Punjab-Haryana High Court
Sandeep And Others vs State Of Haryana on 28 April, 2011
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
Crl. Appeal No.550-DB of 2006
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 28.04.2011
Crl. Appeal No.550-DB of 2006
Sandeep and others ...Appellants
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Baldev Singh, Senior Advocate, with
Mr. Deepinder Singh, Advocate, for the appellants.
Mr. Pradeep Singh Poonia, Addl. AG, Haryana,
for the respondent-State.
HEMANT GUPTA, J.
The present appeal has been filed by Sandeep son of Umed Singh; Ravi Kumar son of Subhash; Ram Kumar son of Prem Singh and Jaibir son of Hari Pal against the judgment dated 05.06.2006 passed by the learned Additional Sessions Judge, Panipat, whereby it convicted the appellants for the offences punishable under Sections 392/302 read with Section 34 IPC and sentenced them to undergo life imprisonment for the offence under Section 302 read with Section 34 IPC as well as to undergo rigorous imprisonment for a period of five years for the offence under Section 392 read with Section 34 IPC.
The prosecution case was set in motion on the basis of statement of Narinder Kumar son of Harkesh resident of Shivanka, District Crl. Appeal No.550-DB of 2006 2 Sonepat made to ASI Ram Kumar on 14.04.2005 in respect of missing of his brother Joginder Singh @ Kala. In his statement Ex.PA, he stated that in the month of January, 2003, he purchased a vehicle 'Tata Spacio' bearing No.HR-31-C-1056, which was being driven by his younger brother Joginder Singh @ Kala. He stated that it was hired by Thermal Power Plant, Panipat and Joginder Singh used to drive the said vehicle himself from 8.00 am to 8.00 pm in the Thermal Plant. He stated that Joginder Singh used to leave Thermal Plant at 8.00 pm and take passengers from Panipat to Sirsadh and on the next morning he used to take passengers from Sirsadh to Panipat. Thereafter, he performed his duties at Thermal Plant. He stated that yesterday i.e. on 13.04.2005, when his brother Joginder Singh did not return to village along with vehicle, he and his another brother Davinder made enquiries about their brother Joginder Singh. They also enquired from the Thermal Plant, but they did not get any information about him nor could locate the vehicle. On reaching Thermal Plant, they came to know that Joginder Singh has not reached Thermal Plant along with vehicle. Thereafter, he and his brother Davinder went to Village Sewah at Panipat in search of their brother Joginder Singh and vehicle. When they reached on the bridge of canal at Village Sewah, they saw a dead body of a person lying on the eastern side of the bank of canal. The dead body was recognized to be that of Joginder Singh @ Kala, whose both hands were tied with Parna in his back, but the vehicle was not available at the spot. Narinder Kumar expressed doubt that son of Uday Singh resident of Village Mehmudpur, the name of whom is not known to him along with his companions has murdered his brother. He stated that the vehicle has been snatched by these boys. His brother used to reach in the Village with vehicle every night at about 10.30 pm and used to leave for Thermal Plant along with vehicle from Crl. Appeal No.550-DB of 2006 3 Village every day at about 6.45 am. He also came to know that yesterday on 13.04.2005 at about 10.35 pm, his brother Joginder Singh dropped passengers at village Sirsadh and proceeded towards his village. On the basis of such statement, FIR Ex.PO was recorded at about 2.00 pm. The special report was received by the learned Magistrate at about 4.30 pm on the same day. The post-mortem on the dead body of Joginder Singh @ Kala was conducted at 3.30 pm on 14.04.2005. As per post-mortem report Ex.PM, the cause of death was asphyxia due to strangulation.
It was on 10.06.2005, accused Sandeep and Jaivir were arrested in a case arising out of FIR No.132 dated 10.06.2005 P.S.Matlaudha under Sections 392/394/342 IPC and 25 of the Indian Arms Act, 1959. On interrogation, accused Sandeep and Jaivir suffered disclosure statements Exs.PT and PT/1 respectively disclosing the commission of other offences including looting of vehicle No.HR-31-C-1056, which was being driven by Joginder and causing of death of Joginder Singh @ Kala. In their respective disclosure statements, accused Sandeep disclosed his involvement in 11 other cases, whereas accused Jaivir disclosed his involvement in 3 other cases. It has come on record that Sandeep and Jaivir received injuries while skidding from a motor-cycle on 10.06.2005. Medico-legal reports of Sandeep and Jaivir are Exs.DA and DC, whereas bed head tickets are Exs. DB and DD respectively.
Ravi Kumar and Ram Kumar, the other accused, whose names found mention in the disclosure statements suffered by accused Sandeep and Jaivir were arrested on 14.06.2005, when they were produced by Ram Singh, Lamberdar of Village Pinana. On interrogation, Ravi Kumar and Ram Kumar suffered disclosure statements Ex.PK and PL respectively, wherein they disclosed the details of manner of occurrence and also the fact Crl. Appeal No.550-DB of 2006 4 that the vehicle was given to Bittu resident of Village Gadar Gaddu, Uttar Pradesh for sale.
Accused Sandeep and Jaivir were taken into custody in the present case on 15.06.2005 after obtaining permission from the Court. Ravi Kumar and Ram Kumar, accused were again interrogated on 15.6.2005. They made disclosure statements Exs.PF and PG. While in police custody in the present case, accused Sandeep and Jaivir suffered disclosure statements Exs.PD and PE. In the said disclosure statements, it was disclosed that the vehicle was left with Bittu for sale, but when he refused to purchase the same, they left the vehicle near Roorkee city on 08.05.2005, as the fuel finished. It was stated that they can point out the place where they left the vehicle. In pursuance of such disclosure statements, all the accused took the police party to Roorkee where the vehicle was allegedly left by them, but the vehicle was not found at the demarcated place. Thereafter, the police party went to the Police Station and came to know that the said vehicle was taken into possession by the police of P.S.Kotwali, Roorkee on 10.05.2005 vide recovery memo Ex.PV as an abandoned and un-claimed vehicle. The said vehicle was taken into possession in the present case vide Ex.PJ on 16.06.2005. All the accused also led the police party to the place where they committed the murder of Joginder Singh @ Kala and thrown his dead body.
On completion of investigations, all the accused were made to stand trial. However, after going through evidence on record, the learned trial Court has disbelieved the prosecution story regarding making of extra judicial confession by the accused Ravi Kumar and Ram Kumar before Ram Kumar, Lambardar of Village Pinana, but convicted and sentenced the accused, as mentioned above, on the basis of circumstantial evidence and Crl. Appeal No.550-DB of 2006 5 the motive. The learned trial Court found that the recovery of vehicle from the custody of the Police of P.S. Kotwali, Roorkee within whose jurisdiction the vehicle was said to have been abandoned, is a strong incriminating circumstance against the appellants.
Before this Court, learned counsel for the appellants has vehemently argued that the prosecution has miserably failed to prove the commission of crime by the appellants. It is argued that after the extra judicial confession is disbelieved, then the conviction of the appellants only on the basis of circumstantial evidence of recovery of vehicle is not sustainable.
On the other hand, it is argued that the appellants are habitually indulging in the crime and that the motive as found by the learned trial Court of committing robbery as well as the circumstantial evidence in respect of recovery of vehicle, is sufficient to maintain the conviction of the appellants. It is argued that in the statement Ex.PA, the brother of the deceased and the complainant Narinder Kumar has apprehended commission of crime by the son of Uday Singh resident of Mehmudpur. One of the accused - Sandeep is son of Umed Singh, resident of Village Mehmudpur, as stated by Narinder Kumar as PW-1 on oath. It is, thus, contended that the apprehension of Narinder Kumar stands corroborated by the disclosure statements suffered by the present appellants.
Having heard learned counsel for the parties at some length and examining the entire record, we do not find any error in the judgment recorded by the learned trial Court.
PW-1 Narinder Kumar, author of FIR and the brother of the deceased, in his statement Ex.PA has suspected son of Uday Singh resident of Village Mehmudpur in the commission of crime along with his Crl. Appeal No.550-DB of 2006 6 companions. It has also come on record that Joginder Singh was following the set routine i.e. after finishing assignment with the Thermal Plant, Panipat, he would take passengers from Panipat to Sirsadh, reaching his house at about 10.30 pm. Since the movement of the deceased were known to the appellants, PW-1 Narinder Kumar has correctly apprehended commission of crime by some known person i.e. son of Uday Singh. In fact, the disclosure statements Exs.PD and PE of Sandeep and Jaivir show that they knew Joginder Singh. In the disclosure statements Exs.PT and PT/1 suffered by Sandeep and Jaivir in another case, it is disclosed by them that it was Joginder Singh @ Kala, whose vehicle was robbed and Joginder Singh killed. Therefore, the statements of the accused in respect of their acquaintance of Joginder Singh is not hit by Section 25 of the Evidence Act, 1872 (for short 'the Act'), but are the statements of fact admissible under Section 8 of the Act. It was so held by the Division Bench of this Court in Criminal Appeal No. 405-DB of 2007 titled 'Arvind @ Chuni Lal and another Vs. The State of Haryana' decided on 05.05.2010, wherein it was held to the following effect:
"The Court proceeded to consider the judgments in Om Parkash's case (supra); Mohd. Inayatullah's case (supra) and State of Maharashtra v. Damu, (2000)6 SCC 269, to return a finding that in any of these decisions, discovery of fact was not held to comprehend a bare and simple mental fact or state of mind relating to a physical object dissociated from the recovery of the physical object. The `fact' embraces within its fold both, the physical object as well as the mental element in relation thereto. It was held that the information given must relate to discovery of fact.
Keeping in view the legal principles enunciated in the aforesaid judgments, it is apparent that the fact discovered within the meaning of Section 27 of the Evidence Act, includes the physical object as well as the information given by the accused in police custody relating to the discovery of that object which is relevant, but Crl. Appeal No.550-DB of 2006 7 what is admissible being a discovered fact is the information given by the accused, which is within his exclusive knowledge, leading to such recovery.
xxx xxx xxx However, the statement that he called Manjeet from the house, made him sit on the scooter and took him depicts and relates to his conduct, which is a relevant circumstance under Section 8 of the Evidence Act. We find support for this conclusion by the authoritative judgment of the Hon'ble Supreme Court rendered in Himachal Pradesh Administration v. Om Prakash, AIR 1972 Supreme Court 975, wherein it was found that even if nothing is found or recovered from an accused as a consequence of the information furnished by him, still the evidence of the Investigating Officer and the Panches that the accused has taken them to a witness, as corroborated by the said witness, would be admissible under Section 8 of the Evidence Act, as conduct of the accused.
In Prakash Chand v. State (Delhi Administration), AIR 1979 SC 400, the Court found that there is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to the Police Officer during the course of investigation, which is hit by Section 162 Cr.P.C. It was held to the following effect:-
".......What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led to a Police Officer and pointed out the place where stolen Articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Crl. Appeal No.550-DB of 2006 8 Section 27 of the Evidence Act (Vide Himachal Pradesh Administration v. Om Prakash, AIR 1972 SC
975).
The disclosure statements suffered by the appellants on 15.06.2005 is to the effect that they left the vehicle abandoned, after fuel finished. The recovery of vehicle was effected from the Police Station Kotwali, Roorkee. Such vehicle was taken into possession as abandoned and unclaimed vide memo Ex.PV. This information is in relation to the recovery of physical object i.e. vehicle "Tata Spacio" and such information leading to said recovery is admissible in evidence in terms of Section 27 of the Evidence Act.
Still further, the vehicle in question has been taken into possession by the Police of P.S. Kotwali, Roorkee vide Ex.PV on 10.05.2005 lying abandoned since two days. The said fact stands corroborated by the facts stated in the disclosure statements suffered by the appellants that they left the vehicle near Roorkee City on 08.05.2005. Since the vehicle was left abandoned on 08.05.2005, the accused did not know that the vehicle has been taken into possession by the Police of P.S. Kotwali, Roorkee. The recovery of vehicle from Roorkee is a strong circumstance to prove the commission of crime by the appellants alone. The Investigating Agency in the present case could not dream of the fact that the vehicle was abandoned in Roorkee and was in police custody. The recovery of vehicle having abandoned on 08.05.2005 and its possession by the Police of P.S. Kotwali, Roorkee on 10.05.2005, completes the chain of events leading to the conviction of the appellants for the offences under Sections 392/302 read with Section 34 IPC.
Accused Sandeep and Jaivir made their disclosure statements on 10.06.2005, but were admitted in the Hospital till 15.06.2005. It was, Crl. Appeal No.550-DB of 2006 9 thereafter, the Investigating Agency got the custody of the said accused in the present case after obtaining permission from the Court. The allegation that they got injuries during police custody stands controverted by the medical evidence produced by the accused in the shape of DW-4 Dr. S.K.Gupta, Medical Officer, General Hospital, Panipat.
Earlier Ravi Kumar and Ram Kumar had made disclosure statements Exs.PK and PL respectively, disclosing that they have left the vehicle with Bittu. They did not disclose at that time that they left the vehicle abandoned at Roorkee on 08.05.2005. Such fact was disclosed by them only on 15.06.2005 in their disclosure statements Exs.PF and PG, when they were again interrogated and such fact was found to be correct when the Police affected the recovery of vehicle on 16.06.2005 from the Police of P.S.Kotwali, Roorkee. Such disclosure statements are proved by PW-1 Narinder Kumar, brother of the deceased.
In view of the above discussion, we do not find any illegality or irregularity in the findings recorded by the learned trial Court holding the appellants guilty for the offences under Sections 392/302 read with 34 IPC.
Consequently, the present appeal is dismissed.
(HEMANT GUPTA)
JUDGE
28.04.2011 (A.N.JINDAL)
Vimal JUDGE