Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No.140-SB of 1998. DECIDED ON : 7.5.2008 Rajender Singh Appellant. VERSUS State of Haryana. Respondent. Crl. Appeal No. 407-SB of 1998. DECIDED ON : Jai Parkash Appellant. VERSUS State of Haryana. Respondent. CORAM:- HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Sanjiv Sheoran, Advocate, for the appellant. Mr. Kartar Singh, Assistant Advocate General, Haryana. JORA SINGH,J. This judgment shall dispose of Criminal Appeal No. 140-SB and 407-SB of 1998, filed by Rajender Singh and Jai Parkash respectively, against the judgment and order dated 29.1.1998 in Sessions Case No. 23 of 1997, Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 2 bearing First Information Report No. 665 dated 4.12.1996, under Section 397 of the Indian Penal Code, Police Station Rai. Vide the impugned judgment, both the accused were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/- each. In default of payment of fine, to further undergo rigorous imprisonment for a period of six months each. Prosecution story, in brief, was that Kashmir Singh informed the police on 4.12.1996 that he was employed as driver on a Maruti Van No. DL-9CA-1284. Smt. Sunita Jain, wife of Mahabir Slingh and Mahabir Singh had gone in a van from Delhi to Karnal at 11 A.M.. They were at a distance of one kilometer away from Kundli towards Punjab side. While standing on the road side, Smt. Sunita Jain requested to stop the van to make enquiry from the boys about Surya Shoe Factory, Kundli. Van was stopped near the boy. Two of the boys had caught hold of her and was brought outside the van and was forced to sit on the back seat of the van. Both the boys sat in the van. One boy was driving the van and the van was taken towards Punjab side. One of the boys was carrying a pistol. They were threatened to remain silent. At 2.45 P.M, they were dropped near village Hassanpur. After that, assailant had fled away with the van. Statement of Kashmir Singh was recorded. After making endorsement, the same was sent to the Police Station, on the basis of which, formal First Information Report was Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 3 registered. On 8.12.1996, accused while in custody of the police, made a disclosure statement and as per disclosure statement, got recovered van No. DL-9CA-1284, one country made pistol with cartridges was also got recovered from the accused. After completion of investigation, the accused was challaned. Challan was presented. Copies were supplied to the accused and the same were found correct after scrutity. As per order of the learned Judicial Magistrate, Ist Class, Sonepat, this case was committed to the Court of Session, for trial. After hearing Public Prosecutor for the State and defence counsel for the accused, learned Additional Sessions Judge, Sonepat found that a prima facie case under section 397 of the Indian Penal Code was made out and they were charged accordingly, to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined as many as 14 witnesses and tendered documents. PW1 is Smt.Sunita Jain. She is one of the eye witnesses. PW2 Mahabir Singh is also one of the eye witnesses but they had not supported the prosecution story. Both were declared hostile. PW3 Head Constable Jai Pal Singh. In whose Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 4 Maruti Van bearing registration No. DL-9CS-1284 was taken into police possession. Maruti van was recovered by the Police Station, Alipur, Delhi. PW-4 Head Constable Ran Singh on 8.12.1996, alongwith police party of Assistant Sub Inspector Daya Nand was present on the banks of Yamuna River then sighted Maruti Van. Van was signalled to stop. Four persons were in the van. Occupants of the van had tried to fled away from the spot after leaving the vehicle. Rajender one of the occupants was apprehended. One country made pistol was recovered from Rajender. Pistol was loaded. Pistol and cartridges were taken into police possession qua recovery of pistol and cartridges, separate First Information Reoport No. 412 of 1996 was registered at Police Station Alipur. Jai Parkash was apprehended by Assistant Sub Inspector Dharampal. Other accused were apprehended by Head Constable Prem Chand and Assistant Sub Inspector Daya Nand. PW5 Assistant Sub Inspector Raj Kumar had recorded formal First Information Report Ex.PH/1 on receiving Ruqa Ex.PH dated 4.12.1996 from Assistant Sub Inspector Ram Kishan. PW6 Assistant Sub Inspector Ram Kishan stated that on 9.12.1996, he had gone to Delhi and had arrested Rajender and Jai Parkash in this case. Application was moved for test identification parade, but the accused refused to participate in the test identification parade. Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 5 PW7 Kashmir Singh is the main witness, who was driver of the van and stated that on 4.12.1996, he alongwith Smt. Sunita Jain and Mahender Singh had gone from Delhi to Karnal at about 11 A.M. They were in the area of village Kundli, then sighted three persons standing by the side of road, van was stopped to enquire about the Surya Shoe Factory. One had left the spot. Second accused started beating him. He was held out from the driver seat and forced to occupy the rear seat of the van. On of the accused had occupied the driver seat, second had a pistol. Van was taken away from the National High Way and was taken towards unknown side. They were forced to leave the van. Police party met on the way, then report Ex.PH was got recorded. PW9 Assistant Sub Inspector Dharam Pal is the Investigating Officer. On 8.12.1996, Police party of ASI Dharam Pal at 8.30 P.M. had sighted one maruti van at Raniwal No.2, Jhigola Road, Delhi. Van was signalled to stop. Four persons were in the van. Jai Parkash was driving the vehicle. Rajender, Virender and Bijender were sitting in the van. Complainant alongwith two other persons was in the van. Van was taken into police possession. PW10 Head Constable Ram Chander was the Incharge of the Malkhana. Van No. DL-9CA-1284 was deposited with him. PW11 Sub Inspector Sajjan Kumar was the SHO of Police Station Gohana. He had recorded the Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 6 statement of Kashmir Singh on 4.12.1996 at 6 P.M. and after that, had gone to the spot. Rough site plan with correct marginal notes was prepared. 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 allegations and claimed to be innocent. Defence version of the accused was that case is false. In defence, Mehar Singh was examined. Defence counsel vehemently contended that occurrence had taken place on 4.12.1996, whereas appellants- accused was arrested on 8.12.1996. Smt. Sunita Jain and Mahender Singh were in the car. Kashmir Singh was the driver. Smt. Sunita Jain and Mehender Singh did not support the prosecution story. No test identification parade. Identity of the appellants-accused is doubtful. No evidence to connect the accused with the crime. Learned Assistant Advocate General, Haryana for the State argued that occurrence had taken place on 4.12.1996. Van droven by Kashmir Singh was recovered from Delhi side. Appellant-accused were arrested on 8.12.1996 by the police party headed by ASI Dharam Pal. Appellants-accused were arrested alongwith two persons, while travelling in Maruti Van No. DL-9CA-1284. Country made pistol with cartridges was recovered from Rajender appellant-accused. First Information Report No. 412 of 1996 Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 7 under the Arms Act was registered. Application was moved to arrange test identification parade, but appellants-accused refused to participate in the test identification parade. So, no question of identity of the appellants-accused. On 4.12.1996, Maruti Van driven by Kashmir Singh was snatched on the point of pistol. Van was recovered from the possession of the accused on 8.12.1996. No illegality was committed by trial Court. Trial Court rightly opined that the appellants-accused committed the offence punishable under Section 397 of the Indian Penal Code. Smt. Sunita Jain and Mahabir Singh had gone from Delhi towards village Kundli in Van No. DL-9CA-1284. Kahmir Singh was the driver. Smt. Sunita Jain and Mahabir Singh while appearing in the Court did not support the prosecution story. Both were declared hostile and were cross examined by the learned PP for the State. If witnesses were declared hostile, then their statements are not to be ignored. Smt.Sunita in examination in chief stated that on 4.12.1996 she alongwith Mahabir Singh by hiring Van No. DL-9CA- 1284 had gone towards Karnal at 11 A.M. They were in the area of village Kundli. Driver was to enquire about the location of Surya factory. Van was stopped. Enquiry was made from the persons standing by the side of road, one person was carrying a pistol and he gave fist blows on the face of the driver. She was threatened with a pistol. One person had occupied the driver seat. Second had occupied the Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 8 rear seat. Both the assailants had weapons with them. They had covered their eyes. Van was taken away towards the fields. Driver of the van and Mahabir Singh were forced to packed in the dickey of van. Her shawl was used to cover them. At about 3 P.M., they were dropped in the fields and van was taken away by the assailants, but she is not in a position to identify the assailants i.e. the accused present in the Court. Similar is the statement of Mahabir Singh. Both the witnesses failed to identify the appellants-accused, but one thing is clear from the statement of the eye witnesses that Smt. Sunita Jain and Mahabir Singh with Kashmir Singh on a van had gone from Delhi towards Karnal. At about 11 A.M., van driven by Kashmir Singh was in the area of Village Kundli. To enquire the location of Surya Shoe factory, van was stopped. Two persons were sighted while standing by the side of road. Both were armed with fire arms. As per Smt. Sunita Jain and Mahabir Singh, one of the assailants had occupied the driver seat. Second had occupied the rear seat. At about 3 P.M., Smt. Sunita Jain, Mahabir Singh and Kashmir Singh were dropped in the fields. Maruti van was taken away by assailants. On 8.12.1996, Police Party headed by Assistant Sub Inspector Dharampal of Police station Aligarh Delhi at 8.30 P.M. was present at Rainiwal four persons in the van including the appellants-accused were seen. Van was the Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 9 same which was hired by Smt. Sunita Jain. Van was recovered by the police party headed by ASI Dharampal. Country made pistol with cartridges was recovered from the possession of Rajender Singh, appellant-accused. Separate First Information Report No. 4132 of 1996 was registered for recovery of pistol with cartridges. No defence evidence was led by the appellants-accused that in a case registered by First Information Report No. 412 of 1996 they were acquitted or the case is still pending. Defence counsel for the appellants-accused on enquiry was not in a position to report whether trial of First Information Report No. 412 of 1996 is pending or concluded whether in First Information Report No. 412 of 1996, appellants-accused were acquitted or still they are facing trial. After arrest of the appellants-accused on 8.12.1996 they were produced before the Magistrate. Application was given for test identification parade but appellants-accused made statement that they are not to participate in the test identification parade. Simple allegation of the appellants- accused was that they were already shown to the eye witnesses, but plea of the appellants-accused supports the version of prosecution. File no where shows that the face of the appellants-accused were not covered while produced in Court. First Information Report No. 412 of 1996 was registered in Police Station Aligarh Delhi. After arrest of the appellants-accused on 8.12.1996 in First Information Report Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 10 No. 412 of 1996, appellants-accused were formally arrested in the present case. Immediately after the arrest of the appellants-accused, an effort was made to arrange test identification parade but without participation of the appellants-accused, test Identification Parade was meaningless. Prosecution gave offer to the appellants-accused as to whether the test identification parade be arranged or not. Appellants-accused were not under pressure. Nothing on the file that they were forced to make statement that they were not to participate in the test identification parade. When the appellants-accused had refused to participate in the test identification parade then there was no alternative with the prosecution. Prosecution story seems to be natural one. All the points raised by the defence counsel for the appellants-accused were considered by the trial Court. Kashmir Singh has supported the version of the prosecution. He was not inimical towards the appellants-accused. So, in the absence of test identification parade, statement of Kashmir Singh was sufficient to link the accused with the crime. Appellants-accused were not prejudiced if there was no test identification parade. Before the present occurrence, appellants-accused had no enmity with the eye witnesses. That is why, eye witnesses, namely Smt. Sunita Jain and Mahabir Singh in Court stated that they are not in a position to identify the present accused. If the story is false, when very easy for Smt. Sunita Jain and Mahabir to state on oath Crl. Appeal No.140-SB of 1998 and Crl. Appeal No. 407-SB of 1998. 11 that Jai Parkash and Rajender had kidnapped them in a Maruti Van while going towards Karnal. Kashmir Singh PW3 in examination-in-chief had identified the appellants-accused. No suggestion was put as to how Kashmir Singh identified the appellants-accused, when appeared in Court. So, statement of Kashmir Singh without enmity was rightly accepted by the trial Court to be natural one. Recovery of the van was effected from the appellants-accused on 8.12.1996, although appellants-accused were not named in the First Information Report, but circumstantial evidence links the appellants-accused with the crime and they were rightly convicted and sentenced in view of the statement of Kashmir Singh, alone because there is nothing on the file to disbelieve Kashmir Singh PW 7. No other contention was put forward. The above discussion shows that there is no infirmity or illegality in the impugned judgment of the trial Court and the same is upheld. The appeal being without merit, is dismissed. ( JORA SINGH ) 7.5.2008 JUDGE Anoop