Punjab-Haryana High Court
Nadeem @ Nasim & Anr vs State Of Punjab on 11 August, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
Criminal Appeal No. 261-DB of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 261-DB of 2005
DATE OF DECISION: 11.8.2011
***
Nadeem @ Nasim & Anr.
..APPELLANTS
VS.
State of Punjab
..RESPONDENT
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. J.S. Bains, Advocate-Amicus Curiae
for appellant No.1.
Mr. Vipan Mahajan, Advocate
for appellant No.2.
Ms. Gurveen H. Singh, Addl. A.G. Punjab.
ARVIND KUMAR, J.
The trial of the appellants in case FIR No. 40 dated 7.3.2003, relating to police station Qadian has culminated into their conviction under Sections 459 and 460 IPC, under which they have been substantively sentenced to undergo life imprisonment and each of them have been directed to pay a fine of Rs.5000/- under each of the head, in default whereof, further rigorous imprisonment for one year has been awarded.
Brief facts of the case are that Joginder Singh(PW1) and his brother Lakhbir Singh (since deceased) were having their houses adjacent to each other. On the night intervening 6/7.3.2003, at about 1:30/ 2:00 a.m. when Lakhbir Singh, his wife Manjit Kaur, mother Karam Kaur and his son Baban Preet (PW16) were sleeping in their house, some culprits armed with iron rods etc., burgled into the house and demanded keys of the almirah and on refusal by Lakhbir Singh etc., they beat Lakhbir Singh, Manjit Kaur and Karam Kaur mercilessly. However, they tied Baban Preet, a child of about Criminal Appeal No. 261-DB of 2005 2 11 years and put a cloth upon him. The light in the room was on at that time. After looting gold and other valuable articles from the house, they fled away therefrom. It is the case of the prosecution that Baban Preet managed to get himself untied by rubbing the rope on the grill and then went to the house of his uncle Joginder Singh and narrated the whole occurrence to him. Joginder Singh rushed to the house of his brother and noticed Lakhbir Singh, Manjit Kaur and Karam Kaur lying on the earth, in an unconscious condition, with injuries. They shifted the injured to Bhatt Hospital, where Manjit Kaur was declared dead. Later the injured Lakhbir Singh and Karam Kaur were shifted to Civil Hospital, Batala and were treated by PW6 Dr. Lakhbir Singh. Fom where they were referred to higher institution and got admitted at Ajit Hospital, Amritsar and were treated there by PW8 Dr. Ajit Singh Randhawa In the morning of 7.3.2003 when Joginder Singh was going to inform the police about the incident, (PW10) SI Kulwant Singh met him on the way and whatever was told to him by Baban Preet, was narrated to the police vide his statement (Ex.PA), which was sent to the police station and on the basis of which aforesaid case was registered at about 11:15 a.m. in police station Qadian by PW9 ASI Des Raj. Special Reports of the case were delivered by PW12 Const. Amarjit Singh SI Kulwant Singh and PW3 ASI Harbhajan Singh inspected the scene of crime and lifted blood stained earth; prepared the rough site plan and also carried out inquest proceedings on the dead body of Manjit Kaur. The dead body was sent through PW7 ASI Chanan Singh for post-mortem examination, who also took into police possession the clothes of the deceased. The case property was deposited with PW14 MHC Sardool Singh.
Later the injured discharged from the hospital. The injuries on their persons were declared dangerous to life by the attending doctors. Lakhbir Singh produced the receipts of wrist watch marka HMT, which he purchased from the shop of PW5 Balwant Singh and a gold ring.
It is the case of the prosecution that on 11.3.2003 PW2 Mohan Singh apprised the police of having seen Sittar, Nadin, Nassu and Dharkan, armed with iron rods, datar etc. near the railway crossing on 6.3.2003 and later came to know about the occurrence. It was for the first time the names of culprits figured in the investigation of the case.
Criminal Appeal No. 261-DB of 2005 3It also appears that on 7.4.2003 Sajjan, Naso, Darkan, Mithu, Lukman, Salim, Sattu and four more boys came to PW4 Darshan Singh and made an extra judicial confession before him regarding dacoity and murder of one lady in that process.
On 24.4.2003 the present appellants and other accused namely Abhishek @ Hanif, Lookman @ Shahrukh Khan, Sajan @ Hamid, Dhadkan @ Rashid, Saleem @ Mohabbat were arrested by the police in relation to case FIR No.43 dated 24.4.2003, under Sections 399, 400 IPC, police station Civil Lines, Batala and during investigation therein by PW13 Chain Singh the then Inspector CIA, it revealed that the accused also participated in eight offences, including that of the present case. Their joint disclosure statement was recorded in the presence of Inspectors Paramjit Singh and Vikram Singh (PW15). Accordingly, they were also arrested in this case on 3.5.2003. HMT wrist watch and gold ring bearing impression "LS" were recovered from the appellant Sattar and the same were identified by Lakhbir Singh.
It has come on record that on 30.5.2003 Karam Kaur succumbed to the injuries sustained by her. Before the final report in the matter could be submitted to the Court, the other accused escaped from the jail and the investigating agency filed final report under Section 173 Cr.P.C. against the present appellants, for their trial.
After commitment of the case, the trial court framed the charges under Sections 459 and 460 IPC against the accused, to which he pleaded not guilty and claimed trial. During trial, the prosecution produced sixteen witnesses, the gist of whose statements has been given hereinabove.
It is apt to mention here that Lakhbir Singh also died during the trial and the prosecution examined Baban Preet as PW16, by way of additional evidence. While appearing into the witness box this witness identified the appellants as the culprits. Thereafter, the prosecution evidence was closed by the learned P.P. The accused-appellants when examined under Section 313 Cr.P.C. pleaded false implication in the case. According to them they had not committed the offence and even in two other cases, they were acquitted by the Court. They relied upon copies of judgments rendered in two other cases as Ex.DA and Ex.DB. Except that, no other evidence in defence Criminal Appeal No. 261-DB of 2005 4 was led by the accused.
After analyzing the evidence adduced by the prosecution, learned trial court vide the impugned judgment dated 31.1.2005 convicted and sentenced the accused-appellants in the manner indicated above.
We have heard learned counsel for the parties and with their assistance have also gone through the record carefully.
The argument of learned counsel appearing for the appellants is that there is inordinate and unexplained delay in lodging the FIR. According to learned counsel for the appellants the occurrence took place at about 2:00 a.m. in the intervening night of 6/7.3.2003, while the police was intimated about the occurrence at about 10:00 a.m. and consequently the FIR was lodged at about 11:15 a.m. on 7.3.2003. Apart from that, it has been argued by learned counsel for the appellants that the FIR was lodged on the hearsay version by PW Joginder Singh and hence, the statement of Joginder Singh is not legally admissible. Elaborating their arguments, learned counsel for the appellants have also pointed out the appellants were identified by PW16 Baban Preet only for the first time in Court, which is not legally permissible and once his statement is excluded from the zone of consideration, there is nothing on record which could connect the appellants with the alleged commission of crime. Learned counsel have further contended that PW2 Mohan Singh and PW4 Darshan Singh are procured witnesses and hence, cannot be relied upon.
The arguments have been scanned. According to the prosecution the occurrence took place somewhere about 2:00 a.m. on the night intervening 6/7.3.2003. PW16 Baban Preet, the sole eye witness claimed that it took about one hour in getting himself rescued from the rope in which he was tied and after that he informed the matter to his uncle Joginder Singh, who then visited the house and shifted the injured to the hospital. It has come in the statement of PW6 Dr. Lakhbir Singh that at about 3:40 a.m. in the morning the injured Lakhbir Singh and Karam Kaur were brought to the Emergency Ward of Civil Hospital, Batala and were examined and treated by him vide reports Ex.PD and Ex.PE respectively. Meaning thereby within two hours of the occurrence, the injured were shifted to the hospital. It has come on record that Manjit Kaur was declared dead by the Doctors and hence, her dead body was shifted back to the home.
Criminal Appeal No. 261-DB of 2005 5The condition of injured Lakhbir Singh and Karam Kaur was serious and consequently, they were shifted to Guru Nanak Dev Hospital, Amritsar. In that situation, it was very obvious for Joginder Singh to have first attended the injured to save their lives and not to waste time in going to the police station. After having satisfied himself as to the care and condition of the injured, he walked to the police to get the case registered at about 10:00 a.m. in the morning. After reducing into writing his statement (Ex.PA), consequently, the FIR was registered at about 11:15 a.m. and within no time the special reports of the case reached the hands of higher officers. In this view of the matter, it cannot be said that the FIR was delayed.
No doubt PW Joginder Singh had not witnessed the occurrence and it is only on the disclosing of PW Baban Preet he rushed to the house of Lakhbir Singh and then shifted his injured brother, sister-in-law and mother to the hospital. He lodged the FIR on the basis of information which he gathered from PW16 Baban Preet. But in the considered opinion of this Court, his statement is in the nature of res gestae. The rule embodied in Section 6 of Evidence Act is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence. See Bhairon Singh Vs. State of M.P. AIR 2009 SC 2603.
In the case of, Sukhar vs. State of U.P. 1999 (9) SCC 507, the Hon'ble Apex Court Court noticed position of law with regard to Section 6 of the Evidence Act thus :
"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be Criminal Appeal No. 261-DB of 2005 6 admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus :
"Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued."
As noticed above, the version given by PW Joginder Singh to the police was corroborated from the fact that the injured were shifted by him to the hospital and were examined in less than two hours of actual occurrence. It is not the case where any fabrication in the statement was done because the names of culprits were not mentioned therein and only their misdeeds were mentioned in the FIR. Thus, the contention that the statement of PW Joginder Singh is not legally admissible, carries no substance in it.
Let us now examine the plea of not holding of test identification parade of the appellants and its consequence.
In the latest case of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, 2011(1) RCR(Crl.) 641, the Hon'ble Apex Court referred to the case of Jana Yadav Vs. State of Bihar, 2002(7) SCC 295, wherein it has been held, as follows:-
"Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but Criminal Appeal No. 261-DB of 2005 7 ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law."
In the case of Malkhansing Vs. State of M.P. 2003(5) SCC 746, followed recently in the case of Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi) 2010(2) RCR(Criminal) 692,it has been held by the Hon'ble Apex Court that:-
"... The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by S. 162 of Cr. P.C. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration."
From the above, it is clear that identification of accused persons by witness in dock for the first time is permissible and the failure to conduct test identification parade would not make the evidence of a witness identifying the accused in the dock, inadmissible.
Adverting to the facts of present case, undoubtedly, no test Criminal Appeal No. 261-DB of 2005 8 identification parade was held in this case. It is not in dispute that PW16 Baban Preet identified the appellants for the first time in the Court, after about one year and ten months of the occurrence. The evidence of this witness is suggestive of the fact that at the time the light was on in the room. In front of his eye, his mother, father and grand-mother were brutally beaten by the appellants and in such circumstances it would be difficult, if not impossible, for him to forget the faces of the assailants. His endeavour was to identify the real culprits and not an innocent. He was of tender age at the time of occurrence and thus he would have no reason whatsoever to falsely implicate the appellants. Even otherwise, no suggestion had been put to this witness that he has falsely implicated the appellants. While stepping into the witness box PW16 specifically identified the appellants and deposed about the manner in which they had beaten his father, mother and grand-mother and robbed the valuable articles from the house. All what had happened was within his sight and certainly had lasted for about 5-10 minutes and there was ample time for this witness to note the distinctive features of the appellants, which made him to identify the appellants in the Court, as the real culprits. The testimony of PW16 Baban Preet reveals the true and natural description of the incident. He specifically raised the accusing finger upon the appellants as the wrong-doers. This witness underwent the test of cross-examination, but nothing fruitful to the case of defence comes out therefrom. The occurrence took place at about 2:00 a.m. in the night and at that time his presence is very natural. It is also well settled that conviction can be based on the sole testimony of a witness, which otherwise proves to be genuine and reliable and the tenor and manner of the deposition made by PW16 Baban Preet clearly fulfills the criteria. Thus, the identification made by PW16 Baban Preet coupled with the other corroborative evidence, as discussed above, is permissible in the facts and circumstances of the case.
This is one aspect of the matter. The other circumstantial evidence against the appellants is of their "last seen" in the vicinity as narrated by PW 2 Mohan Singh and that of "extra judicial confession" made before PW4 Darshan Singh. The testimonies of these witnesses reveal that on the fateful day PW2 Mohan Singh noticed the appellants and others armed with rods etc. in the nearby vicinity under mysterious circumstances and he overheard their conversation to do something else because they Criminal Appeal No. 261-DB of 2005 9 would not get anything from the road side. PW2 Mohan Singh specifically stated that he knew these persons since they used to visit him to purchase milk from him. Furthermore, the testimony of PW4 Darshan Singh is also suggestive of the fact that on 7.4.2003 the appellants made extra judicial confession before him and thereby admitted their guilt and asked him to produce them before the police. He had known to them because they used to show juggler shows in different villages and as evident from the testimony of PW2 Mohan Singh they had been residing while raising temporary construction/ jhugies. The testimony of PW4 reveals that he assured them for their production before the police in the evening, but the accused did not come to him. One of the strong reason for believing the testimony of this witness is that the next day i.e. 8.4.2003 he informed the police about the said extra judicial confession and accordingly his statement under Section 161 Cr.P.C. was recorded by the police in this regard. Not only this the circumstance of recovery from appellant Sattar of gold ring bearing impression "LS" and wrist watch, belonging to Lakhbir Singh, which has been duly proved by PW Vikram Chand Inspector, is vital piece of evidence and lends corroboration to the commission of crime by the appellants. No doubt, there is some sort of variation in the testimony of PW4 Darshan Singh with regard to the place of extra judicial confession by the appellants and others, but it cannot be ignored that he is a rustic villager and was examined after about one year of the occurrence. It is no doubt true that no independent witness was joined to attest the recovery from the appellant Sattar, but it is not always necessary to join independent witness and the case of the prosecution cannot be thrown only on this score. It depends upon the facts and circumstances of each case. The appellants were involved in number of cases and it appears that keeping in view their criminal background, none from the public dared to join the investigation. The appellants cannot derive any benefit from their acquittal in some other cases. Each case has to be decided on the basis of evidence led therein. Though the prosecution in those cases failed to prove the guilt of the accused to the hilt, but in the instant case it has been proved beyond reasonable doubt that the appellants committed lurking house-trespass by entering into the house of Lakhbir Singh and in that process caused the death of Manjit Kaur and grievous hurt to Lakhbir Singh and Karam Kaur.
Criminal Appeal No. 261-DB of 2005 10Therefore, the findings of guilt and their sentence require no interference by this Court.
As a sequel to the above discussion, we find no merits in the instant appeal and the same is accordingly dismissed.
(SATISH KUMAR MITTAL) (ARVIND KUMAR)
JUDGE JUDGE
August 11,2011
Jiten