TMI Blog2009 (11) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... hand and fled away; PW-1 raised alarm; meanwhile another boy aged about 20 to 22 years having a desi katta in his hand came from front side and threatened PW-1; one Raju had apprehended the first assailant but he managed to flee; the second assailant attacked PW-1 with the butt of his countrymade pistol; PW-1 started bleeding. 3. Endorsement Ex.PW-11/A was made on this complaint Ex.PW-1/A and was handed over to PW-4 who took rukka to the police station. The FIR was registered by ASI Baldev Singh PW-9 Ex.PW-9/A. Site plan Ex.PW-11/B was prepared at the pointing out of PW-1; accused persons, however, could not be traced. 4. On 17.7.1989, pursuant to a secret information a raiding party was organized by PW-11 comprising of himself, Const. Kartar Singh and PW-8. Kanhiya Lal PW-10 a public person was requested to join the raid. Two persons at the pointing out of the secret informer i.e. the accused Brahm Singh and Ajeet Singh were apprehended. Brahm Singh was arrested and his personal search was conducted vide memo Ex.PW-8/A. His disclosure statement Ex.PW-8/C was recorded. From the possession of the co-accused Ajeet Singh one desi katta and one live cartridge and five other cartr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul restraint or fear of instant death or of instant hurt or of instant wrongful restraint. Attention has also been drawn to the first illustration i.e. Illustration (a) appended to this Section. It is submitted that the testimony of PW-1 has categorized the role of the present appellant as the person who had snatched the brief case from PW-1; appellant was admittedly unarmed; even presuming the version of PW-1 is taken as the gospel truth at best the ingredients of the offence as contained in Section 379 of the IPC are made out and not an offence under Section 392 of the IPC. (ii) For an offence under Section 379 of the IPC the maximum penalty imposed is imprisonment which may extend three years or with fine or with both. Intention of the legislature in promulgating this provision clearly shows that this offence is punishable either with an imprisonment or with fine and keeping in view the fact of the instant case is more than 20 years old; the appellant has since become an advocate and is practicing at the bar since the year 2000; he is a first offender; having no criminal background; benefit of probation as contained in Section 4 and 6 of the Probation of Offenders Act be exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution. (vii) It is a fundamental rule of the criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt; correspondingly the accused only has to create a dent in the version of the prosecution. A preponderance of probabilities in his favour is sufficient for him to obtain an order of acquittal. 11. Submissions have been countered by the learned PP. 12. Arguments have been heard and the record has been perused. 13. Version of PW-1 the complainant is categorical and clear; incident had occurred at 11.45 PM; statement of the complainant was recorded by mid afternoon and the rukka had been sent at 2.30 PM on the same day. In the first instance i.e. in the complaint Ex.PW-1/A itself a detailed version had been given by the complainant and the role assigned to each of the accused including the present appellant. As per Ex.PW-1/A his brown briefcase was snatched by Brahm Singh who had way-laid him; he had thereupon been attacked by his co-accused with a desi katta which had caused injury on his head; MLC Ex.PW-7/A has advanced this ocular version of PW-1. No ulterior motive or purpose has been ascribed to PW-1 for falsely implicating o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh along with his co-accused had been produced in muffled face before the Magistrate; seven other persons of similar structure as of the accused had been mixed with the accused persons and had joined these TIP proceedings. Proceedings were conducted in the jail. PW-1 Kishan Bahadur had correctly identified the person as the appellant. These proceedings run into 10 pages. PW-1 was cross examined on this score at length but no suggestion was given to him in his cross-examination that the accused had been shown to the prosecution witnesses; no such submission had also been made by the accused persons who had voluntarily agreed to join the TIP proceedings. This circumstance is a relevant fact under Section 9 of the Indian Evidence Act. 17. The Test Identification Parade is not a substantive piece of evidence. It is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. However, it becomes a substantive piece of evidence when it is corroborated on oath in court. 18. In Suresh Chandra Bahri v. State of Bihar with Gurbachan Singh case AIR 1994 SC 2420 : 1994 Cri LJ 3271 the Supreme Court observed that: It is well settled tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s money had been rejected; no revision or appeal had been filed against the said order which had attained finality. DW-2 in his deposition has nowhere detailed the date, time and place when his father had handed over the money to ACP Rajbir Singh and to the SHO Bhag Singh. Actual giver of the money i.e. father of the appellant did not come into the witness box. DW-1 Kharak Singh is the father of co-accused Ajit Singh and his version that the father of Brahm Singh had also paid a sum of ₹ 70,000 is only a hearsay testimony. This stand of the accused as propagated in his defence and in his statement under Section 313 Cr.PC did not find mention in the cross examination of either PW-1 or PW-2. It is clear that this defence has been built up as an afterthought. 23. Version of the prosecution has been fully established; the judgment of the trial court suffers from no infirmity. 24. Offence is related to the year 1989 i.e. almost two decades old. 25. It is also not in dispute that the appellant as on date is an advocate practicing at the bar; he is a first offender; he has suffered incarceration of about 7 months out of the total sentence of 3 years which had been awarded t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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