Punjab-Haryana High Court
Subhash vs State Of Haryana on 17 August, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1159-SB of 2001
Date of Decision : August 17, 2010
Subhash
....Appellant
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Manish Soni, Advocate for
Mr. S.S. Dinarpur, Advocate
Ms. Shalini Attri, Deputy Advocate General, Haryana.
T.P.S. MANN, J.
Vide judgment and order dated 16/18.8.2001, learned Additional Sessions Judge, Yamuna Nagar at Jagadhri convicted accused Subhash and Satinder for the offences under Sections 393, 394, 397 and 452 IPC and sentenced them as follows :-
Criminal Appeal No. 1159-SB of 2001 -2-
- Rigorous imprisonment for five years and to pay a fine of Rs.1,000/- each for the offence under Section 393 IPC, and in default of payment of fine, to undergo imprisonment for 1½ months;
- Rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- each for the offence under Section 394 IPC, and in default of payment of fine, to undergo imprisonment for three months;
- Rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- each for the offence under Section 397 IPC, and in default of payment of fine, to undergo imprisonment for three months; and
- Rigorous imprisonment for five years and to pay a fine of Rs.1,000/- each for the offence under Section 452 IPC, and in default of payment of fine, to undergo imprisonment for 1½ months.
All the substantive sentences were ordered to run concurrently.
One Joginder Singh @ Rajinder Singh was also tried alongwith Subhash and Satinder. When the case was at the stage of Criminal Appeal No. 1159-SB of 2001 -3- recording of evidence, Joginder Singh @ Rajinder Singh was reported to have fled from the police custody. When his presence could not be procured through non-bailable warrants, he was declared as proclaimed offender. The trial of Subhash and Satinder was separated and proceeded further resulting in the aforementioned judgment of conviction and order of sentence. Thereafter, Joginder Singh @ Rajinder Singh was arrested in some other case and confined in Central Jail, Hisar. From there he sent an application regarding issuance of his production warrants. His presence was procured and the case was fixed for the prosecution evidence when the learned Public Prosecutor apprised the trial Court that testimony of all the prosecution witnesses had been recorded in his presence before his becoming proclaimed offender and as such, learned Public Prosecutor closed the prosecution evidence by making statement in that regard. Said Joginder Singh @ Rajinder Singh was thereafter examined under Section 313 Cr.P.C. He, however, did not examine evidence in defence. Ultimately, vide judgment and order dated 23.7.2003, learned Additional Sessions Judge, Yamuna Nagar at Jagadhri convicted Joginder Singh @ Rajinder Singh accused under Sections 393, 394, 397 and 452 IPC and sentenced him as follows:-
- Rigorous imprisonment for five years and to pay a fine of Rs.500/- under Section 393 IPC, and in default of payment of fine, to undergo Criminal Appeal No. 1159-SB of 2001 -4- imprisonment for 1½ months;
- Rigorous imprisonment for seven years and to pay a fine of Rs.500/- under Section 394 IPC, and in default of payment of fine, to undergo imprisonment for three months;
- Rigorous imprisonment for seven years and to pay a fine of Rs.500/- under Section 397 IPC, and in default of payment of fine, to undergo imprisonment for three months; and
- Rigorous imprisonment for five years and to pay a fine of Rs.500/- under Section 452 IPC, and in default of payment of fine, to undergo imprisonment for 1½ months.
All his substantive sentences were also ordered to run concurrently.
Aggrieved of his conviction and sentence, Subhash filed the present appeal whereas Joginder Singh @ Rajinder Singh filed Criminal Appeal No. 868-SB of 2005. Satinder, who was convicted and sentenced alongside Subhash, chose not to file any appeal. As both the appeals require appreciation of same evidence, they are being disposed of together.
According to the prosecution, on 19.3.1999, Inspector Arun Criminal Appeal No. 1159-SB of 2001 -5- Singh, alongwith other police officials, was busy in investigation of case FIR No.66 of 1999 under Sections 323/506/354/306/34 IPC of Police Station City Yamuna Nagar. In the meantime, he received a wireless message that someone had fired a shot upon one shopkeeper at Sarni Chowk. On receipt of the said wireless message, Inspector Arun Singh, alongwith other police officials, reached Sarni Chowk, where SI Dharam Singh, HC Suresh Kumar, C. Ram Kishan and C. Naresh Kumar were already present. It was intimated to the Inspector that the injured had been sent to hospital. Accordingly, the Inspector went to hospital and after obtaining the opinion of the doctor concerned, recorded the statement of injured Gulshan Kumar. The complainant- injured stated that he was running a shop under the name and style 'Grover Bakery' at Sarni Chowk. During the intervening night of 18/19.3.1999 at about 10.30 P.M. when he was present at his shop, three boys came there. One boy remained standing outside the shop while two boys entered the shop and one of them had given him currency note of Rs.10/- and asked him for giving 100 grams of 'Namkeen'. The complainant then gave them 'Namkeen' and for the remaining amount, those boys asked for giving toffees to them. Accordingly, the complainant gave them toffees for remaining amount. It was further stated by the complainant that the boy, who was standing outside of his shop was called by his companions and then they closed down half of the shutter of the shop. Those boys then asked him to hand over Criminal Appeal No. 1159-SB of 2001 -6- whatever the complainant was having, otherwise, they would shoot him. Meanwhile, one of the boys took out a pistol, but the complainant refused to give them money, whereafter, those boys forcibly snatched money from his pocket and even grappled with the complainant. One of the boy, who was holding a pistol, fired a shot at complainant, which hit his hand and thereafter, he also gave a blow with butt of his pistol. The complainant then succeeded in coming out from his shop. When those two boys were in the process of dragging him inside the shop, the complainant raised noise, whereupon those three boys ran away towards Industrial Area. On the basis of the said statement of the complainant- injured, the instant case under Sections 393/394/397/452 IPC and under Section 25 of the Arms Act, was registered.
During investigation of the case, accused Joginder Singh @ Rajinder Singh was arrested on 30.6.1999 whereas on 5.7.1999, Satinder s/o Sardara and Subhash s/o Chura Ram were also arrested by the police. During interrogation, accused Joginder Singh @ Rajinder Singh, Satinder and Subhash disclosed that they had committed the crime alongwith Rajesh Kumar @ Raju s/o Kashmiri Lal.
Upon completion of investigation and presentation of challan, the case was committed to the Court of Sessions where charges under Sections 393, 394, 397 and 452 IPC were framed against the appellants and their co-accused Satinder, who pleaded not guilty and Criminal Appeal No. 1159-SB of 2001 -7- claimed trial.
In support of its case, the prosecution examined fourteen witnesses, namely, PW1 Dr. B.S. Deswal, Medical Officer, General Hospital, Yamuna Nagar, PW2 HC Bhag Singh, PW3 C. Jaipal, PW4 complainant Gulshan Kumar, PW5 HC Bal Kishan, PW6 ASI Om Parkash, PW7 HC Dilbagh Singh, PW8 Shri A.K. Verma, Chief Judicial Magistrate, Jagadhri, PW9 C. Balwan Singh, PW10 Inspector Balbir Singh, PW11 DSP Arun Singh, Panipat and PW12 AMHC Balwinder Singh.
When examined under Section 313 Cr.P.C., the three accused denied the incriminating evidence appearing on the record against them. They also denied the entire prosecution evidence and pleaded that they were innocent. They, however, led no evidence in defence.
After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court believed the prosecution version and convicted and sentenced the appellants, as mentioned above.
Learned counsel for the appellants had submitted that none of the accused was named in the FIR. Therefore, the prosecution was under a duty to arrange test identification parade of the appellants for Criminal Appeal No. 1159-SB of 2001 -8- fixing their identity. It was also submitted that regarding the occurrence, the prosecution relied upon the sole testimony of PW4 Gulshan Kumar, although it had come on the record that Jagrata ceremony was taking place near the place of occurrence and some independent witness could have been associated by the Investigating Officer but the same was not done.
Learned State counsel submitted that the prosecution had made an attempt to get the appellants identified from PW4 Gulshan Kumar but it were the appellants themselves who refused to participate in the parade. As regards the non-joining of the independent witness, it was stated that the occurrence had taken place at about 10.30 P.M. Moreover, during the occurrence the appellants had closed the shutter of the shop and, therefore, even if any independent witness was around, he would not have seen the occurrence.
Learned counsel for the parties had been heard and the evidence examined with their able assistance.
According to PW6 ASI Om Parkash, on 5.7.1999 when he, alongwith other police officials, went to Karnal Court, Satinder and Subhash accused were joined in investigation after taking permission from the Ilaqa Magistrate as they were in custody in some other case. After recording the disclosure statements made by them, ASI Om Criminal Appeal No. 1159-SB of 2001 -9- Parkash moved an application before the Magistrate at Karnal for Rahdari remand and after getting the same he covered the faces of the accused and kept them in muffled faces and, thereafter, lodged in police lock-up at Yamuna Nagar. On 6.7.1999, they were produced before the Magistrate at Jagdadhri in muffled faces. He moved application Ex.PM before the Ilaqa Magistrate for arranging test identification parade of the accused. However, the accused vide their joint statement recorded separately, refused to join the test identification parade and, accordingly, the Ilaqa Magistrate disposed of the application. PW8 Shri A.K.Verma, Chief Judicial Magistrate, Jagadhri deposed that on 6.7.1999 accused Satinder and Subhash were produced before him in muffled faces with application Ex.PM. Both the accused refused to join the test identification parade and their joint statement in that regard was recorded, which was Ex. PM/1. Accordingly, he passed order Ex.PM/2.
Similarly, PW13 SI Des Raj had deposed that on 30.6.1999, he went to Ferozepur to bring accused Joginder Singh in compliance of the production warrant issued by the Court. He brought accused Joginder Singh from Ferozepur Jail and produced him in the Court of Ilaqa Magistrate, Jagadhri on 1.7.1999 in a muffled face. He moved an application Ex.PL for the test identification parade of the accused but Joginder Singh refused to join the same. The statement of PW13 SI Des Raj stands corroborated by the testimony of PW8 Shri A.K.Verma, Chief Judicial Magistrate, Jagadhri when he deposed that on 1.7.1999 Criminal Appeal No. 1159-SB of 2001 -10- application Ex.PL was moved before him by SI Des Raj for conducting test identification parade of Joginder Singh, who was produced in the Court in a muffled face. Accused-Joginder Singh refused to join the parade and in that regard his statement Ex.PL/1 was recorded and an order Ex.PL/2 was passed on the application in that respect.
A perusal of statements Ex.PM/1 and Ex.PL/1 would reveal that neither Subhash nor Joginder Singh accused had given any reason as to why they refused to join the test identification parade. Under these circumstances, the Court can reasonably draw an inference that had these two accused joined the test identification parade, they would have been identified by PW4 Gulshan Kumar. Therefore, none of the appellants can take any benefit of PW4 Gulshan Kumar identifying them in the Court for the first time.
According to PW4 Gulshan Kumar, his shop was situated at Sarni chowk where he was running a confectionary and bakery shop. On 18.3.1999 at about 10.30 P.M., he was present inside his shop. Three boys came to his shop. While one remained standing outside, the other two entered inside. One of the boys, who had entered the shop handed over Rs.10/- note to him for giving Namkeen and thereafter for the remaining amount he wanted toffees to be given. In the meanwhile, the two boys who had entered the shop gave a signal to the third boy standing outside, who immediately pulled down the shutter of the shop. Criminal Appeal No. 1159-SB of 2001 -11- One of the two boys, who were inside the shop, took out a pistol and stated that whatever amount the complainant was having, be handed over to him or he would fire a shot. Grappling ensued and the complainant managed to hold the front portion of the pistol. The boy, who had entered the shop last after pulling down the shutter, shouted that a shot be fired. The boy holding the pistol fired the shot and the bullet hit the complainant on his hand. Thereafter the complainant was hit with the butt of the pistol on his head. When the complainant tried to come out from the shop and raise an alarm, all the three boys slipped away. Afterwards a few shop-keepers were attracted. He was then taken to the hospital where his statement Ex.PE was recorded by the police. He identified the three accused, namely, Subhash, Joginder Singh and Satinder in the Court by stating that they had entered his shop He specifically pointed out towards accused Joginder Singh as the one who had fired the shot.
According to PW1 Dr.B.S.Deswal, he had medico-legally examined the complainant on 18.3.1999 and found four lacerated injuries on his person. Injuries No.1 and 4 were caused by a fire arm while the rest with a blunt weapon. He also deposed that the fire arm was used from a close distance, approximately within five feet distance as there was singing of skin. It was denied that injuries No.1 to 4 were not caused by a fire arm.Criminal Appeal No. 1159-SB of 2001 -12-
As the occurrence had taken place at about 10.30 P.M., hardly any person could have been present at or around the shop of the complainant. Moreover, according to the complainant, one of the accused, who was earlier standing outside, came inside and pulled down the shutter of the shop. Thereafter, whatever incident occurred was behind the closed shutter and in case anyone was outside, he would not have seen the occurrence. After being hit by the accused when the complainant opened the shutter, all the three accused managed to run away. Mere fact that some ladies and shop-keepers were going to Jagrata being held nearby does not mean that they had seen the occurrence and could have been associated by the police to provide independent corroboration to the testimony of the complainant.
PW11 Inspector Arun Singh, who by then stood promoted as DSP, Panipat had deposed that after recording the statement of the complainant and making his endorsement while sending the same to the Police Station for registration of the case, he reached the spot and lifted blood stained earth and one bullet from there. In the report Ex.PBB of Forensic Science Laboratory, Haryana, it was mentioned that blood was detected on the bullet. Similarly, as per report Ex.PAA, the bullet in question was of .315 bore and fired from a country made fire arm.
In view of the above, no fault can be found with the findings arrived at by the trial Court in convicting and sentencing the Criminal Appeal No. 1159-SB of 2001 -13- appellants for the offences under Sections 393, 394, 397 and 452 IPC. Even the sentences of imprisonment imposed by the trial Court are commensurate with the intensity of the crime committed by the appellants.
Accordingly, both the appeals deserve dismissal. Ordered accordingly.
( T.P.S. MANN )
August 17, 2010 JUDGE
satish