Punjab-Haryana High Court
Varinder Singh @ Bikkas vs State Of Punjab on 29 February, 2012
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
Criminal Appeal No.988-DB of 2009 ::1 ::
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of decision: February 29, 2012
Criminal Appeal No. 988-DB of 2009
Varinder Singh @ Bikkas
.. Appellant
Vs.
State of Punjab
.. Respondent
Crl. Appeal No. 2686-SB of 2009
Charanjit Singh @ Rajan and others
.. Appellants
Vs.
State of Punjab
.. Respondent
Crl. Appeal No. 2405-SB of 2010
Sanjay Sehgal @ Sanju
.. Appellant
Vs.
State of Punjab
.. Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice A.N. Jindal
Present: Mr.Rajiv Joshi, Advocate for the appellants as Amicus
Curiae.
Mr.Pavit S.Mattewal, Additional Advocate General,
Punjab.
***
A.N. Jindal, J This judgment shall dispose of three connected criminal appeal Nos. 988-DB of 2009, 2686-SB of 2009 and 2405-SB of 2010, having arisen out of the same judgment.
Criminal Appeal No.988-DB of 2009 ::2 ::
The accused appellants- (herein referred as, 'the accused') were indicted by the police of Police Station Sadar, Ludhiana for committing dacoity at the house of Surinder Pal Singh Bajwa and committing murder of Jaswant Kaur and causing injuries to Gurdeep Kaur and Amandeep Kaur. Consequently, they were tried, convicted vide judgment dated 13.10.2009, passed by the learned Additional Sessions Judge, Fast Track Court, Ludhiana and sentenced as under :-
Varinder Singh U/s 460 IPC : Rigorous imprisonment for life and to pay fine of Rs.2000/-.
U/s 458/459 IPC : Rigorous imprisonment for ten years and to pay fine of Rs.2000/- on both counts.
Charanjit Singh, Sanjay Sehgal, Kamal Kumar, Gurmeet Singh and Sanjeev Kumar U/s 458/459/460 IPC : Rigorous imprisonment for ten years and to pay fine of Rs.2000/- each, on each count.
A resume of facts leading to the prosecution of the accused is that Surinder Pal Singh Bajwa had been residing in H.No. 65, Gali No.7, Mohalla Jagjit Nagar Threeke, Police Station Sadar, Ludhiana. The complainant Jatinder Singh Bajwa is his son. A dacoity had taken place at his house on the intervening night of 12/13.10.2005, about which Jatinder Singh Bajwa complainant informed on the next day vide his statement Ex.PW12/C, which was completed at 2.05 am wherein he disclosed that he along with his grand mother Jaswant Kaur, sister Amandeep Kaur and his mother's Criminal Appeal No.988-DB of 2009 ::3 ::
aunt (Bhua) Gurdeep Kaur, was residing in the aforesaid house. On 12.10.2005, he was away to Hoshiarpur and at about 10.30 PM when he along with Gurinder Singh Director of his company reached the house, then he saw that his maternal grand mother was lying dead on the chair and his sister Amandeep Kaur and aunt (Bhua) were lying in an unconscious condition. He sent for his relative Baljeet Singh on telephone.
Inspector Sandeep Kumar, who was present at Lalton Chowk in connection with patrolling, received information that Amandeep Kaur and Gurdeep Kaur were admitted in New Daya Nand Hospital on account of the injuries, he visited the hospital and found both the injured to be unfit to make the statement, whereupon, he met Jatinder Singh Bajwa, who got recorded his aforesaid statement Ex.PW12/C, which was completed at 2.05 AM, on the basis of which FIR Ex.PW8/A was registered at 2.25 AM.
Inspector Sandeep Kumar visited the spot; prepared the rough site plan Ex.PW12/F and also prepared the inquest report Ex.PW12/G of the dead body of Jaswant Kaur. He lifted the blood stained earth from the spot and took the same into possession vide memo Ex.PW8/B. A bottle of liquor make "drambuie" and one steel tumbler having finger prints were also taken into possession vide memo Ex.PW8/C. One piece of square glass of the photograph of Shri Guru Nanak Dev Ji, on which finger prints were present was also taken into possession vide memo Ex.PW8/D. One Khanjer (dagger) was also recovered from the spot and taken into possession vide Criminal Appeal No.988-DB of 2009 ::4 ::
memo Ex.PW8/E. One mould of shoe was prepared and taken into possession vide memo Ex.PW8/G. The place of occurrence was also got photographed. When injured witnesses namely Amandeep Kaur and Gurdeep Kaur became conscious, their statements were also recorded.
Despite efforts, the accused could not be arrested. However, the accused were arrested in case FIR No.202/05 and 207/05 by Inspector Mukhtiar Singh, In-charge, CIA Staff, Ludhiana. He had effected recoveries from the accused relating to the dacoity of the present case and informed Inspector Sandeep Sharma (PW12). Upon this, ASI Balkar Singh (PW4) took the production warrants of the accused persons and arrested them in this case.
On 27.12.2005, Gurdeep Kaur along with Manjinder Singh reached the Police Station Sadar, Ludhiana whereupon, MHC Balwinder Singh produced the jewellery and watches in different parcels which had already been taken into possession in FIR No.202 of 2005 under Sections 399/402 IPC and 25 Arms Act, Police Station Sadar, Ludhiana. The said articles i.e. necklace was identified by Gurdeep Kaur vide memo Ex.PW12/K, Balbir Kaur identified one lady gold ring of Jarkan, one gold lady ring with round "jalidar" design, one lady gold ring with gem, one thin gold chain, one pair of golden tops and five wrist watches vide memos Ex.PW12/L, Ex.PW12/M and Ex.PW12/P. Gurdeep Kaur identified one gold necklace vide memo Ex.PW12/N and one pair of gold ear rings vide memo Ex.PW12/O. The case property was then again converted into parcels and were Criminal Appeal No.988-DB of 2009 ::5 ::
sealed with the seal bearing impressions "SK". The place of recovery was also got photographed. On completion of the investigation, challan against the accused was presented in the court.
On finding a prima facie case under Sections 458/459/460 IPC, the accused were charged accordingly to which they pleaded not guilty and claimed trial.
In order to bring home charge against the accused, the prosecution examined Dr. Pardeep Kumar (PW1), Gurdeep Kaur (PW2), HC Manjit Singh (PW3), ASI Balkar Singh (PW4), HC Malkiat Ram (PW5), HC Rajinder Singh (PW6), Ravi Kumar (PW7), SI (Retd.) Balwant Singh (PW8), Raman Kumar (PW9), DSP Mukhtiar Singh (PW10), Tripatpal Singh (PW11), HC Om Parkash (PW12), HC Pawan Kumar (PW13), HC Sucha Singh (PW14) and Dr. Tejpal Singh Gill (PW15).
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. No evidence was led in defence.
The trial resulted into conviction.
Arguments heard. Record perused.
Mr. Rajiv Joshi, Advocate, Amicus Curiae appointed by this Court, in order to assail the prosecution version, has raised multi- fold contentions, stating that the complainant has not been examined; statement of Gurdeep Kaur is not worth reliance; no independent witness has been examined to prove the complicity of Criminal Appeal No.988-DB of 2009 ::6 ::
the accused in the commission of the crime; Gurdeep Kaur has stated in her statement that she knew the accused which amounts to improvement because, had she been known to them, she would have got their names mentioned in her statement; mere recovery of the golden ornaments, is hardly sufficient to connect them with the crime. There are no specific allegations against any of the accused as to who had committed murder of Jaswant Kaur, therefore, none of the accused could be convicted for the murder of Jaswant Kaur.
To the contrary, Mr. Pavit Singh Mattewal, Addl. A.G. Punjab has refuted the contentions by urging that it is a case of heinous crime committed by the accused. They in connivance with each other, in order to satisfy their lust for money, broke open the house, attacked the woman folk thereby killing one at the spot and injuring two others and committed dacoity of the golden ornaments and cash of Rs.10,50,000/-. Gurdeep Kaur has duly identified the accused to be the perpetrators of the crime, therefore, they cannot be allowed to escape for the minor contradictions in the statements of the witnesses when they have no sufficient explanation to make regarding the recovery of the golden ornaments from them and these ornaments were duly identified by the witnesses and such heavy recovery could not be foisted upon them.
As regards the first contention raised by Mr.Joshi, with regard to the delay in lodging the FIR, the occurrence has taken place on 12.10.2005 at 10.30 P.M. wherein Jaswant Kaur had died and Gurdeep Kaur and Amandeep Kaur suffered injuries. Gurdeep Criminal Appeal No.988-DB of 2009 ::7 ::
Kaur, PW-2, has stated that her daughter-in-law, son and grandson had gone to attend the marriage whereas only three ladies were present at the house. Jatinder Singh, who was working as Manager in British Counseling and Educational Service Institute, Pakhowal Road, Ludhiana, was away to Hoshiarpur in connection with some meeting. When he returned at about 10.30 P.M., he saw the luggage of the house in scattered condition and Jaswant Kaur lying dead on the chair. Gurdeep Kaur and Amandeep Kaur were reeling on account of the injuries. He took them to the hospital for treatment. On receipt of information, Inspector Sandeep Kumar, SHO, Police Station, Sadar Ludhiana, visited the hospital and after seeking opinion of the doctor with regard to the fitness of the injured, who opined that she was not fit to make statement, recorded the statement of Jatinder Singh, which was completed at 2.05 A.M., on the basis of which, FIR, EX.PW-8/A was registered at 3.30 A.M., on 13.10.2005 at Police Station Sadar, Ludhiana. Therefore, in these circumstances, the delay in lodging the FIR is immaterial in the instant case.
The present case is based on the direct evidence of Gurdeep Kaur, PW-2, an injured. She having known to the accused earlier got recorded their names in her statement under Section 161 of the Code of Criminal Procedure on the very next day. She has fully supported the prosecution case. She has stated that on the day of occurrence, she alongwith Jaswant Kaur and Amandeep Kaur were present in the house. She identified the persons, who had Criminal Appeal No.988-DB of 2009 ::8 ::
entered in their house with arms. She further stated that Kary was their tenant and the accused used to come to their house and Kary had told her that they were his friends. While narrating the occurrence, she has stated that the accused had asked her to hand over the keys of upper portion of the house, where Kary was residing. Kary had gone to the U.P. alongwith his family. Two of the accused had gone upstairs whereas the remaining accused started searching the room of the house. The two accused took out a pistol and asked her to hand-over the keys of her portion of house whereupon Amandeep Kaur had handed over the same to the accused. The accused had given a push to Jaswant Kaur due to which she fell down. One of the accused Sonu was told by the other accused to cut the arm of Jaswant Kaur with dagger, upon which Rajan accused caught her from the backside and the other accused gave a daggar blow on her chest near the neck, where upon she fell in the chair. She has further stated that she had seen the accused causing injuries. One of the accused having pistol had grappled with Amandeep Kaur and gave injuries on her wrist and cut her veins. The accused had taken cash amounting to Rs.10.5 lakhs and golden ornaments from their house. The accused had also put a rope in her neck and gave a sabbal blow on her chest, on which she became unconscious. She as well as Amandeep Kaur identified the golden ornaments and wrist watches, Ex. P1 to Ex.P4, recovered from the accused, belonging to Jatinder Singh and his father Surinder Singh. She has identified a gold chain, a gold ring, two gold sets, out of Criminal Appeal No.988-DB of 2009 ::9 ::
which one set was that of her. She also identified her golden tops, Ex.P5 and Ex.P6, necklace, Ex.P7, another necklace Ex.P8. She also identified gold rings, Ex.P9 to Ex.P11 and pair of ear rings, Ex.P- 12 and Ex.P13, one gold chain, Ex.P14, a pair of tops, Ex.P15 and Ex.P16 and gold ear ring, Ex.P17, which were recovered from the accused. She identified the same to be either belonging to her or her other family members. She was cross examined at length. The accused did not claim these ornaments whereas Gurdeep Kaur has claimed the ornaments.
Learned counsel for the appellant has further urged that since there is no corroboration to the testimony of Gurdeep Kaur, therefore, no implicit reliance could be placed on her statement.
Having given our thoughtful consideration to this contention raised by the learned counsel, we do not countenance the same.
It has been reiterated time and again that the solitary testimony of a reliable witness, could be treated as sufficient to place reliance, if it finds corroboration from other evidence. In the instant case, Gurdeep Kaur had no animus or enmity with the accused to implicate them falsely. She is an injured eye witness. She has explained that she was injured after Jaswant Kaur was murdered and Amandeep Kaur was injured. She has explained her own injuries and those of other injured, as also has identified the assailants. No little finger has been raised to impeach her credibility and veracity.
Though she did not give any specific role to any particular Criminal Appeal No.988-DB of 2009 ::10 ::
accused, yet she has categorically stated that all these accused entered their house and demanded the keys, broke open the locks and took away gold and cash. She is quite natural witness to be present in the house being inmate and having suffered injuries at the hands of the accused. As such, the accused cannot take the plea that she was not present in the house.
She being an old woman of 72-73 years cannot be said to be an introduced witness having self suffered the injuries. There is no hard and fast rule that a specific number of witnesses are required to be produced in order to prove the case rather the reliance could be placed on the testimony of a solitary eye witness if it otherwise is proved to be trustworthy.
As regards the argument that the testimony of Amandeep Kaur does not find corroboration from any other evidence, no substance could be seen into it. Here not only the testimony of Gurdeep Kaur implicates the accused but we have the testimony of DSP Mukhtiar Singh, PW-10, who had effected the recoveries of golden ornaments and cash from the accused belonging to the family of the deceased and the injured in the presence of Inspector Sandeep Sharma. Though the dacoity had taken place on 12.10.2005. The accused could not be arrested in that case but were ultimately arrested in case FIR No.202 dated 24.10.2005 under Sections 399/402 IPC. He has stated that on 24.10.2005, he had arrested Charanjit Singh and recovered one .38 bore revolver along with four live cartridges from him, which were taken into possession Criminal Appeal No.988-DB of 2009 ::11 ::
vide recovery memo, Ex.PW9/A. He had also arrested Sanjiv Kumar Chopra and pursuant to his disclosure statement, got recovered a sum of Rs.1,10,000/-, a lady watch, and a golden necklace, which were taken into possession vide recovery memo, Ex.PW9/B. He had also arrested Kamal Kumar and pursuant to his disclosure statement, got recovered a sum of Rs.95,000/-, one gents watch and gold jewellery i.e. Chain, one ear ring, one pair of tops, which were taken into possession vide recovery memo, Ex.PW9/D. He had also arrested accused Sanjay Sehgal and pursuant to his disclosure statement, got recovered Rs.80,000/-, one lady watch, a pair of ear rings, three lady rings, which were taken into possession vide recovery memo, Ex.PW9/C. From his personal search one dagger and a scooter were also recovered which were taken into possession vide memos Ex.PW9/M and Ex.PW9/N respectively. He had also arrested accused Gurbir Singh and pursuant to his disclosure statement, got recovered Rs.90,000/-, one pair of ear rings and one pair of Jhumke, which were taken into possession vide recovery memo, Ex.PW/E. DSP Mukhtiar Singh has further stated that on further interrogation of accused Charanjit Singh, he got recovered Rs.1,25,000/-, one watch make "goldstar", one gold necklace, weighing 27.40 mgs., which were taken into possession vide recovery memo, Ex.PW9/F. On personal search of accused Sanjiv Kumar Chopra, DSP Mukhtiar Singh got recovered one 30 bore revolver from his right pocket, which was taken into possession vide recovery memo, Ex.PW9/G. He also got recovered one Zen car Criminal Appeal No.988-DB of 2009 ::12 ::
bearing No.PB-10-AY-6719, which was taken into possession vide recovery memo, Ex.PW9/H. On personal search of accused Kamal Kumar, he got recovered one daggar from the right dub of his pant. A scooter was also recovered from him which were taken into possession vide recovery memos, Ex.PW9/K and Ex.PW9/R. On personal search of the accused Sanjiv Kumar Chopra, one .30 bore revolver alongwith four live cartridges were recovered, which were taken into possession vide recovery memo, Ex.PW9/L. On interrogation of accused Gurmit Singh, Rs.90,000/-, two pair of ear rings, one supporting chain were recovered, which were taken into possession vide recovery memo, Ex.PW9/O. In addition, we have the statement of DSP Sandeep Sharma, who had got identified the case property from Gurdeep Kaur, Balbir Singh, Jatinder Singh Bajwa and Manjinder Singh. Identification memo of Gurdeep Kaur, who identified the jewellery i.e. Necklace, is Ex.PW12/K, which was signed by Manjinder Singh, HC Balwinder Singh and thumb marked by Gurdeep Kaur. Balbir Kaur identified finger rings Ex.P9 to Ex.P11 and ear ring vide memo Ex.PW12/L which was signed by Balbir Kaur, Manjinder Singh, HC Balwinder Singh and thumb marked by Gurdeep Kaur. Balbir Kaur identified one gold chain, Ex.P14 one pair of ear tops, Ex.P15 and Ex.P-16 vide memo Ex.PW12/M which was signed by Balbir Kaur, Manjinder Singh, HC Balwinder Singh and thumb marked by Gurdeep Kaur. Gurdeep Kaur identified one necklace vide memo Ex.PW12/N which was signed by Manjinder Singh, HC Balwinder Criminal Appeal No.988-DB of 2009 ::13 ::
Singh and thumb marked by Gurdeep Kaur. Gurdeep Kaur also identified one pair of ear rings vide memo Ex.PW12/O which was signed by Manjinder Singh, HC Balwinder Singh and thumb marked by Gurdeep Kaur. Four wrist watches, Ex.P1 to Ex.P4, were identified by Balbir Kaur vide memo Ex.PW12/P which was signed by Balbir Kaur, Manjinder Singh, HC Balwinder Singh. When the case property was produced, the same was sealed with seal MS and after identification the case property was converted into parcels again and sealed with seal SK. Statements of Pws were recorded. The case property was deposited with MHC. On 28.12.2005, C Sucha Singh photographer produced photographs, Ex.P1/A to Ex.P17/A and their negatives Ex.P18/A to Ex.P34/A of scene of occurrence and the same were taken into possession vide memo Ex.PW12/Q. Ear ring gold are, Ex.P5 & P6, one necklace is Ex.P7, another necklace is Ex.P8. Pair of ear rings are Ex.P12 & Ex.P13. One pair of ear tops are Ex.P17.
We have also the evidence of Dr.Pardeep Kumar, PW-1, who had conducted the post mortem examination on the dead body of Jaswant Kaur. Dr.Tejpal Singh Gill, PW15, who had conducted the MLR of Gurdeep Kaur and Amandeep Kaur, has stated that Amandeep Kaur when examined was conscious. She had two punctured wounds one above the other, on anterior aspect of her neck. There was another linear wound present on ventral aspect of right wrist. On subsequent investigation, she was found to have injury on her left brachial plexus with injuries to her left radial and Criminal Appeal No.988-DB of 2009 ::14 ::
musculocutaneous nerves and had weakness of her left arm. He has proved the bed head ticket of Amandeep Kaur as Ex.PW15/A. He has further stated that Gurdeep Kaur when examined was conscious. She had a swelling and haematoma over the upper chest. Tenderness was present. An incised wound approximately 2 cm x 1 cm was present over the chin. After suturing of the chin wound, on further investigation, no bone injury was found, however, she had some difficulty in breathing and speaking for the first few days due to her chest injury. She was discharged on 18.10.2005 and was readmitted on account of chest pain and breathlessness on the same day i.e. 18.10.2005 and finally discharged on 20.10.2005. He has further proved he bed head ticket of Gurdeep Kaur as Ex.PW15/D. Thus, injuries on their body prove that they were present at the spot and had seen the occurrence.
We also do not approve the contention raised by Mr.Joshi that mere recovery of golden ornaments and cash from the accused is hardly sufficient to connect them with the commission of crime. In this regard, it is observed that these are not minor recoveries, which were effected from the accused and could not be stated to have been fastened upon them while recovering the same from someone else because the recoveries of cash and golden ornaments are worth Rs.50,00000/-. The Apex Court while taking a serious view in the cases of dacoity, in the course of which death or grievous hurt is caused, has held that such cases are rarely traced and, therefore, the evidence with regard to recoveries from the accused supported Criminal Appeal No.988-DB of 2009 ::15 ::
by other evidence is sufficient to connect the accused with the crime.
In natural and normal circumstances, the mere recovery of ornaments is hardly sufficient to convict the accused for an offence punishable under Section 396 or 460 IPC. However, in cases of recovery of cash and ornaments from the possession of the accused, the presumption arising under illustration (a) of Section 114 of the Evidence Act would be attracted and the accused could be convicted under Section 412 IPC. Similar proposition was discussed in cases Union Territory of Goa Vs. Beaventura D'Souza, 1993 (2) RCR (Crl.)702 (SC); 1993 Supp.(3) SCC 304, Surjit Singh Vs. State of Punjab, AIR 1994 SC 110 and Sanwath Khan Vs. State of Rajasthan, AIR 1956 SC 54. These cases fall in one line. Obviously when there is no other evidence much less the circumstantial or otherwise to connect the accused with the commission of crime or for causing injuries, the accused could not be convicted whereas Gulab Chand Vs. State of M.P. 1995(3) RCR (Crl.) 134 (SC): 1995 (3) SCC 574 falls on the other line of cases. We find certain cases where the presumption was invoked as an additional reason to support the conclusion based on circumstantial evidence. In Gulab Chand's case (supra), the judgment delivered by a three Judges Bench was referred but it was ignored with the observation that "the said decision is not applicable to the facts and circumstances of the case". However, there was no further elaboration. While relying upon Gulab Chand's case (supra), the Apex Court in Mukund @ Kundu Mishra Vs. State of M.P., 1997(3) RCR (Crl.) 739: 1997(10) Criminal Appeal No.988-DB of 2009 ::16 ::
SCC 130 negatived the contention of the learned counsel that mere recovery of stolen articles from the accused pointed out by the accused could only lead to the presumption that the offence was committed under Section 412 IPC but not the offences under Sections 302 and 394 IPC and observed as under:-
"If in a given case - as the present one - the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In drawing the above conclusion we have drawn sustenance from the judgment of this Court in Gulab Chand v. State of M.P."
Similarly, the accused was convicted for the offence relating to robbery and murder in case Sanjay @ Kaka Vs. State (NCT of Delhi), 2001 (3) SCC 190, while observing that there were additional circumstances which shed light on the involvement of the accused. In the case of Earabhadrappa @ Krishnappa Vs. State of Karnataka, 1983(1) RCR (Crl.) 292 (SC): AIR 1983 SC 446, presumption was raised that the accused who pointed out the places at which the ornaments and Criminal Appeal No.988-DB of 2009 ::17 ::
sarees of the victim were kept after committing robbery and murder. Here again, quite a number of additional circumstances were noticed, apart from the recovery of stolen articles. Thus, as far as the factual matrix goes, only Gulab Chand's case stands apart. The recovery of the articles of victim soon after the crime at the instance of the accused and incredible explanation given by the accused for possession of the articles were held to be sufficient to raise the presumption of having committed robbery and murder, if they were otherwise part of the same transaction.
It may be observed that the law has brought clear cut distinction in those line of cases where only recovery of ornaments and other articles are proved to be recovered from the possession of the accused, which stand unexplained by them. In case of theft or robbery, the accused could be convicted of offence under Section 411 or 412 IPC and the presumption arising under illustrations (a) of Section 114 of the Evidence Act would be attracted. However, in cases where there is some additional evidence with regard to the commission of crime under Sections 395, 396, 397, 458, 459 and 460 IPC and there is direct or circumstantial evidence supplementing the recovery of ornaments from the accused, then the presumption would supplement the evidence with regard to recovery and the accused could be convicted for the offences of robbery or dacoity as the case may be. It has been held in Tulsiram Kanu Vs. State, AIR 1954 SC 1 that if the ornaments of the deceased were found in possession of a person soon after the murder, a presumption of guilt Criminal Appeal No.988-DB of 2009 ::18 ::
can follow. Having regard to the close proximity of the time of recovery and lack of credible explanation for the possession thereof and on account of dealing with the ornaments immediately after the crime, it was held that a reasonable inference of commission of offence could be drawn against the accused. In conclusion, the learned Judges observed as under:-
"In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under illustration (a) of Section 114 Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments." In Limbaji Vs. State of Maharashtra, 2002 SCC (Cri.) 1044, while reiterating the principle as laid down in Earabhadrappa's case (supra), observed that no fixed time limit can be laid down to determine whether possession is recent or otherwise, the Court observed that even a period of one year was not too long having regard to the fact that the accused suddenly disappeared after the incident and he was absconding for a long time. In the present case, the 3rd accused Arun disclosed about the stolen article i.e. golden ear ring soon after his arrest and this led to the discovery of stolen property. Having regard to the nature of the articles, it is difficult to visualize that it would have changed hands within this short time and ultimately landed itself in the possession of the said accused. The accused, on his part, did not come forward with any such Criminal Appeal No.988-DB of 2009 ::19 ::
explanation.
It is also not the essence to treat the recovery as invalid as it has not been proved by all the attesting witnesses to the recovery memos. The independent witnesses some times stay away from the recovery for diversity of reasons including that they may be afraid of criminals but the recoveries, which are duly identified by the witnesses and proved by the police officials, are sufficient to draw an inference that the same have been recovered from the accused particularly when the articles recovered are so valuable that they cannot be fastened on the accused by purchasing from the market as such particular design, size and shape are not easily available in the market.
In Ghurelal and others Vs. State of Rajasthan, 2011 (5) RAJ 368, it has been observed as under:-
"The recoveries made at the instances of the appellants stood proved by examining the panel witnesses, except in case of recovery made on disclosure statement of Ghurelal in respect of one gun of 12 bore live cartridges, one golden ear ring, one necklace of gold, one Iliayachi Dani made of silver, one silver spoon and one silver bowl, as the two panch witnesses, namely, Sher Singh (PW-30) and Udaibir Singh (PW.31) turned hostile. Both the courts below have held that the recovery from Ghurelal, one of the accused, cannot be dis-believed merely because the panch witnesses turned hostile. We do not Criminal Appeal No.988-DB of 2009 ::20 ::
find any cogent reason to take a view contrary to the view taken by the Courts below."
Lastly in an abortive bid, the learned counsel for the appellants has urged that there is no evidence adduced by the prosecution in order to establish that the murder was committed by accused Varinder Singh and as such the sentence of imprisonment for life cannot be awarded to him.
Having heard this contention at length, we find some substance in the same.
We observe that neither in the FIR nor in the statement of Gurdeep Kaur, it is found that accused Varinder Singh had given the fatal blow to Jaswant Kaur but there is mention that all the accused had caused injuries to the deceased and the two injured witnesses. In the absence of any evidence as to which of the accused had given the fatal blow to the deceased, he cannot be held liable for causing death of Jaswant Kaur but he is vicariously liable for causing murder of Jaswant Kaur and grievous and simple injuries to the two injured witnesses and the deceased. With regard to the constructive liability, the Apex Court in Abdul Aziz Vs. State of Rajasthan, 2007(2) RCR (Criminal) 964, has held as under:-
"Under Section 460 IPC constructive liability is imposed on persons jointly concerned in committing house trespass at night, in the course of which death or grievous hurt is caused. The section applies to persons who actually committed house trespass at night and the act of Criminal Appeal No.988-DB of 2009 ::21 ::
causing death or grievous hurt by any one of the intruders would make others, who did not cause the injury, equally liable."
In the instant case, in the absence of any evidence to the effect that which particular accused had caused the fatal blow to Jaswant Kaur, resulting into her death, accused Varinder Singh could not be directly indicted for causing murder of Jaswant Kaur. However, he is constructively liable for commission of offences under Sections 458, 459 and 460 IPC.
Accordingly Criminal Appeal No.988-DB of 2009 is partly allowed and while maintaining the conviction under Section 460 IPC, the sentence of life imprisonment imposed upon accused Varinder Singh is reduced to ten years rigorous imprisonment whereas the conviction and sentence passed against other accused persons is maintained.
Consequently, Criminal Appeal Nos.2686-SB of 2009 and 2405-SB of 2010 are dismissed.
(Hemant Gupta) (A.N. Jindal) Judge Judge February 29, 2012 deepak/Kalra