Punjab-Haryana High Court
Shri Bhagwan And Others vs State Of Haryana on 23 October, 2013
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Appeal No.S-1813-SB of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.S-1813-SB of 2012(O&M)
Date of Decision: October 23, 2013
Shri Bhagwan and others ...... Appellants
Versus
State of Haryana ...... Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Vivek Khatri, Advocate for the appellants
Mr. C.S. Bakshi, Addl. Advocate General, Haryana.
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RITU BAHRI. J.
This criminal appeal has been filed against the judgment dated 04.05.2012 passed by learned Sessions Judge, Gurgaron, whereby the accused Shri Bhagwan, Tejbir and Surender Lal have been convicted under Sections 395 read with Section 397 and 412 IPC and were sentenced to undergo rigoruous imprisonment for a period of 7 years and to pay a fine of Rs.7,000/- or in default thereto to undergo further rigorous imprisonment for 7 months.
On 27.02.2010, Surender Singh was guarding the ATM of ING Vyasa Bank at Sector 4-5 round about Gurgaon as a security guard of CSS company. At about 4 a.m., when he was inside the cabin of ATM machine, a muffled faced person with goggles came in and asked him to put off the lights and asked for keys of the almirah. The guard Surender Singh again resisted then the intruder pulled out Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) -2- a country made pistol from his back and showed it to Surender Singh-security guard to intimidate him. He handed over the keys of almirah to him. In the meanwhile, another miscreant entered the ATM cabin and on his advice security guard was pulled inside the almirah in the cabin by gagging his mouth by stuffing it with a cap and hands of the security guard were tied down. Thereafter, the miscreants dragged the ATM machine for its placement in the dicky of the car.
At 7.30 a.m. other security guard Bhupender came there. On their complaint, Sanjeev Kumar, S.H.O., P.s. Sector-5, Gurgaon came there.
On the disclosure statement Ex. PA made by one Pankaj interrogated by the police of police station Vasant Kunj, South Delhi in another case that they had dismentalled and removed the currency notes from the ATM machine of ING Vyasa bank from the crossing of Sector 4-5, Gurgaon on the night of 27.02.2010. He further disclosed that after removing currency notes, the machine had been thrown in the forest near village Kanheli. Thereafter, the ATM machine was taken into possession. On further clues becoming available accused Siri Bhagwan, Tejbir and Surender Lal were arrested by the Investigating Officer ASI Pardeep Kamar-PW13 on 22.07.2010. the disclosure statements made by all the three accused are as under:
Disclosure statement Ex-PM made by accused Siri Bhagwan is to the effect that out of the looted amount Rs.2,12,000/- had come to his share, out of which Rs.17,000/- were with him and the remaining amount had been spent by him. The recovery of Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) -3- currency notes was made vide Ex.PS/1.
Disclosure statement Ex.P-N made by accused Tejbir Singh before the Investigating Officer ASI Pardeep Kumar-PW-13 to the effect that out of the looted amount out of his share of amount only Rs.13,000/- were with him and the remaining amount had been spent by him. He further disclosed that he could get Rs.13,000/- recovered from his house in village Yakupur, which was taken into possession vide recovery memo Ex.PS. Disclosure statement Ex.PO was made by accused Sunder Lal to the effect that out of the looted amount only Rs.20,000/- were with him and the remaining amount of his share had been spent by him. He further disclosed that he could get Rs.20,000/- recovered from his house in village Yakupur, which was taken into possession vide recovery memo Ex.PS/2.
After completing the investigation, challan was presented by Inspector Sanjeev Kumar in the trial Court. The case was committed to the Court of Sessions as the offences under Sections 395 and 397 were exclusively triable by the Court of Sessions, vide order dated 10.01.2011. The prosecution examined 14 withnesses:
PW-1 Constable Amit, PW-2 ASI Richhpal Singh, PW-3 Sqnldr. Om Parkash, PW-4 Girish Kumar, Draftsman, PW-5 Sumesh Gambhir, Branch Manager, PW-6 Inspector Sanjeev Kumar, PW-7 SI Sukrampal, PW-8 Surender Singh (Security Guard), PW-9 Jyoti Parkash Pardhan, PW-10 Sartaj, PW-11 Constable Vikram (recovery witness), PW-12 Bhupender, Security Guard, PW-13 ASI Pardeep Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) -4- Kumar (Partly Investigating Officer) and PW-14 SI Rambhaj.
The statements of all the three accused were recorded under Section 313 Cr.P.C., wherein they denied the case of prosecution. Charges under Sections 395 read with Section 397 IPC were framed against them.
As per deposition of the statement Surender Singh PW-8 Security Guard that on the intervening night of 26-27.02.2010, he was posted as Security Guard. At about 3 a.m., one muffled faced person with goggles came in cabin of the ATM and asked him to put off the lights and asked for keys of the almirah. After taking the keys of the almirah he was locked in almirah of the cabin by tying his hand and muffling his mouth with the cap and put the ATM machine in the diggy of the car. Thereafther PW12 Bhupender another Security Guard came in the morning and reported the matter to the police vide report Ex.PF. PW10 Senior Manager, CSS Private Limited has corroborated the version of the complaint that Surender Singh PW8 had been employed vide certificate Ex.PL, which proved Surendr Singh's duty hours. On the next morning on 27.02.2010, Bhupender PW12 was on duty from 8.00 am to 8.00 p.m. on the said ATM machine.
As per the deposition of PW5 Sumesh Gambhir, Branch Manager of ING Vyasa Bank, Gurgaon made in relation to the agreements Ex.PE and Ex.PD entered into between ING Vysya Bank and Prizm Payments Services for ATM network participation and there was Rs.11,63,000/- in the ATM machine at the time of Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) -5- incident. The ATM machine located at Sector 4-5 Gurgaon was taken into possession by the police of Shivaji Colony, Rohtak, which was found in village Kanheli near ganda nala.
On 27.02.2010 an information was received by Inspector Sanjeev Kumar PW6 from Inspector SI Ram Bhaj PW14 of police station Shivaji Colony, Rohtak to the effect that he had taken the said damaged ATM machine from the area of village Kanheli near Rohtak bypass. Inspector Sanjeev Kumar PW6 proceeded to Rohtak and the said ATM machine was handed over to him which was identified by Jyoti Parkash Pardhan PW9, which was taken into possession vide memo Ex.PH.
On a disclosure statement of accused Pankaj (facing a separate trial) Ex.PA which was proved by Sub Inspector Sukrampal PW7 to the effect that the ATM machine was removed from Sector 4- 5 round about, Gurgaon with the help of his associates. On receiving message form SI Sukrampal PW7, Police Station Vasant Kunj (South) Delhi on 09.03.2010 concerning this development, Inspector Sanjeev Kumar PW6 had rushed to Police Station Vasant Kunj, South Delhi and had collected said disclosure statement of co-
accused Pankaj. Inspector Sanjeev Kumar PW6 Investigating Officer got the police remand of co-accused Pankaj in two cases in which he was already interrogated in FIR No.59, dated 03.03.2010 under Sections 393 read with Section 34 IPC as also under Section 25 of the Arms Act, 1959 of Police Station Vasant Kunj South Delhi. Sub Inspector Sukrampal PW7 and Constable Amit PW1, who were Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) -6- posted in Police Station Vasant Kunj, South Delhi, supported the case of the prosecution.
Thereafter, Jyoti Parkash Pradhan of Faridaba PW9 joined the investigation being conducted by Inspector Sanjeev Kumar PW6 has proved taking in possession of damaged ATM machine vide memo Ex.PH of ING Vysya Bank Gurgaon. Thereafter, this was handed over by MHC Richhpal. Siri Bhagwan, Tejbir and Sunder Lal were arrested by ASI Pardeep, Investigating Officer PW13 on 22.07.2010.
The disclosure statements and recoveries have been discussed above.
After recording the disclosure statements of all the three accused, the place where they looted the ATM machine on 27.02.2010 was demarcated as EX.PQ. Thereafter, they led the police to ganda nala of Rohtak bypass and demarcated the place where the ATM machine was broken open and cash lying therein was taken out vide memo Ex.PR. Necessary proceedings were carried out by ASI Pardeep Kuamr PW13. The presence of Rs.11,63,000/- in ATM machine which is duly proved by PW5 Sumesh Gambhir, Bank Manager, ING Vysya Bank, Gurgaon at the time of occurrence, which is inconsonance with Ex.PM, Ex.PN and Ex.PO. These disclosure statements become admissible evidence under Section 27 of the Evidence Act and thus sustained the prosecution case. Jyoti Parkash Pradhan PW9 had affirmed the documents Ex.PE given by the Bank. Santro car in which the accused had arrived at the site of ATM Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) -7- machine at Gurgaon and had taken the said machine to he fields of village Kanheli near ganda nala Rohtak bypass was bearing registration No.HR-26J-9677, which belongs to Sqnldr was stolen from in the night of 18/19.02.2010 and FIR No.59, dated 19.02.2010 had been registered in the Police Station Sector 17/18 Gurgaon under Section 379 IPC. This fact supported the prosecution version that all the accused used the stolen car make Santro for committing robbery and dacoity in ATM machine in Sector 4-5, Gurgaon.
Moreover, the above fact coupled with the fact that the machine has been recovered after breaking it open at ganda nala near village Kanheli, Rohtak and the total amount was removed from the machine and distributed among themselves by all the accused.
Hence necessary evidence to connect all the accused with the commission of crime convicted by the demarcation where the ATM machine was recovered where it has been moved and had been broken open. Leaves not doubt that all of the accused facing trial who had participated in the commission of crime. As per disclosure statement of co-accused Pankaj Ex.PA further establishes that there is co-accused Michael @ Umesh. They were five in number. Umesh could not be arrested by the police. Pankaj had faced the trial separately. All the charges under Sections 395 and 397 were proved against the accused and they were convicted as stated above.
I have heard the learned counsel for the parties and perused the case file.
Learned counsel for the appellants has argued that as per Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) -8- disclosure statement made by co-accused Pankaj, all the three accused i.e. Siri Bhagwan, Tejbir and Sunder Lal have been charged for the offences under Sections 395 and 397. The disclosure statements of Pankaj cannot be treated as incriminating evidence against the appellants. It does not act against the appellants with the offence of dacoity. He has referred the judgments of this Court in Shamsher Singh Vs. State of Haryana2011(2) R.C.R. (Criminal) 235, Madan Mohan @ David Vs. State of Haryana 1997(3) Crimes1, and judgments of Hon'ble the Supreme Court in Pancho Vs. State of Haryana 2011(4) R.C.R.(Criminal) 665, Haricharan Kurmi Vs. State of Bihar 1964 AIR(SC) 1184, Sidharath etc. Vs. State of Bihar 2005(4) R.C.R. (Criminal) 651, Bhana Khalpa Bhai Patel Vs. Assistant Collector of Customs, Bulsar, Gujrat 1997(4) R.C.R. 851 and judgment of Delhi High Court in State and etc. Vs. Siddarth Vashisth alias Manu Sharma and others 2001 Cri.L.J. 2404.
Learned counsel for the State on the other hand has argued that as per Section 27 of the Evidence Act, the disclosure statement made by the accused, if some recovery is effected then the disclosure statement to that effect can be used against the anothr accused. The disclosure statement per se as substantial evidence but when a recovery is effected it create a link evidence and then it can be burst into service to enable the court to accept further evidence against the accused.
After going through the entire case and file, the prosecution Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) -9- case has worked in three different directions. Initially when complaint Surender Singh PW8 had reported the matter to the police when he was relieved from almirah of the ATM cabin by Bhupender. The Investigating Officer had proceeded to record the statement on the commission of offence. Further, an information was received from police station Vasant Kunj, South Delhi that co-accused Pankaj had made a disclosure statement that he along with other four co- accused had gone to the ATM machine and by removing the machine had taken it in the Santro car. The other three accused namely Siri Bhagwan, Tejbir and Sunder Lal were arrested and on their disclosure statements, recoveries of currency notes were effected from their houses. On receiving an information from police station Rohtak by PW9, they recovered broken ATM machine from village Kanheli, ganda nala Rohtak. The Branch Manager Sumesh Gambhir PW5 informed that there was Rs.11,65,000/- in the ATM machine at the time of incident, which was tallied with the disclosure statements of the accused. The accused led the police party to the place where they thrown the dismantled ATM machine and demarcation of the site was made and this fact was affirmed by the Investigating Officer.
In view of the fact that the recovered amount tallied with the information given by the bank officer, for strengthening the prosecution case, the Investigation was complete with all the material evidence. As per learned counsel for the appellants, disclosure statements is not substantive piece of evidence by referring the judgment of Hon'ble the Supreme Court passed in Haricharan Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) - 10 - Kurmi Vs. State of Bihar 1964 AIR(SC) 1184. This issue came before consideration in paragraph 13 of the Hon'ble Supreme Court observed as under:
13. " It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way.
Because whatever is considered by the Court is evidence; circumstances which are consider by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained is Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526 where the decision of the Privy Council in Bhuboni Sahu's case, has been cited with approval."
Confessional evidence made by an accused make an evidence conviction of co-accused it can be used.
The Hon'ble Supreme Court in Sidharth ect. Vs. State of Bihar 2005(4) R.C.R. (Criminal) 651 held as under: Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) - 11 -
"19.It is true that the confession made by a co-accused shall not be the sole basis for a conviction. This Court in Kashmira Singh vs. The State of Madhya Pradesh AIR 1952 SC 159 held that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
The stage of confessional statement other evidence is available and considered and found to be satisfactory.
The Hon'ble Supreme Court Pancho Vs. State of Haryana 2011(4) R.C.R. (Criminal) 665 in considering the case under Section 302 IPC and with regard to extra judicial confession of co-accused observed as under:
" Since there was no evidence to establish the involvement of accused, the conviction of the accused was set aside."
As per disclosure statement made by co-accused Pankaj, three accused were arrested and recoveries of looted currency notes Rani Sarita 2013.10.29 10:48 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1813-SB of 2012 (O&M) - 12 - after recording their statements were made. Moreover, damaged ATM machine was recovered for village Kanheli, ganda nala Rohtak. As per the deposit of PW6, Bank Manager Sumesh Gambhir that the amount lying in the ATM machine tallied with the amount so stated by the three accused separately in their disclosure statements and they led the police to the place where the ATM machine was recovered.
In view of the above evidence, the disclosure statement has been rightly considered to substantiate the prosecution version that all the three accused have committed dacoity on 27.02.2010 by removing the ATM machine from the ATM cabin after breaking taken away the currency and thrown the ATM machine at village Kanheli ganda nala Rohtak. The judgment and conviction does not require any interference.
Accordingly, the appeal is dismissed.
(RITU BAHRI)
October 23, 2013 JUDGE
sarita
Rani Sarita
2013.10.29 10:48
I attest to the accuracy and
integrity of this document
Chandigarh