Criminal Appeal No. 2049-SB of 2005 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Appeal No. 2049-SB of 2005 Date of Decision: 18 .11.2011 Virender ... Appellant Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. P.K. Chugh, Advocate and Mr. Kuldip Singh, Amicus Curiae for the appellant. Mr. Anupam Sharma, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present appellant Virender along with his co-accused Sunil was tried by the Court of Additional Sessions Judge, Fatehabad, in case FIR No. 218 dated 4.5.2002, registered at Police Station City Fatehabad, under Sections 392 and 398 IPC and 25 of the Arms Act, 1959 (hereinafter referred to as “the Act”). The appellant along with his co-accused was charged for the offence under Section 392 IPC for having committed theft of Hero Honda Motorcycle belonging to PW.2 Lalit Kumar on 4.5.2002 in the area of Fatehabad and while committing the said theft, hurt was also caused to the said Lalit Kumar to compel him to deliver the motorcycle. The second charge stated that on the said Criminal Appeal No. 2049-SB of 2005 2 date, time and place, while committing theft of Hero Honda Motor Cycle of Lalit Kumar, the accused used deadly weapon and caused grievous hurt to him and thereby committed an offence punishable under Section 398 IPC. The present appellant was also charged for having kept in his conscious possession, on 27.6.2002, one pistol .315 bore along with one empty and live cartridge without any permit or licence and thereby committed an offence punishable under Section 25 of the Act. The trial Court held that the prosecution has failed to prove identity of the accused and thereby acquitted the appellant for the offence under Sections 398 and 392 IPC. The following finding given in paragraph No.33 of the impugned judgment, reads as under:- “33. In view of the above discussed legal and factual position, it is held that as far as the offence under Sections 392 IPC and 398 IPC is concerned, the prosecution has failed to bring cogent and reliable evidence to establish the identity of the accused persons to prove these offences.” The trial Court further held that it is proved from the facts on the file of the case that the stolen motorcycle of the complainant was recovered from possession of appellant Virender alias Bandar. The trial Court placed implicit reliance upon the testimony of PW.12 Azad Singh, Inspector and PW.11 Jai Ram, Head Constable, to hold that the appellant suffered a disclosure statement and in pursuance thereof he got the motorcycle recovered and thus, he had committed the offence punishable under Section 411 IPC. The trial Court, however, acquitted the appellant of offence under Section 25 of the Act. Thus, the appellant Criminal Appeal No. 2049-SB of 2005 3 was acquitted of offence under Sections 392 and 398 IPC and 25 of the Act but was convicted, vide impugned judgment dated 11.3.2004 for the offence under Section 411 IPC. Vide a separate order of even date, the appellant was sentenced to undergo rigorous imprisonment for a period of three years for commission of the said offence. Learned counsel for the State has placed on record the affidavit dated 2.10.2011 sworn in by Jaidev Bishnoi, Superintendent, Central Jail, Hisar, wherein it is stated as under:- “3. That the period undergone by the petitioner as on 26.05.2005 i.e. date of release on expiry of sentence in case F.I.R. No. 218 dated 04.05.2002, U/s 411 IPC, P.S. City Fatehabad is as under:- Y M D i) Under trial period 01 07 11 30.07.2002 to 10.03.2004 ii) Conviction period 01 02 16 11.03.2004 to 26.05.2005 -------------------------------- TOTAL 02 09 27 iii) Details of overstay/absent Nil from parole/furlough iv) Parole availed Nil v) Earning Remissions (+) 00 02 03 vi) Actual Sentence 03 00 00 undergone -------------------------------- The affidavit further stated that the appellant is facing trial in various other cases wherein he has been released on bail. Learned counsel for the appellant, therefore, contended that he will argue the Criminal Appeal No. 2049-SB of 2005 4 present appeal on merits so that the sentence undergone by the appellant, in the present case, in case of acquittal, shall be counted towards other cases wherein he is facing trial. Before the arguments, raised by learned counsel for the appellant are appreciated and discussed, it will be necessary to notice brief facts of the case. Complainant Lalit Kumar, PW.2, was admitted in General Hospital, Fatehabad, where his statement Ex.PA was recorded by PW.10 Surat Singh, Station House Officer, Police Station City, Fatehabad on 4.5.2002 at about 8.30 P.M. Before recording the statement of complainant, he had sent a ruqa from the hospital along with medicolegal report regarding admission of PW.2 Lalit Kumar. The translation of statement Ex.PA made by PW.2 Lalit Kumar is already a part of record and the same reads as under:- “...I am the resident of aforesaid address and posted as JBT Teacher in Jandwala Saul. About 1-1/2 months back I had purchased Hero Honda motor- cycle CD 100 of red colour bearing registration No. HR-22-B/4945 by way of sale which has so far not been registered in my name. Today i.e. 4.5.2002 in the evening at about 5.30 P.M. I was coming towards four marla colony from the house of Pandit Rudia Lal Shashtri on this motor-cycle. In Batrawali street two young boys, out of those one was of the age of 25/26 years, having height of about 5' 10”, wheatish colour, wearing pant, shirt and cap on Criminal Appeal No. 2049-SB of 2005 5 head and the other was of the middle height of about 5' 7”, wheatish colour, wearing pant-shirt, aged about 24/25 years, met and got stopped my motor-cycle by giving a signal. I thought that they will have enquired something. As soon as I stopped the motor-cycle, the tall boy switched off the key and the small one took out a pistol and showed me. I alighted from my motor-cycle and both these persons boarded on my motor-cycle and started the motor-cycle. When I caught hold the small boy, he fired and the tall boy hit me something on my neck and sped away on the motor-cycle. I raised noise but none came forward to help me. Then I telephoned my father, who took me to the hospital and got admitted me. Today, you came and recorded my statement which has been heard and is correct. Sd/-(In English) Lalit Kumar.” On the basis of the above said ruqa, formal FIR Ex.PW was registered. On 26.6.2002 PW.12 Azad Singh, Inspector, while posted as Sub Inspector in CIA Staff along with Mahabir, Inspector, apprehended the present appellant when he along with certain other persons was preparing for committing the offence of dacoity. At that time, one country-made pistol was recovered from the possession of appellant Virender, which was taken into possession vide recovery memo Ex.PY. On 27.6.2002, accused Virender made a disclosure statement Ex.PG wherein he stated that in the month of May 2002, he along with his co- Criminal Appeal No. 2049-SB of 2005 6 accused Sunil, in the city of Fatehabad, had snatched the Hero Honda Motorcycle. The disclosure statement Ex.PG was made to PW.12 Azad Singh, Inspector, CIA Staff, Hisar and the memo was attested by Ajit Singh and Maya Ram, Sub Inspectors, CIA Staff, Hisar. Subsequently, on 7.7.2002, the appellant made another disclosure statement wherein he stated that the motorcycle, which was snatched by him, was concealed in his residential house. This disclosure statement has been proved on record as Ex.PL, which was made to PW.12 Azad Singh, Inspector, CIA Staff, Hisar and attested by Jai Ram and Rawat Singh, Head Constables. The motorcycle bearing registration No. HR-22-B- 4945, in pursuance of the disclosure statement, was recovered vide memo Ex.PS, which was prepared by PW.12 Azad Singh, Inspector and attested by Jai Ram and Rawat Singh, Head Constables. Since the appellant has only been convicted for the offence under Section 411 IPC, this Court will notice the testimony of complainant Lalit Kumar and the witnesses to the disclosure statement and recovery. PW.2 Lalit Kumar reiterated as to what was stated by him in his statement Ex.PA which has been reproduced above. He further stated that after about two/three months of the occurrence, the police informed him that his motorcycle has been recovered. He further stated that it is not in his knowledge that from whom the motorcycle was recovered. The police never joined him after arrest of the accused persons but his signatures were obtained on some blank papers. Upon this, he was declared as hostile and was cross-examined by the Public Prosecutor. In cross-examination he admitted that he had taken the motorcycle on sapurdari. However, the witness stated that the persons, Criminal Appeal No. 2049-SB of 2005 7 present in the Court, were not the persons who had robbed him. PW.4 Ajit Singh, Sub Inspector, stated that on 27.6.2002, he was posted in CIA Staff, Hisar and on that day, both the accused Sunil and Virender, during investigation of case FIR No. 454 dated 27.6.2002, registered under Sections 307 and 399 IPC, suffered disclosure statements Ex.PF and Ex.PG, respectively, wherein they admitted that in the month of September 2001 they had snatched Hero Honda Motorcycle at Fatehabad. Apparently, it seems that qua the month and the year, this witness was discrepant. PW.7 Santosh Rani, Additional Ahlmad in the Court of Judicial Magistrate Ist Class, Hisar, produced the original record of case FIR No. 74 dated 4.6.2002, registered under Sections 392, 394, 120-B, 212 and 216 IPC and 25/54/59 of the Act and submitted photocopies of the disclosure statement by accused Virender Ex.PR and recovery of motorcycle bearing registration No. HR-22-B-4945 vide memo Ex.PS and the site plan of the place of recovery of the motorcycle in question Ex.PT. PW.11 Jai Ram, Head Constable, stated that on 7.7.2002, he was posted at CIA Staff, Hisar and on that day, he along with Azad Singh, Sub Inspector and other police officials was joined in case FIR No. 74 dated 4.6.2002 and at that time, the present appellant made a disclosure statement to the effect that the money robbed by him has been spent but the motorcycle has been lying in his house situated in village Latani. Thereafter, in pursuance of his disclosure statement, the appellant took the police party to village Latani in his house and got recovered the motorcycle which was taken into possession vide Criminal Appeal No. 2049-SB of 2005 8 recovery memo Ex.PS. It was attested by him and Rawat Singh, Head Constable. However, in cross-examination, this witness stated that no independent witness was joined. PW.12 Azad Singh, Inspector, also deposed regarding the disclosure statement made by the appellant and recovery memo. In cross-examination, he admitted that in spite of the efforts made by him no independent witness came forward to join the investigation. PW.13 Gurdayal Singh stated that he was owner of Hero Honda Motorcycle bearing registration No. HR-22-B-4945 and in the year 2002 he had sold the same to Lalit Kumar, a J.B.T. Teacher at Fatehabad and executed an affidavit to this effect. Mr. P.K. Chugh, Advocate, appearing for the appellant and Mr. Kuldip Singh, Advocate, who was appointed as Amicus Curiae, have assailed the conviction and sentence of the appellant on the ground that no independent witness was joined when the disclosure statement of the accused was recorded and recovery of motorcycle was effected. Therefore, it is submitted that no reliance can be placed upon the testimonies of PW.11 Jai Ram, Head Constable and PW.12 Azad Singh, Inspector, who being police officials are bound to depose against the appellant. In the present case, this Court has to take into consideration the facts of the case in totality. PW.2 Lalit Kumar had suffered an injury on the occipital region of the skull and was admitted in the hospital. He has stated in categoric terms that at the time of occurrence, the motorcycle was snatched from him. It has come in evidence of PW.13 Gurdayal Singh that the motorcycle was sold by him to PW.2 Lalit Criminal Appeal No. 2049-SB of 2005 9 Kumar, who is a J.B.T. Teacher. Even though he has not identified the accused in the Court, yet he has admitted that the motorcycle was taken by him from the Court on sapurdari. The appellant was arrested in another case and during investigation he made a disclosure statement and got the motorcycle recovered. The motorcycle, so recovered, was the same whose particulars have been given in FIR Ex.PW, registered on the basis of statement Ex.PA. FIR, in the present case, was registered at Police Station Fatehabad, whereas the motorcycle was got recovered by the police of Police Station Hisar i.e. another District. Thus, the testimonies of PW.11 Jai Ram, Head Constable and PW.12 Azad Singh, Inspector, cannot be doubted as it cannot be said that they were overzealous for the success of the investigation of the case as the investigation of theft of motorcycle pertained to another district. No other argument has been raised by learned counsel for the appellant. In view of the above discussion, there is no merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge November 18, 2011 “DK”