Uttarakhand High Court
Umesh Chandra S/O Ram Lal vs State Of Uttaranchal (Now State Of ... on 13 February, 2019
Equivalent citations: AIRONLINE 2019 UTR 878
Author: Lok Pal Singh
Bench: Lok Pal Singh
RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.62 of 2003
1. Umesh Chandra S/o Ram Lal
R/o Civil Lines, Moradabad
2. Som Pal S/o Bhagwan Dass,
R/o Village & P.S. Kudla
District Moradabad.
3. Surendra Singh S/o Balwant Singh
R/o Village Malakpur, P.S. Delari
District Moradabad
4. Babbi Sharma S/o Gurudayal
R/o Ganj Bazar, P.S. Moradabad
District Moradabad
........Appellants
Versus
State of Uttaranchal (now State of Uttarakhand)
.........Respondent
Mr. D.K. Sharma, Senior Advocate assisted by Dr. Kartikey Hari Gupta,
Advocate for appellant nos.1, 2 and 3
Mr. B.S. Adhikari, Advocate for appellant no.4
Mr. P.S. Bohara, A.G.A. along with Mr. Siddhartha Bisht, Brief Holder for
the State
Date of Judgment: 13.02.2019
Hon'ble Lok Pal Singh, J.
This appeal is directed against the judgment and order dated 18.02.2003 passed by Additional Sessions Judge/Fast Track court, Almora in Sessions Trial No.65 of 2000, State vs. Umesh Chandra and others, whereby said court has convicted the accused/appellants under Sections 395 and 397 of The Indian Penal Code, 1860 (for short, the IPC) and has sentenced each of them to undergo rigorous imprisonment for a period of seven years along 2 with a fine of ` 3,000/-; and, in default of payment of fine, the accused/appellants has to undergo six month's simple imprisonment.
2. Prosecution story, in brief, is that complainant Hukum Chand lodged a First Information Report with P.S. Kotwali Almora, District Almora on 28.08.1992 stating that at 07.30 pm when he, his wife, son and one neigbour were watching a movie, seven unknown miscreants entered into his house; told them to increase volume of television; and, locked them in a room. The miscreants were armed with knife and khukri (sharp edged weapon) and they asked the complainant to give `18,00,000/-; the complainant replied that he is not having money whereupon the miscreants opened the almirah and looted gold bangles, one pair of earring, one ring, etc. The complainant further stated that the miscreants put knife on his son's neck and demanded cash; under the threat the complainant told them to take money from the box of bed. The miscreants also looted cash, earring and mangalsutra worn by his wife and after bolting the door from outside, they fled away. The complainant called the neighbours whereupon the neighbours came and opened the door. The complainant stated that he and his family members have seen the accused in electric light and they can identify them. On the basis of F.I.R., chik F.I.R. was prepared and case was registered against unknown persons under Section 395, 397 of IPC. Investigation of the case was entrusted to Sub Inspector G.D. Joshi. Information regarding the commission of offence was sent to the nearby districts via wireless message. On the same day at 10:15 pm near Ranibag, Haldwani, when the police party was checking the vehicles, a maruti van came.
3Suspecting the character of persons sitting in the van, the police party tried to call the public witness but due to late night, no one could be made available. Hence, the police party make search of each other and after having satisfied that they are not carrying anything illegal, they conducted search of the persons sitting in the van. On being asked, the person sitting on driver seat disclosed his name as Umesh Chandra Dhimar, from whose possession, ten thousand rupees were recovered. He was not holding any driving licence. The person sitting adjacent to the driver seat disclosed his name as Amar Singh and also that he is posted as Armed Police at District Shahajanpur. On his search, one country made pistol 315 bore, two live cartridges and rupees twenty thousand cash were found; the pistol was in running condition. Person sitting adjacent to Amar Singh disclosed his name as Constable Sompal, posted at Police Line Almora, from whose pant's left pocket one knife and thirty thousand rupees were recovered. One suitcase and a muslin bag which was containing coins of total `1600/- was also found. Person sitting on the rear seat of the van disclosed his name as Birendra Singh, from whose pant's pocket ten thousand rupees and two live cartridges 315 bore were recovered. Person next to Birendra Singh disclosed his name as Surendra Singh from whose possession one country-made pistol 315 bore in running condition and one live cartridge and one purse bag in which Banshilal Jaswant Singh of Ambala Cantt was written, were recovered which was containing two gold bangles, gold earings, one ring, three artificial bangles and one silver chain. Other person disclosed his name as Babbi Sharma from whose possession one khukhri and some cash were recovered. On being asked, all the persons failed to produce any 4 license for carrying illegal weapon and when asked about the cash money and jewelery, they told that they have committed dacoity in the house of Hukum Chand, owner of Jagnath Talkies. Above articles were taken into possession and were sealed separately, fard whereof was prepared. All the accused persons were arrested. On 14.09.1992, test identification parade was conducted, in which the complainant, his wife Smt. Saroj, his son Amit Kukaar and Rajendra Kumar identified the accused persons. On completion of investigation, charge-sheet was filed against the accused/appellants and co-accused under Sections 395, 397, 412 and 120-B of IPC. On 31.08.2001, charge was framed against the accused- appellants for the offences punishable under Sections 395/34, 397/34, 412/34 of IPC. The charge was read over and explained to the accused persons, who pleaded not guilty and claimed to be tried.
3. On denial of guilt, trial begun. Prosecution, in order to prove its case, got examined as many as four witnesses. PW1 Smt. Saroj Walia, PW2 Amit Walia, PW3 Sub Inspector Arvind Dangwal and PW4 Gopal Dutt Joshi.
4. PW1 Smt. Saroj Walia has stated that the incident took place on 28.08.1992 at about 07:30 PM. At that time, her son Amit, her husband Hukum Chand and one neighbour were watching a movie in V.C.R. Meanwhile, door bell rang; her son Amit opened the door. As soon as he opened the door, seven persons pushed her son and trespassed in the house. They increased the volume of T.V. and disconnected the telephone. They made a demand of Rs.18,00,000/-. She further deposed that all the persons were armed with weapons; one was having 5 revolver and one other was having country made pistol and Khukri and knife in his hand. Her husband told the miscreants that he is not having such a huge amount and handed over the keys of almirah to them whereupon the accused persons opened the almirah and looted two gold bangles, one pair of earing, two pair of gold earings, one gold ring, three silver bangles and one silver mangalsutra. Thereafter, they again demanded money, on which her husband told them that money is in the box of double bed, which was rupees one lakh. Thereafter, accused persons took along with them V.C.R., two briefcase make V.I.P. wherein they put V.C.R. and cash and fled away from the spot after bolting the door from outside. While going, accused persons also threatened them for dire consequences. Thereafter, on their alarm, their neighbours opened the door whereafter they came out. She further stated that F.I.R. of the incident was lodged by her husband who died after one month of the incident. This witness has proved the F.I.R. Ext. A1. She further stated that they were called for test identification parade of the accused. Looted articles were also given into their possession after recovery and identification, which was brought by this witness before the court.
5. PW2 Amit Walia is the son of complainant. He has corroborated the statement of PW1 Smt. Saroj Walia and has fully supported the prosecution story.
6. PW3 Sub Inspector Arvind Dangwal has deposed that on 28.08.1992 he was posted as Sub Inspector at Police Chowki Kathagodam. On that day, he along with Head Constable Shekharanand, Constable Ram Kishan Singh, Constable Sunil Kumar, Constable Surat 6 Singh Negi were busy in vehicle checking. Meanwhile, Constable Ramesh Chand came and informed about the wireless message that some miscreants who are travelling in a Maruti Van and are going towards Haldwani has committed a heinous crime in Almora. After receiving this information, he along with police party indulged themselves in checking of vehicles coming from the hill area; meanwhile at about 10:15 pm a vehicle came from the side of Ranibag, which was stopped by them after giving a signal. When the police party tried to make search of the vehicle, persons sitting in the vehicle tried to escape but failed to do so. Suspecting the character of persons sitting in the van, police party tried to call the public witness but due to late night, no one could be made available. Hence, the police party make search of each other and after being satisfied that they are not carrying anything illegal, they conducted search of the persons sitting in the van. On being asked, persons disclosed their names from whose possession looted articles were recovered. Accused persons told them that they have committed dacoity in the house of owner of Jaganath Talkies on the point of weapons. Accused were not holding any license to carry the weapons.
7. PW4 Gopal Dutt Joshi has deposed that on 28.08.1992 he was posted as Sub Inspector at Kotwali Almora. On that day, complainant Hukum Chand lodged the report of the incident, on the basis of which, Chik F.I.R. was registered which is Ext. A2. During the course of investigation, he recorded the statement of witnesses; prepared the site-plan of the place of recovery as well as place of occurrence; got done test identification parade of 7 the accused persons; and, on completion of investigation, filed the charge sheet against the accused persons.
8. Thereafter, statement of accused/appellants were recorded under Section 313 of Cr.P.C. in the form of questions. In reply, they submitted that they have been falsely implicated in the case. However, despite opportunity, they did not adduce any evidence in defence.
9. After hearing the parties and on perusal of evidence lead by the prosecution, trial court convicted and sentenced the accused/appellants as above.
10. Learned counsels representing the accused, while inviting attention of this Court to the judgment recorded by the learned Court below, vehemently argued that the same is not sustainable in the eye of law as the same is not based upon proper appreciation of evidence as such, same deserves to be quashed and set aside. Learned counsel would further submit that the appellants have been acquitted from the charge of offence punishable under Section 25/27 Arms Act by the trial court, which creates serious doubt in the entire prosecution story, and as such no case is made out against the appellants under Section 397 of IPC. They would further submit that regarding accused Amar Singh and Vijendra Singh, trial was separately conducted being ST No.25 of 2009 and they have been acquitted by the trial court vide judgment and order dated 6.3.2010 thought the set of evidence and identification was same for all the accused persons.
11. To the contrary, learned Assistant Government Advocate while refuting aforesaid contentions put forth on 8 behalf of accused, supported the judgment of conviction recorded by the learned Court below and contended that there is no scope of interference by this Court because learned Court below has dealt with each and every aspect of the matter meticulously.
12. Having heard the learned counsel for the parties and having analyzed the evidence led by the prosecution vis-à-vis the impugned judgment and order passed by the trial court, this Court finds that on 28.08.1992 at 07.30 pm when the complainant, his wife, his son and one neighbour were watching movie in their house, accused/appellants entered into his house and committed dacoity and thereafter fled away from the place of occurrence. In this regard, PW1 Saroj Walia and PW2 Amit Walia who are the victim and eyewitnesses of the incident have made categorical statement and have fully supported the prosecution story. Nothing elicited could be drawn from their cross-examination which may create any doubt in their statements. Statement of these witnesses is throughout consistent, reliable and inspires confidence. Besides these two witnesses, third prosecution witness who is Sub Inspector Arvind Dangwal has also supported the prosecution story, inasmuch as, he has deposed that on the date of incident when he along with other police personnel was busy in checking of vehicle, he received a wireless message regarding the commission of present crime, whereupon he and the police party got indulged in the checking of vehicle coming from hill area and while they were doing so, they stopped a van coming from the side of Ranigbagh; suspecting the character of the persons sitting in the van, they made search of the persons; while making search recovery of looted articles was made from 9 them for which the accused/appellants disclosed that they have committed dacoity in the house of owner of Jaganath Talkies. Nothing elicited could be drawn from his cross- examination which may create any doubt in his testimony. The statement of this witness is reliable, trustworthy and inspires confidence.
13. As regards the contention that Amar Singh and Vijendra Singh have been acquitted by the trial court though the role assigned to all the accused was same and there was same set of evidence against them also, the Court finds that Amit Walia and Smt. Saroj Walia were examined by the prosecution as PW1 and PW2 in S.T. No. 25 of 2009 State v. Amar Singh and another, but these witnesses turned hostile and did not support the prosecution story qua Amar Singh and Vijendra Singh and also denied the presence of these persons in commission of crime. In absence of any credible evidence against Amar Singh and Vijendra Singh, the Trial Court has acquitted them by giving benefit of doubt. In the present case also, one Punjab Singh who was also charged along with the present accused/appellants for the offence punishable under Section 395, 397 and 412 IPC has been acquitted by the trial court by the impugned judgment, on the ground that the complainant Hukum Chandra, another eyewitness Rajendra, who later on has died, has not identified Punjab Singh in Test Identification Parade. That apart, PW1 Smt. Saroj Walia and PW2 Amit Walia also did not identify Punjab Singh either in Test Identification Parade or in the trial court. Hence, Punjab Singh has been acquitted by giving benefit of doubt. But, as far as the accused/appellants are concerned, all the witnesses, be it the complainant Hukum Chand or Rajendra or PW1 Smt. 10 Saroj Walai and PW2 Amit Wali, have identified them in Test Identification Parade and prosecution witnesses have given categorical statement against them.
14. In the light of aforesaid, this Court arrives to the conclusion that the prosecution has successfully proved its case beyond any reasonable doubt against the accused/appellants under Section 395/397 of IPC and the trial court has rightly convicted and sentenced the accused/appellants under the said sections.
15. Consequently, appeal is dismissed. Impugned judgment and order dated 18.02.2003 Additional Sessions Judge/Fast Track court, Almora in Sessions Trial No.65 of 2000, State vs. Umesh Chandra and others, is upheld. Accused/appellants are on bail. Let they be taken into custody forthwith to serve out the sentence awarded by the trial court and thereafter affirmed by this Court.
16. Lower court record be sent back.
(Lok Pal Singh, J.) February 13, 2019 Rajni