Punjab-Haryana High Court
Ramesh vs State Of Haryana on 7 January, 2016
Author: Daya Chaudhary
Bench: Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. Criminal Appeal No. S-1263-SB of 2004
Date of decision: 07.01.2016
Ramesh ..Appellant
Versus
The State of Haryana ..Respondent
2. Criminal Appeal No. S-1277-SB of 2004
Azad ..Appellant
Versus
State of Haryana ..Respondent
3. Criminal Appeal No. S-1292-SB of 2004
Joginder ..Appellant
Versus
State of Haryana ..Respondent
4. Criminal Appeal No. S-1317-SB of 2004
Vikas ..Appellant
Versus
The State of Haryana ..Respondent
5. Criminal Appeal No. S-1687-SB of 2004
Dharamjit alias Kala ..Appellant
Versus
State of Haryana ..Respondent
NEETU RANI
2016.01.20 12:44
I attest to the accuracy and
authenticity of this document
Chandigarh
Criminal Appeal No. S-1263-SB of 2004 2
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
1. Whether reporters of local newspapers may be allowed to
see judgment? Yes
2. To be referred to reporters or not?Yes
3. Whether the judgment should be reported in the Digest?Yes
Present: Mr. Rahul Vats, Advocate
for the appellants in CRA-S-1263-SB of 2004
and CRA-S-1317-SB of 2004.
Mr. N.C. Kinra, Advocate
for the appellant in CRA-S-1277-SB of 2004.
Mr. U.K. Agnihotri, Advocate
for the appellant in CRA-S-1292-SB of 2004.
Mr. Sagar Aggarwal, Advocate
for the appellant in CRA-S-1687-SB of 2004.
Mr. Baljinder Singh Virk, DAG, Haryana
for the respondent - State.
Daya Chaudhary, J.
By this judgment, five Criminal Appeal Nos. S-1263-SB, S- 1277-SB, S-1292-SB, S-1317-SB and S-1687-SB of 2004 shall be disposed of as all the appeals have arisen out of same judgment of conviction and order of sentence. However, for the sake of convenience, the facts are being extracted from CRA-S-1687-SB of 2004.
Brief facts as per the prosecution version are that on 14.10.2001, complainant-Hans Raj Demla, lodged a complaint with the Police stating that he runs a shop of wood and stone. On 14.10.2001 at about 7.00 PM, he started from his shop in his car bearing registration No. HR-10C-8570 for Sonipat. He was having an NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 3 amount of `2,30,000/- in his bag. He was also having certain papers pertaining to accounts of the shop, driving licence, voter card, registration certificate and insurance policy of the car in that bag. At about 8 pm. On reaching at his residence, he parked his car in the gallery of his house and closed the main gate. He also took out the bag containing the cash. The outside lights were on at that time. In the meantime, three young persons came inside after opening the gate and asked the complainant to hand over the bag containing cash to them. The complainant was knowing those persons as they used to come to his shop and their names were Ramesh Nai (Barber), Azad Pandit (Brahman) residents of Bakner and Vikas resident of Ahulana. The complainant asked the said persons as to what was the matter but all the three demanded the bag containing cash. The complainant became nervous and the bag was snatched from him by stating that he will be shot for not doing so. Azad and Vikas were armed with pistols. All the three ran away towards Bharat Hospital after snatching the bag. The complainant raised alarm but they were not visible.
On the basis of said statement of complainant, FIR was registered under Sections 392, 395, 397 of Indian Penal Code (for short 'IPC') and Section 25 of the Arms Act against five accused persons, namely, Azad, Ramesh, Joginder, Dharamjit @ Kala and Vikas. The accused were arrested and recovery of cash, country made pistol and knife was effected from them. The charges were framed under Section 397 IPC and Section 25 of Arms Act against NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 4 accused persons. All the accused pleaded not guilty and claimed trial.
The prosecution examined as many as fifteen witnesses. Thereafter, statements of the accused under Section 313 Cr.P.C. was recorded. The accused denied all the allegations and pleaded false implication and innocence.
On appraisal of evidence, the trial Court convicted the accused persons for offence punishable under Section 412 IPC vide judgment of conviction dated 31.05.2004 and sentenced them to undergo RI for a period of 7 years and to pay fine of `3000/- each with default clause vide order of sentence dated 05.06.2004. Accused, namely, Azad, Joginder alias Dhola and Vikas were also convicted under Section 25 of the Arms Act for keeping in their possession unlawful arms and ammunition and were sentenced to undergo RI for a period of 3 years and to pay a fine of `2000/- each with default clause. Accused, namely, Ramesh and Dharamjit alias Kala were also convicted under Section 25 of the Arms Act for keeping in their possession illegally knife and both were sentenced to undergo RI for a period of one year. The sentences of imprisonment were ordered to run concurrently.
All the accused-appellants filed five appeals separately to challenge the judgment of conviction dated 31.05.2004 and order of sentence dated 05.06.2004.
Mr. Sagar Aggarwal, Advocate appearing for accused- appellant-Dharamjit alias Kala submits that even the complainant- NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 5 Hans Raj Demla (PW1) and his son Tarun (PW2), while appearing in the Court, have not supported the case of the prosecution. They have specifically stated that they did not know the accused persons present in the Court. No other witness of the alleged occurrence has been examined by the prosecution. Learned counsel further submits that the alleged recovery of `22,000/- made from the appellant-Dharamjit cannot be connected to the amount snatched from the complainant as no identification mark on the currency notes was mentioned by the complainant. Simply by recovering the amount, the appellant cannot be connected with the offence. Learned counsel also submits that the recovery of knife and money from the appellant is of no consequence as no independent witness was joined either during interrogation or when the disclosure statement was made or when the recovery was effected from the appellant. Learned counsel also submits that no knife was used in the alleged occurrence as it has not been mentioned in the statements of PW1 and PW2 that the appellant was carrying any knife. The knife has been planted upon the appellant. Learned counsel also submits that the appellant has been convicted for offence punishable under Section 412 IPC only but no charge under said section was framed against him.
Mr. Rahul Vats, Advocate appearing for accused-
appellant-Vikas has reiterated the arguments raised by learned counsel appearing for accused-appellant-Dharamjit alias Kala. Learned counsel submits that the accused-appellant was arrested on NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 6 01.11.2001 by the Investigating Officer Yashpal Singh SI (PW14). After receipt of secret information, the accused-appellant was interrogated but he did not make any disclosure statement while in Police custody. It was alleged that SI Yashpal Singh had interrogated the accused-appellant in the presence of HC Zile Singh and EHC Gopi Ram and a detailed confessional-cum-disclosure statement was made regarding involvement of the accused in the alleged incident. It was also stated in the disclosure statement that he had kept an amount of `55,000/-, one electricity bill belonging to complainant and a pistol in his residential house, which has been shown to be recovered. During trial, SI Yashpal Singh has simply deposed that while making disclosure statement, the accused-appellant had stated that he had kept the amount of `40,000/- in his residential house along with electricity bill and pistol. He did not state that the accused had made disclosure statement regarding `55,000/-. Learned counsel also submits that no independent witness was joined by the Police party. As per allegations, the alleged incident occurred on 14.10.2001 whereas the alleged recovery was effected on 02.11.2001. Learned counsel also submits that when offences under Sections 395 and 397 IPC have not been made out against the appellant, he cannot be convicted for offence punishable under Section 412 IPC.
Mr. U.K. Agnihotri, Advocate appearing for accused- appellant-Joginder has also challenged the judgment of conviction on the ground that the evidence was led by the prosecution to support NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 7 the charge under Section 397 IPC but that could not be proved. The appellant cannot be convicted under Section 412 IPC without framing any charge under said section. Learned counsel further submits that the complainant-Hans Raj Demla at whose instance, the FIR was registered has not supported the case of the prosecution. The accused were not identified by the complainant as the complainant resiled from his statement. Learned counsel also submits that the pistol and motorcycle were not stolen property and there was no identity of `55,000/-, which have been shown to be recovered from the appellant and no offence is made out under Section 412 IPC. It has not been proved on record that the accused were found in possession of stolen property and there was no independent witness to prove either the disclosure statement of the appellant or the alleged recovery. The only evidence is of HC Gopi Chand (PW13) and SI Yashpal Singh (PW14), who are highly interested being Police officers and their evidence is also inconsistent and conflicting, which cannot be relied upon. Learned counsel also submits that no sanction was given by the competent authority.
Mr. N.C. Kinra, Advocate appearing for accused-appellant- Azad submits that the offence under Section 412 IPC has not been incorporated in the charge and the appellant did not get opportunity to rebut the same and without leading any evidence, defence of the appellant has been prejudiced, which has resulted in the miscarriage of justice. Learned counsel further submits that the statement of the NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 8 accused-appellant under Section 313 Cr.P.C. was not recorded in accordance with law as the incriminating material was not put to the appellant. The accusation with regard to the offence under Section 412 IPC was not put to the appellant in his examination. Learned counsel also submits that the story of the prosecution is not worth believing as there was no reason as to why the accused would carry the electricity bill, RC, insurance policy and driving licence along with currency notes without having any identification mark on the currency notes. The recovery of currency notes cannot be connected with the offence. Learned counsel also submits that a valuable right of the appellant has been prejudiced by the joint trial for offence punishable under Section 25 of the Arms Act whereas separate FIRs had to be registered as the FIR in the case was registered without having any territorial jurisdiction. Neither the property in dispute was shown to the witnesses nor it was produced in the Court during trial. Complainant- Hans Raj Demla has not proved the alleged recovery on the basis of his statement made before the trial Court. Learned counsel also submits that mandatory provisions of Section 166 Cr.P.C. were not complied with by the Investigating Officer as the case pertained to Sonipat (Haryana) whereas the recovery of weapon and currency notes was effected from the area falling within the jurisdiction of Narela (Delhi). No copy of list of recovered articles was sent to concerned Police Station and to the nearest Magistrate empowered to take cognizance. Learned counsel for the appellant also submits that NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 9 the accused-appellant cannot be held guilty for offence punishable under Section 412 IPC as a presumption is there that in case of dacoity, the accused could be held guilty for offence under Section 411 IPC. The trial Court has erred in holding the appellant guilty under Section 412 IPC. It is also settled position of law that when charges have been framed under Section 395 IPC and the said charge fails on the basis of statements of prosecution witnesses, then only the alternative would be under Section 411 IPC. Learned counsel also submits that the pistol/revolver has not been proved to be a firearm as defined under the Arms Act as no fire test was done from the firearm and only with the mechanical test, it cannot be said that it was a serviceable weapon.
Mr. Rahul Vats, Advocate appearing for accused-
appellant-Ramesh has also argued that no charge was framed under Section 412 IPC and without framing any charge, the appellant cannot be convicted. Complainant-Hans Raj Demla (PW1) and his son Tarun (PW2) have not supported the case of the prosecution. The accused- appellant was arrested by the Police on 20.10.2001 and a detailed confessional-cum-disclosure statement was recorded by SI Yashpal Singh (PW14) in presence of HC Satpal Singh (PW12). On the basis of said disclosure statement, an amount of `40,000/- was recovered. The prosecution has failed to establish the exclusive and conscious possession of the accused-appellant in respect of currency notes worth `40,000/-, electricity bill and knife as the alleged recovery has NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 10 been effected from open and accessible to all place, which cannot be believed as there was no mark of identification over the currency notes. Learned counsel also submits that the house of the accused- appellant was situated in a thickly populated area but no public witness was joined by the Police party. It has not been proved on record that the knife was used by the accused-appellant for the purpose of commission of offence. Learned counsel for the appellant also submits that as per illustration of Section 114 of the Evidence Act, a man, who is in the possession of stolen goods soon after the theft can either be presumed to be a thief or receiver of stolen goods. There cannot be any presumption against the accused-appellant that he has dishonestly received and retained the stolen property. At the end, learned counsel for the appellant submits that at the most it can be an offence under Section 411 IPC and not under Section 412 IPC.
Learned counsel appearing for accused-appellants have also relied upon judgments of Hon'ble the Supreme Court in Pramod Bhanudas Soundankar vs. State of Maharashtra, 2013 (1) RCR (Criminal) 507, K. Prema S. Rao vs. Yadla Srinivasa Rao, 2002(4) RCR (Criminal) 697, K. Venkateshwara Rao alias Venkatal Alias I. Rao vs. State represented by Inspector of Police, A.P., 2002 Supreme Court Cases (Cri) 1290, judgments of this Court in Chanan Singh vs. The State of Punjab, 2003(3) RCR (Criminal) 500, Om Parkash alias Ommi vs. State of Haryana, 1993(1) RCR (Criminal) 328, Allaudin @ Badal and others vs. State of Haryana, NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 11 2015(2) RCR (Criminal) 613, Jahangir vs. State of Haryana, 1996 (2) RCR (Criminal) 433, Jagan Nath and another vs. The State of Haryana, 1983 C.C. Cases 408 (HC), judgment of the Delhi High Court in Chaman Lal vs. The State, 1987(1) Recent Criminal Reports 308, judgments of the Andhra Pradesh High Court in Yatagari Srenivasulu and others vs. State of Andhra Pradesh, 2014(2) AndhLD (Criminal) 279, Yatagiri Sreenivasulu and two others vs. State of A.P., Hyderabad, 2015(1) AndhLD (Criminal) 353 and judgment of the Madhya Pradesh High Court in Khalaksing and others vs. State of M.P., 1992 CriLJ 1150 in support of their contentions.
Learned State counsel submits that the judgment passed by the trial Court is well-reasoned and speaking and the same has been passed after recording categoric finding. Being based on proper appreciation of evidence, no interference is required.
Heard arguments of learned counsel appearing for the accused-appellants as well as learned State counsel and have also perused the record of the trial Court including statements of prosecution witnesses with the assistance of learned counsel appearing for the accused-appellants.
In the present case, the FIR was registered on the basis of complaint made by Hans Raj Demla wherein it was stated that he was running a shop of wood and stones and while starting from his shop in his car for Sonipat, he was having an amount of `2,30,000/- in his bag NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 12 as well as certain papers pertaining to the accounts of the shop, driving licence, voter card, registration certificate of the car and insurance policy. On reaching at his residence, he parked his car in the gallery of his house and closed the main gate. He took out the bag containing cash. Meantime, three young persons came inside after opening the gate and asked the complainant to hand over the bag containing cash. The complaint was aware about the names of the accused persons as they used to come to his shop. The bag containing cash was snatched under threat that he will be shot in case, the same is not handed over to them. After snatching the bag, all the three accused persons ran away towards Bharat Hospital and complainant raised alarm.
The accused persons were convicted for offence punishable under Section 412 IPC and sentenced to undergo RI for a period of seven years with fine and default clause. Accused- appellants, namely, Azad, Joginder alias Dhola and Vikas were also convicted under Section 25 of the Arms Act for keeping in their possession unlawful arms and ammunition and were sentenced to undergo RI for a period of three years with fine and default clause. Five accused have filed separate appeals to challenge the judgment of conviction and order of sentence.
Complainant-Hans Raj Demla (PW1) and his son Tarun (PW2) have not supported the case of the prosecution. They have stated in their respective statements that they did not know the NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 13 accused persons present in the Court. Although there were total 15 prosecution witnesses but no other witness from the place of occurrence was examined by the prosecution. The recovery of `22,000/- was made from accused-appellant Dharamjit but there was no identification mark on the currency notes. Only on the basis of recovery of amount, accused-appellant-Dharamjit has been convicted. No independent witness was joined during interrogation or when the disclosure statement was made. It has also been mentioned in the statements of PW1 and PW2 that no knife was used in the alleged occurrence. It has been denied by both the said witnesses that accused-appellant Dharamjit was carrying knife at the time of commission of offence. Admittedly, the said accused has been convicted for offence punishable under Section 412 IPC whereas no charge was framed under said section against him.
The trial Court has proceeded on the assumption that offence punishable under Section 412 IPC is a minor offence as per provisions of Section 222 Cr.P.C., as compared to the offence punishable under Sections 395 and 397 IPC but there was no need to frame charge for lesser offence. Moreover, in a situation when the accused is acquitted of charge for offence punishable under Sections 395, 397 IPC, he cannot be convicted for offence punishable under Section 412 IPC and more particularly when charge under Section 412 IPC has not been framed holding that with the aid of Section 222 Cr.P.C., the offence under Section 412 IPC cannot be termed to be a NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 14 minor offence. Assuming that in case, the offence under Sections 395 and 397 IPC are not made out against the accused, he was under
obligation to explain the source from which he procured currency notes or other items.
In case, the prosecution intends to get the accused convicted for an offence punishable under Section 412 IPC, it must take the assistance of some other material, to establish that the property, which is found to be in possession of the accused of that offence, has been stolen in the process of dacoity. Mere possession of property by an individual, even if he is not able to explain the source thereof, cannot lead to a conclusion that it has been the one stolen in the process of dacoity. The possession of every stolen property does not lead to an offence under Section 412 IPC. It is only the property, that is stolen through dacoity, that would become relevant. Moreover, offence under Section 412 IPC cannot be termed as a minor offence as has been held in Yatagiri Sreenivasulu's case (supra). It has also come on record that accused-appellant Dharamjit was arrested on 01.11.2001 by the Investigating Officer Yashpal Singh SI (PW14). He was interrogated but he did not make any disclosure statement while in the Police Station whereas as per statement of Investigating Officer, he made a detailed confessional-cum-disclosure statement regarding involvement of other accused in the alleged incident. It was stated in the disclosure statement that he had kept an amount of `55,000/-, one electricity bill and a pistol in his residential NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 15 house but the Investigating Officer did not state that the accused had made disclosure statement regarding amount of `55,000/-. It is also not disputed that no independent witness was joined by the Police at the time of recovery of the amount. Accused-appellant Dharamjit was acquitted of the charge under Sections 395 and 397 IPC and cannot be convicted for offence punishable under Section 412 IPC.
As far as case of accused-appellant Joginder is concerned, even in case of recovery of pistol and motorcycle, it cannot be said that it was a case of stolen property. As per prosecution version, the accused-appellant took electricity bill, RC, Insurance Policy and driving licence along with currency notes, which was without any identification mark and in absence thereof, the recovery of currency notes cannot be connected with the offence. Moreover, joint trial for offence punishable under Section 25 of the Arms Act has been done whereas separate FIRs have to be registered as the FIR in the case was registered without having any territorial jurisdiction. The mandatory provisions of Section 166 Cr.P.C. were not followed by the Investigating Officer as the case pertains to Sonipat (Haryana) whereas the recovery of weapon and currency notes was effected from the area falling within the jurisdiction of Narela (Delhi). Even the copy of list of recovered articles was not sent to concerned Police Station and to the nearest Magistrate empowered to take cognizance. As per illustration of Section 114 of the Evidence Act, if a person is in the possession of stolen goods soon after the NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 16 theft, he can be presumed to be either a thief or receiver of stolen goods but in the present case, the accused-appellants have been acquitted of the charge under Sections 395 and 397 IPC and they cannot be held guilty for offence punishable under Section 412 IPC. At the most, it can be an offence under Section 411 IPC but not under Section 412 IPC.
It has been held by Hon'ble the Apex Court in K. Venkateshwara Rao's case (supra) that in case, the accused is charged under Sections 396 and 412 IPC, it would be presumed that the accused had no knowledge of the dacoity. In such circumstances, onus to prove that the accused was having knowledge is on the prosecution. In absence of such proof, the accused cannot be held guilty for offence punishable under Section 412 IPC. It has further been held that in case, the accused had denied the recovery but it is to be established that the documents were recovered on the information given by the accused, the same is not admissible in Evidence Act.
It has been observed by this Court in Jahangir's case (supra) that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. This general burden never shifts and it always rests on the NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 17 prosecution, in case, the prosecution has succeeded in discharging this burden of proving of case against the accused and even the strongest of suspicion does not constitute the proof required.
In the present case, the prosecution was bound to prove that the appellants have committed the alleged offence as it was in its knowledge that the alleged recoveries effected from them are stolen properties. Even the complainant has not identified the accused and has not supported the case of the prosecution.
On perusal of judgment of trial Court, it is evident that the trial Court has given a finding that the appellants have fully been connected with the offence from the recovery of items. The trial Court has committed a grave error in giving such finding as there are more reasons than as recorded by the trial Court. There is no reasonable or plausible explanation given by the prosecution to connect the link evidence with the alleged offence.
From the above discussion, it is clear that neither the identity of the appellants as the persons responsible for committing the alleged offence has been established nor identity of the articles including unidentified currency notes has been established to be the stolen property. Accordingly, the prosecution has miserably failed to prove any of the ingredients for the offence at hand.
Coming to the charge under Section 25 of the Arms Act against the accused-appellant Dharamjit, neither any independent witness was joined at the time of recovery nor it was within the NEETU RANI 2016.01.20 12:44 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No. S-1263-SB of 2004 18 jurisdiction of the Investigating Officer as it was a Different police Station, which even did not fall in State of Haryana, where the alleged offence has occurred.
In view of the facts and discussion as made above, all the five Criminal Appeal Nos. S-1263-SB, S-1277-SB, S-1292-SB, S- 1317-SB and S-1687-SB of 2004 are hereby allowed and the appellants, namely, Ramesh, Azad, Joginder, Vikas and Dharamjit alias Kala are acquitted of the charge. They are on bail as their sentence was suspended by this Court. Their bail/surety bonds stand discharged.
07.01.2016 (DAYA CHAUDHARY)
neetu JUDGE
NEETU RANI
2016.01.20 12:44
I attest to the accuracy and
authenticity of this document
Chandigarh