Punjab-Haryana High Court
Criminal Appeal No.563-Sb Of 2002 vs State Of Haryana on 25 May, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeals No.563-SB, 570-SB, 1
581-SB and 597-SB of 2002
In the High Court of Punjab and Haryana, at Chandigarh.
1. Criminal Appeal No.563-SB of 2002
Vijay
...Appellant
Versus
State of Haryana
...Respondent
2. Criminal Appeal No. 570-SB of 2002
Vinay
...Appellant
Versus
State of Haryana
...Respondent
3. Criminal Appeal No. 581-SB of 2002
Jai Bhagwan and Others
...Appellants
Versus
State of Haryana
...Respondent
AND
4. Criminal Appeal No. 597-SB of 2002
Raman alias Gopi
...Appellant
Versus
State of Haryana
...Respondent
Date of Decision: May 25, 2010
Criminal Appeals No.563-SB, 570-SB, 2
581-SB and 597-SB of 2002
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Tapan Kumar Yadav, Advocate
for Mr. Jaivir Yadav, Advocate
for the appellant (In Criminal Appeal
No. 563-SB of 2002).
Mr. Rahul Vats, Advocate
for the appellants (In Criminal Appeal
No. 570-SB and 597-SB of 2002).
None for the appellant (In Criminal Appeal
No. 581-SB of 2002).
Mr. Manish Deswal, Deputy Advocate
General, Haryana, for the respondent-State.
Kanwaljit Singh Ahluwalia, J. (Oral)
Appellants Amit son of Virender, Raman alias Gopi, Jai Bhagwan, Pawan Kumar, Vijay and Vinay were nominated as accused in case FIR No. 211 dated 6.9.2000, registered at Police Station Barwala, under Sections 399 and 402 IPC and 25/54/59 of the Arms Act, 1959 (hereinafter referred as "1959 Act").
The trial Court, vide its judgment dated 6.3.2002, held the appellants guilty for the offence under Sections 399 and 402 IPC and vide a separate order dated 13.3.2002, sentenced them as under:-
S. No. Name of Offence under Sentence awarded Accused Section 1 All the 399 IPC Rigorous imprisonment for a accused- period of five years and to appellants pay a fine of Rs.2,000/-
each, in default whereof, to further undergo rigorous imprisonment for a period of one month each.
Criminal Appeals No.563-SB, 570-SB, 3 581-SB and 597-SB of 2002 S. No. Name of Offence under Sentence awarded Accused Section 2 All the 402 IPC Rigorous imprisonment for a accused- period of three years and to appellants pay a fine of Rs.1,000/- each, in default whereof, to further undergo rigorous imprisonment for a period of 15 days each.
Criminal Appeal No. 563-SB of 2002 has been preferred by Vijay, Criminal Appeal No. 570-SB of 2002 by Vinay, and Criminal Appeal No. 581-SB of 2002 by Jai Bhagwan, Amit, Pawan Kumar and also by Vinay. Appellant Raman alias Gopi has also filed a separate appeal through Jail bearing Criminal Appeal No. 597-SB of 2002. All the four appeals shall be decided together.
The case of prosecution, in brief, is that on 6.9.2000 PW.7 Khairati Lal, Inspector, along with his companion police officials, had constituted a raiding party for detection of crime and was present at Bus Stand of Singhwa Ragho on a metalled road leading from Hansi to Barwala. The secret informant had provided an information that in a room of dharamshala near Rajli Bus Stand, five/six boys were sitting, out of them one boy was in the guise of a 'Baba' and they were having a motorcycle. They were planning to commit robbery of vehicles, which would pass on the road in front of them. The secret informant further disclosed that in case a raid is conducted then the boys could be apprehended. A police party consisting of four Constables was also coming from village Singhwa. They were associated by the police officials and the contents of a secret information were disclosed to them. Khairati Lal, Sub Inspector, along with his companion police officials, left Criminal Appeals No.563-SB, 570-SB, 4 581-SB and 597-SB of 2002 for Rajli Bus Stand for conducting raid. He stopped the Jeep at a distance of about half a kilometer away from Rajli Bus Stand. They proceeded towards dharamshala on foot through the fields and reached at the back side of the room, where the accused-appellants were sitting, and the same was encircled. The police party overheard the talk going on between the boys. One boy stated that with his motorcycle he would block the road and would stop the vehicles, then Amit would reach towards the window of conductor side and he would reach near the window of driver side. Thereafter, the police party suddenly entered into the room. The torch was lightened and in its light, it was found that five boys were sitting on the ground, whereas one boy, who was in the guise of 'Baba' was sitting on the motorcycle. All the accused-appellants were over powered by the police. On interrogation, first person disclosed his name as Vijay alias Gullar, second person as Raman alias Gopi Ram, third person as Pawan Kumar, fourth person as Amit alias Mittu and fifth person as Vinay. The person who was sitting on the motorcycle disclosed his name as Jai Bhagwan alias Pappu. From the personal search of appellant Vijay, one country made revolver along with six rounds of .30 bore was recovered. Two rounds were loaded. From the dub of Amit, one country made pistol of .315 bore was found along with two live cartridges. From the personal search of Raman alias Gopi Ram, a Khokhari was recovered. From the personal search of Vinay one knife with button was recovered. The personal search of Pawan lead to recovery of iron rod. All the above accused-appellants were arrested and the weapons were taken into possession by the police. Criminal Appeals No.563-SB, 570-SB, 5 581-SB and 597-SB of 2002 The above said FIR was investigated and the report under Section 173 Cr.P.C. was submitted.
The Court of Additional Sessions Judge, Hisar, charged the appellants for the offence under Sections 399 and 402 IPC. The charge stated that on 6.9.2000, in the area of village Rajli, the appellants made preparation to commit dacoity while sitting in a room of dharamshala near the bus stand of village Rajli and thus, committed an offence punishable under Section 399 IPC. It was further stated that all the accused had assembled in a room of dharamshala for the purpose of committing dacoity.
PW.1 Suber Singh, Head Constable, had mechanically examined pistol Ex.P1 along with cartridges Ex.P2 and P3 and stated that the pistol was in the working condition. He also mechanically examined the revolver with two live cartridges. The revolver was exhibited as Ex.P4 and cartridges as Ex.P5 and P6.
PW.2 Dharam Pal, Patwari Halqa Rajli, had prepared a scaled site plan Ex.P2 of the room where the accused were sitting.
PW.3 Jagdish Chander, Assistant Sub Inspector, got attested pistol, revolver and the cartridges thereof from PW.1 Suber Singh, Head Constable.
PW.4 Sukhchain, Reader to the District Magistrate, Hisar, proved sanction order Ex.PD whereby the accused-appellants were put on trial for the commission of the offences under the 1959 Act.
PW.5 Bani Singh, Head Constable and PW.7 Khairati Lal, Inspector, had reiterated as to what was stated in the ruqa Ex.PL, on the Criminal Appeals No.563-SB, 570-SB, 6 581-SB and 597-SB of 2002 basis of which FIR Ex.PL/1 was registered.
PW.6 Dushyant Kumar, Head Constable, tendered into evidence affidavit Ex.PK to prove link evidence.
Thereafter, the statement of accused-appellants were recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to them. They denied the same and pleaded false implication.
No evidence was led in their defence.
In the present case, conviction of the appellants rests upon the testimonies of PW.5 Bani Singh, Head Constable and PW.7 Khairati Lal, Inspector. They have stated that on receipt of a secret information, they were made part of the raiding party. They had encircled the room and overheard the appellants making preparation to commit dacoity. They had effected the arrest of the accused-appellants along with various weapons. Even though sanction order to prosecute the appellants for having possessed of arms has been proved on record, there is no conviction by the trial Court under the 1959 Act.
Learned counsel for the appellants are not in a position to submit as to whether the appellants were separately charged and tried for the offence under the 1959 Act. It is submitted that the entire prosecution case is improbable, unnatural and unconvincing and the same should be thrown to the winds. It is further submitted that even though the appellants were armed with various weapons, they had not used the same and not caused any injury to the police party. It is further submitted that it is not believable that when the police party arrived at the nick of moment, the appellants would be divulging the plan and the Criminal Appeals No.563-SB, 570-SB, 7 581-SB and 597-SB of 2002 same would be over heard by them (police party). In case the story of arrest of the accused from a room of dharamshala is believed, then only they can be held liable for members of an assembly, constituted for committing dacoity, falling within the ambit of Section 402 IPC.
Learned counsel for appellants Vinay and Raman alias Gopi has relied upon a judgment, rendered by this Court, in Naushera and Others v. State of Haryana 1981 (Vol. LXXXIII) 426, para No.4 whereof reads as under:-
"4. Sections 399 and 402, Indian Penal Code, may be noted side by side:-
399 IPC 402 IPC Whoever, makes any Whoever, at any time preparation for after the passing of this committing dacoity, Act, shall be one of five shall be punished or more persons with rigorous assembled for the imprisonment for a purpose of committing term which may dacoity shall be extend to ten years, punished with rigorous and shall also be imprisonment for term liable to fine. which may extend to seven years, and shall also be liable to fine.
Though the offence falling in both the sections would probably involve similar ingredients, the only difference between the two would be that while under Section 402, Indian Penal Code, mere assembly without preparation is enough, Section 399, Indian Penal Code, would be attracted only when some additional step is taken by way of preparation. There can be cases where there may Criminal Appeals No.563-SB, 570-SB, 8 581-SB and 597-SB of 2002 be an assembly for the purpose of dacoity without even a fringe of preparation. Thus, there is distinction between the two sections which is easily discernible. The mere fact that the appellants were acquitted of the charge under Section 399, Indian Penal Code, would be no ground to knock off the charge under Section 402, Indian Penal Code, against them".
Relying upon the observations made in the aforesaid judgment, it is submitted that if overhearing of the plan by the police officials is ruled out then the offence which the appellants is said to have committed falls under Section 402 IPC. In support of this, further reliance has been placed upon a judgment, rendered by the Hon'ble Apex Court, in Suleman v. State of Delhi through Secretary 1999(2) Recent Criminal Reports 377, wherein it was held that the fact that in the night time the police party heard the accused speaking so loudly that the conversation could be heard outside is not believable and benefit of doubt was granted to the accused.
In the present case, from the appellants, no recovery of any article which they had possessed as a result of dacoity or robbery was effected. Though the accused were armed with weapons, they had not used the same upon the police party which had gone to arrest them. The maxim falsus in uno falsus in omnibus is not followed by the Indian Courts of Law while appreciating the evidence.
In these circumstances, this Court tends to believe the Criminal Appeals No.563-SB, 570-SB, 9 581-SB and 597-SB of 2002 testimonies of PW.5 Bani Singh, Head Constable and PW.7 Khairati Lal, Inspector, that the accused-appellants were arrested from a room and they were armed with weapons. However, this Court will not believe the allegation that PW.7 Khairati Lal, Inspector, had overheard the appellants planning the dacoity.
As a result of above discussion, the appellants are acquitted for the offence under Section 399 IPC. However, their conviction under Section 402 IPC is maintained.
In the present case, the occurrence pertains to the year 2000. A period of ten years is going to elapse. Taking totality of the circumstances into consideration and the fact that the appellants had suffered protracted trial, sentence, awarded to them under Section 402 IPC, is reduced from three years to two years rigorous imprisonment.
With the observations made above, all the four appeals are disposed of.
(Kanwaljit Singh Ahluwalia) Judge May 25, 2010 "DK"