State of Haryana vs Kirpal Singh

R.L. Anand, J.

State of Haryana has filed the present appeal and it has been directed against the judgment and order dated 12.3.1987, passed by the court of Additional District and Sessions Judge, Rohtak, who convicted the respondent Kirpal Singh u/ss 392/397, IPC, but instead of awarding the minimum sentence of 7 years, sentenced him to undergo the already undergone imprisonment w.e.f 18.7.1985 to 12.3.1987 (one year seven months and twenty five days) on each count u/ss 392 and 397, IPC.

Respondent Kirpal Singh s/o Nikka Singh resident of Village Bawani, District Ludhiana, was committed to the court of Sessions by the Court of Sub Divisional Judicial Magistrate, Bahadurgarh, vide order dated 10.9.1986 for standing trial in this case for the offence punishable u/ss 392/397, IPC. His companion Jasmail was declared Proclaimed Offender vide order dated 11.8.1986 passed by the Committing Court and as such proceedings u/s 299, Cr.P.C. were ordered to be recorded against him vide order dated 8.10.1986 of this court.

The story of the prosecution was that on 3.1.1983, Om Parkash, Manager, State Bank of Patiala, Sankhol, lodged a report with the police, Bahadurgarh, that at about 2.45 p.m., Balbir Singh, Rajender Pal, Clerks, Krishan Kumar, Head Cashier and Ram Phal, Peon, were present in the Bank premises on their respective seats. Two clean shaven persons came to the Bank. One of them was of fair colour, tall in height and slim in stature and the other person was of medium height, medium stature and of a bit blackish colour. Both of them were having a pistol each. The person of medium height stood on the gate of the Bank whereas the person of tall height brought Om Parkash, Manager and other officials except Krishan Kumar, Head Cashier, to the hall and made all of them to stand in one line in the hall at the pistol point. The main gate of the bank was also closed by those two persons. The person tall in height asked the Head Cashier, who was sitting in his own cabin to deliver the entire cash, which was with him to him. Out of fear, Krishan Kumar, Head Cashier, put the entire cash of that day, which was Rs. 14,193.53 in the Thela of the said person which he was having in his hand. Then, that person asked Krishan Kumar, Head Cashier, to go to the strong room of the Bank and to give the entire money lying in the Safe of the strong room. Krishan Kumar, Head Cashier, delivered Rs. 9,700.00 to that man in the same Thela. Then, the said two persons brought the remaining officials named above to the strong room and locked all of them in the strong room itself and ran away with the cash. The PWs called out from inside the strong room for 4/5 minutes but when nobody came there, they broke open the shutter of the strong room and came out of the room and on checking they found that the two culprits had also taken away the cycle of the Bank, which was standing outside the Bank premises. Om Parkash, Manager of the Bank, gave a telephonic message to the Police, Bahadurgarh upon which the police reached the spot and recorded his statement on the basis of which the present case was registered.

Jasmail Singh, accused, was arrested in case FIR No. 326 dated 29.11.1983 u/s 392, IPC, Police Station City, Gurgaon. During interrogation, he disclosed that he along with Kirpal Singh, accused, had committed robbery in this case and, accordingly, Jasmail Singh, accused, was arrested in this case by SI Prem Singh on 28.12.1983. Jasmail Singh, accused, declined to join the test identification parade. On 3.1.1984, Jasmail Singh got recovered cycle in pursuance of his disclosure statement. On 20.6.1985, it was learnt that Kirpal Singh, accused, was arrested in case No. 208 u/s 25 of the Arms Act registered at Police Station, Jagraon, and during interrogation, he disclosed that he along with Jasmail Singh, accused, committed robbery in the Bank at Bahadurgarh. Kirpal Singh, accused was arrested in this case on 17.7.1985 by HC Chatarbhuj and his judicial remand was obtained by the police on 18.7.1985 for identification parade but he also refused to join the identification parade.

After the completion of the investigation of the case, the accused were sent up to the court of Judicial Magistrate Ist Class, Bahadurgarh. Jasmail Singh, accused, was declared a proclaimed offender by the Committing Magistrate and Kirpal Singh accused was committed to the court of Sessions.

On 18.10.1986, Kirpal Singh was chargesheeted u/ss 392/397, IPC. Accused pleaded not guilty and claimed trial.

In order to support its case, the prosecution examined 8 witnesses in all. Thereafter, the accused made an application before the Court showing his desire to confess the guilt. Accordingly, the prosecution gave up the remaining witnesses as unnecessary and closed the case.

Finally, the trial court on the basis of the evidence adduced by the prosecution coupled with the application filed by the accused, when he was going to be examined u/s 313, Cr.P.C. and when he admitted the entire story of the prosecution as correct and he also confessed his guilt and admitted that he along with his companion had committed robbery in the Bank on 3.1.1983 with the use of pistol, convicted the appellant. The learned trial court in paras 15 and 16, stated as follows :

"15. From the statements of Balbir Singh, Krishan Kumar and Rajender Pal PWs it is evident that the accused along with one person who was tall in height, had fair complexion and was of slim stature had committed robbery in State Bank of Patiala, Sankhol of the amount of Rs. 23,993.53 and cycle Ex. P1 and that time they used deadly weapons like pistols. Rajender Pal and Krishan Kumar PWs have identified the accused to be one of the culprits. Recovery of cycle P.1 from Jasmail Singh accused stands proved from the statement of Om Parkash PW which cycle according to Krishan Kumar and Rajender Pal PWs belonged to State Bank of Patiala, Sankhol, and was taken away by the accused and his companion on 3.2.1983 (3.1.1983 ?) from outside the bank building when they had run away from there after locking them in the strong room. All these facts have been admitted by the accused in his statement under section 313 Cr.P.C. to be correct and he has confessed his guilt.

Thus from the prosecution evidence itself coupled with unequivocal and voluntary confession of the accused made by him under section 313 Cr.P.C. I am of the considered opinion that the prosecution has brought home the offence to accused Kirpal Singh beyond reasonable doubt. I accordingly hold Kirpal Singh accused guilty of the offence punishable under sections 392 and 397 IPC convict him thereof. Before order of sentence is recorded he be heard on the point of sentence."

In the order of sentence, the trial court awarded a sentence less than 7 years to Kirpal Singh, respondent, by stating as follows :

"No doubt, minimum sentence provided under section 397 IPC is seven years but keeping in view the circumstances, of the case and the fact that there is no other male member in the family of the accused to look after and support his family because his cousin who was supporting his family has since died as stated by him, and the accused is not shown to be previous convict, I feel that it is a fit case where instead of sentencing he accused to the minimum of seven years, lenient view in the matter of sentence will meet the ends of justice.

I accordingly sentence accused Kirpal Singh to undergo imprisonment already undergone by him in the jail i.e. from 18.7.1985 to 12.3.1987 (one year seven months and twenty five days) on each count under sections 392 and 397 IPC."

Aggrieved by the order of sentence, the present appeal by the State. I have heard Mr. Aman Chaudhary, Advocate appearing on behalf of the State and Mr. C.S. Pasricha, Advocate, on behalf of the respondent and with their assistance have gone through the record of this case.

In this case, the respondent was chargesheeted for the offence u/ss 392/397, IPC, on the allegations that he along with his companion committed robbery in the Bank premises, i.e. State Bank of Patiala, Sankhol Branch, on 3.1.1983 and that at that time he was having a pistol. It means, the respondent and his companion committed robbery and they also used a deadly weapon for the commission of robbery. He was arrested. He was asked to participate in the identification parade and the respondent refused to do so. The prosecution examined the witnesses and when the statement of the accused was going to be recorded u/s 313, Cr.P.C., he made an application before the trial court in which he admitted all the incriminating circumstances which constituted confession on his part. Accordingly, the trial court convicted the respondent u/ss 392/397, IPC.

I have independently seen the incriminating circumstances appearing against the respondent. Keeping in view the fact that the respondent has confessed the guilt directly and also the incriminating circumstances, therefore, his identity stands established and I have no hesitation in maintaining the conviction of the respondent u/ss 392/397, IPC.

The only point which survives for determination by this court is as to whether the trial court was justified in awarding sentence lesser than seven years as provided u/s 307, IPC. This section lays down that if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was not necessary that the offender must cause injury by using the deadly weapon. If he has pointed out the deadly weapon towards the Bank employees and then robbed the cash of the Bank, it will amount to use of the deadly weapon at the time of commission of robbery. Had the respondent not been in possession of the pistol, the fate of this case might have been different. Even the companion of the respondent was carrying a pistol and at the pistol point, the staff of the Bank was confined in the strong room. A reading of section 397, IPC, would show that once the offence u/s 397, IPC, stands proved, the trial court had no other option but to award the sentence which could not be less than seven years. This section does not provide that for any adequate or special reasons, the lesser sentence could be awarded to the offender. In these circumstances, I have no hesitation in holding that the Addl. Sessions Judge, Rohtak, had committed a patent illegality while awarding the sentence of only one year seven months and twenty five days. He was bound to award the minimum sentence of seven years.

I have already given the chance to the respondent to explain why the sentence should not be enhanced.

The learned counsel for the respondent submits that the respondent could not be convicted u/ss 392/397, IPC, as there was no evidence before the trial court and even if the respondent has confessed in his statement u/s 313, Cr.P.C. that he had participated in the crime still no conviction can be based. Counsel for the respondent submitted that, in fact, his client was made to understand by the trial court that in the event of his confessing the guilt, he will be dealt with leniently and, in these circumstances, the High Court may not impose the minimum sentence of 7 years as mentioned in section 397, IPC. In support of his contention, counsel for the respondent has relied upon a judgment of the Hon''ble Supreme Court, reported as (sic) 1983 SC 747, wherein it was held as follows :

"It is obvious that by reason of plea bargaining, the appellant pleaded guilty and did not avail of the opportunity to defend himself against the charge, which is a course he would certainly not have followed if he had known that he would not be let off with a mere sentence of fine but would be sentenced to imprisonment. It would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence. Of course when we say this, we do not for a moment wish to suggest that the court of appeal or revision should not interfere where a disproportionately low sentence is imposed on the accused as a result of pleabargaining. But in such a case, it would not be reasonable, fair and just to act on the plea of guilty for the purpose of enhancing the sentence. The court of appeal or revision should, in such a case, set aside the conviction and sentence of the accused and remand the case to the trial court, so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him."

I do not subscribe to the argument raised by the counsel for the respondent in the present case. Respondent has confessed his guilt. He can so confess either at the time of the framing of the charge or at the time of the recording of the statement u/s 313, Cr.P.C. The trial court was to see whether the confession made by the respondent was voluntary or not. He made a voluntary confession in the presence of his counsel, who also submitted an application before the trial court. The trial court was convinced from the evidence which was already before it, whether sufficient or not, that the respondent is guilty for the offence and, in these circumstances, the trial court had rightly convicted the respondent, both under sections 392 and 397, IPC. I cannot lose sight of the fact that the respondent had never challenged his conviction u/ss 392/397, IPC. On the contrary, the State has come in the appeal on the ground that the learned Addl. Sessions Judge had committed a patent illegally in awarding a lesser sentence than the one prescribed u/s 397, IPC. In this view of the matter, the respondent, now, cannot call upon this court that he has been wrongly convicted for the offence u/s 397, IPC. Thus, I repel the argument of the counsel for the respondent by holding that the judgment relied upon by him cannot come to the rescue of the respondent.

Resultantly, the sentence which has been awarded to the respondent stands enhanced to seven years u/s 397, IPC. The respondent is also sentenced to undergo R.I. for a period of seven years u/s 392, IPC, and he shall also pay a fine of Rs. 500/; in default of payment of fine he shall further undergo R.I. for one year. Both the sentences, however, shall run concurrently.

Let intimation about the passing of this judgment be sent to the CJM, concerned so that the appellant may be arrested forthwith in order to serve the remaining sentence.