Punjab-Haryana High Court
Crl. Appeal No. 458-Sb Of 2003 vs State Of Haryana on 13 May, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
1. Crl. Appeal No. 458-SB of 2003
Satinder Kapoor ... Appellant(s)
v.
State of Haryana ... Respondent(s)
2. Crl. Appeal No. 585-SB of 2003
Mehtab Singh ... Appellant(s)
v.
State of Haryana ... Respondent(s)
3. Crl. Appeal No. 716-SB of 2003
Rajbir ... Appellant(s)
v.
State of Haryana ... Respondent(s)
4. Crl. Appeal No. 581-SB of 2003
Dalbir Singh ... Appellant(s)
v.
State of Haryana ... Respondent(s)
5. Crl. Appeal No. 490-SB of 2003
Manjit Singh ... Appellant(s)
v.
State of Haryana ... Respondent(s)
6. Crl. Appeal No. 719-SB of 2003
Umed Singh ... Appellant(s)
v.
State of Haryana ... Respondent(s)
Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 2 :-
7. Crl. Appeal No. 746-SB of 2003
Azad Singh ... Appellant(s)
v.
State of Haryana ... Respondent(s)
8. Crl. Appeal No. 755-SB of 2003
Daya Nand ... Appellant(s)
v.
State of Haryana ... Respondent(s)
Date of decision: May 13, 2011.
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri Ashit Malik, Advocate for the appellants.
Shri Sandeep S. Mann, Sr. Deputy Advocate General, Haryana
for the respondent-State.
Kanwaljit Singh Ahluwalia, J. (Oral):
By this common judgment, eight appeals viz Crl. Appeal No.458-SB of 2003, Crl. Appeal No.585-SB of 2003, Crl. Appeal No.716- SB of 2003, Crl. Appeal No.581-SB of 2003, Crl. Appeal No.490-SB of 2003, Crl. Appeal No.719-SB of 2003, Crl. Appeal No.746-SB of 2003 and Crl. Appeal No.755-SB of 2003 shall be decided together.
Twenty one persons, namely, Mehtab Singh, Rai Singh, Umed Singh, Rajesh Kumar son of Halwant Singh, Azad Singh, Angrej Singh, Surender, Rajesh son of Shiv Ram, Vikram, Sikander, Dalbir Singh, Rajbir, Satinder Kapoor, Manjit Singh, Jeet Kumar, Dinesh Kumar, Jaswant @ Pehalwan, Ram Parkash alias Hanuman, Ram Pal, Daya Nand and Sher Singh were named as accused in case FIR No.181 dated 22.6.2000 Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 3 :- registered at Police Station Model Town, Panipat under Sections 148, 149, 427, 448, 364,395, 467, 468, 471, 506, 412 and 120-B IPC and 27/54/59 of the Arms Act. They were tried by the court of Additional Sessions Judge, Panipat who vide judgment dated 14.2.2003 convicted them and vide order dated 24.2.2003 sentenced them as under:-
Offence Convicts Punishment 120-B IPC Mehtab Singh, Dalbir Singh, Rai Singh, RI for 3 years and Surender, both Rajesh, Angrej, Umed a fine of Rs.500/- Singh, Azad singh, Vikram, Sikander, each, in default, Rajbir, Daya Nand, Manjit and Satinder further RI for 15 Kaur days. 148 IPC Mehtab Singh, Dalbir Singh, Rai Singh, RI for 3 years and Surender, both Rajesh, Angrej, Umed a fine of Rs.500/- Singh, Azad singh, Vikram, Sikander, each, in default, Rajbir, and Daya Nand Rathi further RI for 15 days. 364 IPC Rajbir Singh, RI for 7 years and a fine of Rs.500/- in default further RI for 15 days. 395 IPC Dalbir Singh, Rai Singh, RI for 3 years and Surender, both Rajesh, Angrej, a fine of Rs.500/- Azad singh, Vikram, Sikander, each, in default Rajbir, Daya Nand Rathi and Manjit further RI for 15 Singh days. 397 IPC Mehtab Singh, Umed Singh, RI for 3 years each 412 IPC Satinder Kaur RI for 3 years and a fine of Rs.500/- each, in default further RI for 15 days. 427 IPC Mehtab Singh, Dalbir Singh, Rai Singh, RI for 2 years each Surender, both Rajesh, Angrej, Umed Singh, Azad singh, Vikram, Sikander, Rajbir, Daya Nand, and Manjit Kaur 27/54/59 Mehtab Singh, Umed Singh, RI for 3 years and of the Arms a fine of Rs.500/- Act each, in default further RI for 15 days.
All the substantive sentences were ordered to run concurrently. Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 4 :- Jeet Kumar, Dinesh Kumar, Jaswant Singh alias Pehalwan, Ram Parkash alias Hanuman, Ramphal and Sher Singh were acquitted by the trial court. Angrej Singh, Surender, Vikram, Sikandar and Rajbir have not preferred any appeal. According to the counsel, they have completed their sentence. It is further stated that accused Mehtab Singh and Umed Singh have been sentenced to 7 years RI under Section 397 IPC and Rajbir was also sentenced to undergo RI for 7 years under Section 364 IPC. Other accused appellants, according to Counsel, have nearly completed their sentence.
Before the submissions made by Counsel for the appellants and Counsel for the State are appreciated, it will be necessary to give brief facts of the case.
In the present case, Suresh Kumar Hooda, PW9 was posted as SI/SHO of Police Station Model Town, Panipat on 22.6.2000. He was on patrol duty. At about 5.45 p.m., near Shivaji Stadium, he was present along with ASI Nahar Singh and ASI Rajbir Singh and other police officials. He received a secret information to the effect that Manjit Singh, brother of Joginder Kaur, resident of Sonepat has sold house No.191-R, measuring 1 kanal 15 marlas belonging to Joginder Kaur at the rate of Rs.24,000/- per square yard, for a total amount of Rs.1.50 crores to Mehtab Singh and Jit Kumar residents of Seenk. It was further stated that as per the secret information, Umed Singh resident of Rohna and Dinesh Kumar resident of Delhi had received a sum of Rs.5.00 lacs as earnest money against the agreement and the above stated four persons along with Raj Singh, Rajesh, Azad Singh, Angrej Singh, Surender Singh, resident of Nangal Kheri, Dalbir Singh rsident of Israna and Rajesh were demolishing the house with Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 5 :- bulldozer and their associates namely Sher Singh along with 4 other persons forcibly kidnapped Joginder Kaur at gun point in order to murder her in a car bearing registration No.HR-26-0123 and the household articles of Joginder Kaur have also been taken away by the accused forcibly. The secret information further stated that in case a raid is immediately conducted, accused along with bulldozers can be apprehended at the spot. According to informant, Manjit Singh had no right to sell the house. Since the information received was reliable, police party proceeded towards the stated spot after sending a ruqa to the Police Station for lodging the report. Ruqa Ex.PA was received at the Police Station on the basis of which formal FIR Ex.PA/1 was registered at Police Station Chandni Bagh, Panipat.
The above stated FIR was investigated, a report under Section 173 Cr.P.C. was submitted and the case was entrusted to the Court of Additional Sessions Judge, Panipat.
The charge stated that all the accused on 19.6.2000 and on the night intervening 21/22 June, 2000 agreed with one another to do and caused to be done different illegal act and to prepare forged papers of house of Smt. Joginder Kaur to destroy her house, to commit dacoity, to kidnap her for murder and to loot her household articles and besides above said agreement, did some acts in pursuance of the said agreement, and, thus, they committed offence punishable under Section 120-B IPC. The second charge stated that all the accused constituted an unlawful assembly and thus committed offence under Section 148 IPC. Third charge stated that all the accused committed the offence of dacoity as they were armed with deadly weapons, i.e., revolver, rifle and had made an attempt to cause death or grievance hurt to Joginder Kaur and thus they are liable to be tried for Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 6 :- offence under Section 397 IPC. Fourth charge stated that the accused Rajbir along with their co-accused Sher Singh had abducted Joginder Kaur so that she could be murdered or put in danger of murder and thus committed offence under Section 364 IPC. Fifth charge stated that all the accused were members of unlawful assembly, armed with deadly weapons and all committed mischief and offence of wrongful restraint of Joginder Kaur to cause damage to her property having value of more than Rs.50/- and thus committed offence under Section 427 read with Section 149 IPC. Sixth Charge stated that Mehtab Singh, Manjit Singh, Jeet Kumar, Dinesh Kumar and Umed Singh forged certain documents to cause damage or injury to Joginder Kaur and thereby committed offence under Section 465 IPC. Satinder Kapoor was only charged under Section 412 IPC for having received household articles of Joginder Kaur knowing fully well that the accused Dinesh Kumar, Jeet Kumar and Daya Nand had committed dacoity and had stolen the articles. All the accused were also charged for offence under Section 506 IPC for having criminally intimidated Joginder Kaur. Mehtab Singh was also charged for the offence under Section 27 of the Arms Act for using his licenced rifle while committing the offence. All the accused pleaded not guilty and claimed trial.
Prosecution commenced its evidence.
ASI Mukesh Kumar, PW1 stated that in the night of 21/22 June, 2000, he was posted as ASI at PS Model Town, Panipat. He received a ruqa from Suresh Kumar, SI/SHO on the basis of which he recorded formal FIR Ex.PA/1. HC Zile Singh PW2 tendered his affidavit Ex.PB to say that he delivered the special report to the higher authorities.
Sanjay Rehani PW3 stated that his father Jetha Nand was Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 7 :- working at Tehsil Office Panipat as a Petition and Deed Writer and he had died about 5 years ago. From the register maintained by his father, he proved entry Ex.PC. The entry Ex.PC contained an entry regarding a Will made in favour of Joginder Kaur. Naveen Kumar Jain, Draftsman PW4 proved site plan Ex.PD. HC Niranjan Singh PW5 stated that on 14.8.2000 he was posted in the Police Station Model Town, Panipat. He, accompanied by his companion police officials, was present at Sonepat Chowk Panipat at that time. Accused Daya Nand was produced by his son. He had effected his arrest and recorded his disclosure statement that household articles of Joginder Kaur have been kept in the house of Manjit Singh, brother of Joginder Kaur. In cross examination, this witness admitted that no recovery of any household articles was effected in his presence.
Rajbir Singh ASI, who was accompanying PW9 SI Suresh Kumar Hooda, when secret information was received, appeared as PW6. He stated that after the secret information was received on the night of 21/22 June,2000 at about 2 p.m., they reached at the spot of the house of Joginder Kaur. They found that there were two persons who were demolishing the house of Joginder Kaur with bulldozers. On enquiry, they disclosed their names as Vikram and Sikandar. Number of other persons were also present there. They were demolishing the house of Joginder Kaur. Names and addresses of all the persons were enquired and particulars were noted. The persons who were apprehended at the spot were Mehtab Singh, Umed Singh, Rajesh resident of Garhi Siwah and another Rajesh of Budhanpur, Azad Singh, Rai Singh, Angrej Singh, Surender Singh and Dalbir Singh. Along with these persons, Vikram and Surender who were operating the Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 8 :- bulldozer were also apprehended. From the personal search of accused Mehtab Singh, one revolver .32 bore was recovered. It was found that in the revolver six live cartridges were loaded, two cartridges were in the holster of the revolver. They were taken into possession vide a separate memo. Personal search of accused Umed Singh was also carried. One rifle of .315 bore was recovered from him along with 4 live cartridges in the magazine. Five cartridges were recovered from the pouch of the butt of the rifle. From Umed Singh licence of the rifle was also recovered. Mehtab Singh, on interrogation, disclosed that all the household articles were taken to the house of accused Manjit Singh. He further stated that Joginder Kaur was taken towards UP side. Disclosure statement of Mehtab Singh was proved as Ex.PJ. Umed Singh, on interrogation made disclosure statement that accused Daya Nand Rathee, Dinesh Kumar and Jeet Kumar had taken the household articles of Joginder Kaur to the house of Manjit Singh to Sonepat, where Satinder Kapoor accused was present.
On 23.6.2000, Satinder Kapoor made a disclosure statement that she had kept household articles of Joginder Kaur at her house and on the basis of disclosure statement, Satinder Kapoor got recovered a fridge, TV box, table, chairs, utensils, gas cylinders, gas burners, sewing machine and other articles which were identified by Joginder Kaur. This witness (PW6 Rajbir Singh) further stated that no disclosure statement of Satinder Kapoor was recorded, however, a note to this effect was written in the zimni.
In cross-examination Rajbir Singh ASI PW6 stated that no writing work was done regarding personal search of the accused at the spot. He further stated that out of 11 persons, who were apprehended at the spot, Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 9 :- two were on the bulldozer and remaining were standing and some out of them were carrying bricks. It was further stated that on the spot, the accused were immediately rounded up and were arrested.
Ashok Kumar, photographer appeared as PW7. He proved photographs Exs.P26 to P31 along with their negatives Exs.P20 to P25.
ASI Nahar Singh PW8 on the night intervening 21/22-6-2000 was posted as ASI in Police Station, Model Town, Panipat. On that day, a secret information was received and he had accompanied the police party to the spot. He had seen the house being demolished by the bulldozer. One Maruti car was standing there. About 12 persons were arrested at the spot. He also stated regarding personal search, arrest and the disclosure statements made by the accused.
Suresh Kumar Hooda, who at the relevant time was posted as SI/SHO, Police Station, Model Town, Panipat appeared as PW9 and gave detail of the secret information received, which has already been noticed by this Court in the testimony of ASI Rajbir Singh PW6. This witness further stated that on 23.6.2000, he arrested Satinder Kaur from her house at Adarsh Nagar, Sonepat and household articles of Joginder Kaur were recovered in the presence of Joginder Kaur and Jagjit Singh. Recovery memo Ex.PU of the articles recovered was drawn at the spot. In cross- examination this witness stated that Joginder Kaur was an educated lady and working as a teacher in some school.
Naresh Kumar SI/SHO PW10 had later effected arrest of accused Sher Singh and had recorded his disclosure statement Ex.PF and submitted the supplementary challan.
Shri B.Diwakar, the then Chief Judicial Magistrate, Panipat Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 10 :- appeared as PW11 and proved receipt of special report.
Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. and all incriminating circumstances were put to them. They denied the same and pleaded false implication. The accused of course had given their own version to absolve themselves of the offences for which they were charged.
The accused examined four witnesses in their defence. I have heard Mr.Ashit Malik, learned counsel for the appellants and Mr.Sandeep S. Mann, Senior Deputy Advocate General appearing for the State of Haryana.
The following four issues arise for consideration of this Court:-
1. Whether conviction on the testimonies of police witnesses alone can be sustained when no independent witness has been examined?
2. Whether Joginder Kaur was abducted/kidnapped?
3. Whether the learned trial Court was justifiable in recording conviction of Mehtab Singh and Umed Singh under Section 397 IPC while convicting other accused for offence under Section 395 IPC.
4. Whether accused Satinder Kapoor was recipient of stolen articles or not?
1. In the present case, prosecution in all has examined eleven witnesses. Except PW4 Naveen Kumar Jain, Draftsman, PW7 Ashok Kumar, Photographer, Shri B. Diwaker, the then Chief Judicial Magistrate, Panipat PW11 and Sanjay Rehani PW3, all witnesses examined by the prosecution, are police officials. The evidence of draftsman and the Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 11 :- photographer is formal in nature. PW11 Shri B. Diwaker, the then Chief Judicial Magistrate, Panipat had only stated regarding receipt of special report. Sanjay Rehani PW3 is the only witness who has proved an entry in the register maintained by his father who was a petition/deed writer.
From the evidence of the police witnesses, the following facts are conclusively proved:-
(a) That on the night intervening 21/22-6-2000, a house bearing No.191-R built on an area of 1 Kanals 15 Marlas was being demolished.
About 11/12 persons were arrested at the spot. Two persons were operating a bulldozer and accused Umed Singh and Mehtab Singh were armed with a revolver and a rifle respectively.
(b) Household articles of the house were being transported.
(c) A Maruti Car bearing registration No.HR-026-0123 was seen coming from the side of Jattal road. The car was stopped. The occupants of the car ran away. One person Rajbir was arrested and in the said car Joginder Kaur was found sitting.
The answers to the above said four issues/questions formulated are as under:-
(1) This Court cannot ignore the fact that the police officials had no animus against the accused. They have also no motive to implicate them. Thus, this Court can place reliance upon the testimonies of police witnesses and the prosecution case cannot be thrown away merely because no independent witness from the public has been examined.
(2) So far as second question formulated above is concerned, it has come in the evidence of ASI Nahar Singh PW8 that a car was seen coming from the side of Jattal. It was occupied by many persons. The car Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 12 :- was got stopped. 3/4 occupants of the car ran away. However, Rajbir was apprehended. In the car Joginder Kaur was sitting. Joginder Kaur has not been examined by the prosecution. No witness has testified that in his presence Joginder Kaur was forcibly made to sit in the car and was taken away. Even the disclosure statements made by Ram Parkash, Sat Parkash and Ram Pal cannot be taken into consideration and as a consequence thereof no recovery was effected. Thus, the disclosure statements cannot be relied upon and it cannot be held that Joginder Kaur was forcibly taken away. Consequently, the conviction of accused Rajbir for offence under Section 366 IPC is set aside.
(3) It has come in the testimony of PW6 Rajbir Singh that when the police party reached at the spot the accused were apprehended and from personal search of accused Mehtab Singh and Umed Singh, one revolver .32 bore and a rifle .315 bore were recovered.
Section 397 of the Indian Penal Code reads as under:-
"397. Robbery or dacoity, with attempt to cause death or grievous hurt.-- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
In the present case, neither any death was caused nor anybody suffered any grievous injury. To attract Section 397 IPC, the only question which requires attention of this Court is whether any deadly weapon was used or not? The words used `any deadly weapon' have very wide connotation. In Phul Kumar v. State, AIR 1975 SC 905, it was held that it is not necessary that deadly weapons must be used by way of causing hurt Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 13 :- or death. Even if the deadly weapon is used for terrorising or frightening to obtain the property, the ingredients of the offence are held to be complete. But in the present case, no evidence has come that Mehtab Singh and Umed Singh used the revolver or rifle which were recovered from them, even to frighten or terrorise anybody. The only evidence which is against them is that when they were arrested, from their personal search, these weapons were recovered. Thus, even offence under Section 397 IPC is not made out. Hence, appellants Mehtab Singh and Umed Singh are entitled to be acquitted for offence under Section 397 IPC.
(4) Accused Satinder Kapoor is wife of Manjit Singh, brother of Joginder Kaur. Admittedly, she was not present at the spot. It has come in the evidence of PW6 Rajbir Singh ASI that Umed Singh accused, during interrogation made a disclosure statement that accused Daya Nand Rathee, Dinesh Kumar and Jeet Kumar had taken the household goods of Joginder Kaur in a canter at the house of Manjit Singh at Sonepat. It is further stated that on 23.6.2000, ASI Rajbir Singh PW6 accompanied by PW9 Suresh Kumar Hooda had reached at the house of Manjit Singh at Adarsh Nagar, Sonepat. There Satinder Kaur was present in the house and she got recovered the articles belonging to Joginder Kaur. The articles recovered were a Fridge, T.V. Box, table, chairs, cots, utensils, gas cylinder, gas burner and sewing machine. These are the household articles which are available almost in every house. Even if, for the sake of arguments, the disclosure statement made by appellant Umed Singh is taken at its face value, it is apparent that the articles taken from Panipat were stored in the house of Manjit Singh at Sonepat. Therefore, wife of Manjit Singh cannot be held liable for keeping those articles. Furthermore, these articles have Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 14 :- not been identified. It has in no way been proved that the articles found at the house of Satinder Kapoor were the same, which belonged to Joginder Kaur. No identification parade of the articles recovered was carried out. It cannot be ruled out that these articles were lying in the house of Satinder Kapoor and belonged to her. The essential ingredients of Section 412 IPC are that one who dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity. There is no evidence on the record to infer that Satinder Kapoor dishonestly received or retained those articles. Therefore, conviction of accused Satinder Kapoor for offence under Section 412 IPC cannot be sustained and she is entitled to the benefit of doubt. Furthermore, being a lady Satinder Kapoor cannot be said to be part of the alleged crime, except that household articles were found in the house which belonged to her. Thus, this Court cannot conclude that conscious possession of the household articles was with her and therefore, she is entitled to the benefit of doubt for offence under Section 120-B IPC. Furthermore, being wife of Manjit Singh, exclusive conscious possession cannot be attributed to Satinder Kapoor.
Having analyzed this case, appellants Mehtab Singh and Umed Singh are acquitted for offence under Section 397 IPC but they are convicted for offence under Section 395 IPC. Appellant Rajbir is acquitted for offence under Section 366 IPC.
Appeal filed by appellant Satinder Kapoor is accepted. While granting her benefit of doubt, she is acquitted of the charges for offence under Sections 412 and 120-B IPC.
At this stage, Mr. Ashit Malik, learned counsel for the Crl. Appeal No. 458-SB of 2003 & other connected appeals -: 15 :- appellants states that occurrence in the present case took place in the year 2000. The appellants are in the corridors of the Courts for the last more than 10 years and are suffering mental pain and agony of the protracted trial. He states that sufferance of mental pain and agony of the protracted trial be construed as a mitigating circumstance. It is further submitted that appellants have not committed any offence before or after the present occurrence. Taking into consideration, the reasons spelt out by counsel for the appellants, the sentence of three years rigorous imprisonment awarded to all the appellants for offence under Section 395 IPC is reduced to two years and nine months. However, appellant Mehtab Singh and Umed Singh who have been acquitted of offence under Section 397 IPC and held guilty of offence under Section 395 IPC are also sentenced to two years and nine months RI on this count. Sentence awarded on remaining counts is also reduced to two years and nine months and all sentences shall run concurrently.
With the aforesaid observations, the appeals stand disposed of.
[Kanwaljit Singh Ahluwalia] May 13, 2011. Judge kadyan/RC