Punjab-Haryana High Court
) Crl.A.No. S-1393 Sb Of 2011 (O&M) vs State Of Haryana on 5 November, 2012
Author: K.C. Puri
Bench: K.C. Puri
Crl.A.No. S-1393 SB of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
1) Crl.A.No. S-1393 SB of 2011 (O&M)
Date of decision : 5.11.2012
...
Parveen @ Beenu and another
................Appellants
vs.
State of Haryana
.................Respondents
2) Crl.A.No. S-1756 SB of 2011 (O&M)
...
Sonu
................Appellant
vs.
State of Haryana
.................Respondents
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh. Sudhir Kumar, Advocate and
Sh. Ravinder Hooda, Advocate for the appellants
(in Crl.A. No. S-1393 SB of 2011).
Sh.Bipan Ghai, Senior Advocate with
Sh. Ravinder Singh, Advocate for the appellant
(in Crl.A. No. S 1756 SB of 2011)
Sh. Amandeep Singh, Assistant Advocate General,
Haryana.
...
K.C. Puri, J.
Vide this judgment, I intend to dispose of two appeals bearing Crl.A. No. S 1393 SB of 2011 titled as Parveen @ Beenu and Crl.A.No. S-1393 SB of 2011 (O&M) -2- another vs. State of Haryana and Crl.A. No. S 1756 SB of 2011 titled as Sonu vs. State of Haryana, as both these appeals have arisen out of same judgment. However, the facts are being taken from Crl.A. No. S-1393 SB of 2011.
Parveen @ Beenu s/o Dharamvir, Surender @ Sonu s/o Ram Kishan and Sonu s/o Raj Singh were sent to stand trial for offence under Sections 395, 397 IPC and 25/54/59 of Arms Act, by SHO Police Station, Kasola.
The brief resume of the case is that on the intervening night of 7/8.7.2010 complainant Mohammad Sakil s/o Ibrahim resident of Mohalla Islampur, Fatehpur Road, Police Station Seekar, District Seekar, a driver by profession, alongwith his brother Mukhtyar was going to Delhi in a Innova car bearing registration No. RJ-14-UA- 0912. At about 2-2.30 am (midnight) when they reached near Coil company in the area of police station, Kasola, situated on National Highway No. 8, a Scorpio vehicle of dust colour occupied by 8-9 persons was parked in front of the vehicle bearing registration No. RJ-14-UA-0912. The occupants of the Scorpio vehicle came out and started abusing the complainant and his brother and dragged both of them out of the Innova vehicle. All of them occupied the Innova vehicle and fled away from the spot. While running away, they have taken away 3 mobile phones bearing Nos. 7568268532 and 9982990727 and one mobile phone without sim. Complainant reached the petrol pump situated near the place of occurrence, where the police, as well as, owner of the vehicle, namely, Asan @ Harun Crl.A.No. S-1393 SB of 2011 (O&M) -3- were informed.
FIR No. 127 dated 8.7.2010 under Sections 395/397 IPC and 25/54/59 of Arms Act, Police Station Kasola was recorded on the statement of complainant Mohammad Sakil.
According to the prosecution version, on 6.8.2010, accused Sonu and Surender @ Sonu, while facing interrogation in FIR No. 295 dated 14.7.2010 under Sections 392 IPC and 25/54/59 of Arms Act, suffered two separate disclosure statements to Sh. Suresh Kumar ASI. Sonu suffered disclosure statement Exhibit PL, whereas accused Parveen suffered disclosure statement Exhibit PK and in pursuant to their disclosure statements, they got recovered Innova car bearing registration No.RJ-14-UA-0912 on 14.8.2010 in the presence of Mohammad Harun owner of the vehicle.
After investigation, challan was presented against the accused. Charge under Sections 395, 397 IPC and 25/54/59 of the Arms Act was framed, to which the accused pleaded not guilty and claimed trial.
The prosecution, in order to bring home guilt of the accused, examined PW-1 Head Constable Dharampal Draftsman, PW-2 SI Rajeshwar Kumar, PW-3 ASI Ranbir Singh, PW-4 Constable Narender Singh, PW-5 Pyare Lal, Reader to District Magistgrate, Rewari, PW-6 Mohammad Sakil complainant, PW-7 Mukhtyar eyewitness, PW-8 Mohammad Harun owner of the Innova car, PW-9 ASI Suresh Kumar, PW-10 ASI Sher Mohammad, PW-11 Constable Raj Singh, PW-12 ASI Surender Kumar and PW-13 Head Constable Crl.A.No. S-1393 SB of 2011 (O&M) -4- Kailash. Thereafter, the Public Prosecutor closed the evidence of the prosecution.
The accused were examined under Section 313 Cr.P.C. and all the incriminating evidence was put to them, to which they denied and pleaded innocence. Accused did not lead any defence evidence.
Learned trial Court after appraisal of the evidence, found the accused guilty under Section 395 IPC and sentenced them to undergo rigorous imprisonment for a period of 4 years alongwith fine of `1,000/- each and in default of payment to fine to further undergo imprisonment for a period of one month.
Feeling dissatisfied with the said judgment and order dated 11.5.2011 passed by Sh. R.K. Sharma, Additional Sessions Judge, Rewari, accused Sonu s/o Raj Singh has preferred Crl.A. No. S- 1756 SB of 2011, whereas the other two accused namely, Parveen @ Beenu s/o Dharamvir, Surender @ Sonu s/o Ram Kishan have preferred Crl. A. No. S 1393 of 2011. Both these two appeals have arisen out of the same judgment and as such these are being disposed of by the common judgment.
Learned counsel for the appellants have submitted that offence under Section 395 IPC could have been proved by complainant PW-6 Mohammad Sakil or his brother PW-7 Mukhtyar eyewitness. Both of these witnesses have not stated that it is the appellants, who have robbed them off in respect of Innova car or three mobile phones. There is no other eyewitness to prove the case of the prosecution.
Crl.A.No. S-1393 SB of 2011 (O&M) -5-
Learned counsel for the appellants have further submitted that trial Court has convicted the appellants under Section 395 IPC by invoking the provisions of Section 114 of the Indian Evidence Act. It is submitted that the occurrence is stated to have taken place on the intervening night of 7/8.7.2010. However, according to the prosecution version, the recovery of Innova car is stated to have taken place on 14.8.2010. Section 114 of the Indian Evidence Act envisages as under.
"114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
The first illustration of Section 114 of the Indian Evidence Act is also reproduced as under:-
"Illustrations The Court may presume -
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"
So, from the bare perusal of above provisions, it is revealed that presumption under Section 114 of the Indian Evidence Act, can be drawn only if there is an immediate proximity regarding recovery Crl.A.No. S-1393 SB of 2011 (O&M) -6- of stolen articles and the act of taking away those articles. The period of more than one month is sufficient to discard the said presumption. Otherwise also, the case of the prosecution is that they were in custody in another case and as such they could not have got the vehicle recovered. It is further submitted that even if the recovery of the Innova car on disclosure statements of the accused-appellants is taken as it is, in that case at the most the ingredients of offence under Section 411 IPC is made out. The maximum punishment under Section 411 IPC is 3 years and the appellants have already undergone incarnation for a period of more than 2 years. So, prayer has been made for reduction of sentence by acquitting the accused under Section 395 IPC.
Learned State counsel has supported the judgment of the trial Court. Is is submitted that no doubt the complainant and eyewitness have not identified the appellants, but in view of Section 114 of the Indian Evidence Act, the appellants have been rightly convicted by the trial Court.
I have given my thoughtful consideration to the rival submissions made by both the sides and have also gone through the record of the case.
So far as the facts of the case are concerned, that are not in much dispute. PW-6 Mohammad Sakil and PW-7 Mukhtyar s/o Ibrahim are the star witnesses of the prosecution in respect of offence under Section 395 IPC. Both of these witnesses have supported the case of the prosecution to the effect that on the intervening night of Crl.A.No. S-1393 SB of 2011 (O&M) -7- 7/8.7.2010 they were robbed off their Innova car and 3 mobile phones. None of the Mobile phone was recovered from the accused. So, the charge remains under Section 395 IPC is in respect of robbing of the complainant and his brother in respect of Innova car. Both PW- 6 Mohammad Sakil and PW-7 Mukhtyar could be the persons who can state that these were the accused who have robbed off them of the car. For reasons best known to the prosecution, both of them have not identified any of the appellants as the persons who have robbed off them. According to the testimony of complainant Mohammad Sakil and Mukhtyar, the persons who have robbed off were of muffled face. PW-7 Mukhtyar even goes to the extent that he was sleeping when the Innova car was robbed off. Mukhtyar has stated in the Court that he could not identify the accused presented in the Court as accused. So, from the testimony of the complainant and his brother, the ingredients of offence under Section 395 IPC are not made out. The trial Court has also observed that eye witnesses have not supported the case of prosecution. However, the trial Court observed that since the robbed articles were recovered at the instance of accused and as such presumption under Section 114 of the Indian Evidence Act, has to be drawn. The trial Court has also relied upon their disclosure statements in respect of the guilt.
Sections 25 to 27 of the Indian Evidence Act, 1872 are relevant for determining the fact whether the disclosure statement made by the accused can be used as an evidence against them.
Section 25 of the Indian Evidence Act, envisages that Crl.A.No. S-1393 SB of 2011 (O&M) -8- confession to the police officer shall not be proved as against a person accused of any offence. Section 26 of the Indian Evidence Act, envisages that no confession made by any person while he is in custody of the police officer, shall be proved against such person. The only exception to Sections 25 and 26 is the Section 27 of the Indian Evidence Act, which envisages as under:-
"27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
The Hon'ble Apex Court in authority reported as Geejaganda Somaiah vs. State of Karnataka (2007) 9 Supreme Court Cases 315, has thoroughly discussed Sections 25 to 27 of the Indian Evidence Act. From the perusal of the said ruling it is revealed that the statement made by the accused before the police while in custody to the effect that he stabbed 'A', is inadmissible in evidence and only the part of recovery of articles in pursuant to disclosure statement is admissible. So, the confessional statement admitting the guilt of the accused regarding robbing the vehicle is in-admissible in evidence in view of Sections 25 and 26 of the Indian Evidence Act.
A Division Bench of this Court, in authority reported as Crl.A.No. S-1393 SB of 2011 (O&M) -9- Madan Mohan @ David vs. State of Haryana 1997 (1) Recent Criminal Reporter 713, has held that in the circumstances of the case, disclosure statement made by the accused in the form of confession before a Police Officer is unreliable and inadmissible in evidence. In authority reported as Haricharan Kurmi vs. State of Bihar 1964 SC 1184, the Constitutional Bench consisting of five Judges of Hon'ble Apex Court, dealt with the confessional statement made by the co- accused under Section 30 of the Indian Evidence Act and ultimately reached to the conclusion that a confessional statement made by the co-accused regarding guilt of the other accused is a weak type of evidence and could be believed only in case there is corroborative evidence to the statement of that co-accused. So, the confessional statement made by the accused regarding their guilt in respect of offence under Section 395 IPC, has to be ignored, in view of discussion made above.
Now, the question arises whether the accused can be convicted for offence under Section 395 IPC with the aid of Section 114 of the Indian Evidence Act. This aspect of the case has been dealt with in Geejaganda Somaiah's case (Supra). In that case, the stolen articles were recovered from the accused on the next date of occurrence and under those circumstances, the Hon'ble Apex Court came to the conclusion that the accused have been rightly convicted for offence of murder on account of recovery of articles belonging to the deceased on the next day of the occurrence. In the present case, the articles have been recovered after more than 1 month of the Crl.A.No. S-1393 SB of 2011 (O&M) -10- occurrence. So, the trial Court has committed illegality by invoking the provisions of Section 114 of the Indian Evidence Act, under those circumstances. So, the trial Court has wrongly convicted the accused under Section 395 IPC.
So, in view of the above discussion, both the appeals are partly accepted and the appellants are acquitted under Section 395 IPC.
However, the accused are guilty for having been found in possession of stolen property and as such they stand convicted under Section 411 IPC. The offence under Section 411 IPC is a lessor offence and as such the accused can be convicted under Section 411 IPC without any formal charge against them. However, from the perusal of the custody certificate, it is revealed that appellants - Parveen @ Beenu and Surender @ Sonu have undergone incarnation for a period of 2 years 2 months and 18 days, whereas appellant Sonu s/o Raj Singh has undergone incarnation for a period of 2 years and 22 days. The maximum sentence prescribed under Section 411 IPC is three years and fine. So, the ends of justice would be met in case all the appellants are sentenced to the period already undergone under Section 411 IPC and to pay fine of ` 500/- each and in default of payment of fine to undergo imprisonment for a period of 1 month. I order accordingly.
A copy of the judgment be sent to the trial Court for strict compliance.
( K.C. Puri )
chughNovember 5, 2012 Judge
Crl.A.No. S-1393 SB of 2011 (O&M) -11-