Punjab-Haryana High Court
Kulwant Singh And Another vs State Of Haryana on 8 December, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 816-DB of 2006
DATE OF DECISION : 08.12.2010
Kulwant Singh and another
.... APPELLANTS
Versus
State of Haryana
..... RESPONDENT
Crl. A. No. 879-DB of 2006
DATE OF DECISION : 08.12.2010
Hari Singh
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Bijender Dhankar, Advocate,
for the appellants
(in Crl. A. No. 816-DB of 2006)
Ms. Baljit K. Mann, Advocate,
for the appellant
(in Crl. A. No. 879-DB of 2006)
Mr. S.S. Randhawa, Addl. A.G., Haryana.
***
SATISH KUMAR MITTAL , J.
1. This judgment shall dispose of Criminal Appeal No. 816-DB of 2006, filed by accused Kulwant Singh and Mohinder Singh, and Criminal Crl. A. No. 816-DB of 2006 -2- Appeal No. 879-DB of 2006, filed by accused Hari Singh.
2. All the three accused were tried by the court of learned Sessions Judge, Rewari, for the offences under Sections 302, 397 and 201 IPC, for committing the murder of Deepak alias Deepa and Som Dutt, coductor/cleaner and the driver, respectively, of truck bearing registration No. HR-55A-0606; for committing robbery of the aforesaid truck loaded with mustard seeds, while armed with deadly weapons; and for throwing the dead bodies of both the aforesaid persons near the Dawana canal to cause the evidence of murder to disappear with intention of screening themselves from legal punishment. The fourth accused, namely Pramjeet Singh, was found to be juvenile and was separately tried by the Juvenile Justice Board. The trial court, vide its judgment dated 13.9.2006, convicted all the three accused under Sections 302, 201 and 397 IPC; and vide order dated 14.9.2006, they were sentenced to undergo imprisonment for life and to pay a fine of ` 3,000/- each, in default to undergo rigorous imprisonment for a period of four months under Section 302 IPC; to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 3,000/- each, in default to undergo rigorous imprisonment for a period of four months under Section 397 IPC; and to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 2,000/- each, in default to undergo rigorous imprisonment for a period of three months under Section 201 IPC. Against the said judgment and order, the above named three accused have filed the aforesaid two separate appeals.
Crl. A. No. 816-DB of 2006 -3-
3. As per the prosecution version, Virender Kumar Aggarwal (PW.28) got loaded mustard seed bags in the truck bearing registration No. HR-55A-0606 from Kota (Rajasthan) to be delivered at Hapur (Uttar Pradesh). Som Dutt (deceased) was driving the said truck and Deepak alias Deepa (deceased) was conductor/cleaner of the truck. On 21.10.2001 at about 6.00 PM, when the said truck was at village Kotputli (Rajasthan), all the four accused boarded the truck posing themselves to be the passengers, for going to Dharuhera. At about 6.30 PM, Giriraj Sharma (PW.21), cousin of driver Som Dutt, while coming from Jaipur, was present at Bus Stand of village Kotputli and he saw that all the four accused had boarded the truck being driven by Som Dutt. Thereafter, when the truck reached within the jurisdiction of District Rewari, the accused got stopped the truck near the railway bridge on the National Highway No.8 and murdered the driver and the conductor/cleaner of the truck by throttling them, after putting Parna and Muffler around their necks, and by giving them injuries with iron rods. Thereafter, they threw the dead bodies of both the deceased persons on the back of Dawana canal and ran away with the truck loaded with the mustard bags.
4. On the same day i.e. on 21.10.2001 at about 10 PM, Karam Chand (PW.5) was watering his fields. He saw one truck coming from the side of Biram and near his tubewell, the truck got entrenched in the mud. The truck was loaded with mustard seed bags and there were 4/5 persons in the truck. In order to reduce the weight of the truck, so that it could be Crl. A. No. 816-DB of 2006 -4- pulled out of the mud, they unloaded 120 bags of mustard seeds and told him that they will come next day to collect those bags, but they did not return. Therefore, Karam Chand informed the police of Police Station Kotkassim (Rajasthan) about this fact, and the police seized those bags under Section 102 Cr.P.C.
5. On 22.10.2001 at 3 AM (morning), when the said truck went out of order at Bawal Chowk, village Tapukhera, it was got repaired from Bashir Ahmed (PW.18). Thereafter, at about 6 AM, accused Hari Singh used the STD Booth of Puran Chand (PW.17) in village Tapookara.
6. On 22.10.2001 at about 10.30 AM, when Balram (PW.4), a resident of village Begthala, was going towards village Kasola Chowk on his tractor, near Dwana canal, he noticed two dead bodies lying at the bank of the said canal, having injuries on their bodies. He immediately informed the police. His statement (Ex.PF) was recorded by Ram Singh SI/SHO, Police Station Kasola (PW.15), on the basis of which the FIR (Ex.PF/2) was registered. Thereafter, the police reached the spot, prepared the inquest reports Ex.PQ and Ex.PR and sent the dead bodies of both the deceased persons for post-mortem examination. By that time, identity of both the deceased persons was not known.
7. On 22.10.2001, Dr. Vipula Gadh (PW.24), conducted post mortem examination on both the unidentified dead bodies. Vide Post Mortem Reports Ex.PCC and Ex.PDD, she found three and two injuries, respectively, on the dead bodies.
Crl. A. No. 816-DB of 2006 -5-
8. On 24.10.2001, when the matter was published in the news paper, Ompal (PW.3) son of Jaipal and Ompal (PW.19) son of Phool Singh, cousin and brother of deceased Deepak alias Deepa, went to Civil Hospital, Rewari, and identified the dead body of Deepak alias Deepa. On the same day, Seeta Ram (PW.25), Jeeja (husband of sister) of deceased Som Dutt and Sham Sunder also went to Civil Hospital, Rewari, and they identified the dead body of Som Dutt. Thereafter, dead bodies of both the deceased persons were handed over to their relatives.
9. During investigation, the police recorded the statements of Bashir Ahmed (PW.18) and Giriraj Sharma (PW.21) and made enquiries from Puran Chand (PW.17). On getting secret information, on 2.11.2001, the police party headed by Bhoop Singh, Inspector, CIA Rewari (PW.26) along with Parveen Chopra (PW.23), owner of the truck, went to Agra in search of the truck, where they noticed the truck in the area of Mathura Road and ultimately, near Bharatpur turn, the truck was stopped and all the four accused were found travelling in the said truck, which was being driven by accused Hari Singh. The truck was taken into possession by the police vide recovery memo Ex.PAA. A purse containing currency notes of ` 80/-, belonging to deceased Deepak alias Deepa, a visiting card of Delhi Transport Corporation and other documents, lying in the truck, were also taken into possession vide separate memo Ex.PBB. Rough site plan (Ex.PCC) of the place of recovery was prepared.
10. On 3.11.2001, the police moved an application (Ex.PNN) in the Crl. A. No. 816-DB of 2006 -6- court of the Chief Judicial Magistrate, Rewari, for test identification parade of the accused, but without assigning any reason, the accused denied for their test identification parade. Thereupon, they were interrogated. On 9.11.2001, 120 bags of mustard seed, which were earlier seized by the police of Police Station Kotkassim (Rajasthan), were taken into possession by the police in this case vide memo Ex.PC.
11. On 11.11.2001, in pursuance of his disclosure statement (Ex.PMM), accused Hari Singh got recovered 46 bags of mustard seed and an iron rod having blood stains, from his house situated at Nagaheri (Rajasthan), which were taken into possession vide memo Ex.PFF.
12. On 12.11.2001, in pursuance of his disclosure statement (Ex.PT), accused Kulwant Singh got recovered 20 bags of mustard seed and an iron rod, from a tubewell house situated in village Rajpura, District Rewari, which were taken into possession vide memo Ex.PT/1. On the same day, in pursuance of his disclosure statement (Ex.PLL), accused Mohinder Singh got recovered 10 bags of mustard seed from the tubewell of Sube Singh near Rampura, Rewari, which were taken into possession vide separate memo Ex.PU. Similarly, on the same day, in pursuance of his disclosure statement (Ex.PKK), accused Pramjeet Singh (juvenile) got recovered 10 bags of mustard seed from the same tubewell, which were taken into possession vide separate memo Ex.PV. On the same day, accused Mohinder Singh also got recovered a blood stained Parna, which was taken into possession vide memo Ex.PY. All the four accused also got identified Crl. A. No. 816-DB of 2006 -7- the places where the dead bodies were lying and where the mustard seed was lying.
13. On 3.11.2001, Dr. Kulwinder Singh, Senior Scientific Officer (PW.13) conducted Benzedrine Test for detection of blood stains on the front glass towards the cleaner side door and the sunmica fixed over the back seat of truck No. HR-55A-06060, standing in the premises of Police Station, Model Town, Rewari. The blood stains were detected and the same were lifted by him. Thereafter, he advised the Investigating Officer to send those blood stains to the Forensic Science Laboratory. As per reports of the Forensic Science Laboratory, Haryana, Madhuban (Ex.PSS), blood was detected on the blood stained earth, shirts, Pyjama and pant, worn by the deceased, Mufflar and the iron rod, which were got recovered from the accused. As per the report of Serologist (Ex.PSS/1), the blood was human.
14. After completion of investigation, the challan was filed against the appellants and they were charge sheeted for the offence under Sections 397, 302 and 201 IPC, to which they did not plead guilty and claimed trial.
15. In support of its case, the prosecution examined 28 witnesses.
16. PW.1 Munshi Ram, PW.6 Constable Surender Singh, PW.7 Constable Rajinder Singh, PW.8 Constable Jasbir Singh, PW.9 Constable Ashok Kumar, PW.10 Constable Dev Dutt, PW.11 Constable Mahavir Singh, PW.12 Banwari Lal, Patwari, PW.14 SI Balwan Singh and PW.20 Head Constable Laxmi Narain are the formal witnesses.
17. PW.2 SI Ravi Dutt stated that on 9.11.2001, all the four Crl. A. No. 816-DB of 2006 -8- accused persons led the police party and pointed out the place where they had put down 120 bags of mustard seed. On 23.11.2001, this witness had obtained 120 bags of mustard seed from Police Station Kotkasim (Rajasthan), which were taken into possession vide memo Ex.PCC, after obtaining orders dated 22.11.2001 from ACJM, Kishangarh.
18. PW.3 Om Pal son of Jai Pal and PW.19 Om Pal son of Phool Singh had identified the dead body of deceased Deepak alias Deepa in Civil Hospital, Rewari and PW.25 Seeta Ram had identified the dead body of deceased Som Dutt.
19. PW.4 Bal Ram is the complainant, who stated that on 22.10.2001 at about 10.00/10.30 AM, when he was going towards village Kasola Chowk on his tractor, and when he reached near Dawana canal, he noticed two dead bodies lying on the bank of the canal having injuries on their bodies. He informed the police by making statement (Ex.PF), on the basis of which formal FIR (Ex.PF/2) was registered. Thereafter, the police visited the spot and took into possession the dead bodies and blood stained earth vide memo Ex.PA.
20. PW.5 Karam Chand stated that on 21.10.2001 at about 10 PM, while he was irrigating his fields, one truck came from the side of village Biranwas and near his tubewell, it entrenched in the mud. The occupants of the truck unloaded 120 bags of mustard seed on the road side and went away, saying that they would come back and lift the bags, but they did not return. Thereafter, he informed the police of Police Station Kotkasim, who Crl. A. No. 816-DB of 2006 -9- took into possession all those bags.
21. PW.13 Dr. Kulwinder Singh, Senior Scientific Officer, who conducted Benzedrine Test on the truck and detected blood stains, proved his report Ex.PN.
22. PW.15 Sub Inspector Ran Singh conducted the initial investigation in the case, who recorded the statement (Ex.PF) of the complainant, conducted inquest proceedings Ex.PQ and Ex.PR, got the post mortem examination conducted on the dead bodies, took into possession sealed parcels containing the clothes of the deceased vide memo Ex.PJ, lifted the blood stained earth from the spot and took the same into possession, vide memo Ex.PA and prepared the rough site plan (Ex.PS) of the place of occurrence.
23. PW.16 Suresh Kumar, PW.27 Kanwar Pal Singh and PW.28 Virender Kumar Aggarwal are the independent witnesses, who have corroborated the prosecution case on all the material aspects. They are the witnesses to the disclosure statements of the accused persons and the subsequent recoveries got effected by the accused. They identified the mustard seed bags, recovered at the instance of the accused persons.
24. PW.17 Puran Chand, who was running a STD Booth in village Tapukara stated that on 22.10.2001 at about 6 AM, accused Hari Singh came to his booth and made a phone call to one Mahesh informing him that he will be coming along with the L.P Truck, standing in front of the booth. He further stated that the said truck was got repaired from a mechanic shop Crl. A. No. 816-DB of 2006 -10- on the other side of the road. This witness identified accused Hari Singh in the court.
25. PW.18 Bashir Ahmed stated that during the intervening night of 21/22.10.2001 at about 3 AM (morning), some persons came to his shop for repair of their truck. This witness repaired the truck, for which the payment of ` 400/- was made to him by those persons after sale of three bags of mustard seed to one Gopal of village Tapukara. He identified accused Hari Singh as one of those persons.
26. PW.21 Giriraj Sharma, cousin of deceased Som Dutt, driver of the truck, stated that on 21.10.2001 at about 7 PM, his cousin Som Dutt told him that he was going to Hapur with the truck loaded with mustard seed. He further stated that at that time, four persons had boarded the truck for going to Dharuhera. He identified all the three accused, present in the court, as the persons who boarded the truck.
27. PW.22 Sub Inspector Harpal Singh, who partly investigated the case, proved the scaled site plan Ex.PM got prepared by him from the Halqa Patwari.
28. PW.23 Parveen Chopra, owner of truck No. HR-55A-0606, proved that deceased Som Dutt and Deepak alias Deepa were employed by him as driver and conductor/cleaner on his aforesaid truck. He is the witness to the recovery of the truck and the purse, containing currency notes of ` 80/-, belonging to deceased Deepak alias Deepa, a visiting card of Delhi Transport Corporation and other documents, lying in the truck. He is also Crl. A. No. 816-DB of 2006 -11- witness to the arrest of all the accused persons.
29. PW.24 Dr. Vipula Gadh, who conducted the post mortem examination on the dead bodies of two unidentified bodies, which were identified after the post mortem examination as that of Som Dutt and Deepak alias Deepa, has proved the injuries found on the bodies of both the deceased and their Post Mortem Reports as Ex.PCC and Ex.PDD.
30. PW.26 Inspector Bhoop Singh, the Investigating Officer, of the case, who arrested the accused persons and effected various recoveries in pursuance of their disclosure statements, has fully supported the prosecution case and proved all the relevant documents.
31. In their statements under Section 313 Cr.P.C., the appellants denied all the allegations appearing against them in the prosecution evidence. They alleged their false implication in the case. They pleaded that they had no concern with the occurrence. The police had lifted them from their village and connected them with the present occurrence to achieve a target to solve the present case, though it was a blind murder. However, they did not examine any witness in their defence.
32. The trial court, while relying upon the evidence of last seen, recovery of dead bodies, truck, mustard seed bags, Mufflar, Parna, and the iron rods, which were used to commit the murder of Som Dutt and Deepak alias Deepa, identification of the truck and the mustard seed bags, refusal of the accused to join the test identification parade, as well as the medical evidence, convicted and sentenced the appellants, as indicated above. Crl. A. No. 816-DB of 2006 -12-
33. Shri Bijender Dhankar and Smt. Baljit K. Mann, Advocates, learned counsel for the appellants, argued that in the instant case, the prosecution has miserably failed to establish the identity of the accused and to connect the appellants with the alleged crime. They have been falsely implicated in the case by the police. They have been lifted from their village and involved in the present crime, in order to achieve a target to solve the present case. According to the learned counsel, Karam Chand, in whose field immediately after the occurrence, 120 bags of mustard seed were unloaded, while appearing in the court as PW.5, did not identify the appellants as the persons who had unloaded the mustard seed bags in his field. Learned counsel further argued that the testimony of PW.21 Giriraj Sharma, who according to the prosecution version, had last seen the deceased in the company of the accused, is unreliable, as he was a close relative of deceased Som Dutt. The identification of the accused by this witness in the court is having no meaning, because earlier to the deposition made by him in the court, the accused were known to him. Learned counsel have submitted that the evidence of identification of the place of occurrence by the accused has no value, because the said identification was made by them after lodging the FIR and recovery of the dead bodies, as the place of occurrence was already known to the police. The learned counsel further argued that arrest of the accused and recovery of the truck from their possession were planted by the police. The iron rod (Ex.P8) and the Parna (Ex.P10), alleged to have been recovered at the instance of appellants Hari Crl. A. No. 816-DB of 2006 -13- Singh and Mohinder Singh, respectively, were having no blood stain. These recoveries further do not connect the appellants with the crime. In nutshell, the argument of learned counsel for the appellants is that case of the prosecution is based upon circumstantial evidence and the evidence led by the prosecution suffers from many discrepancies, improbabilities and there are many breaks in the chain of circumstantial evidence. Thus, the evidence, led by the prosecution, is not sufficient to arrive at a definite conclusion that the appellants had committed the alleged crime. Therefore, by giving the benefit of doubt, the appellants are entitled to be acquitted.
34. On the other hand, Shri S.S. Randhawa, Additional Advocate General, Haryana, learned counsel for the respondent-State, argued that in the instant case, the prosecution has led sufficient cogent and reliable circumstantial evidence, unerringly pointing towards the guilt of the accused. From the time, the accused boarded the truck till their arrest along with the truck, all the circumstances have been clearly established and proved by the prosecution. There is no break in the chain of circumstances. He further argued that the testimony of PW.21 Giriraj Sharma clearly establish the identity of the appellants, who had boarded the truck on 21.10.2001 at about 7.00 PM at village Kotputli. His statement under Section 161 Cr.P.C., was recorded by the police much before the arrest of the accused persons. Learned counsel further argued that immediately after the arrest of the accused, the police moved an application (Ex.PNN) before the Chief Judicial Magistrate, Rewari, for test identification parade of the Crl. A. No. 816-DB of 2006 -14- accused, but the accused, who were arrested along with the truck, had categorically refused to join the test identification parade, without any reason. This fact goes against the appellants. While referring to the statements of PW.17 Puran Chand and PW.18 Bashir Ahmed, who were running a STD Booth and a motor mechanic shop, respectively, in village Tapukara, learned counsel argued that these witnesses have also identified appellant Hari Singh as the person who made a phone call at the STD Booth of PW.17 Puran Chand and got repaired the truck from PW.18 Bashir Ahmed. Learned counsel argued that statement of Puran Chand (PW.17) was recorded by the police under Section 161 Cr.P.C., on 24.10.2001, in which he had mentioned the name of appellant Hari Singh. He further argued that on 2.11.2001, on getting secret information, the police party along with Parveen Chopra (PW.23), owner of the truck, noticed the truck at Mathura road and after chasing for a long distance, the truck was got stopped near Bharatpur. At that time, the accused were sitting in the truck and Hari Singh was driving the same. The accused were arrested along with the truck. These facts itself prove the involvement of the accused in the crime. Learned counsel argued that recovery of the truck from the possession of the accused raises a strong presumption against them under Illustration (a) appended to Section 114 read with Section 106 of the Evidence Act, 1872. None of the appellants in his statement under Section 313 Cr.P.C., has given any reasonable explanation and has failed to rebut the said presumption. The appellants have only taken the stand that they Crl. A. No. 816-DB of 2006 -15- have been falsely implicated by picking them from their villages. Learned counsel argued that all the four accused belong to three different villages and it does not stand to reason as to why they will be lifted from their villages and falsely implicated by the police without there being any motive. According to the learned counsel, the learned trial court has rightly convicted and sentenced the appellants, while relying upon the prosecution evidence, which establish the guilt of the appellants beyond reasonable doubt.
35. The instant case is a case of blind murder. On 22.10.2001, after receiving information from Balram (PW.4), the police found dead bodies of two unidentified young persons lying on the bank of Dwana canal within the area of Police Station Kasola. On the same day, post mortem examination of those dead bodies were conducted by Dr. Vipula Gadh (PW.24) in Civil Hospital, Rewari, and according to the Post Mortem Reports, three and two injuries were found on the bodies of both the deceased persons. Their deaths were found to be homicidal. Subsequently, when a news was published in the news paper, PW.3 Ompal son of Jaipal and PW.19 Ompal son of Phool Singh came to the Hospital at Rewari and identified the dead body of Deepak alias Deepa. Similarly, PW.25 Seeta Ram and Sham Sunder also came and identified the dead body of Som Dutt in the Hospital. Thereafter, the police came to know that the deceased persons were the driver and conductor/cleaner of truck No. HR-55A-0606, which was loaded with mustard seed bags and was going from Kota Crl. A. No. 816-DB of 2006 -16- (Rajasthan) to Hapur (Uttar Pradesh). During the investigation, on 24.10.2001, statements of Karam Chand (PW.5), Puran Chand (PW.17) and Bashir Ahmed (PW.18) were recorded by the police under Section 161 Cr.P.C. Karam Chand stated that on 21.10.2001 at about 10 PM, the aforesaid truck entrenched in the mud near his tubewell in his field and the four persons boarding in that truck unloaded 120 bags of mustard seed on the road side and then they went away by saying that they would come back and lift the bags, but they did not return. Thereafter, on the next day, he informed the police of Police Station Kotkasim, who took those bags to the Police Station. Bashir Ahmed stated that on the intervening night of 21/22.10.2001 at about 3 AM, some one had got repaired the truck from him. Puran Chand stated that on 22.10.2001 at about 6 AM, Hari Singh made a phone call from his STD Booth in village Tapukara and truck of the said person was standing in front of the STD Booth. Thereafter, on 25.10.2001, the police recorded the statement of Giriraj Sharma (PW.21) under Section 161 Cr.P.C., who had stated that on 21.10.2001 at about 7 PM, while he was going to his village from Jaipur, in the way, at bus stand of village Kotputli, the truck in question came, which was being driven by his cousin Som Dutt, who told him that mustard seed bags were loaded in the truck and he was going to Hapur. This witness further stated that at that time, four persons boarded the truck. On 2.11.2001, after receiving information, the accused were apprehended along with the truck, in the presence of Anil Kumar and Parveen Chopra (PW.23). Thereafter, on Crl. A. No. 816-DB of 2006 -17- 3.11.2001, on the application made by the police for test identification parade before the Chief Judicial Magistrate, Rewari, the accused refused to join the test identification parade. Dr. Kulwinder Singh, Senior Scientific Officer (PW.13) conducted Benzedrine Test and found blood stains on the front glass towards the cleaner side door and the sunmica fixed over the back seat of truck. Similarly, as per report of the Forensic Science Laboratory, Haryana, Madhuban (Ex.PSS), blood was detected on the blood stained earth, shirts, Pyjama and pant, worn by the deceased, Mufflar and the iron rod. Thereafter, during interrogation, the accused persons, in pursuance of their disclosure statements, got recovered the mustard seed bags, iron rods and the blood stained Parna, which were taken into possession by the police. All these circumstances have been duly proved by the prosecution and the statements of all the prosecution witnesses, who proved these circumstances, are reliable and trust-worthy. On a careful examination of the testimonies of all these witnesses, we do not find any contradiction, improbability or discrepancy in the same. In our opinion, statements of Karam Chand (PW.5), Puran Chand (PW.17) and Bashir Ahmed (PW.18) and Giriraj Sharma (PW.21) are material, which have established the clear connection of the appellants with the alleged crime. The statement of PW.21 Giriraj Sharma cannot be discarded merely on the ground that he is a relative of one of the deceased. His conduct to meet one of the deceased on his truck, when he was present at bus stand of village Kotputli, cannot be said to be improbable. This witness has categorically Crl. A. No. 816-DB of 2006 -18- stated in his statement before the police under Section 161 Cr.P.C., which was recorded on 25.10.2001, that he was in a position to identify the accused persons. He had given their description. When the police moved an application for test identification parade of the accused before the Chief Judicial Magistrate, Rewari, they had categorically denied to join the test identification parade without any reason and justification. In such a case, when the accused themselves refused to participate in the test identification parade, they cannot raise the contention that identification of the accused made for the first time in the court, wherein they specifically point towards them as the persons who had taken part in the commission of the crime, should not be relied upon. Thus, the trial court has rightly drawn an adverse inference against the appellants in this regard.
36. As far as the testimony of PW.5 Karam Chand is concerned, he has supported the prosecution case regarding unloading of 120 bags of mustard seed in his field, but he did not identify the accused in the court. Since this witness had seen the accused during night time, therefore, there is possibility of his not recognizing the persons, who had unloaded those bags in his field, and on that account, he could not identify the accused. It is not the case where the said witness had stated that the appellants were not those persons, who had unloaded the bags of mustard seed in his field. The identity of appellant Hari Singh by PW.17 Puran Chand and PW.18 Bashir Ahmed in the court has been duly established. They had the reason to recognize and identify appellant Hari Singh, as he had gone to the STD Crl. A. No. 816-DB of 2006 -19- Booth of PW.17 Puran Chand and got repaired the truck from PW.18 Bashir Ahmed. The name of appellant Hari Singh was given by PW.17 Puran Chand even in his statement before the police, which was made much earlier to the arrest of the accused. According to him, the person who made telephone call from his STD Booth, had asked the receiver of the phone call that he is Hari Singh and he will be coming with the truck, which was standing in front of the STD Booth. At the time of arrest of all the four accused, appellant Hari Singh was found driving the truck. This circumstantial evidence further establish the involvement of the appellants in the crime.
37. The most important evidence proved by the prosecution is the recovery of the robbed truck from the possession of the appellants, when they were apprehended and arrested, after being chased by the police. This fact has been proved by PW.23 Parveen Chopra, owner of the truck, and PW.26 Inspector Bhoop Singh, the Investigating Officer. The statements of these witnesses are reliable and trust-worthy and there is no doubt regarding the arrest of the accused and recovery of the truck from their possession.
38. In the present case, the murder and robbery are the integral parts of the same transaction. Immediately after the occurrence, within a period of 12 days, the robbed property i.e. the truck was found in possession of the appellants. They could not furnish any valid explanation with regard to the lawful possession of the said truck. Their contention is that nothing was recovered from them. They have been lifted from their villages and Crl. A. No. 816-DB of 2006 -20- thereafter, recovery of the truck along with the bags of mustard seed, and other recoveries were planted upon them. Illustration (a) appended to Section 114 read with Section 106 of the Evidence Act, 1872 raises presumption against an accused, if he is found in possession of the stolen or robbed articles, soon after the occurrence. Though the said presumption is rebuttable. In Gulab Chand v. State of M.P., (1995) 3 Supreme Court Cases 574, it was held that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. From the nature of evidence adduced in this case and from the recovery of the articles from the possession of the accused and his dealing with those articles immediately after the murder and robbery, a reasonable inference of the commission of the offence of murder and robbery can be drawn against the accused, when no plausible explanation for lawful possession of those articles immediately after the murder is given by the accused. The Hon'ble Supreme Court in Limbaji and others v. State of Maharashtra, (2001) 10 Supreme Court Cases 340 held that a presumption of fact is a type of circumstantial evidence which in the absence of direct evidence becomes a valuable tool in the hands of the court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of our criminal law. It is an inference of fact drawn from another proved fact taking due note of Crl. A. No. 816-DB of 2006 -21- common experience and common course of events. Once the presumption under Section 114 of the Evidence Act, 1872 is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a face on which there is no direct evidence, the facts of the particular case should remain uppermost in the mind of the Court. These facts should be looked into from the angle of common sense, common experience of men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not.
39. The possession of stolen property recently after the commission of a theft, is prima facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case, and this presumption, when unexplained, either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by the court as conclusive. The question of what amounts to recent possession varies according to whether the stolen article is or is not calculated to pass readily from hand to hand.
40. In the present case, recovery of the robbed truck from the possession of the appellants was in such close proximity of time, which cannot be lost sight of, while deciding the present case. Moreover, in the present case, within such a short span of time, the robbed truck bearing a registration number, could not have changed hands. Further, in the facts and Crl. A. No. 816-DB of 2006 -22- circumstance of the present case, murder of Som Dutt and Deepak alias Deepa, driver and conductor/cleaner of the robbed truck, and robbery have been proved to be integral parts of the same transaction. Therefore, the presumption arising under illustration (a) of Section 114 of the Evidence Act, 1872 is that not only the appellants committed the murder of the aforesaid two persons, but also committed robbery of the truck, loaded with mustard seed bags. No reasonable explanation was given by the accused about their lawful possession of the truck. Their stand is that the recovery of truck has been planted upon them and they have been lifted from their villages. This plea on the face of it cannot be accepted, because all the accused belong to three different villages. Appellant Hari Singh is from village Naraheri (Rajasthan), appellant Kulwant Singh belongs to village Bindukher (Uttaranchal), whereas appellant Mohinder Singh and accused Pramjeet Singh (juvenile)are from village Bhagwanpuri (Uttar Pradesh). But all the four accused were found together in possession of the robbed truck. It does not stand to reason why these four persons belonging to three different villages could have been lifted and involved in the crime by the police by planting truck upon them. It has been established beyond reasonable doubt by the statements of PW.23 Parveen Chopra, owner of the truck, and PW.26 Inspector Bhoop Singh, the Investigating Officer, that the truck was chased by the police and thereafter, the accused were apprehended along with the robbed truck.
41. In view of the above, the chain of circumstances is complete Crl. A. No. 816-DB of 2006 -23- and it has been proved beyond reasonable doubt that it was the appellants, who robed the truck bearing registration No. HR-55A-0606, owned by Parveen Chopra (PW.23), and thereafter murdered its driver and the conductor/cleaner by throttling them, and by giving them injuries with iron rods. Therefore, in our opinion, in the instant case, the prosecution has led sufficient evidence, which clearly establish the guilt of the appellants beyond shadow of reasonable doubt and the learned trial court has rightly convicted and sentenced them.
42. In view of the above, the impugned judgment of conviction and the order of sentence is upheld and the appeals are, accordingly, dismissed.
43. Since appellant No.1 Kulwant Singh in Criminal Appeal No. 816-DN of 2006 and appellant Hari Singh in Criminal Appeal No. 879-DB of 2006 are on bail, their bail bonds stand cancelled. They are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law.
( SATISH KUMAR MITTAL )
JUDGE
December 08, 2010 ( JORA SINGH )
ndj JUDGE