Criminal Appeal No. 1222-SB of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 1222-SB of 2006 Date of decision : September 28, 2011 Bijender ....Appellant versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms Anju Arora, Advocate as Amicus-curiae for Bijender appellant Mr. Rajinder Goyal, Advocate, for appellant Sonu Mr. Anil Kumar, Deputy Advocate General, Haryana L.N. Mittal, J. (Oral) By this common judgment, I am disposing of two criminal appeals i.e. Criminal Appeal No. 1222-SB of 2006 preferred by Bijender convict and Criminal Appeal No. 2205-SB of 2005 preferred by Sonu alias Dolu alias Anand convict because both these appeals have arisen out of a single case. In all, nine accused including aforesaid two appellants faced Criminal Appeal No. 1222-SB of 2006 -2- trial. Learned Additional Sessions Judge, Fast Track Court, Sonepat vide impugned judgment dated 1.12.2005 convicted accused Bijender appellant, accused Sonu appellant and accused Ramesh under sections 395 and 397 IPC and also convicted accused Ramesh, Sonu, Udey and Manoj under section 25 of the Arms act and acquitted accused Vijay, Nathu Ram, Kuldeep and Mukesh. Vide order of even date, learned trial Judge sentenced Bijender, Ramesh and Sonu to undergo rigorous imprisonment for five years and to pay fine of Rs 500/- each and in default thereof, to undergo simple imprisonment for six months under section 395 IPC and to undergo rigorous imprisonment for seven years and to pay fine of Rs 500/- each and in default thereof, to undergo simple imprisonment for six months under section 397 IPC and also sentenced accused Sonu, Ramesh, Udey and Manoj to undergo rigorous imprisonment for one year and to pay fine of Rs 500/- each and in default thereof, to undergo further simple imprisonment for four months under section 25 of the Arms Act, but all the sentences of the three convicts were ordered to run concurrently. As per office report, convicts Udey and Manoj did not prefer any appeal against their conviction and sentence whereas convicts Bijender, Sonu and Ramesh preferred Criminal Appeals No. 1222-SB of 2006, 2205- SB of 2005 and 499-SB of 2006 respectively to challenge their conviction and sentence. However, Criminal Appeal No. 499-SB of 2006 preferred by Ramesh convict has been disposed of vide order dated 1.9.2011 as having abated on account of his death. Accordingly, remaining two appeals Criminal Appeal No. 1222-SB of 2006 -3- preferred by convicts Bijender and Sonu are being disposed of by this common judgment. Prosecution case is that on 30.5.2004 at about 11.00 PM, complainant Ram Kumar was present at his Oil Mills premises along with Balwan and Vijay whereas complainant's son Ram Parkash and wife Raj Bala were on the first floor. The complainant after counting cash of the day amounting to Rs 45,000/- to Rs 46,000/- kept the same in an almirah on first floor. Some time thereafter, 7/8 boys came to the complainant's shop. Out of them, Bijender appellant and Ramesh accused were already known to the complainant. The assailants asked the complainant to hand over cash to them. They started hitting the complainant. Accused Ramesh carrying a pistol along with five associates went upstairs whereas accused Bijender along with his associates carrying sword remained on the ground floor and stood guard. After some time, accused Ramesh and his associates brought the complainant's son Ram Parkash downstairs while beating him. The assailants also inflicted sword blows to the complainant. Accused Bijender inflicted fist blow on the complainant's nose. The assailants were constantly threatening the complainant. The assailants wrongfully restrained the complainant and his companions Vijay and Balwant and did permit them to move. Accused Ramesh on pistol point asked the complainant's son about the cash amount. The complainant disclosed about the cash amount. Thereupon Ramesh and his associates took the complainant's son upstairs and forcibly took the aforesaid cash amount of Criminal Appeal No. 1222-SB of 2006 -4- Rs 45,000/- to Rs 46,000/- from the almirah on pistol point. The assailants also snatched gold chain and gold ring of Ram Parkash and also gold chain of complainant's wife Raj Bala. The assailants also criminally intimated the complainant and other persons there. After committing dacoity, the culprits fled away in white Maruti car and a motorcycle which was without registration number. Accused Bijender was apprehended and thrashed at the spot by the complainant and his son, but after some time, accused Bijender also managed to escape. While going away, assailants also snatched and took away mobile phone and cordless phone from the complainant. The injured complainant was removed to hospital from where ruqa was sent to police. ASI Daya Nand thereupon went to the hospital and obtained opinion of the doctor that the complainant was fit to make statement. Thereupon statement of the complainant was recorded and on its basis, FIR was registered. On 31.5.2004, Randhir Sarpanch of village Mundlana produced accused Bijender who was arrested by ASI Daya Nand. He was also got medico legally examined. On 1.6.2004, accused Bijender made disclosure statement thereby confessing his participation in the occurrence and disclosed that he had concealed the iron rod (used by him in the occurrence) and stolen gold chain and gold ring in a room on first floor of his residential house and none else was aware thereof. Pursuant to disclosure statement, accused Bijender got recovered iron rod, gold chain and gold Criminal Appeal No. 1222-SB of 2006 -5- ring. Gold chain and gold ring were identified by complainant's son Ram Parkash to be his own. Other accused were named by the complainant in his supplementary statement Ex. PB made on 4.6.2004 during investigation. The remaining accused were arrested on various dates. They made disclosure statements and got recovered pistols and other weapons and part of the stolen property. The details are not being mentioned being not relevant for the disposal of these appeals. Accused Sonu was produced by his brother before ASI Daya Nand on 29.8.2004. On interrogation, this accused also confessed his participation in the occurrence and disclosed that the country made pistol which he was carrying at the time of occurrence had been concealed by him in bushes near Drain No. 8 on the turn of Sonepat-Panipat road and none else was aware thereof. Pursuant to thereof, Sonu got recovered pistol from the aforesaid place. Again on 31.8.2004, accused Sonu by making disclosure statement got recovered gold chain belonging to complainant's wife Raj Bala who identified the same. Statements of witnesses were recorded during investigation. Rough site plans of the place of occurrence and places of recovery were prepared. Sanction for prosecution of accused Ramesh, Sonu, Udey and Manoj under section 25 of the Arms Act was obtained. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) initially for trial of seven accused Criminal Appeal No. 1222-SB of 2006 -6- while accused Ramesh and Sonu were shown as proclaimed offenders and subsequently supplementary challan against them was also presented, for prosecution under sections 395 and 397 IPC and section 25 of the Arms Act. Charge under sections 395 and 397 IPC against all the nine accused and under section 25 of the Arms Act against accused Udey, Manoj, Nathu Ram, Ramesh and Sonu was framed. All the accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined 18 witnesses. Complainant Ram Kumar PW1, his son Ram Parkash, PW3 and wife Raj Bala, PW4 broadly stated according to the prosecution version. Complainant Ram Kumar identified accused Bijender, Ramesh, Sonu, Kuldeep and Manoj; Ram Parkash PW3 identified accused Bijender, Ramesh, Mukesh, Kuldeep and Manoj whereas Raj Bala PW4 identified accused Ramesh, Mukesh, Kudeep and Sonu. Dr. D.K. Chahal, PW2 stated about medico legal examination of complainant Ram Kumar on whose person five incised wounds were found besides swollen right hand for which X-ray was advised. Nand Lal, Architect, PW5 proved scaled site plan of the place of occurrence prepared by him. ASI Ramesh Chander, PW6, Constable Naresh Kumar, PW7, EHC Rajender, PW8, Head Constable Sisan Kumar, PW9 and Constable Ram Mehar, PW10 made statements regarding other accused with whom we Criminal Appeal No. 1222-SB of 2006 -7- are not concerned in these appeals. SI Nar Singh, PW11 stated that he partly investigated the case and had arrested accused Kuldeep, Mukesh and Sonu and recorded their disclosure statements and effected recoveries at their instance as per prosecution version. ASI Rajpal, PW12 stated that he recorded formal FIR in this case. ASI Azad Singh, Armourer, PW13 stated that he had tested the pistols allegedly recovered from Udey and Ramesh and found the same to be in working order. Inspector Ishwar Singh, PW14 stated that he prepared report under section 173 Cr.P.C. Head Constable Sukhbir Singh, PW15 stated about disclosure statement made by accused Bijender appellant and recovery of iron rod, a gold ring and a gold chain at his instance. Ram Parkash, Reader to District Magistrate, Sonepat, PW16 proved sanction orders for prosecution of accused Udey, Sonu and Ramesh under section 25 of the Arms Act. Tika Ram, PW17 is goldsmith. He stated that gold ring and gold chain belonging to complainant's son Ram Parkash had been prepared by him and he identified the same. ASI Daya Nand, PW18 stated about investigation of the case conducted by him including disclosure statements made by various accused Criminal Appeal No. 1222-SB of 2006 -8- and recoveries effected at their instance. All the accused in their statements under section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They did not lead any evidence in their defence. Learned Additional Sessions Judge, Fast Track Court, Sonepat vide judgment and order dated 1.12.2005 convicted and sentenced the appellants Bijender and Sonu along with some other accused and acquitted four accused. Feeling aggrieved, convicts Bijender and Sonu have preferred the instant criminal appeals. I have heard learned counsel for the parties and perused the case files with their assistance. Learned counsel for appellant Sonu contended that this accused was not named in the FIR and no test identification parade was held during investigation and consequently, his participation in the occurrence is not proved. Reliance in support of this contention has been placed on judgment of this Court in Mani Lal and others vs. State of Punjab, 2007 (4) R.C.R. (Criminal) 682. It was also argued that recovery of pistol at the instance of this accused was effected from open place accessible to all and the recovery was also delayed one. It was also submitted that Balwan and Vijay who were present at the spot at the time of occurrence have not been examined as witnesses by the prosecution. It was also canvassed that complainant Ram Kumar, PW1 stated that he had not made alleged Criminal Appeal No. 1222-SB of 2006 -9- supplementary statement Ex. PB wherein the remaining seven accused (except Bijender and Ramesh who were named in the FIR) were named. It was also submitted that Ram Parkash, PW3 did not identify Sonu appellant even in the court during trial. It was also argued that only three accused have been convicted under sections 395 and 397 IPC, but for commission of offence under section 395 IPC, there have to be atleast five accused and therefore, conviction for offence under section 395 IPC is legally not sustainable. Learned Amicus-curiae argued on behalf of appellant Bijender that ASI Daya Nand, PW18 has not stated about recovery of gold ring and gold chain at the instance of accused Bijender. He stated about recovery of iron rod only at the instance of this appellant and deposed that no other article was recovered at his instance. It was also argued that no independent witness was joined at the time of alleged recovery. It was also submitted that no fire arm was used in occurrence. It was further contended that accused Bijender was allegedly injured in the occurrence at the hands of complainant party, but he was not got medico legally examined. Sarpanch Randhir who allegedly produced accused Bijender before the police has also not been examined as witness by the prosecution. On the other hand, learned State counsel contended that prosecution witnesses have identified the two appellants during trial. Bijender was even injured in the occurrence. He was also named in the FIR. Recovery of part of the stolen property, besides weapons used in the Criminal Appeal No. 1222-SB of 2006 -10- occurrence, was also effected at the instance of the two appellants. It was, thus, canvassed that the appellants have been rightly convicted. I have carefully considered the rival contentions. It is proved from the statements of complainant, his son and wife that the occurrence did take place. The complainant also suffered injuries in the occurrence. He was immediately taken to hospital and was medico legally examined. Injuries found on his person further corroborate the prosecution case that the occurrence did take place. Accused Bijender and Ramesh were already known to the complainant and were, therefore, named in the FIR whereas the other assailants were not known to the complainant and were, therefore, not named in the FIR. However, on 4.6.2004, the complainant named the remaining assailants also by making supplementary statement. In the witness box, the complainant has denied having made the said statement. However, ASI Daya Nand, Investigating Officer has stated that the said statement was made by the complainant. Be that as it may, names of the remaining culprits also appeared during investigation by way of the aforesaid statement and on the basis thereof, the other accused were also arrested in the case. It may also be added that even in the witness box, the complainant, although denied having made supplementary statement Ex. PB to name the remaining seven accused, stated that at the time of occurrence, the assailants were addressing one another by their names and therefore, names of some other assailants were also learnt during the occurrence. There is no reason why the complainant and his wife and son would Criminal Appeal No. 1222-SB of 2006 -11- implicate the appellants in false case and would depose falsely against them. Recovery of part of the stolen property at the instance of the appellants further corroborates their participation in the occurrence. Test identification parade was not required to be held during investigation when names of the accused had already appeared i.e. two accused named in the FIR itself and the remaining seven accused named in the supplementary statement Ex. PB on 4.6.2004. Only accused Bijender (named in the FIR) had been arrested till before 4.6.2004. Arrest of the remaining accused was made on or after 4.6.2004 and therefore, test identification parade for identification of any of the named accused was not required to be held. It may be added that complainant Ram Kumar and his son Ram Parkash identified accused Bijender in the witness box. He was also named in the FIR. Complainant Ram Kumar and his wife Raj Bala identified accused Sonu. Thus, identity of both appellants is fully proved by the prosecution evidence. Judgment in the case of Mani Lal (supra) is not applicable to the facts of the instant case because names of the culprits in this case had already appeared before their arrest, having been named in the FIR and in supplementary statement Ex. PB. Recovery of pistol from open space at the instance of Sonu appellant is fully proved from the statements of the concerned witnesses. The mere fact that the recovery was effected from an open place accessible to all would not make any difference because the pistol had been concealed underneath the ground and nobody else could be aware of it. The Criminal Appeal No. 1222-SB of 2006 -12- recovery was also effected from a secluded place not frequented by the public. Moreover, recovery of gold chain of complainant's wife was effected at the instance of appellant Sonu from his house and the same was, therefore, in his exclusive possession. Recovery of gold chain which is part of the stolen property corroborates the prosecution case against appellant Sonu. Balwan PW was not examined as he had been won over by the accused. Even otherwise, Balwan and Vijay could not have dared to depose against the accused who had committed the dacoity in a daring manner. Statements of complainant, his son and wife are credible. Their veracity could not be impeached in their cross-examination. They had no reason to depose falsely against the appellants. They also had no enmity with the appellants. Consequently, their statements are very credible and inspire confidence. In view thereof, non-examination of Balwan and Vijay pales into insignificance. The fact that Ram Parkash, PW3 did not identify appellant Sonu is immaterial because he was identified by two other witnesses i.e. complainant and his wife. His participation in the occurrence is also proved by recovery of part of the stolen property at his instance, besides recovery of pistol used in the occurrence. The contention that offence under section 395 IPC, which requires participation by minimum of five persons, is not made out as only three accused have been convicted for the said offence, is also bereft of any Criminal Appeal No. 1222-SB of 2006 -13- merit because it is established from the prosecution evidence that the dacoity was committed by nine persons in all although identity of only three accused for committing dacoity was established. It is, thus, manifest that more than five persons participated in the occurrence and therefore, the case squarely falls within the purview of section 395 IPC notwithstanding that only three accused have been convicted for the said offence. It is correct that ASI Daya Nand, PW18 did not state about recovery of gold chain and gold ring at the instance of Bijender appellant. However, complainant's son Ram Parkash, PW3 and Head Constable Sukhbir Singh, PW15 have specifically stated about the said recovery at the instance of Bijender appellant. Their statements in this regard could not be shaken or shattered in any manner in their cross-examination. Ram Parkash, PW3 also identified the gold chain and gold ring as belonging to him. Consequently, said recovery is also proved. Moreover, ASI Daya Nand also stated that he had correctly recorded the disclosure statement Ex. PQ made by Bijender appellant. In the said disclosure statement, Bijender stated about concealment of gold chain and gold ring, in addition to the iron rod. ASI Daya Nand also proved recovery memo Ex. PD which is not only regarding iron rod but also regarding gold chain and gold ring. Thus, recovery of gold chain and gold ring at the instance of Bijender is fully proved from the prosecution evidence. No independent witness could be associated at the time of aforesaid recovery because in such cases where culprits of serious offences Criminal Appeal No. 1222-SB of 2006 -14- are involved, no independent witness would like to be associated so as to avoid wrath of the culprits. There is no reason to discard the statements of the witnesses examined by the prosecution. Complainant's son Ram Parkash is also just like an independent witness because he had no enmity with the appellants so as to implicate them in a false case. Head Constable Sukhbir Singh, PW15 had also no motive to implicate the appellants falsely as he had no enmity, illwill and malice against them. His statement is also as much credible as that of an independent witness and cannot be discarded merely because of his official uniform. The contention that no fire arm was used in the occurrence is also not fatal because the dacoity was committed at pistol point although shot was not fired from the pistols which some of the assailants were carrying. However, injuries were caused to the complainant with swords. The contention that Bijender was not got medico legally examined, although he was arrested on 31.5.2004 itself and he had allegedly suffered injuries during the occurrence at the hands of the complainant party, also cannot be accepted. Perusal of the trial court records reveals that appellant Bijender was produced before the Sub Divisional Judicial Magistrate on 1.6.2004 along with application for police remand. Learned Magistrate vide order dated 1.6.2004 remanded accused Bijender to police custody to be produced on 2.6.2004. Perusal of the said order reveals that during remand proceedings, SHO stated that accused Bijender had been got medico legally examined from CHC, Gohana and MLR of this accused had Criminal Appeal No. 1222-SB of 2006 -15- been prepared. Learned Magistrate directed that photostat copy of the MLR be placed on Court file. Accordingly, said photostat copy of MLR of accused Bijender was placed on the Court file and the same is available in the record of the trial court. Thus, notwithstanding that concerned doctor who medico legally examined accused Bijender has not been examined as witness by the prosecution, it is evident from remand order dated 1.6.2004 passed by learned Magistrate that this accused had been got medico legally examined and some simple injuries were found on his person. It may be mentioned that at the time of his arrest by a separate memo, this accused was asked if he wanted intimation of his arrest to be given to some relative or friend and if he wanted himself to be medico legally examined, but this accused by making statement on the said memo declined both the offers. In spite thereof, father of this accused was intimated about his arrest and he was also got medico legally examined. Thus, the fact that this accused suffered injuries during the occurrence at the hands of complainant party as also mentioned in the FIR which was lodged promptly, further corroborates the prosecution case against this accused. Examination of Sarpanch Randhir, who produced this accused before police during investigation, was not required because Randhir could not have stated anything incriminating against this accused regarding his participation in the occurrence. So, non-examination of Randhir as witness is completely insignificant and immaterial. Both the appellants were identified during trial by two Criminal Appeal No. 1222-SB of 2006 -16- witnesses each. Part of the stolen property was also recovered at their instance and appellant Bijender was even named in the FIR lodged promptly. Accused Sonu was allegedly named in the supplementary statement made on 4.6.2004 i.e. just four days after the occurrence and almost three months before the arrest of this accused. Thus, prosecution evidence against both the appellants is sufficient, cogent and credible to prove their guilt beyond reasonable doubt. For the reasons aforesaid, I find that conviction of both the appellants is well founded. Accordingly, impugned judgment of conviction is upheld. As regards quantum of sentence, section 397 IPC provides minimum sentence of imprisonment for seven years and therefore, sentence awarded by the trial Judge also does not warrant reduction or modification. Even otherwise, the accused committed dacoity i.e. occurrence of very serious nature and robbed the victims of cash and gold ornaments and telephone instruments and also caused injuries to the complainant. For this reason also, sentence awarded to the appellants does not warrant any interference or reduction. It may also be added that in so far as the appellant Bijender is concerned, question of quantum of sentence is of academic importance only because he has already been released from jail on 16.11.2010 on completion of sentence by granting benefit of remissions. As a necessary corollary, I find no merit in these appeals. Accordingly, both the appeals are dismissed. Appellant Sonu alias Dolu Criminal Appeal No. 1222-SB of 2006 -17- alias Anand who is on bail shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. ( L.N. Mittal ) September 28, 2011 Judge 'dalbir'