IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. 46437 of 2008 and
Crl. Appeal No. 404-DB of 2007
Date of decision: November 27, 2008
Ram Karan
.... Applicant/appellant
Versus
State of Haryana
.... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MRS. JUSTICE SABINA.
Present: Ms. Tanu Bedi, Advocate for the
applicant/appellant.
Mr. Kartar Singh, Asst. A.G., Haryana.
***
S.S. SARON, J.
Heard counsel for the parties.
The applicant/appellant Ram Karan by way of the Crl. Misc. application
seeks suspension of his sentence of imprisonment during the pendency of the appeal.
On 16.5.2004, Ganga Bishan, Assistant Sub Inspector along with other
Police Officials was present on duty at bus stand, Kaithal. There information was
received that Shiv Prakash @ Shiba, Rajinder, Anil, Ram Karan (applicant/appellant),
Rakesh and Mahavir were planning at the kotha of a tubewell in the area of Ujhana for
looting the vehicles. They had a Esteem car with them. A raid was conducted at the
place where the aforesaid persons were planning to loot the vehicles. The
conversation that was going on between the accused was overheard by the Assistant
Sub Inspector. Thereafter, the Police apprehended the accused persons and a country
made pistol .315 bore was recovered from Shiv Prakash. An iron rod was recovered
Crl. Misc. No. 46437 of 2008 and [2]
Crl. Appeal No. 404-DB of 2007
from Rajinder. Anil was found to be carrying a knife which was also recovered.
Rakesh was found with an iron rod. The search of Ram Karan (applicant/appellant)
resulted in recovery of an iron rod. An iron rod was also recovered from Mahavir,
besides a torch was recovered from him. The Prosecution after completing its
investigation in the case, filed a charge report (challan) in the Court. The accused
were charge sheeted for having committed the offences under Sections 399 and 402
IPC. On the basis of the evidence led by the Prosecution, the learned trial Court held
all the accused guilty for commission of offences under Sections 399 and 402 IPC.
The accused have been sentenced to undergo rigorous imprisonment for a period of
ten years and to pay a fine of Rs.10,000/- each for committing the offence punishable
under Section 399 IPC and in default of payment of fine, to undergo rigorous
imprisonment for six months. Besides, the accused for the offence under Section 402
IPC have been sentenced to undergo rigorous imprisonment for a period of five years
and to pay a fine of Rs.5000/- each and in default of payment of fine, to undergo
further rigorous imprisonment for three months. The sentences, it was ordered, shall
run separately.
Learned counsel for the applicant has submitted that the applicant in the
same occurrence was not liable to be convicted for the offences under Sections 399
and 402 IPC as both are distinct and separate offences. Besides, it is submitted that
the order imposing the sentences to run separately, was not in any case liable to be
passed in view of the provisions of Section 31 (2)(a) of the CrPC, as the sentence of
imprisonment in case it is to run separately is not liable to exceed more than 14 years.
It is also submitted that the applicant was 25 years old at the time of alleged
commission of the offence and he has been in custody for the last more than four
years. It is submitted that the Police has unnecessarily roped the applicant in other
cases also in view of his involvement in one of them. Therefore, it is submitted that
Crl. Misc. No. 46437 of 2008 and [3]
Crl. Appeal No. 404-DB of 2007
keeping in view the aforesaid facts and circumstances and the period of sentence
undergone, the applicant is entitled to the suspension of his sentence of imprisonment.
In response, learned counsel for the State has submitted that in Para 12 of
the judgment, it has been mentioned that the applicant Ram Karan is facing five
criminal cases of theft and dacoity. Besides, learned counsel has submitted a
communication dated 15.11.2008 from the Superintendent, District Jail, Karnal
addressed to the Advocate General, Haryana, wherein the list of cases against the
applicant/appellant Ram Karan has been mentioned. The list of said cases is as under
:-
1. FIR No.131 dated 18.4.2004 under Section 379 IPC Police
Station C.L. Karnal (sentenced undergone order passed on
confession by the Ld. Court of JMIC, Karnal vide order
dated 29.01.2008).
2. FIR No.116 dated 18.4.2004 under Section 379 IPC Police
Station C.L. Karnal (sentenced undergone order passed on
confession by the Ld. Court of JMIC, Karnal vide order
dated 29.01.2008).
3. FIR No.112 dated 28.3.2004 under Section 382 IPC Police
Station Assandh District Karnal (on bail in this case at
present. The next date of hearing in this case is 26.11.2008).
Therefore, it is submitted that the applicant/appellant Ram Karan is not
entitled to the concession of suspension of sentence and in view of the said cases he is
likely to misuse the concession.
We have given our thoughtful consideration to the contentions of the
learned counsel appearing for the parties. It may be noticed that the
applicant/appellant Ram Karan has been sentenced for the offences under Sections
399 and 402 IPC. He has been sentenced to undergo imprisonment for a period of ten
years for the offence under Section 399 IPC, besides, sentenced to undergo
imprisonment for a period of five years for the offence under Section 402 IPC. Both
Crl. Misc. No. 46437 of 2008 and [4]
Crl. Appeal No. 404-DB of 2007
the sentences, it was ordered, shall run separately. The contentions as raised by the
learned counsel for the applicant as to whether the sentences are to run concurrently or
separately would more appropriately be considered and gone into at the time of final
hearing of the appeal. As regards the case that are against the applicant it may be
noticed that the cases FIR No.116 and FIR No.131 are registered on the same date i.e.
on 18.4.04 for the offence under Section 379 IPC at Police Station Civil Lines Karnal.
In both the cases, the applicant confessed his guilt before the learned Judicial
Magistrate, Ist Class, Karnal on 29.1.2008. In FIR No.112, dated 28.3.2004 registered
at Police Station Assandh District Karnal for the offence under Section 382 IPC, the
applicant/appellant is on bail. Apart from the said cases, the applicant/appellant has
been convicted in the present case. The question whether the applicant/appellant
could be convicted in the same occurrence for the offences under Sections 399 and
402 IPC and whether these are separate and distinct offences, would require
consideration.
The applicant as per the affidavit dated 3.11.2008 of Sh. Jagjit Singh,
Superintendent, Distt. Jail, Karnal has undergone actual sentence of 04 years, 03
months and 19 days. The apprehension of the State counsel that the
applicant/appellant Ram Karan while on bail is likely to misuse the concession can be
safeguarded by asking him to furnish surety for the maintenance of peace and be of
good behaviour during the period of suspension of his sentence.
Accordingly. Crl. Misc. No. 46347-M of 2008 is allowed and the
sentence of imprisonment of the applicant/appellant Ram Karan shall during the
pendency of the appeal remain suspended subject to his furnishing personal bond and
two sureties to the satisfaction of the learned Chief Judicial Magistrate, Kaithal. One
of the sureties to be furnished by the applicant, shall be of a respectable person of
Village Bhanpura, Police Station Sadar Kaithal who shall also undertake for the
Crl. Misc. No. 46437 of 2008 and [5]
Crl. Appeal No. 404-DB of 2007
maintenance of peace and good behaviour by the applicant/appellant Ram Karan
during the period of suspension of his sentence. The applicant/appellant shall furnish
his personal bond also in this regard.
(S.S. SARON)
JUDGE
November 27, 2008 (SABINA)
amit JUDGE