Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 1 Criminal Appeal No. 153-SB of 1998. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No. 118-SB of 1998. DECIDED ON : May 21, 2008. Rohtash and another. Appellants. VERSUS State of Haryana. Respondent. Criminal Appeal No. 119-SB of 1998. DECIDED ON : Rohtash. Appellants. VERSUS State of Haryana. Respondent. Criminal Appeal No. 153-SB of 1998. DECIDED ON : Jagdish. Appellants. VERSUS State of Haryana. Respondent. Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 2 Criminal Appeal No. 153-SB of 1998. CORAM : Hon'ble Mr.. JUSTICE JORA SINGH. Present:- Mr. R.N.Khush, Advocate, with Mr. Manjit Singh Ucha, Advocate, the appellants. Mr. Kartar Singh , Assistant Advocate General, Haryana. JORA SINGH,J. This judgment shall dispose of Criminal Appeals No. 118-SB, 119-SB and 153-SB of 1998 filed by Rohtash and Vijay, Rohtash, and Jagdish respectively, against the judgment and order dated 31.1.1998 in Sessions Case No. 5 of 28.8.1997/3.1.1997 bearing First Information Report No. 132 dated 11.6.1996. Vide the impugned judgment, appellants-accused were convicted under Section 397 of the Indian Penal Code and Rohtash was also convicted under Section 25 of the Arms Act and the appellants-accused were sentenced as under:- “Under Section 397 I.P.C. All the accused were sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs. 500/- each. In default to further undergo rigorous imprisonment for one month each. “Under Section 25 of the Arms Act:- Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 3 Criminal Appeal No. 153-SB of 1998. Rohtash accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-. In default, to further undergo rigorous imprisonment for one month.” Prosecution story, in brief, is that on the intervening night of 10/11.6.1996, Harish Chander (PW-6) along with his children had slept outside his house, whereas his brother Satish Kumar (PW-9) and his wife Asha Rani (PW7) had slept inside the house. There was an electric light. At about 11 P.M., there was some noise. Complainant Harish Chander woke up. Door of the room of Satish Kumar was given push by some unknown assailants. Satish Kumar and his wife woke up and they had enquired about the identity of the assailants. Complainant had also gone inside the room, where his brother Satish Kumar had slept. One of the assailants was tall, black coloured, wearing a check shirt and brown pant. He fired a shot from a pistol. Second assailant was of medium height. He was wearing a black coloured pant and check shirt Satish Kumar and his wife were made to sit in the corner of the house and demanded keys of the almirah from his brother. Satish Kumar had handed over the keys to him as he was badly scared of the assailants. The accused had abused the complainant, his brother and his wife and asked them to hand over what ever they had, otherwise Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 4 Criminal Appeal No. 153-SB of 1998. they are to be shooted. One of the assailants who was of short stature had opened the almirah and collected Rs. 10,500/- lying in the almirah. Other household articles were also looted. All the looted articles were put in the bag and then they had left the room. Complainant party had grappled with the accused and one of the accused had fired a shot and the pallets had hit his brother Satish Kumar. One of the accused was armed with a kussa and gave blow on the head of the complainant. Third accused gave bite on the arm of the complainant. After looting household articles, the accused fled away from the spot by scaling wall. Raula was raised, but no one had come to rescue the complainant party. Complainant had shifted Satish Kumar to Civil Hospital, Kanina. Doctor sent a ruqa Ex.PA to the concerned Police Station Kanina. After first aid, injured was shifted to Medical College, Rohtak for treatment. Doctor R.P.Verma, Medical Officer, Medical College Hospital, Rohtak had noticed the following injuries on the person of Satish Kumar:- 1. Lacerated wound 3 cm x 03 cm on right parietal region, approximately 4 inches above the right pinna. 2. Just medical to injury No.1 there was another lacerated wound 1 cm x 03 cm in size. 3. Contused swelling 2”x 1” on posterior aspect of right elbow and also having 5 circular abrasion marks of the Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 5 Criminal Appeal No. 153-SB of 1998. size 2 x 2 MM to 3 x 3 MM. On receipt of information from hospital, Gulshan Rai (PW8) had gone to P.H.C., Kanina. Statement Ex.PJ was recorded. After making endorsement, statement Ex.PJ was sent to the Police Station, on the basis of which, formal First Information Report (Ex.PJ/2) was recorded. Sub Inspector Gulshan Rai with the police party had gone to the spot. Rough site plan with correct marginal notes was prepared. Two empty cartridges, a pillow and pallets were lifted from the spot and the same were sealed with the seal of “DYS”. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Police Party headed by Sub Inspector Gulshan Rai and Harish Chander had gone to trace the accused and the accused were located in the Dhani in the area of village Partal. Accused were identified by Harish Chander. Looted articles were recovered from the accused and the same were taken into police possession vide memo Ex.PL. Besides looted articles, one gold necklace, a gold chain, a silver mangal suttar and two gold Om were recovered from Rohtash. These articles were also taken into possession under Section 102 of the Code of Criminal Procedure Kussa was recovered from Jagdish and its sketch Ex.PN/1 was prepared. Weapon was taken into police possession vide memo Ex.PN. A pistol .12 bore and three live cartridges were Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 6 Criminal Appeal No. 153-SB of 1998. recovered from Rohtash. Sketch of the pistol was prepared. Pistol and the cartridges were taken into police possession vide memo. After the completion of investigation, accused were challaned. Vide order dated 28.8.1996 passed by learned Judicial Magistrate, Ist Class, Mahendergarh, this case was committed to the learned Sessions Judge, Narnaul. All the Accused were charge sheeted under Sections 392/397 of the Indian Penal Code and accused Rohtash was also charged under Section 25 of the Arms Act, accused pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined as many as ten witnesses to connect the accused with the crime. PW1 Doctor Chitranjan stated that on 11.6.1996, Satish injured was brought to Civil Hospital, Kanina. Ruqa Ex.PA was sent to the Station House Officer, Kanina. After first aid, injured was referred to Medical College, Rohtak. PW2 Doctor R.P.Verma had medico-legally examined Satish and found three injuries on his person, as stated above. The duration of injuries was within 24 hours at the time of examination. Weapon used for causing injuries No. 1 and 2 was blunt, qua injury No.3 was firearm. Ruqa Ex.PC was sent to the Police Station. Supplementary report Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 7 Criminal Appeal No. 153-SB of 1998. Ex.PD was also sent. PW3- Doctor Roop Singh stated that Satish Kumar had remained under his treatment in the Medical College, Rohtak. Treatment file is Ex.PE. He had received gunshot injuries. PW4-Constable Dharampal had prepared scaled site plan Ex.PF. PW5- Khushi Ram stated that Doctor Kanta Goyal was the concerned doctor of the X-ray department. PW6- Harish Chander is the complainant (eye witness). Smt. Asha Rani appeared as PW7 and Satish Kumar had appeared as PW9. Harish Chander, Smt. Asha Rani and Satish Kumar stated that on 10.6.1996, they were sleeping in the room. Satish Kumar alongwith his wife was sleeping in their house. Other members of the family were sleeping outside the room. At about 11 P.M., some unknown assailants came to their house. The light of the room was already on. Due to noise, they woke up. Rohtash fired a shot which hit Satish Kumar. Accused were armed and demanded keys of the almirah. Keys were handed over to the accused. Different articles were looted from the almirah. Jagdish who was armed with kussa gave blow on the head of Satish Kumar. Rohtash had fired a Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 8 Criminal Appeal No. 153-SB of 1998. shot. When Satish Kumar had grappled with him, the pellets hit on the left elbow temple and left eye brow of Satish Kumar. PW-8 Inspector Gulshan Rai is the Investigating Officer and stated that on receipt of ruqa from Civil Hospital, Kanina, he had gone to Civil Hospital, Kanina, Harish Chander had met him and his statement Ex.PJ was recorded. After that, he had gone to the spot and had prepared rough site plan. Empty cartridges and few pellets were recovered from the spot and were made into a sealed parcel, sealed with the seal bearing impression “DSY”, then they along with the complainant made an effort to trace the accused. Accused were located in the Dhani in the area of Village Partal. Accused were identified by Harish Chander. looted articles were also recovered from the accused. Kussa was recovered from Jagdish. Pistol was recovered from Rohtash. PW-10 Assistant Balbir Singh was with the police party of Assistant Sub Inspector Gulshan Rai and in his presence, two empty cartridges, a pillow and the pellets were recovered from the spot. Accused were apprehended. looted articles were recovered from the accused. After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations, levelled against them. Accused denied all the Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 9 Criminal Appeal No. 153-SB of 1998. allegations and claimed to be innocent. Opportunity was given to lead defence evidence but no defence evidence was led. Learned defence counsel for the appellants-accused argued that occurrence had taken place on the intervening night of 10/11.6.1996 at about 11 P.M., whereas the appellants-accused were arrested on the next day. Prosecution failed to explain whether looted articles were recovered from Rohtash or Jagdish or Vijay. There was no test identification parade. As per evidence on the file, story qua arrest of the appellants-accused is doubtful. Appellants- accused were convicted under Section 397 of the Indian Penal Code. Rohtash was also convicted and sentenced under Section 25 of the Arms Act but all the sentences were not ordered to run concurrently. Mr. Kartar Singh, Assistant Advocate General, Haryana argued that occurrence was on the intervening night of 11/12.6.1996. Harish Chander was sleeping outside the room, whereas Satish and his wife Asha Rani were sleeping inside the room. There was an electric light. Appellants- accused fully armed came and had entered the room of Harish Chander. One of the accused was armed with pistol. There was a firing. Complainant party was directed to hand over the keys of the almirah. Keys were supplied. Different Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 10 Criminal Appeal No. 153-SB of 1998. articles were looted from the almirah. Complainant party had grappled with the appellants-accused. There was a firing and the fire had hit Satish Kumar. Satish Kumar was shifted to different hospital. As per Doctor, injury was with fire-arm. Report was lodged with the police. Police party with the complainant made efforts to trace the accused. On the next day in the morning, accused were apprehended from a Dhani of village Partal. Looted articles were also recovered from the appellants-accused. No question of test identification parade then appellants-accused were arrested immediately from village Partal. No request from the appellants-accused to arrange test identification parade. Minor discrepancies regarding arrest of the appellants-accused who had no enmity with the complainant party. So, there was no idea to name the appellants-accused by leaving the real culprits. Recovery of looted articles from the appellants-accused was effected immediately on the next day, so crime was committed by the appellants-accused. First contention of the defence counsel was that looted articles were recovered but the evidence is not clear as to whether articles were looted by Vijay or Rohtash or Jagdish, but submission of the defence counsel carries a little weight. Occurrence had taken place on the intervening night of 10/11.6.1996 at about 11 P.M. On the next day, appellants- Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 11 Criminal Appeal No. 153-SB of 1998. accused were arrested from a Dhani of village Partal. Looted articles were in a bag. Bag is not to be held by all the appellants-accused. Bag is to be either with one accused, second or third accused. In the present case, no allegation of the prosecution that bag was recovered from Vijay or Jagdish or Rohtash. When there was a raid then the appellants- accused were arrested from the Dhani of village Partal, then from the same place, from where accused-appellants were arrested, looted articles were also recovered with a bag. Bag was the same in which looted articles were kept by the appellants-accused, all the appellants-accused were arrested from a Dhani, situated in village Partal and looted articles were also recovered from the same Dhani, then presumption is that looted articles were in possession of all the appellants- accused. Story is not to be rejected if prosecution failed to explain as to whether the looted articles were recovered from the person of Vijay, or Jagdish or Rohtash. Second submission of the defence counsel was that there was no test identification parade. Appellants-accused were not known to the complainant party. Nothing to opine that appellants-accused are the same persons, who had committed the crime. I have gone through the evidence. Submission of learned defence counsel is without any force because Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 12 Criminal Appeal No. 153-SB of 1998. occurrence was at about 11 P.M., during night time. There was an electric light at the place of occurrence. On hearing noise, complainant party woke up and after giving push to the door forcibly, appellants-accused had gone inside the room, where Satish Kumar had slept with his wife. Satish Kumar also woke up. Complainant party was directed to hand over the keys of the almirah. Otherwise, they are to be eliminated, there was a firing. Key of the almirah was supplied by Satish Kumar and his wife and they were directed to sit in the corner of the room. Complainant party had grappled with the appellants-accused. There was a firing hitting Satish Kumar. Pellets/ empty cartridges were recovered from the spot. Complainant was with the party when police party was searching for the accused. Appellants- accused were arrested from a Dhani, situated in village Partal. Appellants-accused were identified by the complainant. Looted articles of the complainant party were also recovered from the accused. No request from the appellants-accused to arrange test identification parade. When complainant was with the police party and appellants- accused were arrested, then there was no idea to arrange test identification parade. Because complainant had seen the appellants-accused arrested from Dhani. Something could be said if the appellants-accused were arrested with muffled Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 13 Criminal Appeal No. 153-SB of 1998. faces had surrendered in Court with a request to arrange test identification parade. At the time of occurrence, appellants- accused were seen by the complainant, his brother and his wife and also at the time of their arrest. Complainant was with the police party. Complainant had immediately identified the accused, who had committed the crime. Looted articles of the complainant party were also recovered. Besides, the looted articles, some other articles of gold were also recovered from the accused. Accused did not state when examined under Section 313 Cr.P.C. that the recovered articles were not of the complainant but were owned by them. Next contention of the defence counsel was that evidence is doubtful regarding the arrest of the appellants- accused. One witness stated that accused were arrested from the Dhani of village Partal. Second stated that appellants- accused were arrested while traveling in a bus. But contention of the defence counsel carries a little weight. Sub Inspector Gulshan Rai, is the Investigating Officer, who after recording the statement of the complainant, had gone to trace the appellants-accused. Complainant was with the party. Investigating Officer was not cross-examined that appellants- accused were not arrested from the Dhani of village Partal. In fact, the appellants-accused were arrested from a bus. Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 14 Criminal Appeal No. 153-SB of 1998. Assistant Sub Inspector Balbir Singh PW10 stated that after recording the statement of the complainant, police party had gone to the spot, empty cartridges/ pellets were recovered from the spot, then different parties were constituted. One party was headed by him; second party was headed by Assistant Sub Inspector Dhan Singh. He along with police party had gone to village Partal. Station House Officer, Police Station Ateli and Police Station Mahendergarh also came there in search of the appellants-accused, when they were found sitting in the bus coming from the side of village Kanina. Occurrence was on the intervening night of 11.6.1996. PW10- ASI Balbir Singh appeared in December, 1997. No suggestion to ASI Balbir Singh that appellants- accused were not arrested from the Dhani of village Partal but an cross examination ASI Balbir Singh stated that complainant was not with the raiding party. With the passage of time, there was a possibility to forget as to whether the appellants-accused was arrested from the Dhani of village Partal or from a bus. Minor discrepancies rather show that story is natural. Two accused are from District Hisar and one is from District Rewari. Recovery of looted articles immediately after the occurrence on the next day shows that story is natural and with the appearance of minor discrepancies is not to be rejected. Discrepancies not material Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 15 Criminal Appeal No. 153-SB of 1998. to effect the story on merits. Last contention of the defence counsel was that vide judgment dated 31.1.1998, appellants-accused were convicted and sentenced under Section 397 of the Indian Penal Code and on the same day Rohtash was convicted and sentenced under Section 25 of the Arms Act. Both the sentences were not ordered to run concurrently. Contention of the defence counsel seems to be reasonable one. Offence under Section 397 of the Indian Penal Code was committed by the appellants-accused and while committing the crime, fire- arm was used and same was recovered under the Arms Act challan was separately presented. In fact, there should be one challan. Mr. Kartar Singh, Assistant Advocate General, Haryana failed to cite any authority that when the accused is convicted on the same day for committing crime under different Sections, then all the sentences are not to be ordered to run concurrently. Rohtash was convicted and sentenced under Section 397 of the Indian Penal Code and under Section 25 of the Arms Act on the same day vide different judgments dated 31.1.1998. So, all the sentences under Section 397 of the Indian Penal Code in First Information Report No. 132 of 11.6.1996and under Section 25 of the Arms Act in First Information Report No. 133 are ordered to run concurrently. Criminal Appeal No. 118-SB of 1998. Criminal Appeal No. 119-SB of 1998. 16 Criminal Appeal No. 153-SB of 1998. No other contention was put forward. The above discussion shows that there is no illegality in the impugned judgment of the trial Court and the same is upheld. The appeal being without merit, is dismissed. May 21,2008 ( JORA SINGH ) Anoop JUDGE