Punjab-Haryana High Court
Gauri Shankar vs The State Of Haryana on 26 February, 2009
Criminal Appeal No.367-SB of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.367-SB of 1998
Date of Decision:26.02.2009
Gauri Shankar
.....Petitioner
Vs.
The State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Rahul Vats, Advocate for the appellant.
Mr. Amit Kaushik, Assistant Advocate General, Haryana.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence dated 28.3.1998 passed by the Court of learned Additional Sessions Judge, Sonepat, whereby he convicted and sentenced Gauri Shankar to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs.1,000/- and in default of payment of the same, to further undergo imprisonment for six months under Section 392 of IPC.
The factual matrix is that Baljeet Kumar made statement before SI Gurcharan Singh in the terms that he is a sweetmeat vendor in Sonepat Town. His children had gone to the school as usual at 7.30 A.M. On that day, i.e., 26.7.1995, he too was away to his business at Amritsari Sweet Corner, Model Town, Sonepat at 8:00 A.M whilst his wife Neelam was at home. Around 11:00 A.M., he arrived in the street leading to his house to pick up money for onward payments. He heard shrieks of his wife calling Criminal Appeal No.367-SB of 1998 -2- for help. He noticed Raju Halwai and two other young boys emerging out of the aforesaid street. He was in a position to identify all the three persons. On sensing a foul play, he rushed to his house and found his wife lying in injured condition with her both hands tied with a "Dupatta" (headgear). Her right elbow was bleeding. She narrated that the three young boys had attacked her and had relieved her of her gold bangles, ear rings, nose pin, gold chain and cash amount worth Rs.39,500/-. He chased those boys. His neighbour Sham son of Mewa Ram Khatri and Vijay Chhabra son of Ramesh Chander Chhabra also chased to nab the culprits, who ran into the house of Parkash Sansi situated in the Pappu Kabari wali gali. The wife of Parkash was got engaged in bolting the door from inside. He (Baljeet Kumar and aforesaid persons, namely, Sham and Vijay Chhabra) forced their entry in the house of Parkash Sansi. Raju and his guys escaped by jumping into the bazaar. They all three were identified by Baljeet Kumar and his companions. The case was registered on the basis of his statement. Later on, the offence under Section 216-A of IPC was added against the accused Santosh and Parkash, who were arrested on 28.7.1995. The accused Raju and Gauri Shankar were also put under arrest on 15.8.1995. The third one was identified as Mahesh, whose presence could not be procured on completion of the investigation, the charge-sheet was laid in the Court of learned Chief Judicial Magistrate, Sonepat, who committed the case to the Court of Sessions for trial of the accused.
The accused were charged under Section 397 read with Section 216-A of IPC to which they did not plead guilty and claimed trial. Subsequently, the accused Mahesh was also produced before the Court for trial. It was on 29.11.1996 that the accused Mahesh and Raju absented from Criminal Appeal No.367-SB of 1998 -3- the proceedings and eventually, vide order dated 19.9.1997, they were declared proclaimed offenders. In order to substantiate its allegations, the prosecution has examined Dr. K.L. Bansal, PW1, Dr. Subhash Mathur PW2, Neelam PW3, Sham Lal PW4, Vijay Chhabra PW5, Baljeet Kumar PW6, Chaman Lal Inspector PW7 and closed its evidence by giving up PWs Manjeet, Narender Sharma UGC, Shiv Lal and SI Siri Kishan being unnecessary.
When examined under Section 313 of Cr.P.C, the accused Gauri Shankar denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. He has put forth that he has been involved in this false case, because he used to share residential accommodation with Raju. There being no incriminatory evidence against the accused Parkash as well as his wife Santosh for being put to them under Section 313 of Cr.P.C, their examination under the said Section was dispensed with and they were acquitted of the charge framed against them vide order dated 12.2.1998. The accused Gauri Shankar did not adduce any evidence in his defence.
After hearing the learned public prosecutor for the State, learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused Gauri Shankar as noticed at the outset. Feeling aggrieved with his conviction/ sentence, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Mr. Rahul Vats, Advocate representing the accused- appellant Gauri Shankar strenuously urged that the accused- appellant being unknown Criminal Appeal No.367-SB of 1998 -4- to the prosecution witnesses prior to the alleged incident, was required to be got identified from the witnesses by arranging the test identification parade but no such effort has been made. In the absence of such evidence, the identification of the accused- appellant for the first time in the Court was meaningless. To add further to it, he has not been named in the FIR. So much so, the FIR is too cryptic about his physical description. Sham Lal PW4 regretted his inability to identify the accused- appellant as one of the culprits in the Court. As regards, Vijay Chhabra PW5, he being a chance and interested witness, no implicit reliance can be placed upon his testimony. The Investigator did not take the pains to join any independent witness at the time of recording of the alleged disclosure statement of the accused- appellant as well as the alleged recovery of one bangle, one ear ring. Besides this, the place of such recoveries being open and accessible to all and sundry, the exclusive possession of the accused - appellant qua these articles is not established. He further canvassed at the bar that indeed these recoveries have been planted upon the accused- appellant. To buttress these stances, he has relied upon Pritam v. The State of Haryana, 2003(2) Recent Criminal Reports (Criminal) 839, Sukhdev alias Bhalia v. State of Haryana 1994(1) Recent Criminal Reports (Criminal) 404, Sunder v. State of Haryana, 1988(1) Recent Criminal Reports (Criminal) 523, Pappu Ram alias Pappu v. State of Punjab, 2007(3) Recent Criminal Reports (Criminal) 455, State of Haryana v. Suresh and others, 1996(3) Recent Criminal Reports (Criminal) 169, Sukhvinder v. State of Haryana, 2005(4) Recent Criminal Reports (Criminal) 927, Sanjay Kumar and others v. State of Haryana, 2004(1) Recent Criminal Reports (Criminal) 898, Buta Singh v. State of Punjab, 2006(1) Recent Criminal Appeal No.367-SB of 1998 -5- Criminal Reports (Criminal) 835 and Mani Lal and others v. State of Punjab, 2007(4) Recent Criminal Reports (Criminal) 682.
To tide over these submissions, Mr. Amit Kaushik, Assistant Advocate General, Haryana on behalf of the State argued that on evaluating the ocular account tendered by the prosecution witnesses coupled with the recoveries got effected by the accused- appellant in pursuance of his disclosure statement, the guilt is adequately established against him.
I have given a deep and thoughtful consideration to the rival contentions. Neelam PW3 Ace witness has stated in clear and unambiguous terms that "I recognised accused Gori Shanker standing trial in this case and present in the Court today. He was one of those three intruders who had robbed me at knife point." On reading her evidence in between the lines, it emanates that the accused- appellant along with others had caught hold of her and tide her hands with her dupatta and then she was given injuries with knife. It is apt to be borne in mind that this is an occurrence which took place in the broad day light. During occurrence, she had come face to face with the accused. That being so, identification of the accused- appellant by her in the Court for the first time is substantive evidence. As is borne out from the testimony of Dr. Subhash Mathur PW2, he had medico legally examined Neelam PW on the day of occurrence at 1:00 P.M and had found two incised wounds on her right elbow joint and one abrasion on the back of right elbow and multiple abrasions 3 to 4 in number on the front of her neck. A glance through her (Neelam) cross-examination would reveal that her testimony could not be impeached in any manner. It is in her cross- examination that her chain made of gold was also removed from her neck by them. It is in her evidence that Raju (referring to co-accused) was a Criminal Appeal No.367-SB of 1998 -6- frequent visitor/ customer to their Halwai Shop and she had seen him there on many occasions. Her husband Baljeet Kumar PW6 has also stated in categoric terms that "I had recognised all the three faces. They were Raju, Pappu and Gauri Shankar. I identify the latter who is standing in the Court and facing trial in this case. Accused Gauri Shankar and Raju were arrested by the police in my presence. They were also interrogated in my presence on 15.8.1995. Accused Gauri Shankar suffered disclosure statement Ex.PJ regarding concealment of one bangle, one ear ring of gold, near Anand Cinema underneath the ground about which no person other than him had information. Similarly Raju had suffered disclosure statement Ex.PK which bears my signatures. Accused Gauri Shankar then led the police party to the recovery of bangle Ex.P1, ear ring Ex.P2 from the site earlier disclosed by him to the police in my presence. I had identified the ornaments which belonged to my wife and were removed from her person by the three miscreants on that day." The thrust of the argument of Mr. Vats is that identity of the accused- appellant Gauri Shankar is not established. This being a broad day occurrence, it would be difficult to hold that at the material time, Neelam PW had lost her power of perception. Of course, power of perception and memorising differs from man to man and also depends upon situation, capacity to recapitulate what has been seen earlier. Neelam PW being 37 years of age at the relevant time could not be expected to have fallen prey to memorisation or amnesia. When the occurrence was going on, by all probabilities, she would have noticed the physiques and features of the accused- appellant and others. Thus, she could be expected to have retrieved the same from her memory, while deposing in the Court. A meticulous perusal of her evidence would reveal that she had gained an Criminal Appeal No.367-SB of 1998 -7- enduring impress of the identity of the accused- appellant on her mind during the incident. The purpose of test identification is to have corroboration to the evidence of eye witnesses in the form of earlier identification. The substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. In such cases, not holding of identification parade is not fatal to the prosecution as ruled by the Apex Court in re: Daya Singh v. State of Haryana, 2001 Criminal Law Journal 1268. The test identification parade is corroborative evidence which is required only as a rule of prudence, but not as a rule of law. Each case has to be determined and examined on its own facts. If the Court infers from the given evidence that the witness had the opportunity to come face to face with the accused, in that case, if he/ she identifies the witness in the Court though for the first time, the test identification parade should not be insisted upon. Herein Neelam PW satisfy this test in her testimony. So, her evidence should not be discarded, merely because of there being no test identification parade of the accused- appellant. A careful delving into the authorities referred to by Mr. Vats would reveal that the facts thereof are distinguishable from the one in hand. She had narrated the incident to her husband soon after the occurrence. Her husband Baljeet Kumar PW author of the F.I.R had also identified the accused- appellant, while coming out of the street leading to his house. In re: Sukhar v. State of U.P., 2000 Criminal Law Journal 29, it has been held that "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 Criminal Appeal No.367-SB of 1998 -8- almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter." In view of these observations too, the evidence of Baljeet Kumar is relevant. True that Sham Lal PW4 regretted his inability to identify the accused- appellant in the Court. This fact hardly discredits the evidence of Neelam PW as he was not a witness to the occurrence.
In re: State of Himachal Pradesh v. Jeet Singh, 1999(2) Recent Criminal Reports (Criminal) 167 (SC), the Apex Court held as under:-
"It must have been during the interrogation of accused that he would have made the disclosures. It is not necessary that other witnesses should be present when the accused was interrogated by the I.O. So, the mere fact that any witness to the recovery did not overhear the disclosure statements of the accused is hardly sufficient to hold that no such disclosures were made by the accused.
There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others." It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. Criminal Appeal No.367-SB of 1998 -9- For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office. The article, would remain out of the visibility of others in normal circumstances. Until such article is disintered, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
It is affirmed by the evidence of Baljeet Kumar (sic.) that Ex.P.1 bangle and Ex.P2 ear ring were got recovered by the accused- appellant in pursuance of his disclosure statement. On this aspect, he is unshaky. As would be apparent from the testimony of PW7 Chaman Lal Inspector (retired), these recoveries were got effected by the accused- appellant on the basis of his disclosure statement. It is in his evidence that "Gauri Shankar then led the police party along with Raju to the site disclosed by him in Ex.PJ and got recovered a polythene packet lying hidden beside the northern wall of Anand Cinema Hall containing one bangle Ex.P1 and one ear ring Ex.P2 which were identified by Baljit and were taken in police custody through memo Ex.PL." Obviously, the place of concealment was within the exclusive knowledge of the accused- appellant and the same remained out of the visibility of others in the normal circumstances. In terms of Jeet Singh (supra), the recovery from a place which is open or accessible to others would not vitiate the evidence under Section 27 of the Evidence Act. As such, this recovery in no manner can be Criminal Appeal No.367-SB of 1998 -10- looked upon with a speck of doubt.
As a sequel of the above discussion, the conviction is maintained. At this juncture, Mr. Vats made a submission that the sentence may be reduced. I have pondered over this submission. The occurrence took place wayback in the year 1995, meaning thereby, this incidence is more than 13 years old. The accused- appellant has been facing the agony of trial since then. So taking into consideration the totality of facts and circumstances, the substantive sentence is reduced from three years to one year, while maintaining the fine as well as its default clause. With this modification in the order of sentence, this appeal fails and is dismissed. The Registry is directed to transmit a certified copy of this judgment to the learned Chief Judicial Magistrate, Sonepat for taking necessary steps to send the appellant to the prison to serve the remaining part of his sentence.
February 26, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No