Punjab-Haryana High Court
Wazir Singh @ Wazira vs State Of Haryana on 3 January, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(1) Criminal Appeal No.1138-SB of 2001
Wazir Singh @ Wazira
... Appellant
Versus
State of Haryana
... Respondent
(2) Criminal Appeal No.1148-SB of 2001
Naresh and another
... Appellants
Versus
State of Haryana
... Respondent
(3) Criminal Appeal No.1408-SB of 2001
Anil Kumar @ Bhima
... Appellant
Versus
State of Haryana
... Respondent
1. Whether Reporters of Local Newspapers may be allowed Yes
to see the judgment?
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
Date of decision: 3rd January, 2012
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Ashit Malik, Advocate for the appellants
in CRA Nos.1138-SB and 1408-SB of 2001;
Mr. Jagdeep Singh Virk, Advocate for the appellants
in CRA No.1148-SB of 2001;
Mr. Kartar Singh, Deputy Advocate General, Haryana
for the State.
Criminal Appeals No.1138-SB, 1148-SB and 1408-SB of 2001 2
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Naresh Kumar son of Imla, Surender Singh son of Chamel Singh, Wazir Singh @ Wazira son of Lakhmi Chander, Anil Kumar @ Bhima son of Devi Dayal and Satwinder @ Ganja son of Hari Ram were nominated as accused in a case arising out of FIR No.378 dated 09.09.1999 registered at Police Station Butana under Sections 399 and 402 IPC. The Court of Additional Sessions Judge, Karnal vide impugned judgment dated 25th September, 2001 held all the appellants guilty of offences punishable under Sections 399 and 402 IPC and vide a separate order of even date, sentenced them to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.500/- each under Section 399 IPC. A similar sentence was awarded to the appellants under Section 402 IPC. Both the sentences were ordered to run concurrently. It was further ordered by the trial Court that in default of payment of fine, the appellants shall undergo simple imprisonment for a period of 15 days.
Criminal Appeal No.1138-SB of 2001 has been preferred by Wazir Singh @ Wazira; Criminal Appeal No.1148-SB of 2001 by Naresh and Surender Singh; whereas Criminal Appeal No.1408-SB of 2001 has been filed by Anil Kumar @ Bhima. All the three appeals shall be decided together by this common judgment.
As per the affidavit dated 2nd January, 2012 filed by the Deputy Superintendent, District Jail, Karnal, Satwinder @ Ganja son of Hari Ram had already undergone the entire sentence availing the benefit of remissions.
Prosecution case emerges in the testimony of ASI Manvir Singh PW-4. He stated that on 9th September, 1999 he was posted in CIA Criminal Appeals No.1138-SB, 1148-SB and 1408-SB of 2001 3 Staff, Karnal. On that day he along with ASI Suresh Chand, HC Nand Kishore, HC Didar Singh, HC Randhir Singh and Constable Rakesh Kumar, was present in a Government jeep bearing registration No.HR05E-1893 at bus stand Shamgarh. When he was having a conversation with one Thakur Dass, he received a secret information that near the school of village Dadupur Khurd on the G.T. Road five persons were planning to commit dacoity and rob the passersby trucks. The secret informer also informed that the accused were armed with Lathies, Dandas, Saria and Pistols; and that accused Naresh armed with a pistol has been asked to rob the trucks in the darkness. Considering the information to be reliable, a raiding party was prepared and the same was headed by the witness, i.e. ASI Manvir Singh PW-4. They reached near the boundary of school of village Dadupur Khurd, which was a deserted place. The jeep was parked at some distance. The police party moved slowly towards the deserted Kotha and surrounded the same. When they reached near the Kotha, they heard someone inside the Kotha telling that 'Naresh it is now dark we should go for robbing the trucks'. Upon this, the investigating officer gave a lalkara that all the accused have been surrounded by the police and they should surrender themselves. With the help of companion police officials, all the accused were apprehended. The accused so apprehended disclosed their names as Naresh @ Kala, Surender Kumar, Satwinder @ Ganja and Anil @ Bhima. From the personal search of accused Naresh, a .315 bore pistol Ex.P2, along with two live cartridges Ex.P3 and Ex.P4, was recovered and from accused Surender one Danda Ex.P6 was recovered. Similarly, from the personal search of accused Anil Kumar @ Bhima an iron rod Ex.P7 was recovered. Another iron rod Ex.P8 was recovered from the search of Criminal Appeals No.1138-SB, 1148-SB and 1408-SB of 2001 4 accused Satwinder @ Ganja. On 10th September, 1999 accused Satwinder, Naresh, Anil and Surender were taken out of the lock-up and on interrogation they confessed their involvement in the theft cases registered against them at Police Station City Karnal. All the accused were produced in the Court and their police remand was obtained for a period of three days. This witness further stated that on 10th September, 1999 they had apprehended appellant Wazir Singh @ Wazira when they were holding a nakabandi and from the personal search of this accused, one pistol of .315 bore was recovered.
Prosecution, in all, has examined five witnesses including ASI Manvir Singh PW-4.
HC Didar Singh PW-1 corroborated the testimony of ASI Manvir Singh PW-4 regarding arrest of Wazir Singh @ Wazira and recovery of pistol Ex.P1 and live cartridge from him. HC Ashok Kumar PW-2 had proved sanction orders Ex.PC and Ex.PD issued by the District Magistrate, Karnal qua Naresh @ Kala and Wazir Singh @ Wazira respectively. Constable Parmod Kumar PW-3 had submitted test report qua the two pistols of .315 bore recovered from accused namely Naresh and Wazir Singh. ASI Suresh Kumar PW-5 was a part of the investigation and had corroborated the testimony of ASI Manvir Singh PW-4 regarding receipt of secret information, hearing of the conversation, apprehension of the accused and recovery of weapons from them.
Thereafter, prosecution closed its evidence and statements of the accused appellants were recorded under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them and pleaded false implication.
No witness was examined in defence.
Criminal Appeals No.1138-SB, 1148-SB and 1408-SB of 2001 5 Mr.Ashit Malik, Advocate appearing for the appellants namely Wazir Singh @ Wazira and Anil Kumar @ Bhima, and Mr.Jagdeep Singh Virk, Advocate appearing on behalf of the appellants namely Naresh and Surender Singh, have stated that the entire prosecution case rests upon the testimonies of two police officials i.e. ASI Manvir Singh PW-4 and ASI Suresh Kumar PW-5. Learned counsel have further stated that no independent witness was examined, even Thakur Dass, who was having conversation with the investigating officer, has been given up on the false pretext of won-over. Counsel have submitted that the entire prosecution case is improbable.
This Court in 'Gulzar Singh and others v. State of Haryana' (Criminal Appeal No.848-SB of 2002 decided on 17th February, 2011) had placed reliance upon 'Suleman v. State of Delhi through Secretary' 1999(2) RCR (Criminal) 377 and 'Chaturi Yadav and others v. State of Bihar' 1979 AIR (SC) 1412 to hold that evidence of the investigating officer that at the nick of moment when he arrived at the deserted place, he heard the conversation, is too improbable. This Court in Gulzar Singh's case (supra) had further relied upon 'Gholtu Modi and others v. State of Bihar' 1986 Cri.L.J. 1031 to hold that it is not safe to rely upon the testimony of police officials when the prosecution version in itself cannot be given due credence on the touchstone of probabilities.
In the present case, no draftsman has been examined to prove the site plan. At what place the witnesses were standing, what was their distance from the accused where they were having conversation, and whether the conversation was audible or not; this Court is unable to comprehend the same as no witness to provide visual description of the site has been examined by the prosecution. Furthermore, a Division Criminal Appeals No.1138-SB, 1148-SB and 1408-SB of 2001 6 Bench of this Court, in 'Mahavir v. State of Haryana' 2010(6) RCR (Criminal) 3073 has held that in case the independent witness, even if available, is not examined; it will eclipse the case of prosecution severely. In Mahavir's case (supra) it was held as under:
"14. ... ... Their evidence, in these circumstances, is required to be scrutinized carefully and cautiously. If the Court, after such scrutiny, comes to the conclusion, that the same is reliable, then mere non-joining of independent witness, pales into insignificance. The other evidence, produced by the prosecution, as would be discussed hereinafter, on scrutiny, has been found to be unreliable. Since an independent witness was not joined, despite availability, though there was sufficient time, with the Investigating Officer, to do so, the case of the prosecution became doubtful. In State of Punjab v. Ram Chand 2001 (1) RCR (Criminal) (DB) (P&H), no independent witness was joined despite availability, at the time of effecting recovery.
In these circumstances, it was held that it was imperative, in the given circumstances, to join and examine an independent witness to vouchsafe the fair investigation. On account of this reason, the accused was held entitled to be given the benefit of doubt. In State of Punjab v. Bhupinder Singh 2001(1) RCR (Criminal), 356 (DB) (P&H), no independent witness was joined, though the recovery was effected, in a busy locality. Under these circumstances, it was held by this Court that the case of the prosecution became doubtful. In Ritesh Chakarvarti v. State of Madhya Pradesh 2006(4) RCR (Criminal), 480 (SC), no effort was made to join an independent witness despite availability. The names of the persons, from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held that the case of the prosecution was doubtful and ultimately, the accused was acquitted. The principle of law, Criminal Appeals No.1138-SB, 1148-SB and 1408-SB of 2001 7 laid down, in the aforesaid authorities, is fully applicable to the instant case. As stated above, a cloud of doubt, was cast, on the prosecution case, on account of non-joining of an independent witness, despite availability, at the time of the alleged raid. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into an error in recording conviction and awarding sentence."
In Mahavir's case (supra) it was further observed that mere assembly of the accused with deadly weapons is not sufficient to hold that they had gathered to commit dacoity. It was held that the prosecution ought to have proved by direct or circumstantial evidence that the accused were making preparation for commission of dacoity. The following observations made in Mahavir's case (supra) are required to be noticed:
"15. Now coming to the factum, as to whether, the accused were allegedly making preparation to commit dacoity, while sitting in a room, armed with iron rods, a dagger, and a country made pistol, it may be stated here, that the same is not proved, as would be discussed hereinafter. Sections 399 and 402 of the Indian Penal Code, are confined to making preparation for commission of dacoity and have no reference to any other offences. Therefore, the prosecution must prove, from some evidence, directly or indirectly, or from attending circumstances, that the accused persons had assembled for no other purpose than to make preparation, for commission of dacoity. If the evidence falls short of it, the case must fail. Though the word "preparation" has not been defined, in the Penal Code, the prosecution must show some such conduct, to prove the factum of "preparation" by the assembly, and that the accused persons had conceived any such designs for Criminal Appeals No.1138-SB, 1148-SB and 1408-SB of 2001 8 committing dacoity, and, in fact, intended to achieve the object, for which they had assembled. Therefore, the mere fact that some persons were found sitting at a lonely place, at night, in a house which was under construction, and incriminating articles like firearms, some bombs and a Bhujali were recovered from their possession would not be sufficient to prove the charge that they had assembled for making preparation for commission of dacoity. The evidence must be such, which may plainly manifest the main charge to satisfy the conscience of the Court that the members of the assembly did some such act, or acts, which may lead to irresistible presumption, that they had assembled for the purpose of committing dacoity and were making preparation for the same, but, in absence of any such evidence, mere assemblage and recovery of firearms do not prove the charge."
Considering the ratio of law laid down in various judicial pronouncements, a reference to which has been made above, and the testimonies of ASI Manvir Singh PW-4 and ASI Suresh Kumar PW-5, this Court is of the view that it is not safe to uphold conviction of the appellants for offences punishable under Sections 399 and 402 IPC. Thus, as a matter of abundant caution, this Court shall grant benefit of doubt to the appellants.
Consequently, the present three appeals are accepted. Conviction recorded and the sentence awarded to the appellants is set aside and they are acquitted of the charges.
[KANWALJIT SINGH AHLUWALIA] JUDGE January 3, 2012 rps