Punjab-Haryana High Court
Pankaj Kumar And Anr vs State Of Punjab on 21 November, 2014
CRA-D-1145-DB of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CRA-D-1145-DB of 2011
DATE OF DECISION: NOVEMBER 21, 2014
PANKAJ KUMAR & ANR. ...APPELLANTS
VERSUS
STATE OF PUNJAB ...RESPONDENT
2. CRA-D-1193-DB of 2011
VICKY KUMAR PANDEY & OTHERS ...APPELLANTS
VERSUS
STATE OF PUNJAB ...RESPONDENT
3. CRA-D-71-DB of 2012
SURAJ KUMAR ...APPELLANT
VERSUS
STATE OF PUNJAB ...RESPONDENT
4. CRA-D-315-DB of 2012
RAM KUMAR & RAJ JANE ...APPELLANT
VERSUS
STATE OF PUNJAB ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL.
HON'BLE MR. JUSTICE DARSHAN SINGH.
1. Whether the judgement should be reported in the digest? Yes
----
PRESENT: MR. S.S.RANA, ADVOCATE FOR THE APPELLANTS
IN CRA-D-1145-DB OF 2011, CRA-D-71-DB OF 2012
& CRA-D-1193-DB OF 2011
MR. G.S.VERMA, ADVOCATE FOR THE APPELLANT
IN CRA-D-315-DB OF 2012.
MR. P.P.S.THETHI, ADDL.A.G., PUNJAB.
SUMIT GULATI
2014.12.04 10:45
I attest to the accuracy and
authenticity of this document
CRA-D-1145-DB of 2011 -2-
M. JEYAPAUL, J.
1. The accused were convicted under Section 148 and 396 IPC.
2. The brief case of the prosecution is that on 26.2.2005, PW6 Parveen Kumar, PW7 Shashi Bhushan, PW8 Ravi Kumar, PW15 Bharat Bhushan and PW19 Mukesh Kumar were travelling in the superfast train running from Amritsar to Delhi. At about 6.00 a.m., about 7 rustic people who were armed with pistols and deadly weapons like chhura and knives entered into the bogies of the train where the above witnesses were sitting. After the train left Doraha railway station, they started attacking and robbing the passengers. PW6 Parveen Kumar was attacked and a sum of `200/- was robbed from his possession. PW6 Parveen Kumar observed some accused calling the name of co-accused as Parmod Kumar and Ram Kumar. PW6 identified not only those two accused, namely, Parmod Kumar and Ram Kumar, but also the other accused during the course of trial. PW7 Shashi Bhushan deposed that a sum of `400/- and a mobile set were robbed from him. He identified accused Suraj Kumar as the person named by one of the co-accused. He also identified all the other accused facing the charges during the course of trial.
3. PW8 Ravi Kumar deposed that a sum of `350/- and a mobile phone were robbed from him. He also identified all the accused as the persons who committed robbery and murder of one of the co-passengers.
4. PW15 Bharat Bhushan deposed that a sum of `400/-, a watch, two gold rings and a mobile set were recovered from him. PW19 Mukesh Kumar was the servant of PW15 Bharat Bhushan. He also travelled in the SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -3- very same train. It is his evidence that he was attacked by accused Parmod Kumar and accused Ram Kumar. He sustained injury in the occurrence. He also deposed that the very same accused attacked Swaran Singh (since deceased) and caused his death. PW19 was robbed of a sum of `150/-, he possessed, by the accused. PW15 and PW19 also identified the accused who faced the trial as the persons who committed the offence of robbery and murder.
5. PW24 Dr. K.K.Karoli medico-legally examined PW19 Mukesh Kumar on 26.2.2005 at about 6.20 p.m. and found a lacerated wound on the left side head and an abrasion on the front side of the left leg. PW24 has deposed that those injuries had been sustained by PW19 Mukesh Kumar due to the attack launched against him with blunt object.
6. PW4 Dr.N.P.S.Virk who conducted post mortem examination on the dead body of Swaran Singh on 26.2.2005 deposed that following injuries were found on the dead body of Swaran Singh:-
"1. Incised wound 2cm x 0.5cm situated on left eye brow lateral edge.
2. Incised wound 5cm x 1cm situated on lateral aspect of left deltoid region.
3. Incised wound 2cm x 0.5cm on anterior border of left deltoid muscle.
4. Incised wound 2.5cm x 1 cm on epigastrium 4 cm below xiphisternum.
5. Incised wound 2 cm x 0.5cm x 1 cm on lateral aspect right SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -4- leg 3 cm below fibular head.
6. Incised wound 3cm x 0.5cm on lateral aspect of right leg 4 cm to the lateral of tibial tuberosity.
7. Incised wound 2cm x 0.5cm on right tibial skin on medial aspect 10 cm below tibial tuberosity.
8. Incised wound 1.5cm x 0.5cm on dorsal aspect of first interdigital web space of right hand."
7. On opening of the chest, he found that the laceration found on the left lung corresponded to the injury found on the chest wall and ribs. The laceration of liver corresponded to injury No.4. All the incised wounds had sharp edges on both sides. In his opinion, the deceased had died on account of shock and haemorrhage due to the injuries to vital organs. The injuries were certified as ante mortem in nature and were sufficient to cause death in the ordinary course of life.
8. PW22 DSP Rajeswhar Singh Sidhu, arrested accused Pankaj Kumar, Rajinder Yadav, Parmod Kumar and Ram Kumar in connection with yet another case. On the basis of the disclosure statements suffered by accused Pankaj Kumar in connection with this case, a sum of `162 were recovered from him. On the basis of the disclosure statement suffered by accused Rajinder Yadav, a sum of `157/- and an iron dagger were recovered. On the basis of the statement of accused Ram Kumar, a sum of `172/- and a dagger were recovered. Thereafter, accused Vicky Kumar Pandey and Suraj Kumar were arrested on 4.3.2005. A gold ring and an LG mobile of PW15 Bharat Bhushan were recovered from Vicky Kumar Pandey. Ring and a bag SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -5- of PW15 Bharat Bhushan and a knife were recovered from accused Suraj Kumar on the basis of disclosure statement suffered by him. Finally, accused Krishan Kumar Mishra was arrested on 10.3.2005. A mobile phone and an identity card of PW8 Ravi Kumar were recovered from him. PW13 Bachan Singh, investigated the case and laid final report in this case.
9. The trial Court having adverted to the evidence on record convicted the accused under Section 148 and 396 IPC.
10. This is not a case based on circumstantial evidence. On the basis of the information furnished by PW11 Deep Chand, Guard of the train, PW2 Nathi Lal, Station Superintendent had set the law in motion. PW2 Parveen Kumar, PW7 Shashi Bhushan, PW8 Ravi Kumar, PW15 Bharat Bhushan and PW19 Mukesh Kumar had travelled in the train in which not only dacoity, but also murder of Swaran Singh was committed. PW19 Mukesh Kumar was an injured witness. PW24 Dr.K.K.Karoli had medico-legally examined PW19 Mukesh Kumar on 26.2.2005 itself and found an abrasion on the front side of the left leg and a lacerated wound on the left side of the head of PW19. Though there is a palpable contradiction between the evidence of PW19 Mukesh Kumar and the medical evidence on record as regards the weapon that would have been used for causing injury to PW19, the Court took note of the seminal fact that PW19 Mukesh Kumar infact sustained injury in the occurrence that took place in the train on the day of occurrence. The contradiction as regards the weapon used may give rise to acquittal of the accused for the injuries sustained by PW19 Mukesh Kumar. But, inasmuch as it is well established by the prosecution that PW19 Mukesh Kumar infact SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -6- sustained injury in the occurrence, his evidence as regards the attack launched by the accused-appellants armed with lethal weapons not only on him, but also on the ill-fated deceased Swaran Singh cannot at all be doubted. The presence of PW19 Mukesh Kumar was well spoken to by PW15 who was the master of PW19. PW19 identified accused Parmod Kumar and accused Ram Kumar as the persons who not only attacked him but also the deceased Swaran Singh.
11. The post mortem examination conducted by PW4 Dr.N.P.S.Virk on the dead body of Swaran Singh would go to show that accused Parmod Kumar and Ram Kumar had used daggers to cause as many as 8 incised wounds on the vital parts of deceased Swaran Singh. At this juncture, it is relevant to note the fact that the daggers were recovered not only from accused Parmod Kumar, but also from accused Ram Kumar who were arrested on 28.2.2005 by PW22 DSP Rajeshwar Singh Sidhu in connection with yet another case. PW6, PW7 and PW8 who also travelled in the same train have also cogently deposed that it was only the accused-appellants who threatened them, as also the other passengers and robbed their valuables, having launched a murderous attack on Swaran Singh, who resisted their attempt to commit robbery.
12. A sum of `160/- from accused Pankaj Kumar, a sum of `157/- from accused Rajinder Yadav, a gold ring and LG mobile from accused Vicky Kumar Pandey, a mobile phone and an identity card from accused Krishan Kumar Mishra, a ring and a bag from accused Suraj Kumar and a sum of `172 from Ram Kumar had been recovered during the course of SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -7- investigation. That apart, lethal weapons also had been recovered from the accused-appellants. Therefore, the evidence adduced by the prosecution establishes without any pale of doubt that these accused having been armed with lethal weapons launched a murderous attack on Swaran Singh and caused his death and committed robbery.
13. Learned counsel appearing on the side of the appellants would submit that the meticulous details of occurrence as spoken to during the course of trial had not been described in the first information report.
14. Learned counsel appearing for the State resisted the above submission on the side of the appellants and argued that after all the first information report was lodged by PW2 Nathi Lal, Station Superintendent based on the cryptic information as regards the robbery and murder committed in the train as per the information collected from PW11 Deep Chand who was the Guard in the train.
15. Firstly, the FIR was not lodged by one of the eye witnesses to the occurrence. The eye witnesses had been under utter shock. Therefore, PW11 Deep Chand having collected some information about the occurrence passed on to PW2, lodged a cryptic FIR. Secondly, even the eye witnesses would not have known the names of the accused who were involved in dacoity. Thirdly, it is a settled proposition of law that that the first information report is not an encyclopedia which is supposed to contain all the meticulous details of the occurrence. No wonder, the cryptic first information report had been lodged in this case by PW2, even without the names of accused and exhaustive details of the occurrence.
SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -8-
16. Learned counsel appearing for the appellants would submit that the evidence of PW19 Mukesh Kumar should be rejected as he had not sustained any incised wound with daggers allegedly used by accused Parmod Kumar and accused Ram Kumar. It is true that the medical evidence on record contradicts the evidence of PW19 as regards the weapons that were used to cause injury found on his person. As there had been number of witnesses present in the train who spoke about the occurrence, there was no reason for the investigating agency to rope in a stranger to the occurrence as an eye witness. Further, inasmuch as PW19 had sustained injury in the occurrence and took treatment on the very same day of occurrence, his evidence cannot be rejected. At the most, the accused may not be liable for the injury caused to PW19 on account of the contradiction found in the testimony of PW19 and the medical evidence on record.
17. It is the further submission advanced on the side of the defence/appellants that the main accused who were arrested in connection with yet another case by the PW22 were simply shown as accused in this case which remained undetected. (unindicated)
18. On a perusal of the entire evidence on record, we find that the prosecution has proved the recovery of relevant material objects from the accused immediately after the arrest and the dacoity and murder committed by them armed with lethal weapons. The passengers chose to identify all the accused as perpetrators of the crime. When the arrest and recovery of the accused fortified the ocular testimony of the witnesses, there is no reason to doubt the arrest and recovery shown in this case.
SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -9-
19. The next submission made by learned counsel appearing for the appellants is that no independent witness was associated for recovery of some of the material objects and one of the independent witnesses Dilbagh Singh who was associated for recovery of some of the material objects was also not examined. Therefore, the recovery of material objects leaves room for doubt. Further, it is his submission that mere recovery of material objects would not connect the accused to the crime. He also referred to the decision of the Hon'ble Supreme Court in Dhan Raj @ Dhand vs. State of Haryana, 2014 (3) RCR (Criminal) 888 to support his plea.
20. In the aforesaid decision, the Hon'ble Supreme Court was disinclined to convict an accused based on mere recovery of stolen goods which could not be connected to the accused. It was observed that it could be at best inferred that the accused were in possession of stolen goods. On a perusal of the above decision of the Hon'ble Supreme Court, it is found that the said case was based on circumstantial evidence. Except recovery of stolen goods from the accused, no other legal evidence was adduced by the prosecution. Under such circumstances, the above observation was made by the Hon'ble Supreme Court.
21. The above ratio would not apply to the facts and circumstances of this case which was based on ocular testimony corroborated by the recovery of material objects robbed by the accused from the passengers in the train. Further, as per Illustration 'a' of Section 114 of The Indian Evidence Act, 1872, the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -10- knowing them to be stolen, unless he can account for its possession. In the instant case, there had been no plausible explanation given by the appellants for the articles recovered from their possession. Further, the above ratio will not apply to the case based on ocular testimony.
22. It is true that the investigating official chose not to associate any independent witness for recovery of some of the material objects and the only independent witness Dilbagh Singh who was associated during the recovery of some of the other articles was also not examined. The recovery has been effected by the police officer. There is no legal prescription that the evidence of a police officer as regards the recovery shall be disbelieved as he happens to be a police officer. Further, the recovery in this case is well connected to the accused and it also lends corroboration to the ocular testimony on record. Non-examination of independent witness for the recovery of material objects does not weaken the case of the prosecution in the special facts and circumstances of this case.
23. Learned counsel referring to the deposition Ex.DW/1A of PW8 Ravi Kumar in connection with yet another criminal case in FIR No.41 would submit that PW8 Ravi Kumar had deposed before the trial Court in the other case in FIR No.41 that the accused had not committed robbery. Therefore, the evidence of PW8 Ravi Kumar is liable to be rejected, it was submitted by him.
24. Unless the previous statement of a witness is brought to his notice and confronted, such a previous statement cannot be relied upon by the Court of Law. In the instant case, PW8 Ravi Kumar was not confronted with SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -11- his previous statement Ex.DW/1A. Further, we are concerned with the dacoity and murder committed in this case. PW8 Ravi Kumar has affirmatively identified those accused who committed the crime. Further, the evidence of other witnesses fully supports the testimony of PW8 Ravi Kumar in this case. Therefore, there is no reason to reject the evidence of PW8 Ravi Kumar.
25. It is lastly submitted by learned counsel for the appellants that no identification parade was conducted by the investigating official facilitating the alleged eye witnesses to identify the accused during the course of investigation. No doubt, the above submission, in our view, has its own weight and merit. The occurrence had taken place on 26.2.2005. The witnesses were examined during the trial after about 4-5 years of the occurrence. The investigating official should have, in all fairness, conducted the test identification parade not only for proper investigation of the case, but also for facilitating the witnesses to recollect immediately the scene of occurrence and keep it promptly in their mind. Such a lapse on the part of the investigating official is found to be a material lapse. But the question is when ocular witnesses, including the injured witness, categorically spoke with meticulous details the entire occurrence that took place in their presence, it is highly improper to reject their testimony just because test identification parade was not conducted by the investigating official. Further, the occurrence had lasted for about 5-10 minutes. It was really a shocking violent occurrence. The witnesses as normal human beings are supposed to retain such a violent happening in their mind. No wonder, they could identify SUMIT GULATI 2014.12.04 10:45 I attest to the accuracy and authenticity of this document CRA-D-1145-DB of 2011 -12- the accused during the course of trial. Further, it is a settled proposition of law that it is not the identification of accused by the witnesses during the course of investigation, but the identification of accused during the course of trial that matters.
26. Learned counsel appearing for the appellants cited a decision of the Hon'ble Supreme Court in Girdhari vs. State (NCT of Delhi), 2012(1) RCR(Criminal) 951. In the aforesaid case, it is found that the recovery of material object was found not credible and the identification of the accused was also made only during the course of trial. Left with no other evidence, the Hon'ble Supreme Court chose to disbelieve the identification of the accused made for the first time in the Court by the witnesses.
27. In the instant case, not only one of the witnesses, but as many as 5 eye witnesses including the injured witness have spoken in one voice that it is only these accused who perpetrated the crime of dacoity and murder. In the face of above voluminous evidence, in our considered view, the above ratio will not apply to the facts and circumstances of this case.
28. In the above set of circumstances, the trial Court has rightly evaluated the evidence on record and come to a conclusion that the accused- appellants committed the offence punishable under Section 148 and 396 IPC. There is no merit in the appeals and therefore, they stand dismissed.
(M. JEYAPAUL)
JUDGE
November 21, 2014 (DARSHAN SINGH)
Gulati JUDGE
SUMIT GULATI
2014.12.04 10:45
I attest to the accuracy and
authenticity of this document