Punjab-Haryana High Court
Cra No. 142-Sb Of 2 vs State Of Haryana on 2 July, 2013
CRA No. 142-SB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. CRA No. 142-SB of 2000
Date of Decision : 02.07.2013
Jitender @ Pappu ........ Appellant
Versus
State of Haryana ...... Respondent
2. CRA No. 221-SB of 2000
Deepak ........ Appellant
Versus
State of Haryana ...... Respondent
3. CRA No. 806-SB of 2000
Jasmer @ Jassa ........ Appellant
Versus
State of Haryana ...... Respondent
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. Sunil Saharan, Advocate
for the appellant.
(in CRA No. 142-SB of 2000)
Ms. Sharmila Sharma, Advocate Amicus Curiae
for the appellants.
(in CRA No. 221-SB of 2000 & CRA No. 806-SB of 2000)
Mr. R.S. Kundu, Addl. A.G., Haryana
CRA No. 142-SB of 2000 -2-
R.P. NAGRATH, J.
These are three criminal appeals arising out of common judgment of the trial Court. There were 8 accused, against whom charge- sheet was presented. The learned Sub Divisional Judicial Magistrate, Hansi committed the case for trial. During pendency of trial Rahul @ Bindu accused absented and he was declared a proclaimed offender.
2. The charges against all the accused were framed for offences under Sections 353 and 307 of Indian Penal Code (IPC). The charge against Suresh Kumar non-appellant who escaped custody of police escort party was also framed for offence under Section 224 IPC and the other accused for offences under Sections 225 and 120-B IPC.
3. The learned trial Court convicted Suresh Kumar son of Ram Murti co-accused under Section 224 IPC whereas Jasmer @ Jassa, Deepak and Jitender @ Pappu appellants for offences under Sections 307, 225 and 120-B IPC. The other three accused, namely; Suresh son of Chandan, Ram Niwas and Ajay were given benefit of doubt and acquitted of the charges framed against them. Jasmer @ Jassa, Deepak and Jitender @ Pappu appellants were sentenced to undergo rigorous imprisonment for 7 years and to pay fine of ` 500/- each, in default to further undergo rigorous imprisonment for 3 months under Section 307 IPC; rigorous imprisonment for five years and to pay fine of ` 500/- each, in default to further undergo rigorous imprisonment for three months under Section 225 IPC; and rigorous imprisonment for 2 years and to pay fine of ` 500/- each, in default to further undergo rigorous imprisonment for 3 months CRA No. 142-SB of 2000 -3- under Section 120-B IPC. Suresh son of Ram Murti was sentenced to undergo rigorous imprisonment for 5 years and to pay fine of ` 500/-, in default to further undergo rigorous imprisonment for 3 months under Section 224 IPC. The sentences awarded to three of the appellants on different counts were to run concurrently. Suresh Kumar son of Ram Murti accused, who was in lawful custody of Police escort party and got rescued by the appellants did not prefer appeal against his conviction and sentence.
4. The First Information Report (FIR) was registered on the statement of PW-22 Constable Satish Kumar. The version of prosecution in brief is that on 18.01.1996, PW-22 and Constable Satwant Singh PW-26 then posted in the Civil Lines, Hisar were escorting Suresh Kumar son of Ram Murti after producing him in the Court of Chief Judicial Magistrate, Hisar in FIR No. 73 dated 02.03.1992 under Sections 341/323/506 IPC Police Station Civil Lines, Hisar. The said accused was to be taken back to District Jail, Jind where he was detained in various cases pending against him for which the jail warrants were also handed to the escort party. In the court premises 5 or 6 persons came to meet Suresh Kumar accused out of whom one was claiming himself to be resident of village of Suresh Kumar. After speaking to Suresh Kumar those persons went away.
5. After producing Suresh Kumar accused in the Court the escort party was waiting for a bus outside the court compound on the Rajgarh-Hisar road, that in the meanwhile a Maruti Car of white colour stopped by the side of escort party. The occupants of Car enquired from CRA No. 142-SB of 2000 -4- the escort party as to where they were bound to go. PW-22 and PW-26 told that they were to go to Jind. Those persons offered lift to the escort party saying that they were going to Hansi and would drop them there. Besides the Car driver two more persons also sitting in the Car. The escort party alongwith Suresh Kumar accused boarded the Car. The occupants stopped the vehicle at petrol filling station of village Mayyar where they purchased petrol for ` 100/-. At the petrol filling station, one more person was made to sit in the Car.
6. When the Car reached near Raipur Minor, G.T. Road, Hansi at about 11.45 a.m., those three persons took out their respective .12 bore pistols, with an intention to kill the escort party and to get Suresh Kumar released from their custody. PW-26, who had handcuffed Suresh Kumar accused was sitting on the front seat of the Car, was given blows with barrel of the pistols. Suresh Kumar accused also entered into scuffle with the escort party. One of the assailants pointed barrel of his pistol on the temple of PW-22 and threatened to kill him. PW-22 was also slapped and given fist and kick blows and was thrown out of the vehicle. After covering some distance they also threw PW-26 out of the Car.
7. The assailants were, thus, successful in forcibly rescuing Suresh Kumar accused from lawful custody of escort party by causing injuries to the police officials and they fled in the Car towards Hansi side. The police officials could not note the Car number. The driver of Maruti Car was 25 years old fair complexioned, wearing black jacket, blue coloured jeans. The description of other three culprits and the clothes worn by them was also stated by PW-22 in the FIR recorded by PW-27 CRA No. 142-SB of 2000 -5- SI Om Parkash SHO of Police Station Sadar, Hansi. It was stated that Suresh Kumar was a notorious criminal and facing charges of looting, robbery, dacoity, murder and under Arms Act, in seven cases, pending against him.
8. PW-27 immediately rushed to the spot and prepared rough site plan Ex. PX. He came to the Government hospital, Hansi where PW-26 was admitted. Dr. K.S. Rathore PW-13 posted in the Government Hospital, Hansi conducted medico-legal examination on the person of PW-26 at 12.45 p.m on 18.01.1996 itself. He found 7 injuries on the person of PW-26. Injuries on the person of PW-26 were abrasions and haemothoma on occipital part of head and fresh bleeding from all the injuries. Ex. PM is the copy of medico-legal examination report. PW-26 also produced 7 warrants of detention of Suresh Kumar son of Ram Murti co-accused before the Sub-Inspector which were taken into possession vide memo Ex. PL. These warrants are Ex. P1 to P7, relating to FIRs mostly for offences of dacoity, theft, cheating, Arms Act and for causing injuries etc.
9. Prosecution also collected evidence of disclosures made by Jasmer Singh and Rahul proclaimed offenders with regard to pointing out the place of occurrence but no fact was thereby discovered. So this part of evidence is inadmissible. Jassa appellant was arrested on 16.02.1996 by PW-24 ASI Balwan Singh. SI Om Parkash PW-27 interrogated this appellant while in custody on 18.02.1996. The appellant made disclosure statement Ex. PR in pursuance whereof he got recovered the handcuffs and its two locks from the disclosed place for which the CRA No. 142-SB of 2000 -6- panchanama Ex. PS was prepared, attested by Constable Devinder Singh PW-17 and ASI Balwan Singh. Rough sketch of this place Ex. PY was also prepared. The locks of handcuff Ex. P-8 were also produced during the examination of PW-27
10. Prosecution also intended to lead evidence of disclosure statement made by accused Deepak and Rahul (proclaimed offender) made on 21.02.1996 before PW-19 ASI Ami Lal but that is inadmissible evidence as those statements have not led to discovery of any fact or recovery of any incriminating article. On completion of investigation the charge-sheet was presented against the accused.
11. The prosecution examined 30 witnesses in support of its case.
12. The accused were also examined under Section 313 Cr.P.C. They denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication.
13. The accused did not adduce any evidence in defence. The learned trial Court convicted the appellants and awarded sentences to them as aforesaid, whereas the other accused were acquitted of the charges framed against them.
14. I have heard learned counsel for the appellants and learned State Counsel. The record of the lower Court has also been carefully perused.
15. The incident in which Suresh Kumar son of Ram Murti an under-trial was rescued from lawful custody of the police escort cannot be questioned. PW-11 Constable Om Parkash from Police Lines stated that CRA No. 142-SB of 2000 -7- on 17.01.1996 PW-22 and PW-26 were deputed to escort Suresh Kumar prisoner from District Jail, Jind to Hisar to be produced before the Chief Judicial Magistrate, Hisar on 18.01.1996 and this statement of the witness has not been challenged.
16. PW-10 Chand Singh was Tent Head Constable posted in Police Lines, Hisar and stated that handcuffs were issued to Constable Satish Kumar PW-22 to escort prisoners from District Jail, Jind to Hisar. This statement of PW-10 has also not been assailed.
17. In consonance with the prosecution story as reported in the FIR Ex. PV by PW-22, it is also testified by PW-26 that Suresh Kumar prisoner was taken from District Jail, Jind by them on 17.01.1996 and for the night the detenue was kept in the District Jail, Hisar for being produced before the Chief Judicial Magistrate, Hisar on 18.01.1996.
18. PW-14 Naresh Kumar Warder in District Jail, Jind brought Register No. 16. He proved entry Ex. PN showing that Constable Satwant Singh PW-26 came to the District Jail, Jind at 1.55 p.m. on 17.01.1996 and also the entry Ex. PO to the effect that seven detention warrants of Suresh Kumar son of Ram Murti accused were also entrusted to him. PW-21 Subhash Goyal, Magistrate stated that Suresh Kumar appellant was produced before him on 18.01.1996 in FIR No. 73 dated 02.03.1992 under Sections 341/323/506/34 IPC and was remanded to judicial custody upto 25.01.1996. The jail warrants Ex. P6 bear signatures of the Magistrate. Statements of both these witnesses have not been challenged.
19. A feeble attempt was made by the defence to challenge the CRA No. 142-SB of 2000 -8- incident by suggesting to PW-22 and PW-26 that Suresh Kumar appellant escaped from the custody of escort party from Court compound itself. Another defence version was that the police officials escorting the accused manipulated injuries on their person to concoct the subsequent version to save their skin. The witnesses denied the above suggestion. There is no force in the above defence plea because immediately on the same day itself PW-26 was admitted in the Government hospital and so many injuries with fresh bleeding were found on his person. The FIR was also registered on the same day. Even mutilated and torn police uniform of PW-26 was taken into possession by the police as a piece of evidence to prove the incident. Shirt Ex. P-10 and Trouser Ex. P-9 were produced during examination of PW-26. There was otherwise no ulterior motive for the police officials to falsely implicate the accused in this case especially when the names of the culprits managing the escape of Suresh Kumar co-accused were not even mentioned in the FIR itself. The entire occurrence as reported was consistently testified by PW-22 and PW-26.
20. PW-4 Ram Niwas, Naib ASI in S.P. Office, Hisar testified about the posting of PW-22 and PW-26 in the Police Lines on the relevant date.
21. The learned counsel for appellants challenged the conviction of appellants mainly on the ground that identity of the culprits is not proved by cogent evidence. It is submitted that PW-1 Swami Ramdev Pathhi and PW-25 Baba Mahima Nand, cited by the prosecution to prove extra-judicial confession allegedly made before them by Jitender @ Pappu appellant, have turned hostile. It is submitted that PW-22 and CRA No. 142-SB of 2000 -9- PW-26 did not know the appellants prior to the incident and had occasion to see them on various dates when they used to appear in the trial Court and, therefore, there remains serious doubt to the identity of culprits.
22. The primary question would be whether the testimony of PW-22 and PW-26 to prove identity of the appellants being the persons involved in the escape of Suresh Kumar from their lawful custody inspires confidence .
23. PW-22 stated that after producing Suresh Kumar in the Court of Chief Judicial Magistrate they were waiting for some transport vehicle at the bus-stand outside the Court Complex of Hisar, that a Maruti Car of white colour came at about 11.00 a.m. and stopped near them. The occupants of the Car offered them a lift upto Hansi and they were going in the Car alongwith Suresh Kumar son of Ram Murti. In the way, the Car was stopped at petrol filling station and the petrol of Rs. 100/- was filled. At that place one more culprit boarded the Car. The witness has testified the entire incident that took place. PW-22 identified Deepak, Jasmer @ Jassa and Jitender @ Pappu to be three occupants of the Car who started inflicting injuries to them and PW-22 was pushed out of the Car by opening right side door of the Car. The culprits threatened the police officials by pointing revolver towards them. PW-22 further stated that he took lift from some other vehicle and proceeded towards Hansi. At a distance of 1 k.m. he saw Constable Satwant Singh PW-26 lying on the road in an injured condition.
24. PW-26 similarly stated that a Car stopped near them while they were waiting for a transport vehicle. They enquired as to where CRA No. 142-SB of 2000 -10- those persons were going and PW-26 requested occupants of the Car to give them lift upto Hansi. He also testified that the Car was taken to the petrol filling station from where they proceeded ahead. According to PW-26, no sooner the Car came on the main road that Jasmer @ Jassa, Deepak and Rahul took out pistols and they also gave beating to him and PW-22. Thereafter, both of them were pushed out of the Car. This witness identified three of the culprits, namely; Jasmer @ Jassa, Deepak and Rahul. Rahul, however, was subsequently declared a proclaimed offender as he absented during the trial. The appellants cannot take advantage of the wrong identification of third culprit, namely; Jitender @ Pappu by wrongly naming him as Rahul, who was in fact not appearing before trial Court on 24.05.1999 when PW-26 was examined. Rahul co- accused had already been declared as proclaimed offender by the trial Court on 31.01.1998 and did not appear thereafter till the conclusion of trial. The cross-examination of PW-22 and PW-26 was not directed to question the identity of these appellants particularly when seven accused were facing trial before the lower Court.
25. Learned counsel for the appellants contended that after these appellants were arrested in the case, they should have been joined in the test identification parade by PW-22 and PW-26, which could be the only authentic manner to prove identity of the culprits.
26. I do not find force in the above contention because PW-22 and PW-26 had sufficient opportunity of seeing the culprits while travelling in the Car and there was a scuffle and witnesses were inflicted injuries by the culprits who also threatened them at pistol point. It has CRA No. 142-SB of 2000 -11- been categorically stated by PW-22 that the culprits were not in muffled faces. The material question that could be put to PW-22 and PW-26 was that which of the culprit was driving the Car and who were sitting on the rear seat of the Car. It was also submitted that four persons cannot possibly sit on the rear seat of Maruti Car but there was no such suggestion to PW-22 to bring any improbability. PW-26 consistently stated in the cross-examination that Suresh Kumar co-accused was sitting between PW-26 and driver of the Car on the front seat. The above facts would establish that the witnesses have withstood the test of scrutiny despite extensive cross-examination.
27. The above evidence led through PW-22 and PW-26 is further corroborated from circumstantial evidence collected during investigation. It comprises of recovery of handcuffs in pursuance to disclosure statement made by Jasmer @ Jassa appellant.
28. PW-27 SI Om Parkash testified that Jasmer Singh appellant was interrogated on 18.02.1996 who made a disclosure statement that the handcuffs have been thrown by him in the in the bushes in the area of village Gatoli near Sunder minor canal and could get the same recovered. The disclosure statement made by this appellant is Ex. PR. PW-27 testified that Jasmer Singh appellant disclosed on interrogation that the handcuffs were kept concealed in the area of village Gatoli near Sunder minor canal. PW-17 Constable Davender Singh who was a member of police party headed by PW-27 also supported this version.
29. Both PW-17 and PW-27 further testified that Jasmer Singh appellant led the Police party to the recovery of handcuffs. These CRA No. 142-SB of 2000 -12- witnesses have been extensively cross-examined and they withstood the test of scrutiny. The contents of Ex. PR are to the effect that handcuffs were thrown in the Sunder branch canal at a distance of 2 kms. from the bridge of village Gatoli, in the area of village Brar Khera. The circumstances appearing in the cross-examination of PW-17 and PW-27 would corroborate the truthfulness of disclosure statement and its consequent recovery. The witnesses are consistent on the fact that Jasmer Singh @ Jassa appellant was interrogated in CIA Staff at 6.30 a.m. There is some discrepancy of time of recovery, which according to PW- 17 was 7.30 a.m. whereas according to PW-27 the recovery was made about 11.10 a.m. which is quite inconsequential. PW-17 in the cross- examination stated that the recovery was effected in the area of village Brar Khera which is inconsonance with the prosecution story. PW-17 also stated that the appellant searched for the handcuffs for half an hour who took it out of the water of canal minor. Otherwise the handcuff was not visible from outside. Both the witnesses stated that this canal minor is also called Sunder Branch, which is again consistent story. PW-27 stated that the recovery of handcuffs was effected from under the water of canal minor and they took about one hour in search of the handcuffs.
30. Appellant Jasmer Singh was arrested about one month after the occurrence and such a version of recovery of handcuffs could not have been manipulated.
31. During examination of PW-17 the handcuff Ex. P8 was produced. In cross-examination PW-17 stated that there was no serial number on the handcuff but serial number RM73 was inscribed on the CRA No. 142-SB of 2000 -13- locks (rings) as appeared during examination of PW-27. During examination of PW-27, locks (rings) Ex. P8 only were produced and the handcuff (chain) was produced during examination of PW-17. According to PW-27 handcuff (chain) and locks (rings) were got recovered by Jasmer Singh @ Jassa appellant from the canal minor. The recovery memo Ex. PS also shows that the recovery of the chain as well as two locks (rings) was made from the waters of canal minor. These articles were prepared into sealed parcel by the investigating officer. So the recovery made by searching for about half to one hour on the disclosure statement made by Jasmer Singh @ Jassa is a very material factor to further establish the prosecution case in identifying the appellants to be involved in rescuing Suresh Kumar co-accused from lawful custody of police escort party.
32. Therefore, the learned trial Court correctly appreciated the evidence and was not erred in holding that identity of appellants was proved by cogent and convincing evidence.
33. Evidence led through PW-23 Dharambir, Head Constable and PW-24 SI Balwan Singh to prove the recovery of a weapon from possession of Rahul need not be discussed as Rahul is a proclaimed offender.
34. I, however, agree with the contention of appellants' counsel that the circumstances in this case do not attract Section 307 IPC as the act committed by them is not proved to bring such intention or knowledge and such circumstances that there was any intention to cause the death of police officials escorting Suresh Kumar except that they threatened the CRA No. 142-SB of 2000 -14- witnesses with weapons held by them and while rescuing Suresh Kumar gave injuries to them. The police officials were ultimately thrown out of the vehicle by inflicting injuries to them in order to rescue Suresh Kumar co-accused. It is not a case where the culprits fired from the weapons with which they were armed. PW-22 stated that he was given slaps, fist and kick blows. The bodily injuries were, however, inflicted on the person of PW-26 in the process as the locks (rings) of handcuffs were attached with his belt. Therefore, the appellants would be liable for the offence under Section 353 read with Section 120-B IPC, and it is ordered accordingly.
35. As per detention warrants of Suresh Kumar son of Ram Murti co-accused was an under-trial prisoner in 7 cases. Jail warrants Ex. P2, Ex. P3 and Ex. P4 would show that he was involved in offences of dacoity and robbery. As per jail warrant Ex. P2 offences are under Section 399 and 402 IPC. Section 399 IPC is punishable for imprisonment for a term which may extend to 10 years apart from fine. Section 402 is punishable for imprisonment which may extend to 7 years. Ex. P3 arrest warrants is for offence under Sections 392 and 395 apart from Section 25 of the Arms Act, 1959. Section 395 is punishable with imprisonment for life or rigorous imprisonment which may extend to 10 years. Rest of the FIRs registered against Suresh Kumar co-accused are for lesser offences. Therefore, Part-II of Section 225 IPC would be attracted, which says that if the person to be apprehended and attempted to be rescued, is charged with or liable to be apprehended for an offence punishable for imprisonment for life or imprisonment for a term which CRA No. 142-SB of 2000 -15- may extend to 10 years, shall be punished with imprisonment of either description for a term which may extend to 3 years, and shall also be liable to fine.
36. The imposition of sentence upon appellants to the extent of 5 years rigorous imprisonment as imposed under Section 225 IPC cannot be sustained. Part III of Section 225 provides the punishment extending upto 7 years in case where rescued prisoner is charged with or liable to be apprehended for an offence punishable with death. The trial Court did not advert itself to the above legal propositions while awarding the sentence.
37. Therefore, the appeal is partly allowed, acquitting the appellants of the offence under Section 307 IPC and instead they are convicted of the offence under Section 353 read with Section 120-B IPC. Their conviction under Section 225 IPC is upheld under Part II thereof. The sentences are accordingly awarded as under:-
Sr. No. Under Section Punishment/Conviction
1 Under Section 353 Two years rigorous imprisonment and
read with Section to pay fine of ` 500/-, in default to 120-B further undergo rigorous imprisonment for three months.
2 Under Section 225 Three years rigorous imprisonment and
IPC to pay fine of ` 500/-, in default to
further undergo rigorous imprisonment
for three months each.
38. The substantive sentences of imprisonment shall run concurrently. The period undergone during investigation and trial of the case shall be set off against the substantive sentences of imprisonment.
39. The appellants are on bail and their bail bonds are cancelled. CRA No. 142-SB of 2000 -16- A copy of this judgment be sent to Chief Judicial Magistrate, Hisar, for issuance of re-arrest warrants to undergo remainder of the sentence as awarded above.
(R.P. NAGRATH) JUDGE July 02, 2013 jk