Punjab-Haryana High Court
Raj Babu @ Raj Kumar vs State Of Haryana on 11 April, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
CRA-S- 2166 -SB of 2011 -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision: April 11th, 2014
CRA-S- 2166 -SB of 2011
Raj Babu @ Raj Kumar
---Appellant
versus
State of Haryana
---Respondent
CRA-S- 2193 -SB of 2011
Dev Chand and others
----Appellants
versus
State of Haryana
---Respondent
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Ms. Divya, Advocate
for the appellant (in CRA-S- 2166-SB of 2011)
Mr. Jatinder S. Chahal, Advocate
for the appellants (In CRA-S- 2193 of 2011)
Ms. Loveleen Dhaliwal Singla, Sr. DAG, Haryana
for respondent-State.
***
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
***
REKHA MITTAL, J.
By way of this order I shall dispose of CRA-S- 2166-SB of 2011 titled "Raj Babu alias Raj Kumar vs. State of Haryana" and CRA-S- 2193 -SB of 2011 titled "Dev Chand and others vs. State of Haryana", as these are the off shoot of same judgment dated 11.7.2011 passed by the Additional Sessions Judge, Yamuna Nagar at Jagadhari whereby the Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -2- appellants have been convicted and sentenced for commission of offences, extracted hereinbelow:-
Raj Babu @ Raj Kumar Under Section 395 read with To undergo rigorous imprisonment for a Section 397 IPC period of 08 years and to pay a fine of Rs.
10,000/- In default of payment of fine to further undergo rigorous imprisonment for a period of one year.
Under Section 25 of the Arms To undergo rigorous imprisonment for a Act period of 02 years and to pay a fine of Rs.
2,000/- In default of payment of fine to further undergo imprisonment for a period of three months Dev Chand, Jitender, Mukes and Darshan Under Section 395 read with To undergo rigorous imprisonment for a Section 397 IPC period of 08 years and to pay a fine of Rs.
10,000/- each. In default of payment of fine to further undergo rigorous imprisonment for a period of one year.
The facts relevant for disposal of present appeals are that Bachna Ram complainant got recorded his statement on the allegations that on the intervening night of 8/9.6.2009, he was on duty as Watchman at bus stand village Chuharpur. At about 1/2.00 a.m., a three wheeler bearing No. HR-37C 0662 came from the side of Chhachhrauli. It stopped near the shop of one Jeet Sardar on bus stand. Five persons in all were there in the three wheeler. One of those persons checked the lock on the shop of Jeet Sardar. They were in the process of breaking open the lock of the shop. The complainant enquired from them and they caught hold of him and gagged his mouth. They dragged him in their three wheeler and took him to a kacha path near the school. They were armed with lathis, iron rods and one of them had a country made pistol. They gave him beatings on his back, eye, left arm, face and head with the iron rods. They kept country made pistol on Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -3- his temple and removed Rs. 3000/- from back pocket of his trousers wrapped in a handkerchief. The amount was collected by him on that very evening from different shop keepers as his salary. Thereafter, the accused took him to a mango garden in the area of village Bahadurpur. They removed his clothes and tied him with a mango tree with the clothes and fled from the spot. After some time, he got his mouth freed and cried for help which attracted some persons, they untied him and took him to the bus stand.
During investigation, the place of occurrence was inspected, statements of the witnesses were recorded, rough site plan was prepared. On 17.6.2009, on receipt of information from CIA staff, Yamuna Nagar that accused Raj Kumar @ Raj Babu and Dev Chand had been arrested in FIR N0. 68 dated 9.6.2009 under Sections 457, 380, 456 IPC registered at Police Station Khizrabad, they were joined in the investigation of the present case, with the permission of the Court. The accused suffered disclosure statements and got the weapons recovered in pursuance threreof. On 19.6.2009, Raj Babu suffered a disclosure statement and offence under Section 25 of the Arms Act, 1855(for short "the Act") was added. Jatinder accused was arrested by the CIA staff in FIR No. 68 dated 9.6.2009 on 19.6.2009. He was also joined in the investigation of this case with permission of the Court and his formal arrest was entered. Jatinder suffered a disclosure statement and in pursuance thereof, he got recovered an iron rod which was taken into possession vide recovery memo. Darshan and Mukesh were arrested in this case on 28.6.2009. They suffered disclosure statements and got recovered one handkerchief by Darshan and Rs. 200/- by Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -4- accused Mukesh. On completion of investigation, report under Section 173 of the Code of Criminal Procedure (for short "the Code") was submitted in the Court for trial.
After compliance with the provisions of Section 207 of the Code, the case was committed to the Court of Sessions as offence under Sections 395, 397 IPC being exclusively triable by the said court.
After hearing counsel for the parties, the learned trial court framed charge against all the accused for offence under Sections 395, 397 IPC and charge under Section 25 of the Arms Act was also framed against Raj Babu to which the accused pleaded not guilty and claimed trial.
To establish guilt of the accused, the prosecution examined as many as 14 witnesses namely, Raj Kumar, Reader to District Magistrate PW1, Sant Kumar, Patwai Halqua Khijri PW2, ASI Bhim Singh, Armourer PW3, SI Radhey Shyam PW4, ASI Ram Mehar PW5, SI Virender Kumar PW6, EHC Rajbir Singh PW7, Bachna Ram, complainant PW8, Bintu PW9, SI Tarsem Singh PW10, Dr. Ashwani Kumar PW11, EHC Jaspal PW12, ASI Yudhishter Pal PW13 and HC Dilbag Singh PW14.
On the evidence of the prosecution being closed, the statements of the accused were recorded in terms of Section 313 of the Code through which they denied the incriminating evidence put to them and pleaded their innocence and false implication. However, they did not examine any witness in defence.
The learned trial court, on appreciation of evidence adduced by the prosecution and bestowing its consideration to the rival submissions made by counsel for the parties, held the accused guilty of the offence Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -5- charged against them and accordingly, they were convicted and sentenced, detailed hereinbefore.
Feeling aggrieved by the judgment passed by the learned trial court, two appeals have been preferred by the accused, one by Raj Babu alias Raj Kumar and other by Dev Chand and others.
Counsel for the appellants would submit that the learned trial court seriously erred in holding the appellants guilty of the offence under Sections 395, 397 IPC as the prosecution has miserably failed to establish identity of the accused much less beyond a shadow of reasonable doubt. To bring home their contention, it is submitted that the learned trial court did not appreciate the statement of complainant Bachna Ram in right perspective because there is nothing in the statement of the witness to prove on record that the offence was committed by the accused (convicts). For this purpose, counsel has drawn my attention to the testimony of Bachna Ram PW8.
Another submission made by counsel is that no independent witness was associated at the time of alleged disclosure statements made by the accused or recovery in pursuance thereof. The entire evidence in regard to making disclosure statements by the accused or recovery of the incriminating materials is nothing but result of padding to prove that the investigating agency was successful to solve the case got registered by the complainant. It is further argued that the accused were falsely arrested in FIR No. 68 of 2009 registered at Police Station Khizrabad and later they were formally arrested in this case, therefore, the evidence of disclosure statements and recovery of incriminating articles has been manufactured to Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -6- indict them in the crime.
Ms. Divya, counsel representing Raj Babu @ Raj Kumar has submitted that a false recovery of country made pistol has been planted against Raj Babu to add offence under Section 25 of the Act with the intent to strengthen the allegations that the accused committed offence under Sections 395, 397 IPC.
Counsel for the State of Haryana, on the other hand, has supported the judgment passed by the learned trial court with the submissions that the findings recorded by the said court are based upon a detailed and meticulous appreciation of evidence on record. It is further submitted that the accused have not alleged any animosity against them by the complainant to falsely implicate them in the crime and depose against them, during trial.
I have heard counsel for the parties and perused the records. Bachna Ram complainant is the star witness of the prosecution to establish the crime for commission of offence punishable under Sections 395 and 397 IPC. A relevant extract from the Statement of Bachna Ram in his examination is chief reads as follows:-
"On 9.6.2009, I used to work as Chowkidar in the area of bus stand, village Chuharpur Kalan. On that night, I was on my duty. At about 01/02 a.m. a tempo of three wheels came from the side of Chhachhrauli. It stopped near the shop of one Jeet Sardar on bus stand, village Chuharpur Kalan. Total five persons were occupying the three wheeler. They were in the process of breaking lock of the shop of Jeet Sardar. When I Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -7- enquired from them, he (they) caught hold me and closed my mouth. They dragged me in their three wheeler and took me to a kacha path near school. The assailants were armed with iron rods and one of them namely Raja Babu was wielding a country made pistol. They gave me beating with iron rods and Raja Babu pointed his pistol upon me. When I became semi unconscious, the assailants had snatched from me one hankerchief and a sum of Rs. 3,000/-."
In the concluding line of his examination in chief, the witness deposed that "all the accused are present in the Court". During cross examination, the witness's response to the questions put by the defence counsel is quoted thus:-
"It is correct that the place near the school where I was taken by the assailants/accused is a forest area and it was too dark at that time. It is also correct that the place where the accused was (sic) subsequently taken me was also a forest area. Nobody was present on either of those places and there was no light on either of the places."
In the concluding line of his cross examination by counsel representing accused Raj Babu, the witness states "I have not seen any of the accused present in the Court today before".
A conjoint reading of the facts elicited during examination and cross examination leaves no manner of doubt that the witness has not been able to establish identity of the accused, facing trial, to be the persons who committed the crime. No doubt, the witness has deposed that one of Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -8- them namely Raj Babu was wielding a country made pistol and he (Raj Babu) pointed his pistol upon him but he has not stated that a particular person present in the court is Raj Babu. It has also not been deposed by the witness that the accused present in the court are the persons who committed the crime. The mist left during examination in chief of the witness is sufficiently cleared in view of his cross examination that he had not seen any of the accused persons in the court that day, before. In this view of the matter, I find force in the contention of counsel for the appellants that statement of Bachna Ram is not sufficient to establish identity of the accused beyond shadow of reasonable doubt to establish their culpability under Sections 395 and 397 IPC. The appellants are entitled to get benefit of doubt of this failure on the part of the prosecution.
At this stage, it is pertinent to mention that this court looked into statement of the complainant, recorded in vernacular, in order to know its true import particularly the fact elicited during his cross examination by counsel representing accused Raj Babu. It is surprising that statement in vernacular does not contain cross examination of the witness by Sh.Bhagwant Singh, Advocate for accused Dev Chand and Jatinder and Balwinder Kumar Saini, Advocate for accused Raj Babu which is recorded in English on page 03 of his statement. It further shows that statement of the witness in vernacular does not appear to be recorded simultaneously to keep double record and the same was translated later but only up to page No. 02. Such a practice followed by the trial court is highly deprecable violating the procedure laid down in the Code. However, it remains a fact that Bachna Ram PW has failed to prove that the crime causing him injuries and looting him of his handkerchief and a sum of Rs. 3000/- was committed Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -9- by the accused before the Court. I would hasten to add that Bachna Ram in his examination in chief has deposed about recovery of handkerchief from Darshan accused, statedly taken into possession vide recovery memo Ex. PW8/E. It has nowhere been deposed by the witness that the said handkerchief was identified by him to be his, to establish connection of accused Darshan with the crime or he being in possession of property in regard whereof the crime was committed. In this view of the matter, I find force in the contention of the appellants that the prosecution has failed to prove culpability of the accused for offence under Sections 395, 397 IPC, therefore, the learned trial court has committed a serious error in convicting and sentencing the accused for offence under Sections 395 and 397 IPC and accordingly, the judgment passed by the learned trial court in regard to conviction and sentence of the accused for the said offences is liable to be set aside and ordered accordingly.
Raj Babu has been charged for additional offence under Section 25 of the Act. The prosecution has examined the official witnesses to prove recovery of pistol from Raj Babu in pursuance of his disclosure statement. No doubt, no person from the public was associated during interrogation of Raj Babu leading to disclosure statement as well as recovery in pursuance thereof. Raj Babu has not alleged any ill will or animosity against him by the investigating officer or the attesting witnesses of recovery. If statements of the official witnesses are found to be reliable and inspire confidence in the mind of the court, there is no reason to discard those statements even in the absence of corroboration from a witness of the public. The Court cannot turn a blind eye to a hard reality that people from the public hesitate to associate during investigation proceedings due to fear of Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh CRA-S- 2166 -SB of 2011 -10- animosity with the accused or harassment during trial.
The evidence of the official witnesses has proved that Raj Babu made a disclosure statement and got recovered a pistol in pursuance thereof, but he did not have any permit or licence to keep that weapon. The weapon was got examined from an armourer who gave a report in regard to its being in working condition. The mere fact that the weapon was rusted when produced in the court, is not sufficient to doubt the report of the armourer in regard to its working condition. Keeping in view the quality of evidence on record, the learned trial court has not committed any error much less illegality in holding Raj Babu guilty of committing offence punishable under Section 25 of the Act. Resultantly, the judgment passed by the learned trial court convicting and sentencing Raj Babu for commission of offence under Section 25 of the Act is affirmed.
In view of what has been discussed hereinabove, the appeal is partly allowed. The appellants are acquitted of the offence punishable under Sections 395, 397 IPC. The appellants except Raj Babu, if in custody, be released forthwith, if not required in any other case. Conviction and sentence of Raj Babu for offence punishable under Section 25 of the Act is confirmed.
For the foregoing reasons, the appeal stands disposed of in the aforesaid terms.
(REKHA MITTAL) JUDGE April 11th, 2014 PARAMJIT Saini Paramjit Kaur 2014.04.21 16:33 I attest to the accuracy and integrity of this document Chandigarh