Punjab-Haryana High Court
Nawabudeen & Another vs State Of Haryana on 16 September, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
CRA-S No.2464-SB of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision:16.09.2013
CRA-S No.2464-SB of 2008 (O&M)
Nawabudeen & another .... Appellants
Versus
State of Haryana .... Respondent
CRA-S No.2396-SB of 2008 (O&M)
Mehfuj Alam .... Appellant
Versus
State of Haryana .... Respondent
CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY
Present: Mr. C.M.Munjal, Advocate
for the appellants in CRA-S No.2464-SB of 2008.
Mr. Bijender Dhankar, Advocate with
Ms. Geeta Sharma, Advocate
for the appellant in CRA-S No.2396-SB of 2008.
Mr. Dhruv Dayal, DAG, Haryana.
*****
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?
Anita Chaudhry, J.(Oral)
Two appeals have been directed against the judgment of conviction and order of sentence dated 26.11.2008 passed by Addl. Sessions Judge, Sonepat in FIR No.7 dated 14.01.2007 registered under Sections 395, 397, 412, 342 IPC at police station Kundli. The accused were convicted under Section 412 IPC and sentenced to undergo rigorous imprisonment for a period of seven years along with a fine of Rs.10,000/- each. In default of payment of fine they were to Bura Sonia 2013.09.30 12:43 I attest to the accuracy and integrity of this document Chandigarh CRA-S No.2464-SB of 2008 -2- further undergo simple imprisonment for one year.
The facts giving rise to the present appeal may now be narrated. Rakesh Bajaj, Director of M/s Universal Spares India Pvt. Ltd. made a complaint Ex.PA. On 13.01.2007 he left his factory after work and had gone to Delhi. The factory was locked from inside by his workers, who had living quarters on the second floor of the factory. B.K.Thapa was working as a security guard. The following morning at 5.30 am, the complainant received a call that some boys had scaled the boundary walls and had entered the factory to commit dacoity. They confined the workers in one room and took away copper wire from the factory in a vehicle brought by them. The complainant also informed that two of those persons were armed with pistols and the remaining were armed with dandas and iron rods. While leaving, those persons also snatched the cash, one nokia mobile from the labourers. The occurrence was stated to have taken place at 1.45 am.
The complainant immediately returned to his factory. On inquiry he found that a sum of Rs.13,300/- had been snatched from Roop Lal, Rs.2,400/- from Ram Dhari, Rs.1,170/- from Deepak and one Nokia mobile phone bearing No.9968409315 from Ram Parkash. The police registered the FIR and investigations were started. Accused Mehfuj Alam was arrested by the Special Staff of Delhi Police, who suffered a disclosure statement regarding his involvement in a case of District Sonepat. The concerned police station was informed accordingly. The police sought his production warrant and he was brought and formally arrested in the present case. He suffered a further disclosure that he had concealed 200 kgs of copper wire and could get the same recovered from the place of which only he knew. Bura Sonia 2013.09.30 12:43 I attest to the accuracy and integrity of this document Chandigarh CRA-S No.2464-SB of 2008 -3- He also named Isriale etc. On his disclosure, Nawabudeen, resident of Delhi was arrested, who suffered a disclosure statement that he had concealed 300 kgs of copper wire and he could get the same recovered. Chand Khan was also joined in the investigation after his production warrant were obtained. He was brought from Buland Shahar (UP). He suffered a disclosure that he had concealed 200 kgs of copper wire and could get the same recovered. All the three above named persons separately got the recovery effected as per their disclosures. Three other persons were named as associates but they could not be arrested. Challan against Mehfuj Alam, Nawabudeen and Chand Khan was filed under Section 395, 397 and 412 IPC.
Charge was framed against the accused under Section 395, 397, 342 and 412 IPC. They pleaded not guilty and claimed trial.
The prosecution examined ASI Ramesh Chander - PW-1 who had made an endorsement on the complaint Ex.PA and sent the same for registration of the FIR. He also prepared the site plan of the spot and recorded the statements of witnesses to the occurrence under Section 161 Cr.PC. Achhal Singh, Finger Prints Expert-PW-2 had lifted the chance prints, which were sent to FPB, Madhuban. Sudershan Kumari, photographer -PW-3 had taken the photographs. Constable Harphool Singh-PW-4 had taken the envelop containing chance prints, seal of SK, sample seal, negative to FPB Madhuban. HC Ramesh Kumar - PW-5 is also a formal witness had brought the chance prints and negatives of photographs from Rohtak, which were deposited with the MHC.
Jai Bhagwan-PW-6 had arrested Nawabudeen. He stated that the accused suffered a disclosure statement Ex.PB and had got Bura Sonia 2013.09.30 12:43 I attest to the accuracy and integrity of this document Chandigarh CRA-S No.2464-SB of 2008 -4- recovered a truck bearing registration No.HR-46-8922 and got recovered 100 kg copper wire. He stated that no public witness was present at the time of recovery. Subhash Chander-PW-7 deposed about the disclosure statement suffered by Chand Khan. He stated that the accused got recovered 100 kg of copper wire from Ghaziabad, which was taken into police possession vide recovery memo Ex.PC/1. Constable Rajesh Kumar-PW-8 had prepared the scaled site plan Ex.PD. ASI Jagdish Rai-PW-9 spoke about the arrest of Mehmood. He stated that he suffered a disclosure statement Ex.PE and got recovered 47 kgs and 53 kgs copper wire from near the drain at Karnal bypass.
Rakesh Bajaj, complainant-PW-10 deposed about the call he had received from his workers and gave a narration of the incident and the property that was looted. He stated that he reached the factory in the morning at 7.00 am and had found that the locks of factory had been broken by dacoits, who took the copper wire in a vehicle brought by them and also snatched the cash and mobile phone from the workers.
Deepak Kumar-PW-11 was working in the company owned by the complainant. He stated that copper wires were made in the factory and in the intervening night of 13/14.01.2007, 4-5 dacoits came and confined all the workers in a room. They were armed with pistols, knives and iron rods. Two persons guarded the room while remaining dacoits looted the factory and copper wires were stolen from the factory, which were taken in a tempo. He also deposed about the amount looted from Roop Lal, Ramdhari and Ram Parkash. He stated that after those persons had left when they were sure that there was no one, they managed to open the door and reported the incident to Bura Sonia 2013.09.30 12:43 I attest to the accuracy and integrity of this document Chandigarh CRA-S No.2464-SB of 2008 -5- the owner. He stated that he could not recognize any of the dacoit. Similar statement was also made by Roop Lal-PW-12 and corroborated the version spoken by PW-11.
ASI Ram Tirath - PW-13 had recorded the FIR. ASI Pehlad Singh - PW-15 had stated that accused Mehfuj suffered a disclosure statement Ex.PH and got recovered 100 kgs of copper wire, which was taken into police possession vide recovery memo Ex.PH/1. He further made another disclosure and got recovered 100 kg of copper wire from the disclosed place which was taken into police possession vide recovery memo Ex.PE/1.
SI Raj Singh - PW-16 spoke about the arrest of Nawabudeen, who suffered a disclosure statement Ex.PB and recovery of 300 kg of copper wire was effect on his statement. He stated that Chand Khan was arrested on 11.05.2007 and he suffered a disclosure statement Ex.PJ/3 and got a truck recovered along with R.C. which was taken into police possession vide recovery memo Ex.PB/2. He also stated that he also got recovered copper wire which was taken into police possession vide recovery memo Ex.PB/4. He stated that Chand Khan suffered another disclosure statement Ex.PC and pursuant to his statement, he got recovered copper wire weighing 100 kgs, which was taken into police possession vide recovery memo Ex.PC.
Constable Rajesh Kumar -PW-17 and Constable Ramesh Chander - PW-18 spoke about the interrogation of Mehfuj Alam and Nawabudeen and the separate disclosure statements Ex.PK and Ex.PJ suffered by them. Pardeep Kumar, Inspector - PW-19 had arrested Mehfuj Alam. He stated that he suffered a disclosure statement Ex.PH and got copper wire weighing 100 kgs recovered. Accused Mehfuj Bura Sonia 2013.09.30 12:43 I attest to the accuracy and integrity of this document Chandigarh CRA-S No.2464-SB of 2008 -6- Alam suffered another disclosure statement Ex.PE and got recovered 100 kgs of copper wire. He submitted challan against all the accused on completion of investigation.
In the statement recorded under Section 313 Cr.PC , the accused simply denied the allegations and pleaded false implication. They offered to lead evidence but failed to lead any evidence.
The trial Court found that the charges under Section 395, 397 and 342 IPC had not been proved and convicted the appellants under Section 412 IPC alone.
I have heard learned counsel for the parties and have carefully perused the record with their assistance.
Learned counsel representing the appellants took me through the statements given by the witnesses and to the findings recorded by the trial Court and it was urged that none of the witnesses had identified the culprits and no conviction was recorded under Section 395, 397 and 342 IPC by the trial Court and if dacoity was not established there could be no conviction under Section 412 IPC as the prosecution was burdened with the responsibility of first proving that the accused knew that the case property was looted. It was urged that no independent witness was joined at the time of disclosure or at the time of recovery and the recovery is doubtful and at the most a case under Section 411 IPC would be made out and the accused remained in custody for over 2 years and maximum sentence under Section 411 IPC is three years and they may be sentenced to undergo the period already undergone. Reliance was placed upon Bimlesh vs. State of Haryana, 2011(1) RCR (Criminal) 747.
Per contra, the learned counsel representing the State Bura Sonia 2013.09.30 12:43 I attest to the accuracy and integrity of this document Chandigarh CRA-S No.2464-SB of 2008 -7- submitting his argument urged that the accused had made disclosure statements and pursuant to that, recovery of looted property was effected from them and it is another matter that the witnesses could not identify the assailants as their faces were covered. It was urged that since the number of persons, who were involved, were more than five, it was a case of dacoity and the judgment of the lower court is well reasoned and be confirmed.
In order to appreciate the argument, it is necessary to notice the evidence. The complaint was lodged by Rakesh Bajaj - PW-10 who was not present at the spot, therefore, his evidence is not relevant regarding the incident. He had received information regarding the incident on telephone from his workers and he had arrived in his factory the next morning. As it is apparent Rakesh Bajaj is not an eye-witness. He has only disclosed what was told to him by his workers. Deepak Kumar - PW-11 and Roop Lal - PW-12 have only spoken about the incident, which occurred in the factory at night. They have only stated that 4-5 dacoits came and bolted them in a room and they were armed with weapons and two on them stood as guards while the remaining dacoits looted the factory and took away the copper wires in a vehicle. They failed to identify any of the accused. Both of them stated that they could not say whether the accused who were present in the Court were same persons, who committed dacoity in the factory. The remaining witnesses are official witnesses, who have either prepared the site plan or taken the photographs, chance prints or those who had delivered the same to the FPB Madhuban. The other official witnesses spoke about the disclosure statements and the recovery from the accused. Only that Bura Sonia 2013.09.30 12:43 I attest to the accuracy and integrity of this document Chandigarh CRA-S No.2464-SB of 2008 -8- part of the statement can be admitted, which leads to recovery and the remaining part of the statement cannot be used against the accused. The trial Court had held that the charges under Sections 395, 397 and 342 IPC had not been proved and this fact has also been conceded by the Public Prosecutor. The trial Court in its observation in paragraph 31 of the judgment had noted that Rakesh Bajaj- complainant, Deepak Kumar-PW-11 and Roop Lal-PW-12-eye- witnesses have spoken about the dacoity during night and there was no cross-examination on this aspect, therefore, that part has to be accepted and dacoity was committed in the factory and since the recovery has been effected from the accused pursuant to their disclosures it connects them to the crime and it would be deemed that they had knowledge or reason to believe that the same was stolen property in a dacoity.
The finding recorded by the lower Court has to be set aside as once a view had been taken and the trial Court had come to a conclusion that the prosecution had failed to prove the charges under Sections 395, 397 and 342 IPC as none of the witnesses had identified the accused, therefore for it to say that dacoity had in fact been committed by the appellants is palpably wrong. Once the accused had been acquitted from the offence of dacoity, there was no material to hold that any dacoity had been committed by them. The State has not preferred any appeal against the judgment. Those findings had become final.
There was no material from which a finding could be given that the appellants were the persons, who had committed dacoity. No doubt, the police was able to recover the looted articles from the Bura Sonia 2013.09.30 12:43 I attest to the accuracy and integrity of this document Chandigarh CRA-S No.2464-SB of 2008 -9- appellants but it could not be held that the appellants have committed the offence under Section 412 IPC. The prosecution had failed to prove that the accused had knowledge or reason to believe that it was looted in a dacoity case. Thus the conviction is altered from Section 412 to 411 IPC.
The maximum sentence under Section 411 IPC is three years. The occurrence took place in the year 2007. The accused have remained in custody for over 2 years. Nawabudeen has been in custody for 2 years and 6 months. Therefore, considering the facts, the appellants are sentenced to imprisonment which they have already undergone.
The appeals are disposed of with the above observations. Lower Court record be sent back.
16.09.2013 (ANITA CHAUDHRY)
sonia JUDGE
Bura Sonia
2013.09.30 12:43
I attest to the accuracy and
integrity of this document
Chandigarh