Punjab-Haryana High Court
Raka And Others vs State Of Punjab on 27 April, 2010
Author: Mehtab S.Gill
Bench: Mehtab S.Gill
Crl. Appeal No. 197-DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No. 197-DB of 2009
Date of decision : 27-4-2010
Raka and others ... Appellants
versus.
State of Punjab ... ... Respondent
CORAM:- HON'BLE MR. JUSTICE MEHTAB S.GILL
HON'BLE MR. JUSTICE ARVIND KUMAR
Present: Mr. M.S.Joshi, Advocate,
for the appellants
Ms. Manjari Nehru Kaul, Addl. AG Punjab
...
ARVIND KUMAR, J:
This appeal is directed against judgment and order dated 12.1.2009 passed by the Additional Sessions Judge, Patiala, whereby the accused-appellants have been convicted under Sections 148, 460/149, 302/149 IPC for having committed the murder of Partap Singh and Gurpal Kaur, father and mother of complainant Khushbir Singh. Under Section 148 IPC, they have been sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs.500/- each and in default of payment of fine, to further undergo RI for two months each; under Section 460/149 IPC, they have been sentenced to undergo ten years' rigorous imprisonment and to pay a fine of Rs.1000/- each and in default of payment of fine, to further undergo RI for four months each; and under Section 302/149 IPC, they have been sentenced to undergo life imprisonment and to pay a fine of Rs.1000/- each and in default of payment of fine, to further undergo RI for four months each. All the sentences were,however, ordered to run concurrently.
In brief the prosecution case is that on 7.7.2003, upon receipt of information regarding death of Partap Singh and admission of Crl. Appeal No. 197-DB of 2009 2 injured Khushbir Singh, Satbir Singh and Gurpal Kaur in Rajindra Hospital, Patiala, ASI Gurdeep Singh along with some other police officials reached there. After Khushbir Singh was declared fit to make statement, his statement was recorded by the police, in which he stated that on the night intervening 3/4.7.2003, he(complainant) along with his father Partap Singh and Gurpal Kaur was sleeping in their bed-room while his brother Satbir Singh and his wife Narinder Kaur were sleeping in another room and his nieces, Lovepreet Kaur and Amritpal Kaur were sleeping in separate room. At about 3 A.M., he heard the cries of his nieces. Then he saw three Hindu gentlemen armed with short sides of the frames of cots and when he challenged them, one of them gave him a blow on his right ear due to which he fell down on the ground. Thereafter, the accused persons attacked his parents besides causing injuries to his brother and brother's wife and further threatened them to keep mum lest they would be done to death. The accused then broke open the locks of almirahs and trunks and took away ornaments and cash. He found his father dead and mother in an unconscious condition. The injured were then removed to Rajindra Hospital, Patiala. On the basis of such statement, the present FIR came to be registered under Section 460, 148,149 IPC. The accused persons were arrested and on the basis of their disclosure statements, they got recovered the gold ornaments taken away by them. Later, complainant's mother Gurpal Kaur too succumbed to the injuries. Upon completion of investigation of the case, accused-appellants were challaned under Sections 302,460,148,149 IPC. After being produced in Court, they were charge- sheeted under the said sections to which they pleaded not guilty and claimed trial.
The prosecution in order to prove the charge against the accused, examined PW-1 Dr.Harpal Singh, PW-2 Dr.Parminder Singh, PW-3 Gurmeet Singh, PW-4 Dr.S.S.Oberoi, PW-5 Dr. Bharti Tanwar, PW-6 Dr.Simarmeet Singh, PW-7 ASI Ajaib Singh, PW-8 Khushbir Singh, PW-9 Narinder Kaur, PW-10 HC Faqir Chand, PW-11 HC Sudh Singh, PW-12 MHC Harjit Singh, PW-13 ASI Gurdeep Singh, PW-14 ASI Kuldip Singh No.2066, PW-14 ASI Kuldip Singh No.563, PW-15 SI Ranjit Singh and PW-16 ASI Ajit Singh and closed its evidence.
Thereafter, accused-appellants were examined under Section Crl. Appeal No. 197-DB of 2009 3 313 Cr.P.C. and put incriminating evidence appearing against them to which they pleaded innocence and claimed false implication. All of them stated that a person named Jamil, was a police cat who hails from their village and belongs to their community. Due to rivalries in their village, during the period when there were some cases of burglaries and dacoity in Punjab, the said person Jamil taking undue advantage of the situation, managed to foist several cases on other villagers of their community by taking into confidence some officers. It was stated that said Jamil who holds the rank of a Constable, had been recruited in the police force without any interview and qualification. They gave instances of cases of one Rattan, Inder and Sesra against whom two criminal cases were pending in Court and like them, the said persons had been similarly framed in the said two cases, in which Jamil has been shown in the list of police witnesses. The accused stated that said Jamil who has landed property in their village, was on inimical terms with them due to the disputes relating to the landed property. It was stated that since above-said Sesra got married with the wife of brother-in-law of Jamil, he was inimical towards them and dragged them in the present case. In defence evidence, they examined DW-1 Rakesh Kumar,Ahalmad.
The learned Additional Sessions Judge, Patiala, vide her judgment and order held the accused-appellants and convicted and sentenced them in the manner indicated above. Hence, the present appeal.
We have heard the learned counsel for the parties.
This case relates to the murder of Partap Singh and his wife Gurpal Kaur in their house. Accused-appellants now stated to be, a gang of "Kale Kachhewale". The occurrence had taken place on the night intervening ¾.7.2003. The case mainly rests upon the statement of PW-8 Khushbir Singh son of the deceased and PW-9 Narinder Kaur wife of Satbir Singh, i.e. daughter-in-law of the deceased persons. PW-8 Khushbir Singh in his statement has stated that on that night, he was sleeping by the side of his parents whereas his two nieces,namely, Lovepreet Kaur and Amritpal Kaur were sleeping in the adjoining room and so as his brother Satbir Singh and his wife Narinder Kaur in another room. At about 3/4 A.M., he heard the cries of his niece. He found 3 persons aged about30-35 years. The lights were on. All the three accused, whom he identified to be Banaras, Crl. Appeal No. 197-DB of 2009 4 Bala and Kishore, present in Court, challenged him and one of them gave him a Saria blow on his right ear. They were demanding the keys of the almirah and Safe. His parents had also woken up. When they challenged them, they also caused injuries to them. His brother Satbir Singh and his sister-in-law Narinder Kaur also woke up and they also caused injuries on their persons and then they threatened that if any hue and cry is raised, they would be murdered. They while leaving, had taken away the ornaments of his sister-in-law. His father had already died. They along with their mother Gurpal Kaur were removed to Rajindra Hospital, Patiala. Similar is the statement of PW-9 Narinder Kaur who could only identify two persons i.e. Banaras and Kishore who in fact entered her room.
The foremost argument that has been addressed by the counsel for the appellants is that the accused were not known to the witnesses and in this situation, it was obligatory for the police to have held test identification parade which was never done and as such, identification in the Court for the first time is insufficient and must be discarded. The contention is meritless. There is no dispute that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. This is not a case where identification of the accused in Court by the witness though a stranger had just a fleeing glimpse of the person identified and had no particular reason to remember the person concerned. It has come in the evidence of the witnesses that at the time of occurrence, the lights were on and the occurrence had lasted for 1½ hours. Not only this, the witnesses had received injuries at the hands of the accused persons. Therefore, the eye-witnesses who were injured, could have easily seen the faces of the persons assaulting them and their appearance and identity would well within imprinted in their minds especially when they Crl. Appeal No. 197-DB of 2009 5 were assaulted in the light. Further also, they would not be interested in roping in innocent persons by shielding the real accused who had assaulted them. Therefore,the evidence of identification in Court for the first time becomes stronger if the witness had an opportunity of seeing the accused not for a few minutes but for some length of time, in light, when he would be able to note the features of the accused more carefully than in seeing the accused in a dark night for a few minutes. Therefore, the contention that the identification of the accused-appellant for the first time in Court be discarded, has no legs to stand and thus, the same stands rejected.
The matter does not rest here. The identification of an accused in Court is substantive piece of evidence and further strengthens when the same is corroborated by other evidence. In this context,the statements of PW-8 Khushbir Singh and PW-9 Narinder Kaur are again very important. PW-8 Khushbir Singh is very categoric in stating that the accused had taken away ornaments of her sister-in-law. The details of the ornaments that had been taken away by the accused, have been detailed by PW-9 Narinder Kaur. She is very categoric in her statement that after discharge from hospital, she came to her farm-house on 27.7.2003 wherein locks of all almirahs including that of wooden, were broken. Her 4 bangles(golden) weighing 5 tolas, ear-rings gold weighing ½ tola, one ring weighing 3 gra,s having 'Munga', a golden Karra weighing 2 tolas of her husband, one ring of one tola having 'Neelam stone' , two golden chains, three sets of tops, 3 sets/pairs of ear-rings, two sets of gold and one set of diamond, one bangle of Karra type of her daughter Navpreet Kaur, one gold ring having Sucha Moti stone of her daughter Navpreet Kaur, 4 golden bangles of her mother- in-law weighing 6 tolas, a Kundan set, one diamond set, two-three golden chains, three ear-rings/tops and Rs.40,000/- from the room of her father-in- law, two currency notes of 500 denomination of Norway currency, 130 US dollars, Rs.4/5,000/- in cash and RC(Registration certificate) of their Zen car were missing. The accused in the present case were arrested on 13.8.2003. On 14.8.2003, they were interrogated by PW-16 ASI Ajit Singh and one Kashmir Singh. Accused-appellant Kishore on interrogation made disclosure statement Exhibit PN/4 that he had kept two pairs of golden ear-pins and two golden rings(female) which had fallen to his share, wrapped in a polythene paper and kept concealed in the Badi Nadi in front Crl. Appeal No. 197-DB of 2009 6 of the Girls college, and could get the same recovered. Similarly, accused- appellant Bala had made disclosure statement Exhibit PN/5 of having concealed two pairs of large golden female ear-rings and two pairs of small golden female ear-rings, which had fallen to his share, wrapped in a polythene paper, in the Chhoti Nadi near the Octroi Post near Rajpura and could get the same recovered. Accused Banaras also made disclosure statement Exhibit PN/7 of having concealed a pair of female golden ear- rings and a ladies golden bracelet, which had fallen to his share, wrapped in a polythene paper, near the Anaj Mandi, round-about at Devigarh Chowk. They in pursuance to the disclosure statements, got effected recoveries relating to the said ornaments which were taken into possession vide various memos. prepared by PW-16 ASI Ajit Singh. The said recoveries have been questioned on the ground that there has been no independent corroboration thereto. The contention is meritless. It is a fallacious impression that when recovery is effected pursuant to the disclosure statement made by the accused, the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. This is not the case that no recovery witness was associated; rather Kashmir Singh was duly associated by the Investigating Agency but he chose not to support the case of the prosecution and as such, he was not examined having been won over by the accused, and for this reason, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The official acts of the police have been regularly performed, is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. In the instant case, it is difficult to disbelieve the statements of the police officers. Rather the said recoveries of the ornaments got mixed with other ornaments so arranged from gold- smith and scattered on the bed-room for identification. PW-9 Narinder Kaur is very categoric in her statement that out of the said jewellery, she had identified her jewellery for which identification memo. Exhibit PN/13 was also prepared. PW-9 Khushbir Singh and PW-9 Narinder Kaur are natural Crl. Appeal No. 197-DB of 2009 7 witnesses to be present at the house at the dead of the night. They were injured and had been medically examined also and thus, are stamped witnesses. They were subjected to lengthy examination. They stood firm to their stand. There are no reasons to disbelieve their statements so far as identification of the accused-appellants, namely, Kishore, Bala and Banaras is concerned, which is further fortified from the ornaments so recovered from them, duly identified to be theirs by PW-9 Narinder Kaur, as discussed above.
So far as the cases of accused-appellants,namely, Raka and Lakhan are concerned, they stand on a different footing. It is not that the witnesses have not only been able to identify them; rather there is a clear cut stand of PW-8 Khushbir Singh that there were three accused, whom he had identified to be Banaras, Bala and Kishore. Even, PW-9 Narinder Kaur has also not named this Raka and Lakhan to be present along with the other co- accused appellants. No doubt, recovery of ornaments has also been effected from them in pursuance to their disclosure statements but since they had not been shown to be present and not identified by the witnesses to have committed the crime, the said recovery of the ornaments, which is otherwise in corroborative nature, alone would not suffice to hold them guilty..
Consequently, the present appeal qua the accused-appellants, namely, Raka and Lakhan is allowed and they stand acquitted of the charges, They be set at liberty if not required in any other case.
Accused-appellants Banaras, Bala and Kishore thus, have rightly been convicted. No interference is called for in their case. The appeal qua stands dismissed.
( MEHTAB S. GILL ) ( ARVIND KUMAR )
JUDGE JUDGE
April 27, 2010
JS
Crl. Appeal No. 197-DB of 2009 8
Crl. Appeal No. 197-DB of 2009 9
No other point has been urged.
In view of the discussion made in the earlier paras, the prosecution has successfully proved its case against the accused-appellant beyond any reasonable doubt. The appellants-accused have rightly been convicted. No interference is called for. The appeal stands dismissed.
( MEHTAB S. GILL ) ( ARVIND KUMAR )
JUDGE JUDGE
April 27, 2010
JS