Rajasthan High Court - Jodhpur
Gurmukh Singh vs State on 27 April, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 510 / 2012
Gurmukh Singh son of Sarjeet Singh, by caste Mazbi Sikh,
resident of Ward No.2, Tibbi, Police Station Tibbi, District
Hanumangarh
----Appellant
Versus
State of Rajasthan
----Respondent
S.B. Criminal Appeal No. 545 / 2012
1. Chand Singh @ Charanjeet son of Gulzar Singh, by caste
Mazbi Sikh
2. Palla @ Satpal Singh son of Shri Kashmir Singh, by caste
Raisikh
Both residents of Dhani Khayaliramwali, Tibbi Police Station,
District Hanumangarh
Versus
State of Rajasthan
----Respondent
S.B. Criminal Appeal No. 546 / 2012
1. Bogi @ Harvindra Singh son of Shri Gurmez Singh, by caste
Mazbi Sikh, resident of Dhani Khayaliramwali, Tibbi Police
Station, District Hanumangarh
2. Sonu @ Sandeep son of Shri Sukhdev Singh, by caste Mazbi
Sikh, resident of Choti 8 G, Police Station Chunawad, District
Sri Ganganagar
Versus
State of Rajasthan
----Respondent
2
_____________________________________________________
For Appellant(s) : Mr Vipin Makkad for appellant Gurmukh
Singh
Mr Bhoop Singh, Mr Mohan Lal for appellant
Palla @ Satpal
Mr Dron Kaushik for appellant Sonu, Bogi @
Harvindra and Chand Singh
For Respondent(s) : O.P.Rathi - PP
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 27/04/2017 These three criminal appeals have been preferred by the appellants being aggrieved with the judgment dated 09.05.2012 passed by the Additional Sessions Judge No.1, Hanumangarh (for short 'the trial court' hereinafter) in Sessions Case No.56/2011 (32/2011), whereby it has convicted all the accused-appellants for the offence punishable under section 395 IPC and sentenced them to undergo 10 years' rigorous imprisonment and a fine of Rs.10,000/- each, in default of payment of fine, further to undergo 2 years' rigorous imprisonment.
So far as accused-appellant Sonu alias Sandeep is concerned, the trial court vide impugned judgment has also convicted him for the offence punishable under section 120-B IPC and sentenced him to undergo 7 years' rigorous imprisonment and a fine of Rs.1000/-, in default of payment of fine, further to undergo 2 months' rigorous imprisonment. The trial court has ordered that the sentences awarded to the accused-appellant - Sonu alias Sandeep will run concurrently.
3
Brief facts of the case are that PW.1 Rajesh Kumar son of Lal Chand lodged a complaint (Ex.P/1) to the Station House Officer, Police Station, Hanumangarh Town on 28.01.2011 at 11:15 AM while alleging that he along with his driver appellant- Sonu alias Sandeep started from Sri Ganganagar at 7:30 AM in Jeep No.RJ04C1489 and proceeded towards Elnabad for the purpose of purchasing battery scrap. It is stated in the complaint that he was having Rs.2,75,000/- and the appellant-Sonu alias Sandeep was having knowledge of it. At about 10:00 AM when they reached just ahead of Jhambar Bus Stand, then suddenly driver Sonu stopped the vehicle without asking him and said in loud voice that Gurmukh come here, then four persons came out from nearby agriculture field and after opening the door of the vehicle, Gurmukh instructed accused-appellants Chand Singh and Bogi to get the complainant down from the jeep and both of them plunked him down from the vehicle and started beating him. One person asked accused - Pala to take money from Sonu. It is alleged that when they were beating the complainant, Sonu driver did not come for his rescue and remained sit in the jeep. After some time, the accused-persons said that they got the money, so run away and thereafter all the four accused-persons ran away on the motorcycle towards Kamrani village. The complainant immediately took the mobile phone of driver Sonu and dialed No.100 because his mobile phone was snatched by the accused- persons. It is alleged that due to beating, he received injuries on his face, nose and legs.
On the basis of the above complaint, an FIR 4 No.59/2011 (Ex.P/12) was registered at Police Station, Hanumangarh Town for the offence punishable under section 394 IPC and the police started investigation. During the course of investigation, all the accused-appellants were arrested and the statement of the complainant was recorded. After preparing site map, the police recovered the motorcycle involved in the commission of crime and also recovered Rs.2,75,000/- from the appellants - Bogi, Chand Singh and Gurmukh Singh after receiving information from them under section 27 of the Indian Evidence Act. The police also recovered the mobile phone of complainant Rajesh Kumar from appellant - Pala. After investigation, the police has filed charge-sheet against appellants- Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh for the offences punishable under sections 394, 395, 323 IPC, however, filed charge-sheet against appellant - Sonu alias Sandeep for the offence punishable under section 395/120-B IPC. The case was thereafter committed to the trial court, where charges were framed against appellants - Gurmukh Snigh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh for the offence punishable under section 395 IPC, whereas charges against appellant - Sonu alias Sandeep were framed for the offence punishable under section 395/120-B IPC. The accused-appellants denied the charges and claimed trial.
The prosecution during the course of trial got examined as many as 7 prosecution witnesses and also exhibited 35 documents as well as 2 articles. The statements of the accused- appellants were recorded under section 313 CrPC, wherein they 5 have stated that nothing has been recovered from them and they have falsely been implicated in this case. They have also claimed that their signatures were obtained on blank papers and it was contended by appellant - Sonu that the mobile phone recovered by the police claiming that the same is belonging to him is actually of complainant Rajesh Kumar and he was only using the said mobile phone. The statement of Rajesh Kumar recorded by the police was exhibited as Ex.D/1.
The trial court after hearing Additional Public Prosecutor and the counsel for the appellants has convicted the accused-appellants for the offence punishable under section 395 IPC and sentenced them as indicated above. The trial court has further convicted accused-appellant Sonu alias Sandeep for the offence punishable under section 120-B IPC and sentenced him accordingly. Being aggrieved with this, the appellants have preferred these appeals.
Learned counsels for the appellants have argued that PW.1 complainant Rajesh Kumar in his statement has specifically stated that the accused-appellants except appellant Sonu alias Sandeep were not known to him prior to the incident. Learned counsels for the appellants have argued that the investigating agency did not conduct the identification parade of the accused- appellants except appellant Sonu alias Sandeep and that is fatal for the prosecution because PW.1 Rajesh Kumar and PW.7 Ramchandra in their statements before the trial court have specifically admitted that PW.1 was not known to the accused- appellants except Sonu alias Sandeep prior to the incident. 6 Learned counsels for the appellants have submitted that in the absence of identification of the accused-appellants - Gurmukh Snigh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh, it cannot be said that those accused- persons were involved in the commission of crime.
Learned counsels for the appellants have also argued that the recoveries of alleged looted money, motorcycle and the mobile phone, at the instance of the appellants - Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh are also very doubtful because no independent witness was called out by the police while preparing the recovery memos Ex.P/17, Ex.P/19, Ex.P/21, Ex.P/23, Ex.P/26 and Ex.P/28, whereby the police had recovered looted money, motorcycle and mobile phone at the instance of the above named accused- appellants. It is contended that the story of the prosecution is not believable as in the FIR (Ex.P/12), the police has named all the appellants as accused, whereas from the evidence of PW.1, it is clear that he did not know the appellants at the time of incident. The learned counsels for the appellants have, therefore, argued that the prosecution has failed to prove the case against the appellants for the offence punishable under section 395 IPC beyond reasonable doubt. Hence, the trial court without appreciating the prosecution evidence in right perspective has illegally convicted the appellants for the offence punishable under section 395 IPC.
In respect of accused-appellant - Sonu alias Sandeep, it is argued that he has falsely been implicated in this case, 7 though there is no evidence available on record to suggest that he had actually participated in the commission of crime or hatched a criminal conspiracy with other accused-appellants to commit the crime. It is submitted that if the appellant - Sonu was involved in the crime, there was no reason for him to stay with the complainant when other accused-appellants ran away from the scene of crime and to give his mobile phone to the complainant for the purpose of informing the police. It is further contended that even if it is assumed that the appellant - Sonu gave his mobile phone to the complainant to inform the police but there was no reason for Sonu to remain with the complainant up to the arrival of the police. Had he been involved in the commission of crime, he would have run away from the scene of crime before the arrival of the police. It is also contended that as per the prosecution story even the accused-appellant - Sonu had accompanied the police as well as the complainant while they were searching for other accused-persons.
Learned counsel for the appellant - Sonu has, therefore, argued that looking to the above circumstances, it cannot be believed that accused-appellant Sonu was involved in the crime in any manner. It is further argued that the prosecution has failed to produce any evidence to prove that accused- appellant Sonu had hatched a criminal conspiracy with other accused-appellants to commit the crime. It is contended that though during the course of investigation, the police had collected call details of the mobile phone, which was allegedly used by appellant-Sonu but the said call details were not produced along 8 with the charge-sheet.
Neither the investigating officer has stated before the trial court in his statement that he has investigated about the connection of the accused-appellant - Sonu with other accused- appellants nor he has found incriminating evidence to the effect that just before the incident or prior to that the accused-appellant- Sonu was in contact with other accused-appellants. It is also contended that no recovery of any item has been effected at the instance of the appellant - Sonu and looking to this fact, it is clear that the trial court has wrongly convicted the accused-appellant - Sonu for the offence punishable under section 120-B IPC in addition to the offence under section 395 IPC.
Learned counsels for the appellants have, therefore, prayed that these appeals may be allowed and the impugned judgment passed by the trial court may be set aside.
In the alternative, learned counsel for the appellants have submitted that the trial court has given very harsh punishment to the accused-appellants and sentenced them for 10 years' rigorous imprisonment. It is contended that the accused-appellants are in jail since their arrest and they are the only bread earners of their families, therefore, the sentence awarded to them by the trial court be reduced to the period already undergone by them.
Per contra, learned Public Prosecutor has vehemently argued that the prosecution has produced unimpeachable evidence and proved before the trial court that on 28.01.2011 just ahead the Jhambar Bus Stand, Hanumangarh, appellants robbed Rs.2,75,000/- from the complainant PW.1 Rajesh Kumar and 9 thereafter ran away from there. It is also argued by the learned Public Prosecutor that witnesses of the recovery have verified the fact that the recoveries of the looted money, mobile phone and motorcycle were effected at the instance of the accused- appellants- Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh. It is also contended that since the accused-appellants were arrested soon after the incident in the presence of the complainant PW.1, there was no point in conducting test identification parade of the accused-appellants. It is also contended that the prosecution has sufficiently proved that the accused-appellant - Sonu alias Sandeep hatched a criminal conspiracy to commit the crime with other accused-appellants and therefore, the trial court has not committed any illegality in convicting the accused-appellants - Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh for the offence punishable under section 395 IPC and further to accused-appellant - Sonu alias Sandeep for the offence punishable under section 120-B IPC.
Heard learned counsel for the rival parties and carefully scrutinized the record of the case.
As per the prosecution story, the robbery was committed by the accused-appellants - Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh just ahead the Jhambar Bus Stand in the presence of accused-appellant Sonu.
PW.1 Rajesh Kumar in his statement before the court has stated that when he was proceeding towards Elnabad from Sri 10 Ganganagar in Jeep No.RJ04C1489, which was being driven by appellant - Sonu, then suddenly at about 9:45 AM, Sonu stopped the jeep without any reason and called accused-appellant Gurmukh in a loud voice, thereupon the accused-appellants came there, they plunked him down from the jeep and started beating him and looted Rs.2,75,000/-, which was kept in dashboard of the jeep and ran away on a motorcycle and ultimately he dialed No.100 from the mobile phone of accused-appellant - Sonu to the police.
It is noticed that PW.7 Ramchandra, Investigating Officer in his statement has stated that he received an information from Police Control Room, Hanumangarh on telephone at 10:5 AM and the Police Control Room informed that it has received a phone from one Rajesh Kumar on No.100 to the effect that near the Bus Stand of Jhambar, some persons looted Rs.2,75,000/- from him. PW.7 has stated that the said information received from PCR was recorded in Rojnamcha and the same was produced as Ex.P/13A.
As per PW.1 Rajesh Kumar, the police arrived at the scene within 20-25 minutes and there he gave written report Ex.P/1 to the Investigating Officer PW.7, who in his statement has stated that when he reached Jhambar Bus Stand, he found PW.1 standing there and after informing the police party about the incident, PW.1 handed over a written report Ex.P/1 to him.
Looking to the said piece of evidence, it is clear that PW.1 had immediately informed about the incident to the police and the police had also reached the spot immediately, where Ex.P/1 was submitted by the complainant to the Investigating 11 Officer. PW.1 Rajesh Kumar has further stated that the written complaint (Ex.P/1) given by him was sent for registration of the FIR and said version of the complainant is verified from the statement of PW.7 Ramchandra, Investigating Officer and PW.4 Rakesh Kumar.
So far as arrest of the accused - appellants - Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh, PW.1 Rajesh Kumar has stated that after some time of incident, above named appellants were arrested by the police in his presence. PW.7 Investigating Officer has also verified that after registration of the FIR, he along with the complainant and other police personnel went for the search of the accused-persons and after some time they arrested the accused-appellants - Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh vide Ex.P/3, Ex.P/4, Ex.P/5 and Ex.P/6, which had been verified by PW.1 Rajesh Kumar. Accused - Pala was arrested on 30.01.2011 in the presence of PW.5 Vijay Singh vide Ex.P/25 and Vijay Singh has verified the same. The recoveries of the looted money, motorcycle and mobile phone effected from the accused-appellants - Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh vide Ex.P/17, Ex.P/19, Ex.P/21, Ex.P/26 and Ex.P/27 have also been verified by PW.1 Rajesh Kumar, PW.5 Vijay Singh, PW.6 Mansingh and PW.7 Ramchandra respectively.
So far as argument of the learned counsel for the appellant to the effect that no identification parade of the accused- 12 appellant - Sonu alias Sandeep was conducted and, therefore, the involvement of the above accused-appellants in commission of crime is not proved beyond reasonable doubt is considered but for rejection only.
The incident took place at about 9:45 AM and matter was reported to the police immediately. The police had also arrived at the scene of crime within around half an hour. Thereafter, the Investigating Officer had proceeded for the search of the accused-appellants and three accused-persons viz. Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet were immediately nabbed within few hours of the incident in the presence of the complainant PW.1 Rajesh Kumar.
Looking to the above circumstances, the trial court has rightly held that when the accused-appellants - Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet were immediately arrested within few hours of the incident in the presence of the complainant himself, there was no need of conducting identification parade of those accused-appellants.
So far as the recoveries of the looted money, motorcycle and mobile phone are concerned, the same have been verified by the witnesses and despite long cross-examination of PW.1 and PW.7, the defence has failed to impeach their credibility.
The complainant PW.1 Rajesh Kumar in his complaint and in the court statements has alleged that four accused- appellants viz. Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh had assaulted him after dragging him from the vehicle and he received injuries 13 on his nose, left cheek, ring finger of left hand and on left knee. The injury report is exhibited as Ex.P/11 by the prosecution and PW.3 Dr Lalit Kumar Sharma has verified the said injuries in his court statement.
After carefully scrutinizing the record of the case, this Court is of the opinion that the prosecution has sufficiently proved that the accused-appellants - Gurmukh Singh, Bogi alias Harvindra Singh, Chand Singh alias Charanjeet and Pala alias Satpal Singh looted Rs.2,75,000/- from the complainant PW.1 Rajesh Kumar at 9:45 AM on 28.01.2011 just ahead Jhambar Bus Stand, District Hanumangarh while causing hurt to him.
However, there is force in the argument of the learned counsel for the appellant - Sonu alias Sandeep that he has falsely been implicated in this case.
It is noticed that as per PW.1 Rajesh Kumar, soon after the incident he took the mobile phone of accused-appellant Sonu and informed the police about the incident by dialing 100. He has further stated that police reached the spot immediately, however, by that time, the accused-appellant - Sonu remained present on the spot. PW.7 Ramchandra in his statement has also verified the presence of appellant - Sonu when he reached the spot upon receiving information regarding the crime.
It is to be noticed that the accused-appellants Gurmukh Singh, Bogi alias Harvindra Singh and Chand Singh alias Charanjeet were arrested on 28.01.2011 at 12:35 PM, 12:55 PM and 1:10 PM respectively, however, the accused Sonu was arrested at 1:20 PM on 28.01.2011 though he was present at the 14 scene of crime when the police arrived. There was no reason for the police to arrest accused-appellant - Sonu at 1:20 PM when he was present at the site when the police had reached there. It is also to be noticed that it cannot be believed that a person, who is involved in a crime would wait for arrival of the police, whereas he had every opportunity to flee. It is also not believable that he called other accused-appellants for the purpose of commission of crime and when they committed the crime and ran away, the appellant - Sonu was waiting for arrival of the police. Even if it is assumed that PW.1 Rajesh Kumar took the mobile phone of appellant - Sonu and informed the police, there was no reason thereafter for the accused-appellant Sonu to remain present on the scene of crime till the reaching of the police.
Apart from that, the so called mobile phone of the accused-appellant - Sonu was not recovered from him but was given to the police by PW.1 Rajesh Kumar on 05.02.2011 i.e. few days after the incident. PW.7, Investigating Officer in his evidence has admitted that he has collected the call details of so called Sim of mobile phone of appellant - Sonu but the said call details were not produced as exhibits during the course of trial to prove that the accused-appellant - Sonu was in contact with the other accused-appellants just before the incident or prior to that. The Investigating Officer PW.7 in his cross-examination has admitted that he did not collect any evidence to prove that the Sim of the said mobile phone was issued in the name of the accused- appellant - Sonu and he is not aware that Sim No.8104761320 belongs to accused-appellant - Sonu. It is also to be noticed that 15 no recovery was effected from the accused-appellant - Sonu.
Looking to the above noted facts and circumstances of the case, this Court is of the opinion that the prosecution has failed to prove the charges punishable under section 395/120 IPC against the accused-appellant - Sonu alias Sandeep. Hence, his conviction for the said offence cannot be sustained and is liable to be set aside.
In view of the above discussions, appeal preferred by accused-appellant - Sonu alias Sandeep is allowed. His conviction and sentence recorded by the trial court vide impugned judgment is set aside. He be released forthwith if not required in any other case.
The appeals preferred on behalf of the accused- appellants - Gurmukh Singh, Chand Singh alias Charanjeet, Palla alias Satpal Singh and Bogi alias Harvindra Singh are dismissed, however, on account of acquittal of accused-appellant Sonu alias Sandeep, their conviction recorded by the trial court for the offence under section 395 IPC is converted into section 394 IPC and they are sentenced to undergo 7 years' rigorous imprisonment. It is ordered that the accused-appellants Gurmukh Singh, Chand Singh alias Charanjeet, Palla alias Satpal Singh and Bogi alias Harvindra Singh shall pay a fine of Rs.10,000/- each, in default of payment of fine, they shall further undergo 2 years' rigorous imprisonment.
The impugned judgment dated 09.05.2012 passed by the trial court is modified accordingly.
(VIJAY BISHNOI)J. m.asif/PS