Crl.Appeal No.1227-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1227-SB of 1999 Date of decision: 6.7.2010 Bhupinder Kumar ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Kapil Aggarwal, Advocate, for the appellant. Mr.Paramjeet Batta, Addl.AG, Haryana. ... JORA SINGH, J. Bhupinder Kumar preferred this appeal to impugn the judgment of conviction dated 26.11.1999 and order of sentence dated 29.11.1999 rendered by Additional Sessions Judge, Ambala, in Sessions Case No.31 of 1996, arising out of FIR No.108 dated 14.5.1995 under Sections 306/380 IPC, Police Station Ambala City. By the said judgment, he was convicted under Section 411 IPC and sentenced to undergo RI for one year and to pay a fine of Rs.3,000/-, in default of payment of fine, to further undergo SI for three months. Co-accused Jagdish Ram was acquitted of the charges levelled against him. Against acquittal, no appeal by the State. Prosecution story, in brief, is that Rameshwar Dass, complainant, was carrying on business at Sharjah (Dubai). His wife Usha Rani along with children was residing near Sainik Board at Hisar Road, Ambala City. On 28.4.1995, he had received telephonic message in Dubai from his nephew Harbhajan Singh regarding unnatural death of Usha Rani due to poisoning. On receipt of information, he came to India on 1.5.1995. Crl.Appeal No.1227-SB of 1999 2 Before his arrival, dead body of Usha Rani was cremated by his relatives. Complainant enquired about the death of Usha Rani from his children, neighbourers and relatives, then came to know that one Mahender Pal Singh, who claimed to be resident of either Ropar or Nangal, used to visit Usha Rani. He had developed illicit relations with Usha Rani. Efforts were made to locate Mahender Pal Singh at Ropar and Nangal, but all in vain.On 14.5.1995, Aradhna, daughter of complainant, informed him that on 27.4.1995, Mahender Pal Singh came to their house at about 9.00 PM and had gone to the room of Usha Rani. She along with Hemant and other small children was sleeping in the adjoining room. At about 9.30/10.00 PM, they heard sound of altercation from the room of Usha Rani. Then after removing curtain had seen Usha Rani asking Mahender Pal Singh that her husband had got prepared visa for their departure to Dubai and he (complainant) was about to come within a few days to take them along with him. Mahender Pal Singh was also directed to return Rs.2.20 lac. Usha Rani had received Rs.3.50 lac as pagri of house in Delhi and out of that amount, Rs.2.20 lac was borrowed by Mahender Pal Singh to carry on business. Usha Rani directed Mahender Pal Singh that he had promised to take her along. Either he should return the money or take her with him. Then Mahender Pal Singh replied that he did not have money, nor he would take her with him. In case she (Usha Rani) pressed for return of money, then he would expose her before her husband. Aradhna further disclosed to the complainant that earlier also, Usha Rani had a quarrel with Mahender Pal Singh for return of money. After that Mahender Pal Singh had slept on the floor, whereas Usha Rani on the dewan and they had slept in their room. At about 4.00 AM, Mahender Pal Singh came to Aradhna and Crl.Appeal No.1227-SB of 1999 3 made her to woke up. He told her that Usha Rani has consumed poison and was admitted in Mission Hospital. Mahender Pal Singh along with Aradhna had gone to the house of Jagdish and told him that Usha Rani was vomiting and was suffering from loose motions. She was got admitted in Mission Hospital. Jagdish started getting ready for going to the hospital. Aradhna came back to her house. After some time, Mahender Pal Singh came and threatened Aradhna that if she disclosed about the occurrence happened on the previous night to anybody, then she was to be eliminated. Mahender Pal Singh had also torn his address and photograph from the diary of Usha Rani and kept the same in his pocket. Mahender Pal Singh and Jadish had gone to Mission Hospital. Aradhna along with the wife of Jagdish had also gone to Mission Hospital, but by that time, Usha Rani had expired. In view of statement (Ex.PA), Usha Rani had died due to mal treatment by Mahender Pal Singh @ Bhupinder Kumar, resident of Rampur Sahni. After the death of Usha Rani, complainant came to know that Mahender Pal Singh @ Bhupinder Kumar came to his house. One pair of ear rings of gold, one disco chain of gold having a locket, one gold kara, one gold ring, one disco chain, six gold bangles, one gold pandle, one watch and currency notes amounting to Rs.40,000/- - Rs.50,000/- were found missing from the house and missing articles were stolen by Mahender Pal Singh. After making endorsement (Ex.PA/3) on the statement (Ex.PA), same was sent to the concerned police station, on the basis of which, formal FIR (Ex.PA/1) was recorded. SI Arun Kumar prepared inquest report (Ex.PC). After postmortem examination, dead body was cremated by the relatives of the complainant. Crl.Appeal No.1227-SB of 1999 4 On 14.5.1995, Investigating Officer had inspected the place of occurrence. Rough site plan (Ex.PB) with correct marginal notes was prepared. On 15.5.1995, Mahender Pal Singh @ Bhupinder Kumar was arrested and on his search, a Seiko watch, one gold ring, one pair of ear rings, one disco chain with locket, one gold kara and another disco chain were recovered. Recovered articles were taken into police possession vide memo (Ex.PE). Mahender Pal Singh was interrogated and in pursuance of his disclosure statement (Ex.PF), he got recovered two gold bangles and one gold pandle from the shop of Ram Pal, Goldsmith, along with a pawn deed (Ex.PJ). Recovered articles were got identified from Aradhna vide memo (Ex.PM). After completion of investigation, report under Section 173 Cr.P.C. was presented. Accused Mahender Pal Singh @ Bhupinder Kumar was charged under Sections 306 and 411 IPC, whereas accused Jagdish Chand was charged under Section 411 IPC. They pleaded not guilty and claimed trial. Prosecution examined number of witnesses in support of its story. PW1 SI Tara Chand had recorded formal FIR on receipt of ruqa. PW2 Jagdish Chand, neighbourer of complainant, stated that on 28.4.1995 at about 6.00/6.30 AM, Aradhna along with Bhupinder Kumar came to his house and reported that her mother Usha Rani was vomiting and was admitted in the hospital. Then he had gone to Mission Hospital and on enquiry, Usha Rani disclosed him that she had consumed poison. He was also requested by Usha Rani to bring Aradhna and send other children to the Crl.Appeal No.1227-SB of 1999 5 school. He came back to the house of Usha Rani and requested Aradhna to get ready for going to the hospital. When he had gone to the hospital, then Usha Rani was found dead. Mahender Pal Singh @ Bhupinder Kumar had gone to the house of Usha Rani. PW3 SI Arun Kumar had initially investigated the case. He had conducted inquest proceedings on 28.4.1995 and recorded statements of the witnesses. PW4 Rameshwar Dass is the complainant and supported the prosecution story. PW5 Inspector Surinder Singh had prepared report under Section 173 Cr.P.C. PW6 Dharam Pal is the Sarpanch of Village Rampur Sahni and stated that on 17.5.1995, Bhupinder Kumar was in the police custody. He had gone to the shop of Ram Pal. Bhupinder Kumar got recovered two gold bangles and one gold pandle along with pawn deed, which were taken into police possession. PW7 Ram Pal, Goldsmith, stated that two bangles and one pandle along with deed were got recovered by Bhupinder Kumar, and supported the prosecution story regarding recovery of articles and deed. PW8 Harbhajan Singh is the nephew of complainant and stated that in his presence, gold ornaments were identified by Aradhna. PW9 HC Prem Parkash had partly investigated the case. PW10 Ardhana is the daughter of complainant and supported the prosecution story. PW11 Devinder Kumar is the recovery witness. PW12 ASI Babu Ram had partly investigated the case. Crl.Appeal No.1227-SB of 1999 6 After close of prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to the innocent. Defence version of the appellant was that he was falsely implicated. A sum of Rs.40,000/- was due from Rameshwar Dass. In December, 1994, Rs.40,000/- along with passbook was handed over to Rameshwar Dass, who had assured that he would arrange visa for him and his sister's son. After 15 days, visa was sent for his sister's son but his visa was not sent, nor Rs.40,000/- was paid. He had gone to the house of Usha Rani to collect passbook. He further stated that on enquiry from Jagdish, Usha Rani had disclosed in the presence of Aradhna that she had consumed poison because she was fed up with the behaviour of her husband since he was not visiting her and had re-married. People were misbehaving with her as they were pressing for repayment of loan. In defence, SI Jagdish Chand and DSP Ram Kumar were examined. After hearing learned Public Prosecutor for the State and defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted under Section 411 IPC and sentenced as stated aforesaid. I have heard learned counsel for the appellant and the State and gone through the evidence on the file. Learned counsel for the appellant argued that there is a delay in lodging the FIR. Delay is fatal and was not explained. Occurrence was on the intervening night of 27/28.4.1995. Complainant came to India on 1.5.1995 and reported to police on 14.5.1995. If the appellant had stolen Crl.Appeal No.1227-SB of 1999 7 cash and gold ornaments, then there was no idea to retain the stolen articles till the date of arrest. After committing the crime, very easy for the appellant to dispose of the articles. Articles alleged to have been recovered were not identified by the complainant. Learned counsel lastly argued that occurrence is dated 27/28.4.1995. Appellant is the first offender. He has already suffered mentally as well as financially. He is to become hard criminal if again sent to jail to serve sentence as directed by the trial Court. Appellant has already undergone 21 days after conviction. Requested to take a lenient view. Learned State counsel argued that against acquittal of Jagdish Ram, no appeal, but articles of the complainant party were recovered from the appellant. Appellant has not stated a word when examined under Section 313 Cr.P.C. that he was the owner of the articles or no article was recovered from him. In case appellant had no concern with the complainant party, then there was no idea to visit the house of complainant party. Regarding payment of Rs.40,000/- to the complainant no receipt. Earlier to the occurrence, there was no dispute amongst the parties. So, there was no idea to implicate the appellant. Appellant was rightly convicted and sentenced by the trial Court. Usha Rani (deceased) along with her children was residing near Sainik Board at Hisar Road, Ambala City. Rameshwar Dass, husband of Usha Rani, was carrying on business in Dubai. According to the prosecution story, appellant developed illicit relations with Usha Rani. Usha Rani was abetted to commit suicide, but prosecution failed to prove beyond reasonable doubt that Usha Rani was abetted to commit suicide. Appellant was acquitted of the charge under Section 306 IPC. He was Crl.Appeal No.1227-SB of 1999 8 convicted under Section 411 IPC on the allegation that he was found in possession of stolen property. Now the only dispute is whether certain articles were stolen from the house of complainant and secondly, whether the stolen articles were recovered from the appellant. Rameshwar Dass while appearing in Court stated that while staying in Dubai, gold articles were bought and after dismantling them, new articles were got prepared. Occurrence was on the intervening night of 27/28.4.1995. Admittedly, at that time complainant was not in India. Recovery of articles was not in the presence of Rameshwar Dass. So, statement of Rameshwar Dass is of formal nature. Aradhna daughter of Usha Rani appeared in Court and stated that on the day of occurrence, appellant came to their house. He had altercation with Usha Rani. Usha Rani and appellant had slept in one room, whereas she and her sisters and brothers slept in the separate room. During night time, she had heard raula and by removing curtain had noticed appellant while quarreling with her mother. Her mother had consumed poisonous substance and was shifted to the hospital. She along with appellant had gone to the hospital. Jagdish Chand while appearing as PW2 stated that on 28.4.1995at about 6.00/6.30 AM, Aradhna along with Bhupinder Kumar came to his house and reported that her mother Usha Rani was vomiting and was admitted in the hospital. Then he had gone to Mission Hospital and in the hospital on enquiry, Usha Rani requested him to bring Aradhna to the hospital and send other children to the school. After that, he came back to the house of Usha Rani and requested Aradhna to get ready for going to the hospital. When again he had gone to the hospital, then Usha Rani was Crl.Appeal No.1227-SB of 1999 9 found dead. Appellant was also in the house of Usha Rani. So from the statements of Aradhna and Jagdish Chand one thing is clear that on the day of occurrence, appellant had gone to the house of Usha Rani. After the death of Usha Rani, dead body was cremated by the relatives before arrival of the complainant. After arrival of complainant, Aradhna had informed him that on the day of occurrence, appellant was with Usha Rani. He had altercation with her (Usha Rani). Complainant stated that certain articles were found missing from the house. On 17.5.1995, appellant was in the custody of police. In pursuance of disclosure statement, appellant got recovered a Seiko watch, one gold ring, one pair of ear rings, one disco chain with locket, one gold kara and another disco chain. Recovery was in the presence of Dharam Pal and Devinder Kumar. Dharam Pal and Devinder Kumar PWs had no enmity with the appellant. No reason to disbelieve them. Recovered articles were got identified from Aradhna. Memo was prepared. Aradhna while appearing in Court as PW10 stated that articles recovered were stolen from their house and were owned by them. As per Rameshwar Dass, appellant was arrested on 15.5.1995 but appellant when examined under Section 313 Cr.P.C. stated that he was arrested on 17.5.1995 and at that time, he was wearing some articles as mentioned in the statement under Section 313 Cr.P.C., but regarding ownership of these articles, no proof on the file. Ram Pal, Goldsmith, also appeared in Court and stated that two bangles and one gold chain pandle were handed over to him by Bhupinder Kumar vide deed (Ex.PJ) and the above said articles were got recovered by Bhupinder Kumar from his shop. Ram Pal had no enmity with the appellant. Crl.Appeal No.1227-SB of 1999 10 No allegation of the appellant that deed (Ex.PJ) was forged or the same was not bearing his signatures. From the statements of Dharam Pal, Devinder Kumar and Ram Pal, one thing is clear that articles stolen from the house of complainant party were recovered from the appellant. Articles were identified by Ardhana after recovery from the appellant. Appellant when examined under Section 313 Cr.P.C. then stated that in December, 1994, he had handed over passbook with Rs.40,000/- to Rameshwar Dass. After 15 days, Rameshwar Dass had sent visa for his sister's son, but his visa was not sent, nor Rs.40,000/- was returned. Then he had gone to the house of Usha Rani to collect passbook. Meaning thereby, appellant had gone to the house of complainant party. Usha Rani was noticed while quarreling with the appellant regarding payment. Articles recovered from the appellant were found missing from the house of Usha Rani. Some of the articles were recovered in pursuance of disclosure statement made by the appellant. When appellant had no enmity with recovery witnesses, then I am of the opinion that trial Court rightly opined that stolen articles were recovered from the possession of the appellant. Hence, conviction of the appellant under Section 411 IPC is upheld. Occurrence was on the intervening night of 27/28.4.1995. Appellant is the first offender, having two small children. He was not a previous convict. Out of one year, he has already undergone 21 days after conviction. During trial, appellant also remained in custody for some time. He has deposited the fine, as ordered by the trial Court. When appellant has faced the agony of trial for a period of more than 15 years and is the first offender, then I am of the opinion that at least one chance should be given Crl.Appeal No.1227-SB of 1999 11 to him to improve, otherwise, he is to become hard criminal if again sent to jail to serve the imprisonment, as ordered by the trial Court. In view of all discussed above, sentence awarded to the appellant under Section 411 IPC is reduced to already undergone. Fine imposed by the trial Court is maintained. For the reasons recorded above, appeal without merit is dismissed with modification qua sentence. 6.7.2010 ( JORA SINGH ) pk JUDGE