Punjab-Haryana High Court
Sikander Alias Dhillu & Others vs State Of Haryana on 7 March, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-199-SB of 2003
Date of Decision: 07.03.2014
Sikander alias Dhillu & others
...... Appellants
Versus
State of Haryana
...... Respondent
CORAM: HON'BLE MR.JUSTICE SURINDER GUPTA
Present : Mr. Rahul Vats, Advocate
for the appellants.
Mr. Deepak Jindal, D.A.G., Haryana.
*****
SURINDER GUPTA, J.
Appellants faced trial for offence punishable under Sections 394, 397 read with Section 34, 120-B IPC and 25 of the Arms Act in case bearing FIR No. 48 dated 3.2.2001 registered at Police Station City Bhiwani. Appellants Sikander alias Dhillu and Ashwani alias Kala were convicted and sentenced for offence punishable under Sections 394, 397 & 120-B IPC while accused Satish was convicted and sentenced for offence punishable under Sections 394, 397, 120-B IPC and 25 of the Arms Act.
2. The case of the prosecution in brief is that on 3.2.2000, Ramesh Kumar, complainant, an employee of Super Service Station Petrol Pump, Loharu Road, Bhiwani, had gone to the house of Tulsi Dass, owner of the petrol pump, with a sum of ` 34,000/- and took ` 1,79,000/- from Tulsi Dass for depositing in Oriental Bank of Commerce, Clock Tower, Bhiwani. At about 11:15 a.m., when they Satyawan reached Liberty Cinema near the turn of Bhiwani Gas Agency, 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 2 appellant Sikander, who was driving the car slowed down the vehicle. Two young boys aged about 25/30 years came near the car and forcibly stopped it at pistol point. One of them took the rear seat and the other boy took the front seat. The complainant was dragged to the rear seat of the car and given knife blows, when he tried to get himself relieved. The complainant tried to snatch the knife, as a result of which he received injuries on both his hands. One injury was received by him on the right side of the neck below the ear. The complainant was asked to sit silently. The driver, Sikander was asked to back the car and it was taken from the side of Haluwas Gate towards Dadri Gate and then to Thana road. The driver Sikander also tried to get the complainant relieved at which he was also given blow on the left hand with knife. On the way, they found the railway gate closed and again took the U-turn and proceeded towards Bhiwani. The complainant and driver were thrown on the road and the vehicle along with the currency notes ` 2,13,000/- and golden ring of the complainant were taken away in the car by the assailants.
3. The complainant reached the petrol pump and apprised the owner, Tulsi Dass of the incident. The complainant as well as the driver were taken to the Civil Hospital, where Dr. Vasudha Gupta, PW-7 medico-legally examined them. She found the following injuries on the person of Sikander (now appellant) :-
"1. A small incised wound 1 cm X .4 cm skin deep on the lateral surface of left upper arm on the deltoid region. Edges are sharp. Red in colour associated with another incised wound 1 x .4 cm skin deep on Satyawan 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 3 the lateral surface of left upper arm. 3 cm below the previous wound. Red in colour.
2. An abrasion .5 x .5 cm skin deep on the lateral surface of left upper arm. 3 cm back to the previous wound. Red in colour."
4. The injuries were declared simple in nature. In the opinion of the Doctor the injury No.1 was caused by sharp edged weapon while injury No.2 was caused by blunt weapon.
5. On the medicolegal examination of Ramesh Kumar, following injuries were found on his person :-
"1. An incised wound of 6 cm x .2 cm skin deep on the right side of neck on the submandibular region. Red in colour. Edges sharp.
2. An incised wound 1.5 cm x .2 cm on the tip of right ring finger. Red in colour. Edges sharp.
3. Multiple small abrasion on the dorsal surface of right ring finger. Red in colour.
4. Incised wound 1 cm x .2 cm skin deep on left palm at the base of left ring finger. Red in colour.
5. Incised wound of 2 cm x .1 cm skin deep on the frontal aspect of left index finger. Red in colour.
6. Complaining of pain and redness on both eyes.
Watering of eye present. Advised Eye Surgeon opinion."
6. Injury No.1 to 5 were declared simple in nature caused by sharp edged weapon while injury No. 6 was kept under observation.
7. The police recorded the statement of complainant Ramesh Kumar Ex. PS., which was sent to the police station with endorsement Ex. PS/1, whereupon formal FIR Ex. PS/2 was Satyawan recorded.
2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 4
8. The police could not trace the accused and filed untraced report.
9. On 15.5.2001, during the investigation of case bearing FIR No. 165 dated 14.5.2001 registered at Police Station City Bhiwani for offence punishable under Sections 399, 402 IPC and 25 of the Arms Act, the appellants admitted their involvement in this case. The police recovered the country made pistol, one golden ring and ` 5,000/- from the appellant Satish, ` 5000/- and a knife, from Ashwani, a motor cycle RC and `12,000/- from appellant Sikander.
10. After completion of investigation challan against the appellants was presented in Court.
11. In order to prove its case, the prosecution examined Satbir Singh, Draftsman as PW-1, Usha Chauhan, Ahlmad as PW-2, C-Jaipal Singh as PW-3, Subhash Chander, Inspector as PW-4, Naresh Gupta, Ahlmad as PW-5, Sajjan Singh, ASI as PW-6, Dr. Vasudha Gupta as PW-7, ASI Attar Singh as PW-8, Inspector Yaad Ram as PW-9, Tulsi Ram as PW-10, Ramesh Kumar as PW-11 and Ram Mehar Inspector as PW-12.
12. On completion of prosecution evidence statement of the appellants under Section 313 Cr.P.C. was recorded, wherein they denied allegations levelled against them and pleaded their false implication.
13. I have heard learned counsel for the appellants, learned State counsel and have gone through the records of the case with their assistance.
Satyawan 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 5
14. Learned counsel for the appellants has argued that the appellants were arrested in case bearing FIR No. 165 dated 14.5.2001 registered at Police Station City Bhiwani for offence punishable under Sections 399, 402 IPC and 25 Arms Act and were involved in this case on the basis of their disclosure statement. There is no evidence of their involvement in the instant case. The only witness of the prosecution, complainant Ramesh Kumar has not identified the appellants. Regarding the appellant, Sikander he had categorically ruled out his involvement in this case. The police has attempted to prove the offence by showing recovery of ` 12,000/- from appellant Sikander and ` 5,000/- each from Satish @ Sheel and Ashwani. So far as the recovery of the currency notes is concerned, the identification of the same by PW Ramesh carries no weight because the currency notes were not having any specific mark of identification. A story has been introduced that the currency recovered from Sikander was having a slip of account No. CC-163 and initials of the complainant. The bag having the print 'Desai Biri' in which the complainant was carrying the currency, was also shown to have been recovered from the appellant Sikander. In the same manner the currency recovered from appellants Ashwani and Sheel @ Satish has been shown as identified by Ramesh. The golden ring was allegedly recovered from appellant Satish. The mere recovery of the currency notes, pistol or a golden ring do not prove the charge for offence punishable under Sections 394, 397 read with Section 34; 120-B IPC and 25 Arms Act against the appellants, particularly when Satyawan 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 6 the complainant has failed to identify them in Court.
15. Learned State counsel has argued that in this case the recovery of the golden ring and the currency notes was effected from the appellants. The currency notes were duly identified as these were bearing the slip of account number in which these were to be deposited. The circumstantial evidence produced in this case is sufficient to prove the charges framed against the appellants. Appellant Sheel @ Satish is none-else than the brother of appellant Sikander. It is mentioned in the statement of complainant, on which the FIR was registered, that on reaching the turn of Bhiwani Gas Agency near Liberty Cinema, the appellant Sikander, who was driving the car, slowed down the speed of the car, which was apparently to allow both the other appellants to enter the car. He acted as per the directions of appellants No. 2 & 3 and took the car in the direction wherever they desired. He has suffered the disclosure statement admitting this occurrence and currency worth `12,000/- was recovered from the possession of appellant No.1, Sikander, which was the part of the currency notes snatched from Ramesh Kumar.
16. The case of the prosecution is based on the testimony of its star witness Ramesh Kumar, PW-11. He has stated that two person with covered faces entered their car near the residence of Tulsi Ram PW-10. Chilly powder was thrown in his eyes and the bag with cash was snatched from him. He had not identified appellants No. 2 & 3 in Court. Appellant Sikander was identified as driver of the car, in which he was driving, but has stated that Sikander had no role Satyawan 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 7 to play in the occurrence. Sikander had rather received the injuries in the occurrence. From the testimony of this witness it is not proved, that the appellants were the person who snatched the cash and car from the complainant. As per the prosecution, appellant Sikander was also caused injuries and thrown out of the car along with complainant Ramesh Kumar by the assailants, who had covered their faces.
17. Now the question which remains for determination is as to whether the identity of the appellants is duly proved from the other circumstantial evidence produced by the prosecution. The prosecution has produced evidence of recovery of following articles, on the basis of disclosure statement of the appellants :-
(i) Appellant No.1-Sikander @ Dhillu :-
(a) Cash of ` 12,000/- with bag having print 'Desai Biri'
(b) Motor cycle
(c) RC
(ii) Appellant No.2-Satish @ Sheel :-
(a) ` 5,000/-
(b) Pistol
(c) Golden ring
(iii) Appellant-Ashwani alias Kala :-
(a) ` 5000/-
(b) Knife
18. The police has tried to connect the recovery of currency notes with the cash snatched from Ramesh Kumar. In his statement Satyawan 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 8 to the police Ex. PS, Ramesh Kumar has nowhere stated that he had put any mark of identification on the currency notes, he was carrying in a bag for depositing in the bank. The police has now come up with a version that the currency notes were having the mark with the seal of the account number, in which these were to be deposited i.e. 'CC- 163'.
19. This version of the prosecution is a clear improvement with an attempt to connect the appellants with the recovery of the looted cash. Even otherwise, Ramesh Kumar was taking ` 2,13,000/- for deposit in the bank. He has not given the denomination of the currency notes in his statement which were being taken by him for deposit. It is not believable that appellants were keeping the currency notes with them along with slip having mention on it 'CC-163' and initials of Ramesh Kumar. This all appears to be a cooked up version of the police, which cannot be relied, as such, the recovery of currency notes in the above facts and circumstances is not a circumstance to connect the currency recovered from the appellants with the currency snatched from Ramesh Kumar.
20. It has been stated by Ramesh Kumar that Sikander, appellant had no role to play in the occurrence and he had also received the injuries. If the recovery of currency notes is ignored, the recovery of bag having the print 'Desai Biri' is a very weak type of evidence to connect the appellants with the occurrence, such type of bags are easily available in the market.
Satyawan 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 9
21. The evidence against appellant Ashwani is of recovery of ` 5,000/- and a knife. So far as t he recovery of knife is concerned, it was a small vegetable cutter and there is no evidence that it was used in the occurrence, as such, the prosecution has also failed to prove the involvement of appellant Ashwani and to connect him with the occurrence.
22. From appellant Sheel @ Satish, a golden ring of Ramesh Kumar was recovered along with pistol and the currency notes worth ` 5,000/-.
23. In the FIR Ramesh Kumar complainant has specifically submitted that the assailants in the car have forcibly deprived him of his golden ring. He had identified the ring recovered from the appellant-Satish, which was snatched from him. The recovery of ring of Ramesh Kumar proves the offence under Section 411 IPC against him. For the recovery of pistol, he has been separately convicted and sentenced. Appellant Satish has not come with any explanation regarding possession of the ring of the complainant. Though, the prosecution has failed to prove the commission of offence punishable under Sections 394, 397, 120-B IPC against the appellant Satish, the offence under Section 411 IPC is duly proved against him. A pistol . 315 bore was also recovered from the possession of satish. In the absence of any proof that appellant Satish was the same person, who was involved in the occurrence, which took place on 3.2.2001, the inference of commission of offence under Sections 394, 397 IPC cannot be drawn against him, on the basis of the recovery of golden Satyawan 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CRA-199-SB of 2003 10 ring and pistol.
24. In view of the above discussion, the appeal of appellant Sikander and Ashwani is accepted and they are acquitted of the charges framed against them under Sections 394, 397, 120-B IPC and the sentence awarded to them is set aside. The amount of fine, if deposited, shall be refunded to them.
25. The judgment of the trial Court qua appellant Sheel @ Satish is modified by converting his conviction for offence under Section 394, 397, 120-B IPC to offence under Section 411 IPC and awarded sentence of rigorous imprisonment of 3 years. He has already undergone more than 3 years of imprisonment during the trial and after his conviction. The sentence already undergone is set off against the sentence awarded.
26 The Superdari of the golden ring and the currency notes with Tulsi Ram PW-10 is discharged.
(SURINDER GUPTA) 07.03.2014 JUDGE 'Satyawan' Satyawan 2014.03.22 15:36 "I attested to the accuracy and integrity of this document"
High Court Chandigarh