respondent
Cr. Appeal No. 44 of 2017
Decided On : 26-05-2017
For the Appellant : Mr. Rajesh Mandhotra.
For the Respondent: Mr. Vivek Singh Attri.
The court upheld the conviction under Section 395 IPC and referred to a judgment to justify the reduction of the sentence.
Headnote:
Section 395 IPC - Conviction - Summary of Acts and Sections: The court discussed the evidence and the absence of a Test Identification Parade, ultimately upholding the conviction under Section 395 IPC. The court also referred to the judgment of the Hon’ble Apex Court in Shivappa and Others vs. State of Mysore, 1971 Cri. L.J. 260, to reduce the sentence to the term of imprisonment already undergone.
Fact of the Case:
The complainant and his friend were robbed by the accused on a train, leading to a report to the police and subsequent trial.
Finding of the Court:
The court upheld the conviction under Section 395 IPC and dismissed the appeal, but accepted the request to reduce the sentence based on a judgment of the Hon’ble Apex Court.
Issues: The issues included the identification of the accused, absence of a Test Identification Parade, and the request to reduce the sentence.
Ratio Decidendi: The court found that the evidence supported the conviction and referred to a judgment to justify the reduction of the sentence.
Final Decision: The appeal was dismissed, but the sentence was reduced to the term of imprisonment already undergone, and the accused was ordered to be released.
Sureshwar Thakur, J.
1. The instant appeal stands directed against the impugned judgment of conviction pronounced upon the appellant herein besides is directed against the sentence pronounced upon him for his committing offences punishable under Section 395 IPC.
2. The brief facts of the case are that on 6.7.2013 at about 5.10 p.m. complainant Nishant Bhardwaj reported the matter at Police Station GRPS Kangra that on 4.7.2013 at about 10.30 p.m. he alongwith his friend Tushar were coming from Pathankot to Paprola in train and when they reached Panchrukhi then accused Ajay Kumar alongwith his other co-accused, namely, Vijay Kumar, Munish Kumar and Arvind Kumar boarded their coach, one of the person stood in front of the complainant and rest of them went to switch off the light and when all the lights were switched off in the coach then one of accused Bichu (Vijay) told the complainant to stand up and started threatening him by Darat and kept in on the neck of the complainant whereas the other accused tried to beat Tushar and snatched their bags from them. The aforesaid bags of the complainant and of his friend contained their clothes and some documents alongwith Rs. 1400/- and accused Ajay Kumar took away the bags alongwith both mobile phone of the complainant and of his friend. The matter was reported to the police on an application under Ext.PW-1/A and after completing all codal formalities and on conclusion of the investigation into the offences, allegedly committed by the accused challan was prepared and filed in the Court.
3. A charge stood put to the convict/appellant herein, by the learned trial Court, for his committing offence punishable under Section 395 IPC to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 17 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. However, he did not choose to lead any evidence in defence.
5. The accused stands aggrieved by the findings of conviction recorded upon him by the learned trial Court, for his committing offences punishable under Sections 395 read with Section 34 IPC, hence prefers therefrom, the instant appeal. The learned counsel appearing for the accused has concerted to vigorously contend qua the findings of conviction recorded by the learned Courts below standing not based on a proper appreciation of evidence on record, rather, theirs standing se-quelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal.
6. On the other hand, the learned Additional Advocate General appearing for the State has with considerable force and vigour, contended qua the findings of conviction recorded by the Courts below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather meriting vindication.
7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
8. The learned counsel appearing for the convict/appellant submits before this Court, that since in immediate sequel to the occurrence “no” Test Identification Parade was held by the Investigating Officer concerned, rather when the convict appellant was for the first time identified in Court, hence the aforesaid manner of identification of the convict not firmly establishing the fact of his committing the alleged offences. He further submits that even the fact of PW-2 making a disclosure in his examination in chief that the Mobile set, uncontrovertedly owned by the complainant being handed over to his wife by accused Ajay alias Rimpi also not firmly establishing the identity nor the participation o
