Punjab-Haryana High Court
Criminal Appeal No.1070-Sb Of 2002 vs State Of Punjab on 28 April, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal Nos.1070-SB And 1080-SB of 2002 1
In the High Court of Punjab and Haryana, at Chandigarh.
1. Criminal Appeal No.1070-SB of 2002
Rajinder Singh alias Chhinda and Others
...Appellants
Versus
State of Punjab
...Respondent
AND
2. Criminal Appeal No. 1080-SB of 2002
Sukhdev Singh and Another
...Appellants
Versus
State of Punjab
...Respondent
Date of Decision: April 28, 2010
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. H.K. Arora, Advocate
for Mr. S.P.S. Sidhu, Advocate
for the appellants (In Criminal Appeal
No. 1070-SB of 2002).
Mr. Atul Lakhanpal, Senior Advocate
for Mr. R.S. Chahal, Advocate
for the appellants (In Criminal Appeal
No. 1080-SB of 2002).
Mr. Mehardeep Singh, Deputy Advocate
General, Punjab, for the respondent.
Criminal Appeal Nos.1070-SB And 1080-SB of 2002 2
Kanwaljit Singh Ahluwalia, J. (Oral)
Criminal Appeal No. 1070-SB of 2002 has been preferred by Rajinder Singh alias Chhinda son of Kirpal Singh, Chamkaur Singh son of Karnail Singh and Gurdeep Singh son of Mehar Nath Jogi, whereas Criminal Appeal No. 1080-SB of 2002 has been instituted by Sukhdev Singh son of Sewa Singh and Ajaib Singh son of Harnam Singh.
Since both the appeals are directed against the judgment of conviction and order of sentence dated 30.5.2002, rendered by the Court of Additional Sessions Judge, Moga, the same shall be decided by a common judgment.
All the five appellants were named as accused along with Aslam, who died during trial and one Fariad alias Faddi, who was declared as a Proclaimed Offender, in case FIR No. 150 dated 28.10.1995, registered at Police Station Baghapurana, under Sections 397 and 460 IPC.
Vide judgment dated 30.5.2002, passed by the Court of Additional Sessions Judge, Moga, the appellants were found guilty of offence under Sections 397 and 460 IPC and vide a separate order of even date, they were sentenced to undergo rigorous imprisonment for a period of seven years, for the offence under Section 397 IPC. They were also sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- each, in default whereof to further undergo rigorous imprisonment for a period of two months each, for the offence under Section 460 IPC. The sentence awarded on both the counts were ordered to run concurrently.
The facts leading the registration of the case can be gathered Criminal Appeal Nos.1070-SB And 1080-SB of 2002 3 from the statement Ex.PA made by PW.1 Harjeet Kaur wife of Santokh Singh to PW.14 Jagmohan Singh, Inspector/Station House Officer, Police Station Baghapurana. In her statement, Harjeet Kaur narrated that she was married to Santokh Singh, resident of village Wadda Ghar and her husband were four brothers. Jaimal Singh, who was the eldest brother of her husband, along with his family was living in the adjoining house. For visiting both the houses, they have kept a common passage. Nirmal Singh and Malkiat Singh, younger brothers of her husband were employed out of the village and were residing at their respective places of posting along with their families. On the night intervening 27/28.10.1995, her husband Santokh Singh had gone to Amritsar. At about 1.30 A.M., some unknown persons knocked at the door of the house of Jaimal Singh, due to which members of both the families woke up. Jaimal Singh had opened the door and at that time five unidentified persons had entered into his house. They forced Jaimal Singh to take them to the room where valuables were stored. They took out cash and gold ornaments from the box where they were kept. Complainant Harjeet Kaur and Bhajan Kaur, wife of elder brother of her husband, along with Jaimal Singh had raised a noise. Jaimal Singh grappled with one young person aged about 22/23 years having a wheatish complexion and beard wearing a leather cap. That young man took out a pistol from his dub and fired a shot at Jaimal Singh which hit front side of his left shoulder, due to which he fell down. Out of the remaining four persons, one person, by appearance, was aged about 22/23 years, 5'-6"
high, heavy body, wheatish colour and wearing pant and shirt. The second person was aged about 20/22 years, having a medium body with Criminal Appeal Nos.1070-SB And 1080-SB of 2002 4 cut hair and beard and wearing pant and shirt. Remaining two persons were also aged about 22/23 years and were having medium bodies. All the above said persons ran away from the house through the outer gate of the house along with the stolen articles. At that time, electric bulb was emitting light in the courtyard. The complainant stated that the above said persons could be identified in case they are brought before him. On the same night, the information was relayed to Jagtar Singh, Sarpanch of the village, in whose Jeep, Bhajan Kaur along with some other persons took Jaimal Singh to the Civil Hospital, Moga, for treatment. It was further stated that Bhajan Kaur shall give details and list of the articles taken away by the accused later. The complainant along with Jagtar Singh, Sarpanch, was going to Police Station for lodging the report when Jagmohan Singh, Inspector, had met them in the way. After hearing the statement and finding the same to be correct, the complainant had appended her signatures.
On the basis of the above said statement Ex.PA made by complainant Harjeet Kaur, a formal FIR Ex.PA/1 was registered.
The above said FIR was investigated and the report under Section 173 Cr.P.C. was submitted.
All the appellants were charged for the offence under Sections 397 and 460 IPC, to which they pleaded not guilty and claimed trial.
The prosecution examined complainant Harjeet Kaur as PW.1, who stated that her husband has three brothers, namely Jaimal Singh, Nirmal Singh and Amrik Singh. Out of them, Nirmal Singh and Amrik Singh were residing out of the village. On the day of occurrence, her husband had gone to Amritsar. At about 1.30 A.M. somebody had Criminal Appeal Nos.1070-SB And 1080-SB of 2002 5 knocked at the door of the house of her husband's elder brother Jaimal Singh. He had opened the main gate of his house. All the five persons had entered into the house of her husband's brother and they took Jaimal Singh to the room where the valuables were stored. On hearing of the noise, the members of both the families woke up. Out of the five accused, she had identified Chamkaur Singh, Gurdeep Singh and Rajinder Singh as the persons who were present on the night of occurrence. This witness further stated that the accused took out the jewellery and other articles from the box lying in the store room and when they were about to leave the house, her husband's brother Jaimal Singh grappled with a person who was having a height of three or four feet. That person took out a pistol from his dub and fired at her husband's brother Jaimal Singh which hit on his left shoulder. He fell down due to this fire arm shot. All the accused ran away along with the bag which contained stolen articles. The information was given to the Sarpanch who rushed the injured to Civil Hospital, Moga, in his jeep. In cross-examination, this witness stated that the stolen articles were not owned by her and the house of Jaimal Singh was not having a light. However, in her house, which was adjacent to the house of Jaimal Singh, electric light was there. The police reached at the spot and had taken one cartridge into possession. She was at a distance of 10 feet from the place wherefrom the articles were taken away by the accused. The accused had not muffled their faces. This witness had not seen the stolen articles (ornaments) taken away by the accused. The following line of her cross-examination is important to be noticed:-
"Police had taken Chamkaur Singh to our village Criminal Appeal Nos.1070-SB And 1080-SB of 2002 6 after the dacoity".
Jaimal Singh, in whose house, the accused had entered forcibly and committed dacoity, appeared as PW.3. Broadly, this witness stated as to what was narrated by PW.1 Harjeet Kaur. In the Court, this witness further stated that the five persons who entered into his house were present in the Court. They had taken away Rs.50,000/- and jewellery of gold which was weighing about 13/14 tolas and consisting of two gold rings meant for men, one pair of gold bangles, three pairs of gold ear rings, three pairs of gold ear rings, two gold rings meant for women. One of the accused, who was not present in the Court, had fired a shot which hit on the upper part of his chest above nipple. After receipt of the injury, he fell down and the accused ran away from the spot along with the stolen articles. He was brought to the Civil Hospital, Moga, by Jagtar Singh, Sarpanch. Thereafter, he was referred to the Dayanand Medical College and Hospital, Ludhiana, from where he was discharged on 8.11.1995 and his statement was recorded by the police on 9.11.1995. On 4.5.1997, he received a message from Bhinder Singh, Assistant Sub Inspector. He along with Jagtar Singh, Sarpanch, went to village Bhekha where Bhinder Singh, Assistant Sub Inspector and other police officials were present and he was made to identify the gold ornaments. The gold ornaments, so recovered, from the accused, were exhibited as Ex.P1 to Ex.P7. This witness further stated that he was not a witness to the recovery of articles of gold jewellery. In cross-examination, this witness further stated that he had not seen the accused present in the Court, on the day of occurrence. They were not known to him earlier to the present occurrence.
Criminal Appeal Nos.1070-SB And 1080-SB of 2002 7 Bhajan Kaur, wife of Jaimal Singh appeared as PW.17. She also reiterated as to what was stated by PW.1 Harjeet Kaur. However, she stated that she identify three persons out of the five persons present in the Court. The persons, so identified, were Gurdeep Singh, Rajinder Singh and Chamkaur Singh. She identified gold jewellery articles in the Court which were exhibited as Ex.P2 to Ex.P6. In cross-examination, this witness stated that she was an illiterate lady and could not tell to the Court as to whether such like jewellery was available in the market or not. She further stated that she had not seen the accused earlier to the occurrence.
PW.2 Surjit Singh, Assistant Sub Inspector, stated that on 28.10.1995 he was posted at Police Station Baghapurana. He had received the statement Ex.PA sent by Jagmohan Singh, Inspector/Station House Officer, Police Station Baghapurana, on the basis of which, he had recorded FIR Ex. PA/1. The investigation of the case was entrusted to him on 28.3.1996. On 30.3.1996, he had recorded the statement of Pavittar Singh son of Kehar Singh, resident of Wadda Ghar, who had named the accused as Rajinder Singh, Chamkaur Singh, Gurdip Singh, Aslam, Farid alias Andhi, Ajaib Singh, and Sukhdev Singh. According to him, Pavittar Singh had overheard the accused saying that they had committed dacoity in village Wadda Ghar and had been planning another dacoity. This witness raided the houses of the accused on 24.4.1996 and at that time Chamkaur Singh was lodged in Ferozepur Jail and his production warrants were got issued from the Court of Judicial Magistrate Ist Class, Moga, on 29.4.1996. On 17.5.1996, the production warrants of accused Rajinder Singh, Ajaib Criminal Appeal Nos.1070-SB And 1080-SB of 2002 8 Singh, Aslam and Gurdeep Singh were got issued from the Court of Judicial Magistrate Ist Class, Moga, as at that time they were lodged in the Central Jail, Ferozepur.
PW.4 Major Singh, Sub Inspector, stated that on 16.4.1996 he was posted in CIA Staff at Ferozepur. He was holding a nakabandi at canal minor on the road which leads from Muddi to Loham. At about 11.00 A.M., a Maruti Van came from the side of Mudki. Out of the Van, one person was apprehended, who disclosed his name as Rajinder Singh alias Chhinda and from his search 9 mm pistol was recovered. The accused was arrested.
PW.5 Rachpal Singh, Assistant Sub Inspector, stated that in the month of November 1996, he was posted as Head Constable, CIA Staff at Ferozepur and on that day, the investigation of the case was entrusted to him. Accused Gurdeep Singh was interrogated by him who suffered a disclosure statement Ex.PF in which it was stated that he kept concealed three pairs of gold ear rings, five gold rings, three pairs of gold kante in his residential house. In pursuance of disclosure statement, the accused got recovered three pairs of gold ear rings weighing 13 grams 900 milligrams, five rings meant for male bearing impression JS weighing 20 grams 500 milligrams and three pairs of gold kante bearing impression HK weighing 25 grams 100 milligrams. A recovery memo Ex.PG was prepared. The rough site plan of the place of occurrence Ex.PH was drawn. The gold jewellery recovered from Gurdeep Singh was exhibited as Ex.P14 to Ex.P24.
PW.6 Satnam Singh, Head Constable, corroborated the testimony of PW.5 Rachpal Singh, Assistant Sub Inspector. Criminal Appeal Nos.1070-SB And 1080-SB of 2002 9 PW.7 Jagbir Singh, Head Constable, was examined regarding the arrest of accused Rajinder Singh on 16.4.1996 and recovery of pistol from him.
PW.8 Nirmal Singh, Head Constable, stated that on 28.10.1995 he had taken the Dog Squad to the place of occurrence. The dog led him to the side of canal from where it could not trace further.
PW.9 Jang Singh, Sub Inspector, stated that on 28.10.1995, he was a part of police party. They had gone to the house of injured PW.3 Jaimal Singh and had recovered one empty cartridge of .9mm bore along with bullet .9mm bore.
PW.10 Santosh Sharma proved the FIR registered under the Arms Act, 1959 against accused Rajinder Singh at the time of his arrest.
PW.11 Jaswinder Singh, Assistant Sub Inspector, proved proclamation whereby accused Fariad was declared as Proclaimed Offender.
PW.12 Bhinder Singh, Assistant Sub Inspector, on 4.5.1997, interrogated accused Sukhdev Singh, who had suffered a disclosure statement Ex.PL and in pursuance thereof, he got recovered one dabbi plastic near the embankment of canal minor in the area of village Bhekha and got recovered two gold rings bearing letters JS and two gold rings meant for women and one gold chain. Claimant Jaimal Singh was called, who had identified these gold articles.
PW.13 Gurmej Singh corroborated the testimony of PW.12 Bhinder Singh, Assistant Sub Inspector.
PW.14 Jagmohan Singh, who was posted as Inspector/Station House Officer, at Police Station Baghapurana, proved various facets of Criminal Appeal Nos.1070-SB And 1080-SB of 2002 10 the investigation.
PW.15 Jasbir Singh, Reader in the Court of Additional Sessions Judge, Ferozepur, proved various FIRs in which the accused were facing trial.
PW.16 Pavittar Singh had not supported the prosecution case and was declared as hostile as he resiled from his previous statement.
PW.18 Dr. Barinder Singh Pannu had medicolegally examined PW.3 Jaimal Singh and found fire arm injury on his person and had declared the injuries as grievous.
Thereafter, the prosecution had closed its evidence. The statements of accused, under Section 313 Cr.P.C., were recorded. All the incriminating evidence was put to them. They denied the same and pleaded false implication. No witness was examined in defence.
From the perusal of the above said evidence, the incriminating evidence, which has emerged against the accused/appellants, can be broadly noticed as under:-
A) PW.3 Jaimal Singh had identified, in the Court, all the five appellants as the persons who had committed the offence.
B) PW.1 Harjeet Kaur and PW.17 Bhajan Kaur had identified the three appellants, namely Chamkaur Singh, Gurdeep Singh and Rajinder Singh as the persons who had committed the offence.
C) On 16.4.1996, appellant Rajinder Singh alias Chhinda was arrested, from whom a recovery of one Criminal Appeal Nos.1070-SB And 1080-SB of 2002 11 pistol .9 mm was effected.
D) Accused Gurdeep Singh had made a disclosure
statement Ex.PF, in pursuance whereof, he got
recovered gold articles Ex.P15 to Ex.P24 vide
recovery memo Ex.PG.
E) Appellant Sukhdev Singh, on 4.5.1997, had suffered
disclosure statement Ex.PL and got recovered gold articles Ex.P2 to Ex.P7 vide recovery memo Ex.PM. F) Pavittar Singh, who had heard the accused saying that they had committed dacoity in the house of the witnesses, appeared as PW.16 and was declared hostile.
From the evidence and incriminating circumstances noticed above, the following sequence of events has come into light:-
I) The alleged dacoity was committed on the night intervening 27/28.10.1995.
II) On 30.3.1996 Pavittar Singh disclosed the identity of the accused as he overheard them, admitting fact that they were culprits, so far present occurrence was concerned.
II) On 16.4.1996 Rajinder Singh alias Chhinda was arrested along with one .9mm pistol.
IV) On 24.4.1996, PW.2 Surjit Singh, Assistant Sub Inspector, had raided the house of the accused. At that time Chamkaur Singh was lodged in Ferozepur Jail and his production warrants were got issued Criminal Appeal Nos.1070-SB And 1080-SB of 2002 12 from the Court of Judicial Magistrate Ist Class, Moga, on 29.4.1996.
V) On 17.5.1996 production warrants of accused
Rajinder Singh, Ajaib Singh, Aslam and Gurdeep
Singh were also obtained.
VI) On 4.5.1997 Sukhdev Singh had suffered a
disclosure statement Ex.PL and got the articles of gold jewellery recovered.
From the above, this Court has to answer the following questions:-
i) Whether the prosecution has proved the identity of the accused beyond reasonable doubt?
ii) Whether from the disclosure statements suffered by Rajinder Singh, Gurdeep Singh and Sukhdev Singh and recovery in pursuance thereof is sufficient to connect the accused with the alleged offence?
Mr. Atul Lakhanpal, Senior Advocate, assisted by Mr. R.S. Chahal, appearing for the appellants Sukhdev Singh and Ajaib Singh, has stated that in the present case, no test identification parade was held and therefore, the identification of the accused for the first time in the Court even though substantive piece of evidence cannot be given credence as no corroborative evidence in the form of test identification parade was available with the Court. It was further submitted that even though in the FIR PW.1 Harjeet Kaur had given description and broad features regarding the identity of the accused, yet she was silent about the same in the Court. It is further submitted that PW.1 Harjeet Kaur and Criminal Appeal Nos.1070-SB And 1080-SB of 2002 13 PW.17 Bhajan Kaur had not identified Sukhdev Singh and Ajaib Singh as the persons who had participated in the crime. It is next contended that as per the prosecution case, five persons had entered the house of PW.3 Jaimal Singh, whereas the Investigating Agency came to the conclusion that seven persons had participated in the occurrence.
Mr. Mehardeep Singh, Deputy Advocate General, Punjab, appearing for the State, submitted that the prosecution witnesses have been very straight forward and candid to say that these accused persons were not known to them earlier. It is submitted that the accused came to the house of PW.3 Jaimal Singh to commit the offence of dacoity. Therefore, they were seen for the first time and have been identified in the Court. In such circumstances, the identification held in the Court being a substantive piece of evidence aspires confidence.
I have given my thoughtful consideration to the rival submissions advanced by learned counsel for the parties.
It is true that five persons, who were standing in the dock, were identified by PW.3 Jaimal Singh. The Courts have always held that the identification of the accused standing in the Court has no value as the witness has no other option except to identify the persons whom the police had named as accused and are standing in the dock. This Court cannot become oblivious of the fact that in the present case, the occurrence had taken place on the night intervening 27/28.10.1995 and for the period of five months the Investigating Agency could not pick any lead to nail or identify the accused. The investigation, in the present case, was entrusted for the first time to PW.2 Surjit Singh, Assistant Sub Inspector, on 28.3.1996. On 30.3.1996, this Investigating Officer had Criminal Appeal Nos.1070-SB And 1080-SB of 2002 14 recorded the statement of PW.16 Pavittar Singh that he had overheard all the five accused talking and saying that they had committed the offence. This, in itself, is an improbable piece of evidence. Furthermore, PW.16 Pavittar Singh had not supported the prosecution and stated that he had made no such statement to PW.2 Surjit Singh, Assistant Sub Inspector. If it was so, then how the name of accused emerged as the persons who had committed the offence. This Court has to grope in dark. Furthermore, PW.1 Harjeet Kaur, in her cross-examination, has stated that the police had taken Chamkaur Singh to their village after the dacoity. PW.3 Jaimal Singh has stated that on 4.5.1997 he was called by PW.12 Bhinder Singh, Assistant Sub Inspector and he had identified the gold articles. On that very day, on the disclosure statement made by accused Sukhdev Singh, recovery was effected from near the canal minor in the area of village Bhekha. PW.3 Jaimal Singh has also stated that he also reached at canal minor in village Bhekha where he had identified the gold articles. It has nowhere come that when the identification of the gold articles was carried, the accused was sent from that place to the Police Station in the lock-up. Therefore, the fact that the accused were present when PW.3 Jaimal Singh reached there cannot be ruled out. Furthermore, PW.3 Jaimal Singh, in the categoric terms, has stated that accused Sukhdev Singh was present at the spot where he had identified the stolen jewellery. Therefore, Sukhdev Singh and Chamkaur Singh were already shown to the witness and their identity in the Court was also meaningless. Therefore, due to various factors which have been noticed above, it is not safe to rely upon the test identification of the accused held in the Court. PW.1 Harjeet Kaur had Criminal Appeal Nos.1070-SB And 1080-SB of 2002 15 specifically stated that the remaining accused, who were present in the Court, were not present at the time of occurrence. Therefore, she had ruled out the presence of Sukhdev Singh and Ajaib Singh at the spot.
The arrest of Rajinder Singh alias Chhinda was effected on 16.4.1996 and .9mm pistol was recovered from him. According to PW.3 Jaimal Singh, the accused person, who had fired upon him, was not present in the Court. Therefore, the pistol was not used by accused Rajinder Singh. The pistol so recovered along with empty cartridge was not sent to the laboratory. Therefore, the prosecution made no effort to tally the empty cartridge, recovered from the spot, with the pistol, recovered from accused Rajinder Singh. For possession of this pistol, Rajinder Singh was separately tried under the Arms Act, 1959. Therefore, the same will have no bearing in the present case and cannot be treated as an incriminating circumstance qua appellant Rajinder Singh.
Another feature, which requires to be noticed, is that all the accused were arrested in some other cases and their production warrants were sought separately. Appellant Rajinder Singh was arrested on 16.4.1996 in a case under the Arms Act, 1959 and at that time, he had made no disclosure regarding the theft pertaining to the present occurrence.
In the present case, the gold articles, recovered in pursuance of the disclosure statements made by appellant Gurdeep Singh and Sukhdev Singh, were got identified from PW.3 Jaimal Singh by PW.12 Bhinder Singh Assistant Sub Inspector. But the procedure regarding identification of the gold jewellery articles was not followed. They were Criminal Appeal Nos.1070-SB And 1080-SB of 2002 16 not mixed with other similar articles of gold. The identification of the jewellery was not held in the presence of an independent witness. What was recovered, was shown to the witness who identified the same. Furthermore, the accused were already in the custody of the police. Appellant Gurdeep Singh had suffered a disclosure statement in November 1996, whereas appellant Sukhdev Singh had suffered a disclosure statement in May 1997. No independent witness had attested the disclosure statement and the recovery memo. Therefore, it cannot be ruled out that the recovery of gold articles was a padding.
Furthermore, learned counsel for the appellants has relied upon a judgment rendered in A. Devendran v. State of Tamil Nadu 1998(1) Recent Criminal Reports 440 to contend that even recovery of gold articles will only fasten the appellants for offence under Section 411 IPC.
Learned counsel for the appellants has further submitted that acquittal of the appellants will be a mere formality as appellant Sukhdev Singh, as on 26.4.2010, has undergone six years one month and 18 days out of seven years' sentence, awarded upon him. Similarly, appellants Rajinder Singh, Gurdeep Singh and Ajaib Singh have undergone the entire sentence.
This Court will not determine as to whether the appellants have undergone their sentence or not. However, for the reasons stated above, this Court is of the view that it is not safe to convict the appellants and as a matter of abundant caution, benefit of doubt is extended to them.
Hence, both the appeals are accepted. The conviction and Criminal Appeal Nos.1070-SB And 1080-SB of 2002 17 sentence, awarded upon the appellants, is set aside and they are acquitted of the charges.
(Kanwaljit Singh Ahluwalia) Judge April 28, 2010 "DK"