Criminal Appeal No.216-DB of 2004 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No.216-DB of 2004 Date of Decision : October 05, 2010 Ashok ...... Appellant Versus State of Haryana ...... Respondent 2. Criminal Appeal No.2305-SB of 2003 Gurvinder Singh ...... Appellant Versus State of Haryana ...... Respondent 3. Criminal Appeal No.2385-SB of 2003 Jiwan Singh ...... Appellant Versus State of Haryana ...... Respondent 4. Criminal Appeal No.139-SB of 2004 Sushil ...... Appellant Versus State of Haryana ...... Respondent 5. Criminal Appeal No.305-SB of 2004 Sanjeev Kumar ...... Appellant Versus State of Haryana ...... Respondent Criminal Appeal No.216-DB of 2004 2 .. 6. Criminal Appeal No.354-SB of 2004 Mohan Singh and another ...... Appellants Versus State of Haryana ...... Respondent CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE NAWAB SINGH Present:- Mr. R.S. Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate. (In Crl. Appeal No. 216-DB of 2004). Mr. T.S. Sangha, Sr. Advocate with Mr. J.S. Lalli, Advocate. (In Crl. Appeal No. 139-SB of 2004). Mr. Sunil Kumar, Advocate. (In Crl. Appeal No. 354-SB of 2004). Ms. Dhriti Sharma, Advocate for Mr. Sanjiv Sharma, Advocate. (In Crl. Appeal No. 305-SB of 2004). Mr. H.S.Sran, Addl. A.G. Haryana for the respondent-State. NAWAB SINGH, J. This judgment would dispose of above titled six Criminal Appeal Nos. 216-DB of 2004, 2305-SB of 2003, 2383-SB of 2003, 139-SB of 2004, 305-SB of 2004 and 354-SB of 2004 filed by the accused-appellants as all these have arisen out of a common judgment of conviction dated November 19 th, 2003 and order of sentence dated November 22 nd, 2003 passed by Sessions Judge, Faridabad. 2. Seven persons, namely, Ashok, Gurvinder Singh, Jiwan Singh, Sushil, Sanjeev Kumar, Mohan Singh and Rizwan Criminal Appeal No.216-DB of 2004 3 .. accused-appellants, were tried by the trial Court for offence punishable under Sections 394, 395, 396 and 412 of Indian Penal Code (for short 'the IPC'). By the impugned judgment, they were convicted and sentenced as under:- Ashok Kumar, accused-appellant Offence U/S Sentence Fine In default 302/34 IPC Imprisonment for Life - - 412 IPC R.I. for 7 years ` 500/- RI for 1 month 394/34 IPC R.I. for 7 years - - 323/34 IPC R.I. for 6 months The sentences were ordered to run concurrently. Gurvinder Singh, Jiwan Singh, Sushil, Sanjeev Kumar, Mohan Singh and Rizwan - accused-appellants 412 IPC R.I. for 7 ` 500/- RI for 1 month years 3. All the accused-appellants were acquitted of the charge under Sections 395 and 396 IPC. 4. The prosecution story is that on November 10 th, 2001, Om Parkash, Peon (PW-12) and Ram Naresh, Cashier (deceased) of Canara Bank, Extension counter, Whirpool Factory, Faridabad were carrying ` 5.00 lacs from the main branch of Canara Bank, Nehru Ground, Faridabad on a scooter. Om Parkash (PW-12) was driving the scooter. Ram Naresh was pillion rider. At about 12.05 noon, when they reached near Bizi factory, after crossing the Thermal Power House main gate, a Maruti car bearing No. DL-2CC- 8118 came from behind and hit their scooter, as a result of which, both of them fell on the ground. Three occupants of the car alighted, while the fourth one – Ashok Kumar, accused-appellant remained sitting on the steering wheel. Out of those three persons, one was having a hockey stick, whereas, two were armed with country-made pistols. The person having hockey stick started giving blows to Ram Naresh and the remaining two started snatching the bag containing Criminal Appeal No.216-DB of 2004 4 .. the amount of ` 5.00 lacs from him. Ram Naresh resisted. One of the assailants fired shot upon him, which hit on his left shoulder. Another culprit also fired shot upon him. After snatching the bag, all the assailants fled away in the Maruti car, driven by Ashok accused- appellant. Om Parkash (PW-12) also received injuries on his right foot and right shoulder on account of fall from the scooter. Ram Naresh was immediately brought to Escorts Hospital, Faridabad (for short, “the Hospital”). Police was informed on the telephone. Jai Kishan, Assistant Sub Inspector, Police Station, Mujessar (PW-10) along with other Police officials reached the scene of robbery, where he came to know that injured had been evacuated to the Hospital. He reached the Hospital. Ram Naresh was unfit to make the statement. Om Parkash (PW-12) was present in the Hospital. He recorded the statement (Exhibit PJ) of Om Parkash . He appended his endorsement (Exhibit PJ/1). First Information Report (Exhibit PJ/2) was recorded. Jai Kishan (PW-10) again went to the spot and inspected the same. He prepared site plan (Exhibit PK). Blood stained earth and a piece of hockey stick lying at the spot were taken into possession vide recovery memorandums (Exhibit PL and PM respectively). Ram Naresh died on November 13 th, 2001 due to the injuries received on his person. Inquest proceedings (Exhibit PN) were conducted. The dead body was sent to B.K.Hospital, Fariabad for post-mortem examination. 5. On December 9 th, 2001, Randhir Singh, Sub Inspector, CIA Staff, Badarpur (PW-22) arrested Sushil, Sanjeev Kumar and Jiwan Singh, accused-appellants. They were interrogated. They made disclosure statements (Exhibit PR, PR/1 and PR/2 respectively). The matrix of their disclosure statements was that on November 10 th, 2001, they along with Rizwan, Mohan Singh, Mohinder Chaudhary, Ashok and Gurvinder Singh had planned to rob the Cashier of the Canara Bank and in order to execute their plan, they conducted survey of the area thrice, prior to the occurrence. Rizwan, Mohinder Chaudhary and Mohan were armed Criminal Appeal No.216-DB of 2004 5 .. with country-made pistols and the hockey stick respectively and the remaining were armed with iron rods. They gathered under the Bata Railway-crossing bridge to get their plan re-shaped. Rizwan brought the Maruti car bearing No. DL-2CC-8118. Rizwan, Mohinder Chaudhary, Mohan Singh and Ashok left in the Maruti car. Sunil, Mohinder Chaudhary, Gurvinder Singh and Sanjeev also left towards the Canara Bank, Nehru Ground, Fariadabad on their respective two-wheelers viz – Motor-cycle and Scooter. Ram Naresh, Cashier (deceased) and Om Parkash (PW-12) came on the scooter having the bag containing money. All of them followed them. Gurvinder Singh gave a signal to Maruti-borne assailants. Ashok accused-appellant struck the car with the scooter and both of them fell down. Rizwan and Mohinder Chaudhary fired shots upon Ram Naresh with their respective country-made pistols. Mohan Singh gave blows with the hockey stick. The bag was snatched. Ashok drove them from the spot. The amount robbed was distributed amongst them at the house of Rizwan. Pursuant to their disclosure statements, Sushil, Sanjeev and Jiwan Singh, accused-appellants got recovered amount of `60,000/-, `20,000/- and `10,000/- respectively out of the robbed amount from their houses and house of their relations. The bundles were having currency notes of ` 100/- denomination bearing the stamp of Canara Bank, 7A, Nehru Ground, Faridabad dated November 9 th, 2001. 6. On December 10 th, 2001, Randhir Singh, Sub Inspector (PW-22) arrested Ashok and Mohan Singh. Both of them were interrogated. Their disclosure statements (Exhibit PQ and PR/3) were recorded. The car bearing No.DL-2CC-8118, parked near the house from where Ashok and Mohan Singh were arrested, was taken into possession vide recovery memorandum (Exhibit PY). A piece of hockey (Exhibit PZ) lying in the dickey of the car was also taken into possession vide recovery memorandum (Exhibit PR/4). Pursuant to their disclosure statements (Exhibit PAA and PBB), Ashok and Mohan Singh, accused-appellants got recovered Criminal Appeal No.216-DB of 2004 6 .. `40,000/- and `60,000/- respectively out of the robbed amount from their respective houses, which were taken into possession vide recovery memorandums (Exhibit PAA/1 and PBB/1 respectively). The bundles of the currency notes got recovered by them bore the stamp of Canara Bank, 7A, Nehru Ground, Faridabad, dated November 9 th, 2001. 7. Gurvinder Singh, accused-appellant, was arrested on December 14 th, 2001 by Randhir Singh, Sub Inspector. He made the disclosure statement (Exhibit PCC) and in pursuance thereto, got recovered an amount of `10,000/- out of the robbed amount having the stamp of Canara Bank, 7A, Nehru Ground, Faridabad dated November 9 th, 2001 on the bundle of currency notes, from his house, which was taken into possession vide recovery memorandum (Exhibit PCC/1). He also got recovered a scooter No.HR-29-6928, which was taken into possession vide recovery memorandum (Exhibit PBB/2). 8. On March 10 th, 2004, Rizwan, accused-appellant was arrested in another case bearing First Information Report No. 721 of 2001 under Section 392 IPC by Randhir Singh, Sub Inspector (PW-22). During interrogation of the said case, Rizwan made disclosure statement (Exhibit PEE) with regard to his involvement in the present case. He was arrested in this case. Pursuant to his disclosure statement (Exhibit PDD), he got recovered an amount of ` 20,000/- out of the robbed amount kept concealed by him in a room in the house of his In-laws situated in Village GarhMukteshwar. The bundles were having stamps of Canara Bank, Faridabad and date as November 9 th, 2001 on the slips attached therewith. The same were taken into possession vide recovery memorandum (Exhibit PDD/1). 9. On completion of investigation and other formalities, the accused-appellants were arraigned for trial. 10. The accused-appellants were charged under Sections 394, 395, 396 and 412 IPC. They pleaded not guilty and claimed to be tried. Criminal Appeal No.216-DB of 2004 7 .. 11. In support of its case, prosecution examined twenty three witnesses, viz Raj Kumar (PW-1), Dr. Sudhir Khurana (PW-2), Shiv Lal, ASI (PW-3), Ram Kumar Gupta (PW-4), Om Parkash, SI (PW-5), Ashok Kumar (PW-6), Dr. Rakesh Singh (PW- 7), Ashwani Kumar (PW-8), Kartar Singh, ASI (PW-9), Jai Kishan, ASI (PW-10), Ishwar Singh (PW-11), Om Parkash, Peon (PW-12), Ram Avtar (PW-13), Prem Singh (PW-14), Ashok Kumar (PW-15), Partap (PW-16 ), Avdesh Kumar (PW-17), Sh. D.K. Sharma, JMIC (PW-18), Dr. Neerja Azmani (PW-19), Bhim Singh HC (PW-20), HC Mahavir Singh (PW-21), Randhir Singh SI (PW-22), Sh. Y.S. Rathore, CJSD (PW-23). 12. The accused-appellants were examined under Section 313 of the Code of Criminal Procedure, to explain the incriminating circumstances appearing in the prosecution evidence. They denied their complicity and pleaded innocence. In defence accused-appellants examined twelve witnesses in order to prove that the amount of recovery was planted upon them by the investigator. F.A. Ansari, Assistant, State Bank of India, Ballabgarh (DW-1) proved that Deepti Lal (DW-12) father of Sushil, accused-appellant, had withdrawn an amount of ` 10,000/- and ` 70,000/-, ` 15,000/- on October 16 th, 2001, October 19 th, 2001 and December 5 th, 2001, respectively. Harikush Dev Singh (DW-2) father of Gurvinder Singh, accused-appellant deposed that he paid ` 10,000/- to the investigator at the time of arrest of his son. Ram Phul Narwal, Clerk, Central Co-op. Bank, Gohana, Distt. Sonepat (DW-3) proved that Chandu Ram father of Jiwan Singh, accused-appellant, had withdrawn ` 15,000/- from his account on December 5 th, 2001. Chandu Ram stated that he paid ` 15,000/- to Randhir Singh, Sub Inspector (PW-22). Dinesh Kumar (DW-6) brother of Sanjeev, accused-appellant, also stated that Randhir Singh, Investigator asked them to pay ` 40,000/- for letting off Sanjeev-accused but he only paid him ` 30,000/-. Ram Sharan (DW-8) is relation of Ashok, accused-appellant. He deposed that Randhir Singh, Investigator Criminal Appeal No.216-DB of 2004 8 .. along with other police officials came to his house and demanded ` 40,000/- for letting off Ashok and he handed over the said amount to him but Ashok was not freed by him. Firoz Khan (DW-9) is brother of Rizwan, accused-appellant. He also made a statement that a demand of ` 20,000/- was made from him by the Investigator for not giving beatings to Rizwan and to involve him in a lighter offence. He paid the said amount to the Investigator. Sumer (DW-10) brother of Mohan Singh, accused-appellant, also paid ` 10,000/- to release him. Rajender Babu Gupta (DW-11) in his deposition stated that on December 8 th, 2001, Police came to his shop and told him that Mohan Singh, accused-appellant, had paid him the installments out of the robbed amount and that he should return the same to the police. He returned the amount of ` 22,300/- to the police. Deepti Lal (DW-12) deposed that he paid an amount of ` 35,000/- to Randhir Singh, Sub Inspector (PW-22). 13. In the occurrence, Ram Naresh and Om Parkash (PW-12) received injuries. Ram Naresh received injuries at the hands of the assailants and Om Parkash received injuries due to fall from the scooter when the car struck against it. From the scene of robbery, both were immediately brought to the Hospital. Dr.Rakesh Singh (PW-7) medico-legally examined Ram Naresh and found the following injuries on his person. “1. Elliptical wound of the size 2.5” x 2” on the superior lateral aspect of left chest just anterior to anterior axillary fold. The margins were inverted and profuse bleeding was taking place. Tattooing was also present and muscle were exposed. 2. A wound of the size 1” x 1 cm just inferior to right sterno clavicular joint. The margins were inverted. Muscles were exposed. Tattooing was present and profuse bleeding was taking place.” He also examined Om Parkash (PW-12) and found the following injuries on his person:- Criminal Appeal No.216-DB of 2004 9 .. “1. Abrasion on the superio, posterior aspect of right shoulder. 2. Abrasion on the anterior aspect of right knee. 3. Bruise on the back of the chest on the right side and the mid-aspect.” Ram Naresh succumbed to his injuries on November 13 th, 2001. Autopsy was conducted on his dead-body by Dr. Sudhir Khurana (PW-2) who found the following injuries :- “1. A stitched wound 26 cm in length placed transversely on the upper part of the chest, starting from 4.5 cm right to the mid-line and going towards the left horizontally, upto anterior fold of left axilla. No puss was detected. On removal of the stitches, the margins of the wound were seen which had started to unites and healing and granulation process had also started on the tissues. 2. There was a fracture of the 2 nd rib of the right side over manubrim sternum. 3. Plural spaces and retrosternal space contained blood. Trachea also contained blood.” The doctor opined that the cause of death was due to shock and haemorrhage on account of injuries caused to the vital organs as result of fire arm shots, which were sufficient in the ordinary course of nature to cause death. 14. The occurrence was witnessed by Om Parkash (PW-12). He deposed that he and Ram Naresh (deceased) were carrying ` 5 lacs in a bag from Canara Bank, 7A, Nehru Ground, Faridabad to another branch of Canara Bank. At about 12.05 noon, when they reached near Bizi factory, after crossing the Thermal Power House main gate, Maruti car bearing No. DL-2CC-8118, carrying four persons, struck against the scooter. Both of them fell down. Three assailants tried to snatch the bag but Ram Naresh did not give the same to them. Two assailants fired one shot each upon Ram Naresh and the third one gave a hockey blow on his Criminal Appeal No.216-DB of 2004 10 .. person. Ashok, the fourth accused, remained sitting on the steering wheel of the car. After the occurrence, Ashok drove them towards Mujessar. He could identify Ashok accused but did not identify the other three assailants who accompanied Ashok at the time of deposition before the trial Court. 15. Learned counsel representing Ashok, accused- appellant, has argued that as per the evidence of the prosecution, Ashok did not actively participate in causing the murder of Ram Naresh. So, he did not share the common intention with his three accomplices to kill the deceased and as such, the trial Judge fell in error in convicting him under Section 302 read with Section 34 IPC. 16. This Court does not concur with the argument of learned counsel for Ashok, accused-appellant. It is proved from the evidence on record that occurrence took place in the broad day-light in the heart of the City of Faridabad, when two employees of Canara Bank carrying a huge amount of ` 5 lacs were way-laid by four occupants of the Maruti Car bearing No. DL-2CC-8118 to commit the robbery. Out of the four occupants of the Car, two were armed with country-made pistols and the third one with hockey stick. After the occurrence, Ashok drove three assailants in the said car. The car was taken into possession by the Police on December 10 th, 2001 parked in the street near the house from where Ashok, accused- appellant, was arrested. Not only that, a sum of ` 40,000/- was got recovered by Ashok. The currency notes which he got recovered had the stamp of Canara Bank dated November 9 th, 2001. When the accomplice of Ashok, accused-appellant, carrying country-made pistols with them alighted from the car and tried to snatch the bag, which Ram Naresh was carrying and when they could not succeed, they fired two shots upon him. From this overwhelming evidence, could it be said that Ashok was not sharing the common intention with his co-accused in causing the robbery as well as murder of Ram Naresh. The answer, of course, is in negative. The basis of liability for common intention includes the fact that accomplices assist the Criminal Appeal No.216-DB of 2004 11 .. perpetration of the criminal act in question in no small way by giving the main perpetrator support and encouragement. The wording of Section 34 IPC indicates that the participation required is participation in the “criminal act”. A “criminal act” refers to all the acts done by the persons involved which cumulatively result in the criminal offence in question, it follows that participation in the primary act would be sufficient for there to be liability under Section 34 IPC. Section 34 IPC punishes a person for his participation in the “unity of criminal behaviour” rather than his behaviour in discrete acts. The common intention need not be the intention to commit criminal act constituting the offence actually committed. Rather, as long as the intention of the primary offender was consistent with the common intention of the secondary offenders, all will be liable for the eventual criminal act committed. Thus, in a robbery-murder situation, the common intention must not merely be to commit robbery, but murder as well. In this view of the matter, Ashok accused-appellant was liable for the murder committed by his confederates even if he did not intend the consequences because it has been proved by the prosecution to the hilt that he possessed the requisite mens rea for the murder and actively assisted and participated in the crime. 17. It was also contended by learned counsel that charge in this case was not framed against Ashok, accused- appellant under Section 302 IPC rather it was under Section 396 IPC, that is, dacoity with murder. So, Ashok, accused-appellant could not have been convicted under Section 302 read with Section 34 IPC. 18. It is the case of the prosecution that there were only four persons in the Maruti car meaning thereby that requisite number of offenders viz. five to bring home the basic ingredients of dacoity, that is, committing the offence under Section 396 IPC could not be made out but there was evidence that Ram Naresh was killed while committing robbery. So, the accused-appellant was convicted under Section 302 read with Section 34 IPC which is, of course, lesser Criminal Appeal No.216-DB of 2004 12 .. genre than Section 396 IPC. Hence, the argument of the learned counsel for Ashok, accused-appellant, is of no avail and is thus, rejected. 19. The next argument of the learned counsel for the accused-appellants was that they could not have been convicted under Section 412 IPC because for the purpose of conviction under Section 412 IPC, the Court must come to the conclusion that the dishonest receiver of the stolen property should be in possession of the same knowing or having reason to believe that its possession had been transferred by the commission of dacoity. It was not the case of the prosecution that the amount received by the accused- appellant was as a result of commission of dacoity and that is why all the accused-appellants have been acquitted of the charge under Section 396 IPC. In view of this, the offence committed by the accused-appellants would fall under Section 411 IPC. 20. The argument of the learned counsel for the accused-appellants is convincing and deserves acceptance. The accused-appellants were arrested and interrogated. They made disclosure statements (Exhibit PPC, PR/2, PR, PR/1,PBB and PEE) respectively and in pursuance thereto got recovered the bundles of currency notes from the disclosed places, as detailed in paragraphs 3 to 5 of the judgment. All the bundles had stamp of Canara Bank, dated November 9 th, 2001, which clearly establishes that the accused-appellants received the amount knowing to have been robbed and as such, they can only be convicted under Section 411 IPC. 21. For the reasons aforesaid, it is ordered as under:- (i). Criminal Appeal No. 216-DB of 2004 filed by Ashok qua his conviction and sentence under Sections 302, 394 and 323 read with Section 34 IPC is dismissed. The conviction and sentence imposed by the learned trial Judge under the aforesaid sections is maintained. However, his conviction and order of Criminal Appeal No.216-DB of 2004 13 .. sentence imposed under Section 412 IPC is altered to 411 IPC and as such, he is sentenced to imprisonment for three years instead of seven years. The sentences shall run concurrently. ii). Criminal Appeal Nos. 2305-SB of 2003, 2383-SB of 2003, 139-SB of 2004, 305-SB of 2004 and 354-SB of 2004 filed by Gurvinder Singh, Jiwan Singh, Sushil, Sanjeev Kumar, Mohan Singh and Rizwan, accused-appellants are partly accepted converting their offence from Section 412 to 411 IPC and they are sentenced to undergo imprisonment for three years each. 22. The accused-appellants were released on bail by this Court during the pendency of the appeal. Their bail/surety bonds are cancelled. They be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court. (ASHUTOSH MOHUNTA) (NAWAB SINGH) JUDGE JUDGE October 05,2010 som Whether Referred to Reporter : Criminal Appeal No.216-DB of 2004 14 ..