IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL NO.1321 OF 2001 (Old No.2138/1992) Jai Prakash ……… Appellant Versus The State ……… Respondent (2) CRIMINAL APPEAL NO.1322 OF 2001 (Old No.2140/1992) Jugal Kishore & another ……… Appellants Versus The State ……… Respondent Dated: March 25, 2009 Ms. Vijay Laxmi Phartyal, learned counsel for the appellants Mr. M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. Both the criminal appeals have been preferred against the common judgment and order dated 21.07.1992 passed by II Addl. Sessions Judge, Dehradun in S.T. No.168/1991, State Vs. Jugal Kishore & others and both the appeals also relates to the one and common incident, thus, both these appeals are heard and disposed of by this common judgment and order. 2. These appeals, preferred by the appellants’ u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the judgment and order dated 21.07.1992 passed by II Addl. Sessions Judge, Dehradun in S.T. No.168 of 1991, State Vs. Jugal Kishore and others whereby, the appellants/accused Jugal Kishore, Dinesh and Jai Prakash 2 have been convicted u/s 392 r/w Section 397 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) each of them was sentenced to R.I. for a period of seven years. 3. Chief Judicial Magistrate, Dehradun vide report dated 30.06.2007 has informed that the appellant/ accused Jugal Kishore has died. Hence the appeal filed by appellant/accused Jugal Kishore stands abated. 4. I have heard Ms. Vijay Laxmi Phartyal, learned counsel for the appellants and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 5. In brief, the prosecution case is that in the intervening night of 14/15.6.1991, when the complainant Sunil Kumar (P.W.2) was present in his house in Village Ajabpur Danda along with his wife and children, then at about 10:30 P.M., on the knocking of door, he opened the same. Immediately four boys entered into the house and they picked a knife from the house itself and threatened the complainant and his family with a Khukhri, which they were having along with them, that if they would make noise, then they would be killed. After that these four persons tied the complainant and his wife by ropes. Then these accused persons snatched golden ring and golden tops from the wife of complainant. They also snatched a wristwatch HMT from the hand of complainant. One pair of duplicate diamond ear tops was also snatched by those accused persons and while searching the house, they also took Rs.2,050/- from the Almirah. In this way, these robbers caused a loss of Rs.8,000/- to the complainant. During this period, the robbers also caused injuries to the complainant and his 3 wife with Dandas and Butt (wooden part) of the Khukhri. They also cooked the food in the kitchen and ate it. After that at about 3:30 P.M. on the same intervening night, the robbers went away from the house. The complainant and his wife identified the robbers in the electric tube light which was lit in the house. After the robbers had gone, the complainant somehow got himself freed and then he freed his wife. With the same averments, the FIR was lodged by the complainant-Sunil Kumar (P.W.2), i.e. Ex.Ka-2 at P.S. Dalanwala, Distt. Dehradun. On the basis of this FIR (Ex.Ka-2), H.M. Suresh Tyagi prepared the Chik FIR on 15.6.1991 at 5:45 A.M., i.e. Ex.Ka-8. The necessary entry was also made by him in the G.D., carbon copy of which is Ex.Ka-9. The investigation of this case was entrusted to S.I. R.C. Kotnara (P.W.5) and later on the investigation was transferred to S.I. K.P. Sharma (P.W.6). Injured Smt. Sangeeta Rani was medically examined on 15.6.1991 at 10:15 A.M. by the Medical Officer, Coronation Hospital, Dehradun and the injury report Ex.Ka-6 was prepared. On the same day at 10:30 A.M., injured Sunil Kumar was medically examined by the same medical officer and his injury report Ex.Ka-5 was also prepared. The genuineness of these injury reports (Ex.Ka-5) and (Ex.Ka.6) was admitted by the defence counsel. Appellants/accused and one other person Gurdev were arrested by the police on 23.6.1991 and they were kept Baparda. The entry to this effect was made in the G.D., the copy of which is Ex.Ka-11. After that the appellants/accused were sent to Jail in Baparda and their identification parade was also held in District Jail, Dehradun by P.W.3 K.D. Juantha, Executive Magistrate on 9.8.1991 and the identification memo Ex.Ka-1 was prepared. During the course of investigation, the I.O. has taken the rope and a piece of cloth from the 4 place of occurrence and prepared a Fard, i.e. Ex.Ka-3. Specimen of seal was also prepared, i.e. Ex.Ka-4. The I.O. also prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. The I.O. also took the finger prints from the place of occurrence and sent them for the examination. During investigation, the I.O. recorded statements of witnesses and after completing the investigation, he filed the charge sheet against the appellants/accused, i.e. Ex.Ka-12. 6. Learned Addl. CJM-I, Dehradun has committed the case to the court of Sessions on 20.11.1991 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 7. Sessions Judge, Dehradun transferred the case to II Addl. Sessions Judge, Dehradun for disposal according to law. 8. Learned II Addl. Sessions Judge, Dehradun framed charge against the appellants/accused u/s 392 r/w Section 397 IPC on 17.3.1992. The charge was read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried. 9. To prove its case, the prosecution has examined P.W.1 Smt. Sangeeta, eyewitness of the case, P.W.2 Sunil Kumar, complainant and eyewitness of the case, P.W.3 K.D. Juantha, Executive Magistrate who has conducted the test identification parade, P.W.4 Jitendra Kumar Verma, S.S.I. who arrested the appellants/ accused, P.W.5 S.I. Rakesh Chand, I.O. of the case and P.W.6 S.I. K.P. Sharma, to whom the investigation was transferred and who filed the charge sheet. In the link 5 evidence, the prosecution has filed the affidavits of Constables Birbal Singh and Narottam Dutt. 10. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form. Each of them denied the allegations made against them. However, they did not produce any oral or documentary evidence in defence. 11. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned II Addl. Sessions Judge, Dehradun vide judgment and order dated 21.07.1992 convicted and sentenced the appellants/accused as above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 12. Before further discussion, it is pertinent to mention the injuries found on the person of Sunil Kumar who was medically examined on 15.6.1991 at 10:30 A.M. by Dr. Anand Saluja, Medical Officer, Coronation Hospital, Dehradun. The Medical Officer also prepared an injury report, i.e. Ex.Ka-5. The genuineness of this injury report was admitted by the defence counsel with the endorsement “formal proof dispensed with”. The injuries recorded on the person of injured Sunil Kumar are as below: - 1. Contusion 1.5 cm x 1 cm, Right side buccal mucosa 1 cm behind right angle of mouth, red in colour 2. Linear abrasion 5 cm long on left forearm outer aspect in middle, red 6 3. Linear abrasion 4 cm long on left side abdomen, 7 cm above iliac crest. 4. Linear abrasion 4.5 cm long on front of abdomen left side 9 cms in front of injury no.3 Opinion-All injuries are simple, injury no.1 caused by blunt and hard object and injury nos.2,3 and 4 caused by friction against hard object. Duration 6-12 hours. It is further pertinent to mention the injuries found on the person of injured Smt. Sangita Rani who was medically examined on 15.6.1991 at 10:15 A.M. by Dr. Anand Saluja, Medical Officer, Coronation Hospital, Dehradun. The Medical Officer also prepared an injury report, i.e. Ex.Ka-6. The genuineness of this injury report was admitted by the defence counsel with the endorsement “formal proof dispensed with”. The injuries recorded on the person of injured Smt. Sangeeta Rani are as below: - 1. Contusion with swelling 6 cm x 4 cm on mid of forehead, red in colour 2. Contusion with swelling 4 cm x 2.5 cm on left cheek, red in colour 3. Contusion 2.5 cm x 2 cm on the buccal mucosa of left cheek, red in colour 4. Multiple linear vertical abrasion in area 4 cm x 2.5 cm on front of neck, red in colour 5. Multiple abrasion in an area 3.5 cm x 2.5 cm left clavicular region in middle 6. Multiple abrasions 3 cm x 1 cm on right side chest, 5 cm below right clavicle 7 Opinion- All injuries are simple, caused by 1, 2 and 3 by blunt object. Nos.4,5 and 6 by friction against hard object. Duration 6 to 12 hours. 13. To further prove its case, the prosecution has examined P.W.1 Smt. Sangita who has stated that in the night of 14.6.1991, she was in her house along with her children. Someone had knocked the door. When her husband opened the door, then four boys entered inside the house. One of them was armed with a Khukhri and rest of them were armed with Dandas. These accused persons had entered inside by pushing her husband. Then one of the accused persons had picked knife from the house and threatened them that if they would make noise, then they would kill them. They also beaten her children and threatened them also. Then these accused persons tied her and her husband with rope in the drawing room. After that these robbers snatched golden rings and golden tops from her and also snatched the watch and golden ring from her husband. Besides this, her duplicate diamond tops were also snatched by them. Further, Rs.2,050/- were also taken by them from a book. They also searched the whole house. After that these robbers came in the kitchen, cooked the food and ate it. The accused persons also committed Marpit with her and her husband and also enquired about the remaining articles. At that time, electric tube light was lightning in the room. At about 3:30 A.M., robbers had gone from there with all the articles and money which they had looted. They also threatened her and her husband for their life. After that her husband had freed himself and thereafter he freed her. When her husband made noise then people from the vicinity reached on the place of occurrence. Her husband had then gone to lodge 8 the report in the police station. After that the police came on the place of occurrence and recovered rope etc. from there and took the same into their possession. Then she along with her husband was medically examined in the Coronation Hospital. These robbers were not known to her before the incident and she saw them for the first time in her house. She also identified those accused in the jail. She also identified her signatures on the identification memo, i.e. Ex.Ka-1. She further stated that she had not seen the appellants/accused after the incident till their identification. The police has also taken the fingerprints from the house. This witness was cross- examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is reliable and believable. 14. P.W.2 is Sunil Kumar who has stated that on the intervening night of 14/15.6.1991 at about 10:30 P.M., he was in his house along with his wife and they were going to sleep. Then somebody knocked the door, on which he opened the door. Then 4 boys of 20-22 years of age entered into the house who were armed with Khukhri and Dandas and they surrounded him and one of the appellants/accused had picked a knife from his house and threatened that if they would make noise, then they would kill him and his children. After that he was tied with a rope and his mouth and hands were also tied with a cloth. One of the accused snatched a golden wring from his hand. Then he pointed out towards the appellant/ accused Jai Prakash who had snatched the ring. After that he pointed out towards the appellant/accused Dinesh who had snatched the tops from his wife. Then he pointed out towards the appellant/accused Jugal Kishore 9 (now deceased) who had taken the artificial diamond tops of his wife and the fourth robber was there with a knife. The robbers also taken Rs.2,050/- in cash from the book of the Indian Evidence Act. Then they searched the entire house. Appellants/accused had looted the articles worth Rs.8,000/. They also committed Marpit. During the above-said period of Loot, the robbers went to the kitchen, prepared the food and ate it. At the time of said incident, electric tube light was lit in the room and in the light of said tube, he identified the accused persons. The robbers (appellants/accused) had gone from the house at 3:30 P.M. on the same night and they have locked his wife in another room. After that he freed himself and then he also freed his wife. Then he made a noise on which the people from the vicinity had come on the place of occurrence. At that time, heavy rainfall started. Then between half an hour, he went to the P.S. Dalanwala and lodged the report, i.e. Ex.Ka-2. After that the police had come on the place of occurrence and they made enquiry from him and his wife. The I.O. also prepared the site plan of the place of occurrence. The ropes and clothes were taken into the possession which were used in the above-said crime and for that a Fard was prepared, i.e. Ex.Ka-3. The articles which were sealed on the spot were opened in the court and he identified the rope as Ex.2 and cloth as Ex.3. The fingerprints were also taken by the police from the place of occurrence. He had seen those robbers first time in the incident and after that he had seen them in the jail at the time of identification. In between the time of incident and the identification, he had not seen the appellants/accused. He also signed on the identification memo, i.e. Ex.Ka-1. He also identified the appellants/accused in the court. This witness was also cross-examined at length by the defence counsel but 10 nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 15. P.W.3 is Sri K.D. Juantha who has stated that on 9.8.191, he was posted as Executive Magistrate in Dehradun. The identification of the appellants/accused was conducted by him in the District Jail as per law and rules. Appellants/accused were identified in the jail by P.W.1 Smt. Sangeeta and P.W.2 Sunil Kumar. He prepared the identification memo i.e. Ex.Ka-1 which is in his handwriting. 16. P.W.4 is SSI Jitendra Kumar who has stated that on 23.6.1991 at about 7:30 P.M., he received information through informant that some culprits were distributing articles of theft near Dharampur Brick Cleans and they were also armed with illegal arms. On this information, he along with other police officials raided there. At the time of departure, the entry was made in the G.D., the copy of which is Ex.Ka-10. After the raid, appellants/accused along with one other accused Gurdev were arrested by him along with police party. They were made Baparda on the spot. They were also admitted in the police station Baparda. The entry was also made in the G.D., the copy of which is Ex.Ka-11. 17. P.W.5 is S.I. R.C. Kotnara, IO of the case, who has stated that on 15.6.1991 he was In-charge Chowki Araghar, P.S. Dalanwala. The investigation of the above- said crime was entrusted to him. During the course of investigation, he prepared the site plan of the place of occurrence on the pointing out of the complainant, i.e. Ex.Ka-7. He also recovered the rope and a piece of cloth from the place of occurrence by which the complainant 11 and his wife were tied up, and then prepared a Fard, i.e. Ex.Ka.3. Specimen of seal was also prepared by him, i.e. Ex.Ka-4. During the course of investigation, he recorded the statements of appellants/accused. After that the investigation was transferred to S.I. K.P. Sharma. He further stated that the Chik FIR of the case was written by H.M. Suresh Tyagi, i.e. Ex.Ka-8. The entry was also made by H.M. Suresh Tyagi in the G.D., the carbon copy of which is Ex.Ka.9. 18. P.W.6 is S.I. K.P. Sharma who has stated that on 29.6.1991, he was posted as S.I. Dalanwala and the investigation of the said crime was transferred to him. Before him, the investigation was conducted by S.I. R.C. Kotnara. During investigation, he received the identification memo. He also received the finger print report. He also recorded the statements of witnesses during investigation and after completing the investigation, he filed the charge sheet against the appellants/accused, i.e. Ex.Ka-12. 19. To further prove the link evidence, the prosecution has filed affidavit of Constable Beerbal Singh who has stated in his affidavit on oath that on 23/24.6.1991, he was posted as Constable Pehra. On that day in the night, from 1 AM to 3 AM and from 9 AM to 12 PM, he was in the duty in Hawalat as Constable Pehra. During this period, the appellants/accused were in Hawalat and nobody was allowed to meet or see their faces. Appellants/accused were remained Baparda in the above-said period. 20. Constable Narottam Dutt has also filed his affidavit in which he has stated on oath that on 24.6.1991, he along with Constables Jai Bhagwan, H.G. 12 Madan Singh, Vikram Singh, Mohan Singh had taken the appellants/accused and one other accused Gurdev from Male Jail, P.S. Dalanwala to the court concerned. He further stated that from the police station to the court, accused persons were remained Baparda and the accused persons were also directed to remain Baparda and till they were admitted in the jail, nobody was allowed to see their faces. 21. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form. Each of them denied the allegations made against them. However, they did not produce any oral or documentary evidence in defence. 22. Ms. Vijay Laxmi Phartyal, learned amicus curiae for the appellants/accused argued that from the evidence discussed above, the prosecution has not proved its case against the appellants/accused beyond reasonable doubt. I do not find any force in this argument as P.W.1 Smt. Sangita, who is the eyewitness of the case, has stated that in the night of 14.6.1991, she was in her house along with her children. Someone had knocked the door. When her husband opened the door, then four boys entered inside the house. One of them was armed with a Khukhri and rest of them were armed with Dandas. These accused persons had entered inside by pushing her husband. Then one of the accused persons had picked knife from the house and threatened them that if they would make noise, then they would kill them. They also beaten her children and threatened them also. Then these accused persons tied her and her husband with rope in the drawing room. After that these robbers 13 snatched golden rings and golden tops from her and also snatched the watch and golden ring from her husband. Besides this, her duplicate diamond tops were also snatched by them. Further, Rs.2,050/- were also taken by them from a book. They also searched the whole house. After that these robbers came in the kitchen, cooked the food and ate it. The accused persons also committed Marpit with her and her husband and also enquired about the remaining articles. At that time, electric tube light was lightning in the room. At about 3:30 A.M., robbers had gone from there with all the articles and money which they had looted. They also threatened her and her husband for their life. After that her husband had freed himself and thereafter he freed her. When her husband made noise then people from the vicinity reached on the place of occurrence. Her husband had then gone to lodge the report in the police station. After that the police came on the place of occurrence and recovered rope etc. from there and took the same into their possession. Then she along with her husband was medically examined in the Coronation Hospital. These robbers were not known to her before the incident and she saw them for the first time in her house. She also identified those accused in the jail. She also identified her signatures on the identification memo, i.e. Ex.Ka-1.The statement of P.W.1 Smt. Sangeeta is reliable, believable and natural and the same gets corroboration from the evidence of P.W.2 Sunil Kumar, complainant and eyewitness of the case. 23. Further, the appellants/accused were arrested by the police on 23.6.1991 i.e. just after eight days of the incident and they were also identified in the jail by P.W.1 14 Smt. Sangeeta Rani and P.W.2 Sunil Kumar before the Executive Magistrate, P.W.3 Sri K.D. Juantha and identification memo Ex.Ka-1 was also prepared as per the law and rules. The arrest of the appellants/accused was also proved by P.W.4 SSI Jitendra Kumar Verma. Besides this, it is also proved by the affidavits of Constable Birbal Singh and Constable Narottam Dutt that up to when the appellants/accused were remained in the Hawalat of P.S. Dalanwala and till when they were taken in the court for judicial remand and after when they were admitted to the jail after the remand, they were remained Baparda and nobody was allowed to meet or see their faces. Thus, from the evidence discussed above, it is proved by the prosecution that the appellants/accused along with one other accused person, with deadly weapons viz. Khukhri, Dandas and a knife, created fear and caused injuries to P.W.1 Smt. Sangeeta and P.W.2 Sunil Kumar. The injured persons Sunil Kumar and Smt. Sangita were also medically examined by the Medical Officer, Coronation Hospital, Dehradun and their injury reports Exs.Ka-5 and Ka-6 respectively were also prepared. The genuineness of those injury reports was also admitted by the defence counsel with the endorsement “formal proof dispensed with”. Further the appellants/accused had also robbed the cash and looted the articles worth Rs.8,000/- from the house of complainant and they remained in the house from 10:30 P.M. to 3:30 A.M. on the intervening night of 14/15.6.1991. As such, the prosecution has fully proved its case against the appellants/accused beyond reasonable doubt u/s 392 IPC r/w Section 397 IPC. I concur the view taken by the trial court in convicting and sentencing the appellants/accused as discussed above. 15 24. For the reasons recorded above, the appeals preferred by appellants/accused are devoid of merit and accordingly dismissed. The judgment and order dated 21.07.1992 passed by II Addl. Sessions Judge, Dehradun in S.T. No.168/1991, State Vs. Jugal Kishore and others, for convicting the appellants/accused u/s 392 r/w Section 397 IPC and sentencing each of them to undergo R.I. for seven years, is hereby affirmed. The period already undergone by the appellants/accused during the period of investigation, trial or appeal, shall be adjusted after verifying from the records. 25. CJM, Dehradun vide report dated 30.06.2007 has informed that appellant/accused Jugal Kishore has died, hence appeal filed by appellant/accused Jugal Kishore stands abated. 26. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) March 25, 2009 Rajeev Dang