Punjab-Haryana High Court
Satyavan vs State Of Hayrana on 29 October, 2014
Author: T.P.S. Mann
Bench: T.P.S.Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal S-1069-SB of 2004
Date of Decision : October 29, 2014
Satyavan
.....Appellant
VERSUS
State of Haryana
.....Respondent
CORAM: HON'BLE MR. JUSTICE T.P.S.MANN
Present : Mr. D.K.Jhangra, Advocate
Mr. Baldev Singh, Addl. A.G., Haryana
T.P.S. MANN, J.
By a common judgment, this Court intends to dispose of the present appeal filed by Satyavan, Criminal Appeal S-459- SB of 2004 filed by Sanjay Kumar, Criminal Appeal S-487-SB of 2004 filed by Bijender @ Punji, Criminal Appeal S-604-SB of 2004 filed by Raj Kumar and Criminal Appeal S-762-SB of 2004 filed by Ajit as the appellants in all of them have challenged the judgment and order dated 17/19.2.2004 passed by the Additional Sessions Judge (Fast Track Court), Bhiwani. Vide impugned judgment and order, the trial Court convicted the appellants under Section 399 IPC and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/- each and in default of payment of fine, to undergo simple imprisonment for a period of five months. They were also convicted under Section 402 IPC AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -2- and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.500/- each and in default of payment of fine, to further undergo simple imprisonment for a period of five months. Bijender @ Punji, Raj Kumar and Sanjay- appellants were also convicted under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- each and in default of payment of fine, to further undergo simple imprisonment for a period of five months. All the sentences were ordered to run concurrently.
The case of the prosecution in nutshell is that on 5.1.2003 Inspector Ram Avatar of CIA Staff, Bhiwani alongwith fellow officials was present at T-point village Pur at Bawani Khera in official jeep for the purpose of patrolling and investigation where he received secret information that five persons, who are the appellants before this Court, while armed with deadly weapons and having three motor cycles, were present in a Kotha near Sunder Branch Canal and making preparations to commit dacoity at petrol pump situated on the road leading from Bawani Khera to Bhiwani and in case a raid is conducted they could be apprehended. As the information received was found to be reliable, a raiding party was constituted. An attempt was made to include independent witnesses but none came forward. The AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -3- raiding party reached near Dharamshala where the appellants were present. The raiding party reached the spot and surrounded the Dharamshala from all the sides. The appellants, five in number, were found armed with deadly weapons and preparing to commit dacoity at petrol pump. Bijender @ Punji was found leading the group. Inspector Ram Avatar went near the wall and over heard Bijender @ Punji-appellant directing Sanjay and Raj Kumar to stand outside the office of the petrol pump alongwith their swords and he himself would snatch the cash from the employees of the petrol pump at pistol point. Further, if any official of the petrol pump would resist, Satyavan and Ajit- appellants would deal with him. Inspector Ram Avatar warned the appellants that they have been surrounded from all around by the police and directed them to surrender. Despite the same, the appellants started running in different directions. However, they were over-powered. One .12 bore loaded pistol and a motor cycle bearing No. HR 16B/6479 was recovered from the possession of Bijender @ Punji-appellant which were taken into possession. A toy pistol was recovered from Satyavan-appellant. A sword each was recovered from Sanjay and Raj Kumar- appellants. From Ajit-appellant one iron rod was recovered. Ruqa was, thereafter, sent to the Police Station on the basis of which FIR No. 8 dated 5.1.2003 came to be registered at Police AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -4- Station Bawani Khera under Sections 399/402 IPC and 25 of the Arms Act.
Upon completion of the investigation and presentation of the challan followed by commitment of the case, the appellants were charged for the aforementioned offences. They pleaded not guilty and claimed trial.
To prove its case, the prosecution examined PW1 HC Jai Narain, PW2 HC Jaipal Singh, armour PW3 Vijay Gauri, Draftsman, PW4 Bhisham Chander, Reader to District Magistrate, PW5 HC Balwan Singh, PW6 Inspector Ram Avatar, PW7 ASI Shree Bhagwan, PW8 HC Satpal Singh and PW9 SI Pardeep Kumar.
All the appellants were then examined under Section 313 Cr.P.C. They denied all the allegations levelled against them. When called upon to enter into their defence, they examined DW1 Satish, DW2 Rishi, DW3 Satyavan, DW4 Balraj and DW5 Baljeet Singh.
After hearing learned counsel for the parties and going through the evidence brought on record, the trial Court believed the prosecution case and convicted and sentenced the appellants, as mentioned above.
Learned counsel for the appellants, while referring to the testimonies of PW6 Inspector Ram Avatar, PW7 ASI Shree AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -5- Bhagwan and PW9 SI Pardeep Kumar, have submitted that there were inconsistencies in their respective depositions regarding associating an independent person to witness the outcome of the raid. They also submitted that even if all the allegations levelled against the petitioners are taken as such, they do not constitute commission of offences under Sections 399 and 402 IPC. Even the offence under Section 25 of the Arms Act was not made out as none of the three appellants from whom those weapons were recovered, had used the same in assaulting/causing of injuries to the raiding party.
On the other hand, learned State counsel has supported the judgment of conviction passed by the trial Court.
Having heard learned counsel for the parties and after going through the evidence available on the record, this Court finds that PW6 Inspector Ram Avatar, PW7 ASI Shree Bhagwan and PW9 SI Pardeep Kumar the three star witnesses of the prosecution have not correctly stated about the time and place when and where they were present when secret information was received and also as to when they had raided the place where the appellants were said to be present while preparing to commit dacoity. According to PW9 SI Pardeep Kumar, he had met PW6 Inspector Ram Avatar at about 8.20 p.m. whereas PW6 Inspector Ram Avatar stated that he reached the place of occurrence at AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -6- about 8.30 p.m. and the secret information as received by him at the spot at about 7.45 p.m. Further, at the time when the secret information was received, the names of all the appellants alongwith their parentage were revealed. However, it was well nigh impossible for the secret informer to supply all the particulars of the appellants who belonged to different villages. Moreover, it has come in the evidence that there was darkness all around when the spot was raided and the appellants arrested. It would have been highly improbable for all the three star witnesses of the prosecution to make out as to who was present at the spot and state as how the appellants were preparing to commit dacoity. There was also no independent witness associated by the raiding party before conducting the raid. Simple mentioning by PW6 SI Ram Avatar that he had made an attempt to associate the independent witnesses but none came forward cannot be accepted as a gospel truth. The raid was conducted at about 8/8.30 p.m. on 5.1.2003 when there would have been no dearth of independent witnesses being available to the raiding party. It is also doubtful that the appellants would be talking so loudly that their conversations could be heard by the raiding party. Even the secret informer would not have means to report that two of the appellants were carrying a sword each while the one another was having a fire-arm. Possibility cannot be ruled out that the AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -7- appellants were apprehended on the basis of suspicion and later on falsely booked for the offences under Sections 399 and 402 IPC.
In Chaturi Yadav and others Vs. State of Bihar, (1979) 3 SCC 430, the Hon'ble Supreme Court has observed as under:-
"4. The courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -8- that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court."
There is no evidence on the record as to what was the distance from where PW6 Inspector Ram Avatar had heard the conversation going on amongst the appellants. In Suleman Vs. State of Delhi through Secretary, 1999(2) RCR (Crl.) 377, the Hon'ble Supreme Court held as under:-
"4. To prove why the five accused had assembled at Dharamshala of Sarup Nagar, the prosecution had mainly relied upon the evidence of P.W.2 who was the only witness who had gone near the Dharamshala and heard conversation amongst AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -9- the accused. He was accompanied at that time by ASI- Bhagat Ram but the prosecution did not examine ASI - Bhagat Ram as a witness. P.W.2- Head Constable Chand Singh in his examination- in- chief did not depose anything about the conversation, he was declared hostile and permitted to be cross- examined by the learned public prosecutor. In crossexamination, he stated that the conversation which he had heard and reported to Sub-Inspector Om Prakash was about looting a petrol pump. According to this witness, he had remained near this Dharamshala for about 15 minutes. His further cross-examination on behalf of the accused discloses that when he had gone near the Dharamshala, it was dark as there was no light either inside or nearby. Dharamshala consisted of only one room and it had only one door and no window. He had stood outside that room and a little away from the door. He had not told anything more than that five persons inside the Dharamshala were planning to rob a petrol pump that night. He had not narrated what they had spoken or discussed. It is also doubtful that they were speaking so loudly that their conversation could be heard outside. It is also surprising as to how he could have reported to S.l.-Om Prakash that two of them had pistols and remaining three had knives. As the evidence discloses, the weapons were kept concealed on their persons and there was complete darkness inside this room. P.W. 2 had not even gone near AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -10- the door. This would clearly indicate that P.W. 2 was not telling the truth when he stated that he had heard the accused talking about looting a petrol pump. It is, therefore, not possible to sustain the conviction of the appellants under Sections 399 and 402 Indian Penal Code. Their conviction under Sections 399 and 402 Indian Penal Code will have to be set aside."
In view of the above, the conviction and sentences of the appellants under Sections 399 and 402 IPC cannot be sustained.
At the same time, there is sufficient evidence available on the record that at the time of their apprehension one .12 bore loaded pistol was recovered from Bijender @ Punji-appellant while a sword each was recovered from Sanjay and Raj Kumar- appellants. None of them had any permit or licence to carry the same and, thus, they contravened the notification issued by the Haryana Government making them liable for an offence punishable under Section 25 of the Arms Act.
Resultantly, the conviction and sentences of imprisonment and fine imposed upon all the appellants for the offences under Sections 399 and 402 IPC are set-aside. However, the conviction of the three appellants, namely, Bijender @ Punji, Raj Kumar and Sanjay under Section 25 of the Arms Act and their sentences of imprisonment and fine alongwith their AJAY KUMAR 2014.12.09 10:17 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal S-1069-SB of 2004 -11- default clauses are maintained.
Criminal Appeal S-1069-SB of 2004 and Criminal Appeal S-762-SB of 2004 are, accordingly, allowed. Criminal Appeal S-459-SB of 2004, Criminal Appeal S-487-SB of 2004 and Criminal Appeal S-604-SB of 2004 are partly allowed by setting aside the conviction of the appellants in those three appeals under Sections 399 and 402 IPC and so also their sentences of imprisonment and fine alongwith the default clauses but maintaining the conviction of the said three appellants under Section 25 of the Arms Act alongwith sentences of imprisonment and fine alongwith the default clauses.
( T.P.S. MANN )
October 29, 2014 JUDGE
ajay-1
AJAY KUMAR
2014.12.09 10:17
I attest to the accuracy and
authenticity of this document
Chandigarh