{"id":173084,"date":"2008-12-12T00:00:00","date_gmt":"2008-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sushil-vs-the-state-of-haryana-on-12-december-2008"},"modified":"2018-01-02T11:59:04","modified_gmt":"2018-01-02T06:29:04","slug":"sushil-vs-the-state-of-haryana-on-12-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sushil-vs-the-state-of-haryana-on-12-december-2008","title":{"rendered":"Sushil vs The State Of Haryana on 12 December, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Sushil vs The State Of Haryana on 12 December, 2008<\/div>\n
Criminal Appeal No.46-SB of 1998                                -1-\n\n                                       ****\n\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA\n              AT CHANDIGARH\n\n                          Criminal Appeal No.46-SB of 1998\n                          Date of decision : 12.12.2008\n\nSushil                                                    .....Appellant\n\n                          Versus\n\nThe State of Haryana                                      ...Respondent\n\n                                ****\n\nCORAM : HON'BLE MR. JUSTICE S. D. ANAND\n\nPresent:    Mr. Vivek Verma, Advocate as Amicus Curiae\n            for the appellant\n\n            Mr. Surender Singh, Advocate for the appellant.\n\n            Mr. Hemant Bassi, Advocate for the U.T., Chandigarh.\n\n\nS. D. ANAND, J.\n<\/pre>\n
            The appellant was prosecuted on the allegations which may<\/p>\n
be indicated as under:-\n<\/p>\n
            On 20.7.94, PW-10 Smt. Mohini Sahota was sitting in the<\/p>\n
verandah of her house No. 63, Sector 18, Chandigarh. Her maid servant<\/p>\n
was working in the kitchen at that point of time.   Smt. Mohini Sahota also<\/p>\n
went to the kitchen at about 2.30 P.M. In the meantime, the appellant<\/p>\n
entered the kitchen, aimed a pistol at her and required her to hand over<\/p>\n
whatever belonging she had.        When she did not oblige, the appellant<\/p>\n
locked up the maid servant in a store room and pushed            Smt. Mohini<\/p>\n
Sahota into bed room and demanded keys of the almirah. In that process,<\/p>\n
the appellant also tried to strangulate her with latter’s gown. Ultimately, the<\/p>\n
appellant locked her up in a bath room. Prior thereto, he had snatched A
\n Criminal Appeal No.46-SB of 1998                               -2-<\/span><\/p>\n
                                      ****<\/p>\n
gold chain she was wearing around her neck. Appellant was put it into the<\/p>\n
pocket of trouser he was wearing. While appellant locking up             Smt.<\/p>\n
Mohini Sahota in side bath room, the pistol carried by him also fell inside<\/p>\n
the bath room. However, Smt. Mohini Sahota managed to come out of the<\/p>\n
bath room from another door and cried for help which brought her<\/p>\n
immediate neighbour PW-9 Virinder Issar to the spot. Yash Pal, a servant<\/p>\n
in the employment of Virinder Issar, also accompanied him. Shri Issar and<\/p>\n
his servant Yash pal over powered the appellant. On being telephonically<\/p>\n
notified by someone, the police reached over there and took the appellant<\/p>\n
into custody.\n<\/p>\n
             The    prosecution plea, at the trial, was supported by the<\/p>\n
statements of PW-1 Dr. K.Gaba, PW-2 ASI Mahi Chand, PW-3 Jaswant<\/p>\n
Singh, PW-4 HC Naphe Singh, PW-5 Constable Sudesh Kumar, PW-6 SI<\/p>\n
Karam Singh, PW-7 Constable Bal Krishan, PW-8 Dr. Munish Goyal, PW-<\/p>\n
9 Virinder Issar PW-10 Smt. Mohini Sahota and PW-11 SI Ram Dayal.<\/p>\n
             PW-1 Dr. K.Gaba, Associate Professor, Department of<\/p>\n
Surgery, PGI, Chandigarh had examined               Smt. Mohini Sahota on<\/p>\n
25.7.1994 as a out door patient. He advised her to undergo X-ray of lower<\/p>\n
four front teeth. He opined, on the basis of radiological examination, that<\/p>\n
“there was no injury to the bone or to the route of the death affected as a<\/p>\n
result of assault on her.”\n<\/p>\n
             PW-2    ASI     Mahi   Chand,   a   police   photographer   had<\/p>\n
photographed the spot on 20.7.1994. He proved photographs Ex. P1 to<\/p>\n
Ex. P4 and also their negatives Ex. P5 to Ex. P8.\n<\/p>\n
             PW-3 Jaswant Singh,       an official Draftsman, had prepared<\/p>\n
scaled site plan of the spot on 27.8.94 on the pointing of Smt. Mohini<\/p>\n
Sahota.\n<\/p>\n
 Criminal Appeal No.46-SB of 1998                                -3-<\/span><\/p>\n
                                      ****<\/p>\n
             PW-4 HC Nafe Singh was posted as MMHC, PS Central on<\/p>\n
20.7.1994. On that day, ASI Ram Dayal had deposited three sealed<\/p>\n
parcels Ex. P9 to Ex. P11 with him. He testified that the parcels were not<\/p>\n
tampered with as long as those were in his custody.<\/p>\n
             PW-5 Constable Sudesh Kumar made a record-based<\/p>\n
statement to prove Ex. PB and Ex. PC, copies of DDR No.25 and 34<\/p>\n
dated 20.7.1994.\n<\/p>\n
             PW-6 SI Karam Singh had recorded formal FIR Ex. PD\/2 on<\/p>\n
the receipt of ruqqa Ex. PD\/1 through constable Bal Kishan who was<\/p>\n
examined as PW-7.\n<\/p>\n
             PW-8 Dr. Munish Goyal had medico legally examined Smt.<\/p>\n
Mohini Sahota on 20.7.94 at about 4.20 P.M. and found the following<\/p>\n
injuries:-\n<\/p>\n
                   1. Swelling on the left knee 3 cm x 2 cm x 1.5 cm painful<\/p>\n
                     movement of the knee (right). Advised x-ray right<\/p>\n
                     knee A.P. view lateral view. No change of skin colour.<\/p>\n<\/blockquote>\n
                   2. Contusion over swelling 4 cm x 3 cm by 2 cm red<\/p>\n
                     colour on the left side of the forehead at the border of<\/p>\n
                     the hair line.   No history of loss of consciousness,<\/p>\n
                     vomiting, or blurred vision was found. X-ray skull was<\/p>\n
                     advised. A.P. lateral view.\n<\/p><\/blockquote>\n
                   3. Abrasion 3 cm x 2 cm on the posterior aspect on the<\/p>\n
                     right elbow was found.        There was no difficulty in<\/p>\n
                     moving the arm.\n<\/p><\/blockquote>\n
                   4. Abrasion 4 cm x 3 cm on the anterior surface of left<\/p>\n
                     wrist was found.\n<\/p><\/blockquote>\n
                   5. Complain of mobility of lower inciser. Contusion 2 cm
\n Criminal Appeal No.46-SB of 1998                               -4-<\/span><\/p>\n
                                      ****<\/p>\n
                      x 2 cm on the lower lip mucosa was found. Referred<\/p>\n
                      to Dental Surgeon for opinion and management.”<\/p><\/blockquote>\n
           He declared all the injuries to be simple in nature and haing been<\/p>\n
caused by a blunt weapon.            He also testified that the injuries<\/p>\n
aforementioned could have been caused if she was hit with a pistol like<\/p>\n
Ex. P12.\n<\/p>\n
             PW-9 Virinder Issar is an eye witness.\n<\/p>\n
             PW-10 Smt. Mohini Sahota is the star witness.\n<\/p>\n
             PW-11 SI Ram Dayal is investigating officer of this case.<\/p>\n
             The appellant raised the following plea in the course of the<\/p>\n
statement under Section 313 Cr.P.C.:-\n<\/p>\n
             “I run a factory at Ambala on       20.07.94.   I had come to<\/p>\n
             Chandigarh from Ambala for business purposes. I alighted at<\/p>\n
             the bus stand Chandigarh at about 1\/1.15 p.m. and I went to<\/p>\n
             the country liquor vend in front of the bus stand in Sector 222,<\/p>\n
             Chandigarh.    I bought one quarter.     Some 3-4 boys were<\/p>\n
             standing on that Thekka at that time who saw the currency<\/p>\n
             notes worth Rs.4000\/- (approximately) when I was making the<\/p>\n
             payment of quarter. I consumed the quarter there and then<\/p>\n
             and those boys asked me to make the payment for one bottle<\/p>\n
             of liquor for them which I refused. There was exchange of hot<\/p>\n
             words between us and I did not make payment and I started<\/p>\n
             from that place, towards the side of KC Theater on foot.<\/p>\n
             When I had passed about 1 -1\/2 chowk from that place, I had<\/p>\n
             at once turned behind and saw those boys following me. I<\/p>\n
             turned towards my right hand side and then towards my left<\/p>\n
             hand side.    I found the gate of a kothi opened and I went
\n Criminal Appeal No.46-SB of 1998                              -5-<\/span><\/p>\n
                                     ****<\/p>\n
            inside that kothi.   One Madam was found sitting inside the<\/p>\n
            kothi. She became perplexed on seeing me and I told her that<\/p>\n
            I had come inside for safety purposes because I was being<\/p>\n
            followed by 3-4 persons but she pushed me aside and there<\/p>\n
            was a scuffle between us. I did not have any pistol\/revolver or<\/p>\n
            toy with me. I did not push that Madam or her servant in any<\/p>\n
            room or bath room and I did not try to go away by climbing the<\/p>\n
            wall and was not chased and apprehended by Shri V. Issar or<\/p>\n
            Yash Pal his servant. I have been falsely involved in this case.<\/p>\n
            I did not pull the chain from the neck of Smt. Mohini Sahota<\/p>\n
            and I did not produce any chain before the police. I also did<\/p>\n
            not put any gown around the neck of Smt. Mohini. I had then<\/p>\n
            become unconscious. I do not know who took out the money<\/p>\n
            from my pocket. “<\/p><\/blockquote>\n
            DW-1 Ramesh Jindal, DW-2 Suresh Kumar and DW-3 Ram<\/p>\n
Parkash were examined in defence.\n<\/p>\n
            DW-1 Ramesh Jindal testified that the appellant is running a<\/p>\n
business of mixis and washing machines. This witness had undertaken<\/p>\n
the accounts job of the concern run by the appellant under the name and<\/p>\n
style of Goyal Enterprises on part time basis. He also testified that the<\/p>\n
appellant has turn over of Rs. 3 to 4 lacs and is an income tax payee.<\/p>\n
            DW-2 Suresh Kumar also testified that the appellant, who is<\/p>\n
known to him for the last 15-20 years, is running a business of mixis and<\/p>\n
washing machines at Ambala city and is Jain by caste. He also testified<\/p>\n
that the appellant is running a good business.\n<\/p>\n
            DW-3 Ram Parkash, an Administrative Officer in the office of<\/p>\n
LIC, Ambala, made a record-based statement to the effect that the
\n Criminal Appeal No.46-SB of 1998                                   -6-<\/span><\/p>\n
                                         ****<\/p>\n
appellant had taken out five insurance policies on his own life.<\/p>\n
             On appraisal of the material obtaining on the file, learned Trial<\/p>\n
Court, affirmed the prosecution plea, negatived appellant’s plea of<\/p>\n
innocence and proceeded to indict him.\n<\/p>\n
             I have heard Mr. Vivek Verma, ;earmed Amicus Curiae, Mr.<\/p>\n
Surender Singh, learned counsel for the appellant and Mr. Hemant Bassi,<\/p>\n
learned counsel for the U.T., Chandigarh and carefully gone through the<\/p>\n
record.\n<\/p>\n
             Learned Amicus Curie, appearing on behalf of the appellant,<\/p>\n
argues that the entire prosecution presentation is not acceptable because<\/p>\n
the appellant comes from a reputed business family and there was no<\/p>\n
reason why he would have resorted to commission of an act of dacoity,<\/p>\n
particularly when he was not facing any financial stringency. It is also<\/p>\n
argued that the appellant had no malafide intention in entering the house<\/p>\n
of the complainant and he had been compelled to do so only because he<\/p>\n
was being followed by some ruffian type elements who were after the<\/p>\n
money which he was carrying and about which those ‘ruffians’ had<\/p>\n
obtained knowledge while        the appellant took out money to purchase<\/p>\n
liquour. The allegation in the context is that those boys were available at<\/p>\n
the liquor vend at that point of time.\n<\/p>\n
             Learned State counsel resists the plea by arguing that Smt.<\/p>\n
Mohini Sahota and Virinder Issar did not have any animus against the<\/p>\n
appellant and there is no reason, even otherwise, why they would have<\/p>\n
framed the appellant in this case.        It is also argued that    an adverse<\/p>\n
inference against the interest of the appellant is validly drawable in view of<\/p>\n
the fact that the appellant had not opted to obtain the leave of the Court to<\/p>\n
enter the witness box, as his own witness.\n<\/p>\n
 Criminal Appeal No.46-SB of 1998                                 -7-<\/span><\/p>\n
                                        ****<\/p>\n
             A perusal of the testimony of Smt. Mohini Sahota and Virinder<\/p>\n
Issar would indicate that there is no suggestion to them that they had any<\/p>\n
inimical inclination towards the appellant or they had any score to settle<\/p>\n
with him on account of which they may have been inclined to depose<\/p>\n
falsely against him. If the appellant had actually entered the house of Smt.<\/p>\n
Mohini Sahota under the circumstances indicated by him, she hardly had<\/p>\n
any time to coin a false story to the effect that the appellant robbed her.<\/p>\n
Further, in the absence of any animus, there is no reason why Virinder<\/p>\n
Issar PW-10 would have opted to go whole hog with Smt. Mohini Sahota<\/p>\n
for supporting a false story.\n<\/p>\n
             Faced with the above facts, learned counsel appearing on<\/p>\n
behalf of the appellant argues that the appellant deserves exoneration as<\/p>\n
he was under the influence of liquor and, thus, in a state of intoxication.<\/p>\n
             The plea raised deserves to be merely noticed to be<\/p>\n
discarded. It is not a case where the appellant had either got himself<\/p>\n
medically examined immediately after his apprehension or where the<\/p>\n
police got him medically examined.        Though it is in evidence that the<\/p>\n
appellant was found to have consumed liquor, it does not ipso facto<\/p>\n
indicate that he was in a statement of intoxication. It is one thing to aver<\/p>\n
that the accused had been found to have consumed liquor and quite<\/p>\n
another thing to aver that he was found to be in the state of intoxication.<\/p>\n
The plea shall stand repelled accordingly.\n<\/p>\n
             Learned counsel for the appellant, then, argues that the<\/p>\n
absence of any injury mark on the neck of Smt. Mohini Sahota would also<\/p>\n
be indicative of falsity of the prosecution story.<\/p>\n
             Learned counsel is not on a firmer footing when he raises that<\/p>\n
plea.   All that Smt. Mohini Sahota        testified at the trial was that the
\n Criminal Appeal No.46-SB of 1998                                 -8-<\/span><\/p>\n
                                       ****<\/p>\n
appellant deprived her of gold chain which she was wearing at that point of<\/p>\n
time. It is not necessary that a robbed person would necessarily sustain<\/p>\n
an injury on the neck. There could be plenty of 101 reasons on account of<\/p>\n
which a person may get deprived of a chain she is wearing around the<\/p>\n
neck, without there being any injury on that body part itself.<\/p>\n
             Learned counsel for the appellant,       then, aruges that the<\/p>\n
weapon recovered in the case was a toy pistol and not a firearm, as was<\/p>\n
the presentation made by the complainant while notifying the offence to the<\/p>\n
police. It is argued that a toy pistol could not have scared the complainant<\/p>\n
to part with her gold chain.\n<\/p>\n
             The plea is frivolous on the face of it.      The fact that the<\/p>\n
appellant was carrying a toy pistol could not have been known to the<\/p>\n
robbed lady .    That fact     would have been to the notice of only the<\/p>\n
appellant himself. It is otherwise, not a part of the prosecution presentation<\/p>\n
that the appellant fired a shot. Even a toy pistol would be enough to scare<\/p>\n
a beguiled victim into submission.\n<\/p>\n
             I also find force in the plea put forward by the learned State<\/p>\n
counsel that an inference adverse to the interest of the appellant is validly<\/p>\n
drawable because he did not enter the witness box as his own witness.<\/p>\n
Though there can be no dispute with the proposition that essentially the<\/p>\n
onus to prove a charge would always be upon the prosecution, it also<\/p>\n
cannot be denied that if a person accused of a such like charge raises the<\/p>\n
plea pertaining to his own state of mind, it will be for that accused himself<\/p>\n
to opt to enter the witness box to explain the circumstances under which<\/p>\n
he was found at the spot.      Of course, no quarters could have compelled<\/p>\n
the appellant to step into the witness box as his own witness.           That<\/p>\n
discretion has to be exercised by the appellant himself. In this case, the
\n Criminal Appeal No.46-SB of 1998                                -9-<\/span><\/p>\n
                                      ****<\/p>\n
appellant did not exercise that discretion. An inference adverse to the<\/p>\n
interest of the appellant can, thus, be validly drawn by the Court.<\/p>\n
            In the light of the fore-going discussion, it is held that the<\/p>\n
appeal is denuded of merit and is ordered to be dismissed. The impugned<\/p>\n
finding of conviction shall stand affirmed. However, in view of the fact that<\/p>\n
appellant has undergone the ordeal of trial\/appeal since the year 1994, the<\/p>\n
interests of justice would served if substantive sentences awarded to him<\/p>\n
on each count is reduced to one half. It is so ordered accordingly.<\/p>\n
December 12, 2008                                    (S. D. ANAND)\nPka                                                      JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Sushil vs The State Of Haryana on 12 December, 2008 Criminal Appeal No.46-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.46-SB of 1998 Date of decision : 12.12.2008 Sushil …..Appellant Versus The State of Haryana …Respondent **** CORAM : HON’BLE MR. JUSTICE S. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-173084","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nSushil vs The State Of Haryana on 12 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sushil-vs-the-state-of-haryana-on-12-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sushil vs The State Of Haryana on 12 December, 2008 - 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