Punjab-Haryana High Court
Gagandeep @ Vinu And Another vs State Of Haryana on 20 February, 2013
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.S.1782 SB of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.S.1782 SB of 2012
Date of decision 20.02.2013.
Gagandeep @ Vinu and another
...... Appellants.
versus
State of Haryana.
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment? yes
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
Present :- Mr. Bipan Ghai, Senior Advocate with
Mr. Paras Talwar, Advocate for the appellants.
Mr. Amandeep Singh, AAG, Haryana
K.C.PURI, J.
Appellants-Gagandeep alias Vinu and Harpreet alias Raja have directed the present appeal against the judgment dated 25.4.2012 and order dated 26.4.2012 passed by Shri Lalit Batra, learned Sessions Judge, Kurukshetra vide which accused/appellants have been convicted under Sections 328, 411 and 420 of the Indian Penal Code (in short - the IPC) and accused Gagandeep alias Vinu was also held guilty and convicted under Criminal Appeal No.S.1782 SB of 2012 2 Section 419 of the IPC, and they were sentenced to undergo rigorous imprisonment as under :-
Under Section 328 IPC Rigorous imprisonment for five years and to pay fine of Rs.1000/- each. In default of payment of fine convicts shall further undergo rigorous imprisonment for a period of two months.
Under Section 411 IPC Rigorous imprisonment for two years and to pay fine of Rs.1000/- each. In default of payment of fine convicts shall further undergo rigorous imprisonment for a period of one month.
Under Section 420 IPC Rigorous imprisonment for three years and to pay fine of Rs.1000/- each. In default of payment of fine convicts shall further undergo rigorous imprisonment for a period of two months.
2. The prosecution of above mentioned accused have arisen out of the commitment order dated 21.1.2008 passed by Ms.Shalini Singh Nagpal, the then Additional Chief Judicial Magistrate, Kurukshetra. 3 The brief facts of the prosecution case are that on 1.7.2006, around 3.00 a.m., having received information regarding admission of patients Ajit Kumar Gopal and Neeraj Shukla in Aruna Asaf Ali Government Hospital, Rajpur Road, Delhi, Sub Inspector Ramji Lal of Police Post, I.S.B.T, Kashmiri Gate, Delhi, got recorded D.D.R. No.3 dated 1.7.2006 and having received the copy of same, Sub Inspector. Ramji Lal reached the hospital, from where, after receipt of copies of medico-legal reports of patients Ajit Kumar Gopal and Neeraj Shukla from the doctor concerned, sought his opinion about the fitness of above-said patients for Criminal Appeal No.S.1782 SB of 2012 3 recording their statements. However, both the patients were declared unfit to make statement. On the same day, around 8.30 p.m., patient Neeraj Shukla was declared fit to make statement vide opinion on the medico-legal report and thereafter, Sub Inspector Ramji Lal had recorded his (Neeraj Shukla) statement where he alleged that on 30.6.2006, around 7.30 pm, when he was going to Delhi from Chandigarh by a bus and at that time, a youth, aged about 22-25 years, was sitting nearby his seat. He further alleged that above-said youth had brought two bottles of milk at Bus-Stand, Pipli, out of which, that youth had given one bottle to him, which was drunk by him, whereas another one was drunk by that youth, however, after drinking that milk bottle, he got perturbed and became unconscious and when he regained his consciousness, he found himself to be admitted in the hospital and his camera, wallet, Walkman and ring of gold were found missing. On 2.7.2006, Sub Inspector Ramji Lal recorded the statement of another patient Ajit Kumar Gopal, wherein he alleged that on 30.6.2006, around 7.10 p.m., he had boarded a bus from Chandigarh for going Delhi and at that time, a youth, aged 25-26 years, also boarded that bus and sat beside him. He further alleged that when bus got stopped at Bus-Stand, Pipli, that youth brought two bottles of milk, out of which, one bottle was given to him, whereas he started drinking the another one, however, after having drunk the bottle of milk, he became unconscious and when he regained his consciousness, he found himself to be admitted in the hospital and his belongings i.e laptop, wallet credit cards of various banks, PAN card, Rs1,000/- in cash, mobile phone make Nokia, ring of gold and cheque Criminal Appeal No.S.1782 SB of 2012 4 book were found missing. As both the incidents had taken place at Bus- Stand, Pipli, falling under the jurisdiction of District Kurukshetra, Sub Inspector Ramji Lal having prepared his report dated 2.7.2006, had dispatched both the statements alongwith copies of medico-legal reports of Ajit Kumar Gopal and Neeraj Shukla and D.D.R. to Superintendent of Police, Kurukshetra for further necessary action. On the basis of abovesaid information, FIR was registered on 22.7.2006 in Police Station, Sadar, Thanesar. Necessary investigation was conducted. Rough site-plan with regard to place of occurrence was prepared. On 3.8.2006, Inspector Yashwant Singh contacted Ajit Kumar Gopal and enquired from him about the incident, which had taken place on 30.6.2006 and use of his credit cards of ICICI and HSBC Banks at Sachdeva Electronics, Fatehganj, Ludhiana and D.S. Mobile Gallery at Field Ganj, Ludhiana. On 7.8.2006, Inspector Yashwant Singh alongwith other police officials and Ajit Kumar Gopal reached Sachdeva Electronics, Fatehganj, Ludhiana, where its owner Malinder Singh told that on 1.7.2006, two boys had come to his shop with one credit card of ICICI Bank and purchased one mobile phone worth Rs.15,300/- having forged the signature of Ajit Kumar Gopal. Thereafter, above-said officials and Ajit Kumar Gopal went to D.S. Mobile Gallery, Field Ganj, Ludhiana, where its owner Gurnam Singh had told that on 1.7.2006, two boys came to his shop and purchased a mobile phone and when he asked about their identity, they started quarrelling with him. Thereafter, Inspector Yashwant Singh alongwith other police officials and Ajit Kumar Gopal reached ICICI Bank, Ludhiana, where its Area Risk Criminal Appeal No.S.1782 SB of 2012 5 Manager Parshant Sharma had handed over four credits cards of ICICI and HSBC Banks relating to Ajit Kumar Gopal to Inspector Yashwant Singh, which were taken into police possession, vide recovery memo. Again on 26.9.2006, Inspector Yashwant Singh alongwith other police officials visited D.S. Mobile Gallery, Ludhiana and having enquired from its owner Gurnam Singh and his father-in-law Darshan Singh, it was apprised that two youths, who had visited their shop on 1.7.2006, had also stolen one mobile phone make Nokia N-70 and then, their servant had clicked a photograph of those boys through his mobile phone. It was also apprised that during scuffle, one of those boys succeeded in fleeing, whereas another one was apprehended by them, who had handed over the Mini 02 mobile phone currency of 5000 Riyals of Iran four currency notes of the denomination of Rs.500/- each and one diamond ring to Gurnam Singh and abovesaid articles and one photograph of both youths were taken into police possession, vide recovery memo On 9.11.2006, both complainants Ajit Kumar Gopal and Neeraj Shukla were summoned in Police Station, Sadar, Thanesar and they were shown the photograph and they had identified those two youths, who had given them bottles of milk and looted their valuable belongings. On 10.11.2006, Inspector Yashwant Singh visited Police Stations C.R. Park, Pachim Vihar, Tilak Nagar and Crime Branch of Delhi and after seeing the photograph the police officials of those police stations stated that the youths, shown in the photograph were vagabond and told about the addresses of both the accused. On 18.11.2006, having received secret information, Inspector Yashwant Singh alongwith other Criminal Appeal No.S.1782 SB of 2012 6 police sleuths reached Tilak Nagar Market, Delhi, where both accused were seen coming in car make Indica bearing registration No.DL-8CL- 1482 and when the police officials gave signal to stop the car, they did not stop the same, however, they fled away after leaving the said car at red light signal, which was taken into police possession, vide recovery memo. On 24.11.2006, on receipt of secret information, accused Gagandeep was arrested at Bus-Stand, Pipli. On 25.11.2006, during interrogation, accused Gagandeep suffered disclosure statement , in pursuance of which, he led the police party to Sachdeva Electronics, Ludhiana and demarcated the said shop, from where he alongwith his co-accused purchased a mobile phone make Nokia 6270 having used credit cards pertaining to complainant Ajit Kumar Gopal and, in this regard, demarcation memo was prepared. Thereafter, accused Gagandeep led the police party to D.S. Mobile Gallery, Field Ganj, Ludhiana and demarcated the said shop and in this regard, memo of demarcation was prepared. Investigating Officer had also recorded the statement of Gurnam Singh. On 27.11.2006, during interrogation, accused Gagandeep had suffered another disclosure statement and in pursuance of which, he led the police party to his house No.WZ-423, situated at Tilak Nagar, Delhi and from the almirah lying on the first floor of his house, he got recovered a camera make Sony Handicam, which was identified by Neeraj Shukla, and one mobile phone make Nokia 6270, which were taken into police possession, vide recovery memo. Police had also prepared rough site-plan with regard to place of recovery of above-said articles. On 28.11.2006, accused Gagandeep was again interrogated and Criminal Appeal No.S.1782 SB of 2012 7 during interrogation, he suffered another disclosure statement and in pursuance of which, on 29.11.2006, he led the police party to Amritsar, however, when they reached at Jalandhar bye-pass, accused Gagandeep had retracted from his earlier disclosure statement and suffered another disclosure statement and on 30.11.2006, in pursuance of which, he led the police party to his rented house No WZ-135, situated at Virender Nagar, Delhi and got recovered one gold ring, which was taken into police possession, vide recovery memo and rough site-plan with regard to place of recovery of gold ring was also prepared. On 1.2.2007, investigation of instant case was entrusted to Sub Inspector Sita Ram, who on 9.4.2007, after arrest of accused Harpreet @ Raja, had joined him in investigation of this case and during interrogation, accused Harpreet @ Raja suffered disclosure statement, in pursuance of which, on 10.4.2007, he led the police party to Jaipur, where he had retracted from his earlier disclosure statement and, thus, they returned from Jaipur. On 11.4.2007, accused Harpreet @ Raja was again interrogated and during interrogation, he suffered another disclosure statement and in pursuance of which, he led the police party to his house No.WZ-143, Plot No.D-11, situated at Shahpura, Tilak Nagar, Delhi and got recovered one lap top make Dell, lying in an almirah make Godrej, which was identified by complainant Ajit Kumar Gopal and taken into possession, vide recovery memo and rough site-plan with regard to place of recovery of lap top was also prepared. On 12.4.2007, accused Harpreet Singh @ Raja led the police party to Sachdeva Electronics, Ludhiana and demarcated the same, where he alongwith co-accused Criminal Appeal No.S.1782 SB of 2012 8 Gagandeep alias Vinu while using the credit card of Ajit Kumar Gopal had purchased a mobile phone make Nokia-6270 and in this regard, memo of demarcation was prepared. Thereafter, accused Harpreet Singh @ Raja led the police party to D.S. Mobile Gallery, Ludhiana and demarcated the shop, where he alongwith co-accused Gagandeep @ Vinu had tried to purchase mobile phone and entered into scuffle, where co-accused Gagandeep @ Vinu was apprehended and in this regard, memo of demarcation was prepared. Statements of witnesses were recorded. After completion of investigation, accused were challaned under Sections 328, 379, 419 and 420 IPC.
4. Learned Illaqua Magistrate after supplying the copies of challan etc. committed the case to the Court of Session for trial of the accused under Sections 328, 379, 419 and 420 IPC, vide commitment order dated 21.1.2008.
5. On finding a prima facie case, accused were charge-sheeted under Sections 328 and 420 read with Section 34 IPC and under Section 411 IPC. In addition to that, accused Gagandeep was also charge-sheeted under Section 419 IPC as well. The accused did not plead guilty to the charges and claimed trial.
6. To substantiate its case, prosecution has examined PW-1 Sub Inspector Amar Singh, PW-2 Darshan Singh, PW-3 Gurnam Singh, PW-4 Sub Inspector Ramji Lal, Investigating Officer, PW-5 Sanjay Nagpal, PW-6 Head Constable Subhash Chander, PW-7 Sub Inspector Sita Ram, Investigating Officer, PW-8 Ajit Kumar Gopal, PW-9 Malinder Singh, PW- Criminal Appeal No.S.1782 SB of 2012 9 10 Neeraj Shukla, PW- 11 Neeraj Chhabra, Assistant Manager, ICICI Bank Limited, Panipat and PW-12 Inspector Yashwant Singh, Investigating Officer. Since despite availing several opportunities including last one, prosecution had failed to conclude its evidence, evidence of prosecution was closed, vide Court order dated 29.2.2012.
7. Statements of accused as envisaged under Section 313 Cr.P.C. were recorded, wherein all the incriminating material/evidence were put to them, but they have denied all the allegations levelled against them and stated that they were innocent and have been falsely implicated in this case at the instance of complainants.
8. The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused appellants as mentioned in the impugned order.
9. The learned counsel for the appellants has submitted that appellant does not challenge the conviction recorded by the trial Court under Sections 420 and 411 of the IPC as the appellants have already undergone sufficient period of sentence awarded under those provisions of law. However, counsel for the appellants has further submitted that so far as offence under Section 328 of the IPC is concerned that is not made out from the allegations of the prosecution.
10. Delhi High Court in authority Sanjay Singh & Anr. Versus State reported in 2008 VII AD ( Delhi ) page 151 held that accused cannot be convicted in a case under Sections 328/34 of the IPC in the absence of doctor who examined the victim after which they were brought Criminal Appeal No.S.1782 SB of 2012 10 to hospital and stomach wash not being sent for examination.
11. The learned State counsel has supported the judgment and order of the trial court.
12. I have considered the said submission and have gone through the records of the case with their able assistance.
13. These submissions do not cut ice before me. In a criminal case the sequence of occurrence has to be taken into account while deciding the case. The case of the prosecution is that the appellants administered some poisonous substance and thereafter robbed the complainant and other victim. The articles robbed of from these two persons were recovered from the accused.
14. Counsel for the appellants has not challenged the conviction recorded under Section 420 and 411 of the IPC. The statement of the complainant and other persons Ajit Kumar Gopal is relevant. They have been robbed off after taking milk supplied by the appellants. These two witnesses have categorically stated that they became unconscious and thereafter the appellants have robbed them. The factum of robbery has not been disputed. So, the statement of the complainant regarding the fact that they had become unconscious has to be accepted. These persons would have been become unconscious by administering some stupefying substance or some poisonous substance. A person cannot become unconscious merely by taking milk. The medico-legal report have been produced by the investigating officer although the doctor has not been examined. It is also proved on the file that complainant-Neeraj Shukla, Criminal Appeal No.S.1782 SB of 2012 11 Ajit Kumar Gopal have become unconscious and were taken to hospital where they were medico-legally examined. So, on the facts of the present case authority Sanjay Singh & Anr.'s case (supra) is not applicable to the facts of the present case as the victims in the present case have become unconscious and were taken to hospital where they were medico-legally examined. In the said case the accused has not admitted the factum of robbery. So, the chain of sequences is complete in the present case.
15. Learned counsel for the appellants has further submitted that appellants have undergone incarceration for more than two years and as such the sentence be reduced to the period already undergone by them.
16. I have considered the said submission but do not find any force in that submission.
17. As per conviction slip of the appellants, it is revealed that appellant Gagandeep @ Vinu is facing trial in two other cases under Section 328 read with Section 34 of the IPC and in two other cases under Section 328, 379 and 379/34 of the IPC he had been convicted. He has been acquitted in similar three cases registered under Sections 328 and 379 of the IPC etc. Appellant Harpreet alias Raja is facing trial in three cases registered under Sections 379, 328 and 411 of the IPC. One case has been shown as un-traced under Section 379/34 of the IPC. He has been acquitted in three cases registered under Sections 328 and 379 of the IPC. So, it seems that both the appellants are habitual offenders. Their modus operandi is to administer some stupefying substance or poisonous substance to passengers and get those persons robbed. So, the appellants are not entitled for any lenient view.
Criminal Appeal No.S.1782 SB of 2012 12
18. Consequently, the appeal is without any merit and the same stands dismissed.
19. A copy of this judgment be sent to the trial Court for strict compliance.
February 20, 2013 (K. C. PURI) sv JUDGE