IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 385-SB of 2003 Date of Decision : February 01, 2010 Phoola son of Sawan Ram .....Appellant Versus State of Haryana ....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.S. Mamli, Advocate for the appellant. Ms. Shalini Attri, Deputy Advocate General, Haryana T.P.S. Mann, J. By a common judgment, the Court intends to dispose of the present appeal filed by convict Phoola son of Sawan Ram, Criminal Appeal No.1874-SB of 2002 filed by convict Phoola son of Chandi Ram, Criminal Appeal No. 78-SB of 2003 filed by convict Vinod Kumar and Criminal Appeal No. 789-SB of 2003 filed by convict Ram Niwas as all of them have arisen out of the judgment of conviction and sentence dated 28/30.9.2002 passed by Additional Sessions Judge, Kurukshetra. The appellants in all the aforementioned appeals, alongwith Chattar Singh, Sanjay Kumar and Om Parkash Suri were tried for offences under Sections 399 and 402 IPC. Criminal Appeal No. 385-SB of 2003 -2- Appellant Ram Niwas and his co-accused Chattar Singh were also tried for offence under Section 25 of the Arms Act. During the trial of the case, accused Chattar Singh and Om Parkash Suri died and, accordingly, proceedings against them were dropped. Vide impugned judgment and order passed by the trial Court, the appellants alongwith their co-accused Sanjay Kumar were convicted under Section 399 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.200/- each and in default of payment of fine, to further undergo rigorous imprisonment for six months. They were also convicted under Section 402 IPC and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.200/- each and in default of payment of fine, to undergo further rigorous imprisonment for six months. Appellant-Ram Niwas was also held guilty under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.100/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month. All the substantive sentences were ordered to run concurrently. According to the prosecution, on 2.5.1997, SI Niranjan Singh, alongwith ASI Ram Udit, ASI Harpal Singh, HC Shiv Charan, HC Wazir Singh, UGC Desh Raj and other police officials, was present near Gurudwara 6th Patsahi, Kurukshetra in Criminal Appeal No. 385-SB of 2003 -3- a Government Jeep, where he received a secret information that the appellants and their co-accused were sitting near the sacred tank at Kurukshetra. They were armed with deadly weapons and preparing to commit dacoity. On the basis of this information, SI Niranjan Singh sent ruqa to Police Station City, Thanesar upon which a case under Sections 399 and 402 IPC was registered against the appellants and their co-accused. Thereafter SI Niranjan Singh, accompanied by other police officials went near the statue of 'Gulzari Lal Nanda' where they heard the voice of one person, who was later on identified as Phoola son of Chandi Ram directing his accomplices to commit dacoity/robbery on the goods trucks plying on G.T. Road by giving a signal with the torch. The police party apprehended five accused. However, Phoola son of Sawan Ram and Om Parkash managed to escape from the spot. The search of Chattar Singh and Ram Niwas led to the recovery of spring actuated knives whereas one country made pistol of .315 bore alongwith one live cartridge was recovered from Phoola son of Chandi Ram. Iron rods were recovered from the possession of Vinod Kumar and Sanjay Kumar. All the above said articles were taken into possession through separate recovery memos. Phoola son of Sawan Ram and Om Parkash were later on arrested in connection with case FIR No. 306 dated 3.5.1997 registered against them under Sections 379 and 411 IPC at Police Station Sadar, Thanesar and on 5.5.1997 both were Criminal Appeal No. 385-SB of 2003 -4- formally arrested in this case. After completing the investigation, police presented challan against the appellants and their three other co-accused. Upon commitment of the case, the trial Court charge-sheeted the accused under Sections 399 and 402 IPC. Appellant Ram Niwas and his co-accused Chattar Singh were also charge sheeted under Section 25 of the Arms Act. All the accused pleaded not guilty and claimed trial. In support of its case, the prosecution had examined Constable Rakesh Kumar as PW1, SI Harpal Singh as PW2, HC Mukesh Kumar as PW3 and SI Niranjan Singh as PW4. When examined under Section 313 Cr.P.C., all the appellants pleaded innocence and false implication in the case. However, no evidence was led by them in their defence. The trial Court, after hearing learned counsel for the parties and going through the evidence available on the record believed the prosecution case and convicted and sentenced the appellants, as mentioned above. Against their conviction and sentences, only the appellants filed their respective appeals. Sanjay Kumar, co- convict of the appellants, did not prefer any appeal. Criminal Appeal No. 385-SB of 2003 -5- In the present appeal filed by Phoola son of Sawan Ram against his conviction and sentence, he is duly represented by his counsel Mr. R.S. Mamli, Advocate. There is no representation on behalf of the other appellants, namely, Phoola son of Chandi Ram, Vinod Kumar and Ram Niwas. However, keeping in view the fact that the prosecution case against all the appellants is the same and same arguments would be available to appellants Phoola son of Chandi Ram, Vinod Kumar and Ram Niwas as are available to appellant Phoola son of Sawan Ram, this Court does not feel the necessity of appointing any amicus curiae to appear on behalf of the unrepresented appellants as appellant Phoola son of Sawan Ram is duly represented by his counsel. Learned counsel for the appellants has submitted that the prosecution is relying upon the testimonies of only official witnesses in order to connect the appellants with the crime. As the testimonies of the official witnesses are full of contradictions and discrepancies, the appellants cannot be convicted and sentenced on the basis of the same. It is also submitted that despite receiving secret information no attempt was made by SI Niranjan Singh for requisitioning the services of independent witnesses before conducting the raid. It is also submitted that even if the evidence led by the prosecution is accepted, offences Criminal Appeal No. 385-SB of 2003 -6- under Sections 399 and 402 IPC are not made out. In order to establish that the appellants and their co- accused were preparing to commit dacoity on the goods trucks plying on the G.T. Road after making them stop by giving a signal with the help of the torch, the prosecution has examined SI Niranjan Singh as PW4 and SI Harpal Singh as PW2. Both of them categorically deposed that on 2.5.1997 when the police party headed by SI Niranjan Singh was present near a Gurudwara during the night intervening 1/2.5.1997, secret information was received that all the seven accused were sitting near the sacred tank at Kurukshetra and preparing to commit dacoity and were armed with deadly weapons. On receipt of the secret information, ruqa Ex.PG was prepared by SI Niranjan Singh on 2.5.1997 at 12.15 a.m and sent to Police Station City, Thanesar where FIR No. 253 dated 2.5.1997 under Sections 399 and 402 IPC was registered on 2.5.1997 at 12.30 a.m. Special report sent through C.Rakesh Kumar was received by Chief Judicial Magistrate, Kurukshetra on 2.5.1997 at 2.45 a.m. On the basis of secret information, the police party headed by SI Niranjan Singh reached the place where the statue of 'Gulzari Lal Nanda' stood erected. The police party heard the voice of one person, who was later on identified as Phoola son of Chandi Ram, who was directing his co-accused to commit dacoity on the Criminal Appeal No. 385-SB of 2003 -7- goods trucks plying on the G.T. Road by giving a signal with the help of torch and stopping them. The police party encircled the accused and was able to apprehend five of them, namely, Phoola son of Chandi Ram, Vinod Kumar, Ram Niwas, Chattar Singh and Sanjay Kumar, whereas Phoola son of Sawan Ram and Om Parkash managed to escape. The search of Chattar Singh and Ram Niwas led to recovery of spring actuated knives from them whereas one country made pistol of .315 bore alongwith one live cartridge was recovered from Phoola son of Chandi Ram. Similarly, from Sanjay Kuamr and Vinod Kumar iron rods were recovered. All the aforementioned weapons were taken into possession by the police. Om Parkash and Phoola son of Sawan Ram were arrested a day later, i.e. on 3.5.1997 in case FIR No. 306 dated 3.5.1997 under Sections 379 and 411 IPC and were formally arrested in the present case on 5.5.1997. On going through the testimonies of PW2 SI Harpal Singh and PW4 SI Niranjan Singh, it is apparent that though they were cross-examined at length but the defence was not able to point out any discrepancy or contradiction in their testimonies. As regards non-joining of the independent witnesses, there is categorical deposition of PW4 SI Niranjan Sigh that he had asked one or two persons to join the investigation but they had refused to do so. The secret information was received by the police party Criminal Appeal No. 385-SB of 2003 -8- at the dead of the night when not many people from the public would be available and whosoever was found present was asked to join the investigation but he refused to do so. Therefore, on the ground of non-joining of independent witness, the prosecution case cannot be thrown out. The prosecution case is corroborated by the factum of recovery of the weapons from the appellants. While spring actuated knife was recovered from Ram Niwas, country made pistol of .315 bore with one live cartridge was recovered from Phoola son of Chandi Ram and iron rod was recovered from Vinod Kumar. Phoola son of Sawan Ram appellant, alongwith Om Parkash Suri, had managed to escape from the spot and for that reason no recovery could be effected from them. Three days later, i.e. on 5.5.1997, appellant Phoola son of Sawan Ram was arrested in the present case as in the meantime he stood apprehended in FIR No. 306 dated 3.5.1997 under Sections 379 and 411 IPC registered at Police Station Sadar, Thanesar. As regards the arguments of the defence that no torch was recovered from the appellants or their co-accused, it may be noticed that the secret information received by the police party was to the effect that the appellants and their co-accused were preparing to commit dacoity and had assembled for the said purpose. At that time they were found in possession of deadly Criminal Appeal No. 385-SB of 2003 -9- weapons. That by itself is sufficient to make them liable for committing offences under Sections 399 and 402 IPC. Learned counsel for the appellants has relied upon the judgment of the Hon'ble Supreme Court in the case of Suleman Vs. State of Delhi through Secretary, (1999) 4 SCC 146, wherein the Court had doubted the accused speaking so loudly while planning to loot a petrol pump that their conversation could be heard outside. According to the prosecution therein, the accused were sitting in a room in a Dharamshala and were planning to loot a petrol pump. It was dark in the room and according to the witnesses, they over-heard them from outside, and, therefore, the evidence was held to be not believable. However, the facts of the said case are different from those of the present case. In the present case, all the accused were found sitting in the open but under a Banyan tree near the statue of 'Gulzari Lal Nanda'. When the police party went near them, it over-heard the conversation going on between them. They were planning to commit dacoity by stopping goods trucks with the help of the torch. When they were apprehended by the police party, deadly weapons were recovered from them. Under these circumstances, no benefit can be extended to the appellants on the basis of the judgment in the case of Suleman (supra). In view of the above, no fault can be found with the Criminal Appeal No. 385-SB of 2003 -10- judgment passed by the trial Court while convicting the appellants. As regards the quantum of sentences, it may be noticed that all the appellants are found involved in a number of criminal cases. Information in this regard has been supplied by the State counsel by producing custody certificates of the appellants. On perusing the same, this Court finds that the appellants have a chequered past. Therefore, they do not deserve any leniency in the matter of sentence of imprisonment. Resultantly, there is no merit in any of the four appeals, i.e. Criminal Appeal No. 385-SB of 2003, Criminal Appeal No.1874-SB of 2002, Criminal Appeal No. 78-SB of 2003 and Criminal Appeal No. 789-SB of 2003 and they are, accordingly, dismissed. ( T.P.S. MANN ) February 01, 2010 JUDGE satish