Punjab-Haryana High Court
Jagdip Singh & Ors vs State Of Punjab on 27 August, 2014
Author: Kuldip Singh
Bench: Kuldip Singh
Crl. Appeal No.S-2073-SB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.S-2073-SB of 2004
Date of decision: 27.8.2014
Jagdip Singh and others
..Appellants
Versus
State of Punjab
..Respondent
AND
Crl. Appeal No.S-2252-SB of 2004
Sonu Sharma
..Appellant
Versus
The State of Punjab
..Respondent
CORAM: HON'BLE MR. JUSTICE KULDIP SINGH
Present: Ms.Vriti Gujral and Mr.Ravi Malhotra, Advocates for the
appellants in CRA No.S-2073-SB-2004.
Mr. L.S.Sidhu, Advocate for the appellant in CRA No.S-
2252-SB of 2004.
Mr. M.S.Kang, Deputy Advocate General, Punjab for the
respondent-State.
Kuldip Singh, J.
By this common judgment, I will dispose of Criminal MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -2- Appeal No.S-2073-SB of 2004 preferred by accused-appellants Jagdip Singh s/o Kewal Singh, Ranjit Singh @ Kala s/o Sukhwinder Singh and Mangat Singh @ Manga s/o Dayal Singh and Criminal Appeal No.S-2252-SB of 2004 filed by accused-appellant Sonu Sharma s/o Ram Parkash against the judgment and order dated 28.9.2004/29.9.2004 passed by learned Additional Sessions Judge, (Fast Track Court), Kapurthala vide which the accused-appellants Jagdip Singh, Ranjit Singh @ Kala, Sonu Sharma s/o Ram Parkash, Mangat Singh @ Manga alongwith Gurpal Singh @ Pala and Sukhwant Singh @ Pappi @ Mukhwant Singh (non-appellants) were convicted and sentenced to undergo RI for seven years under Section 395 IPC and to pay a fine of `1000/- each. In default of payment of fine, they were further sentenced to undergo RI for three months. Accused were further sentenced to undergo RI for a period of seven years and to pay a fine of `1000/- each and in default thereof, they are further sentenced to undergo RI for three months under Section 397 IPC. They were also sentenced to undergo RI for one year and fine of `500/- each and in default thereof, to further undergo RI for two months under Section 342 IPC. All the sentences were directed to run concurrently.
Prosecution story is that complainant Balwinder Singh s/o Surjit Singh, who was working as Manager in DIPS School, Dhilwan, was living in the house of Manohar Singh, Ex.Bank Manager in two rented rooms alongwith his family for the last 5-6 years. Manohar Singh Ex.Manager, had shifted to England with family. On 13.3.2002 MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -3- complainant Balwinder Singh alongwith his wife Gurpreet Kaur and two small children went to bed at about 10 p.m. At about 10.15 p.m., he received a telephonic call from one Pargat Singh, agent. As he started listening to the telephonic call, it disturbed his wife Gurpreet Kaur and she woke up. Thereafter, she went out of the bed room towards bathroom. It was about 10.30 p.m., complainant Balwinder Singh then heard shrieks of his wife from outside. When the complainant tried to go outside, his wife came running inside. Then one unknown Hindu gentleman aged about 24-25 years wheatish colour, height about 5'-6", slim, carrying a pistol tried to enter the bed room of the complainant and in this process, entered into a scuffle with him. He was followed by five more youth, out of them, one Sikh youth, aged about 27-28 years, colour wheatish, height 5' 6", slim was carrying sword. The remaining youths were Hindu gentleman and were in the age group of 24-25 years, wheatish colour, height about 5' 6" and slim. Two of the Hindu gentlemen were carrying swords and other two were carrying knives. When the complainant entered into scuffle with one of intruders, the Sikh youth carrying sword, gave a sword blow which slightly hit the left waist of the complainant. One of the Hindu youth pricked his knife on the chest of the complainant and asked the complainant to hand over whatever is in his possession. Out of fear, complainant handed over his one bangle of gold (Kara) weighing about 3 Tolas and two gold rings weighing about 2 Tolas to the said assailants. Thereafter, both the said assailants tied both the arms of the complainant and made him MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -4- sit on the bed. Thereafter, they made his wife Gurpreet Kaur to remove one chain of gold weighing 2 tolas, one pair of ear rings weighing about 3 ½ grams. Thereafter, the assailants started conducting the search of the room. From the Almirah, some gold ornaments belonging to his wife i.e. one pair of ear rings weighing about 7 grams and 4 pairs of nose pins were taken. In addition to this, a cash of `12,000/-, one golden watch mark `Citizen', two watches one of Mark `Citizen' and other of `Quartz' belonging to his wife alongwith one Nokia mobile phone and one receiver telephone set `Panaphone', one video camera Samsung, one still camera, two gold lockets of the children weighing about 5 grams were taken into possession by the accused. The assailants also searched the jacket of the complainant and took away the keys of Tata Safari bearing registration No.DL-4CF-9577 which was given by DIPS School to the complainant for use. Thereafter, they started Tata Safari parked in the street, in the Chowk and sped away. Before leaving, they had tied both the arms and legs of the complainant and threatened them that if they reported the matter to the police, their family would be killed.
After the accused left the house, Gurpreet Kaur untied the legs and arms of the complainant. Complainant came outside and saw that the assailants had also broke open the locks of the house of Manohar Singh and had removed some articles. Balwinder Singh complainant claimed that accused had scaled the boundary wall of his house and have committed the dacoity. Thereafter, Balwinder Singh went to DIPS School and after taking security guard of the MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -5- school with him, was going to police station when he met ASI Attar Singh at Nadala Chowk, Dhilwan, where the statement of Balwinder Singh Ex.PB was reduced into writing on 14.3.2002 at about 2 A.M. The police then sent the same to police station Dhilwan where FIR No.12 dated 14.3.2002 under Sections 395/342 IPC and 25 of Arms Act (Ex.PB/2) was registered.
Police also recorded the statement of one Surjit Singh Ex.PA, who was the care taker of the house of Manohar Singh. He stated that on receiving telephonic call of the dacoity, he had come to the house and on checking rooms in possession of Manohar Singh, he has come to know that four bangles of gold, one pair of ear rings, two pairs of rings, one camera, watches and time pieces have been found stolen. The police recorded the proceedings that since FIR has already been registered regarding the occurrence, his complaint will also be investigated in the said case.
On 13/14.3.2002 night itself, ASI Attar Singh had conducted Nakabandi. At about 4.15 A.M., a vehicle with head lights on was seen coming from Kapurthala side towards Subhanpur Chowk. On seeing the police party, driver stopped the vehicle on the left side of the road with the engine on, at a distance of 100 yards from the police party. Thereafter, 2-3 unknown persons alighted from the vehicle and ran away towards the Western side. The police party then checked the said vehicle and saw that it was a Tata Safari bearing registration No.DL-4CF 9577, which was wanted in the present case. DSP Naresh Kumar was requested on telephone to MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -6- arrive at the spot. A dog squad was also called. The said unknown persons were chased but they succeeded in running away. Complainant Balwinder Singh Manager, DIPS School, Dhilwan was also present with police party. Then the search of the said Tata Safari was conducted, on which black bag was found on the driver side. From the black bag, one still camera Mark `Kodak', packed in a black purse bearing writing Kodak, one time piece `quartz', one time piece `quartz' of black colour, one maxim quartz, 25 coins of foreign currency, change of `200/-, one box containing two cells of watch, one spectacles having grey colour, artificial jewellery, 3 golden rings, 3 pairs of ear rings, two clips, two pairs of anklets (wiswa), two pairs of ring, one ball pen, two pairs of anklets (silver pajeb), 3 clips, one chunni of white colour were found. At the spot, Balwinder Singh identified Tata Safari No.DL 4CF-9577 and one still camera belonging to him. Said articles were taken into possession through separate recovery memo.
On 4.4.2002 at about 3 a.m., SI Charanjit Singh, SHO, Police Station Dhilwan alongwith ASI Attar Singh conducted Nakabandi at Bus Stand, Bakarpur. One police party was headed by SI Charanjit Singh and another party was headed by ASI Attar Singh. Another Naka was laid by ASI Mohinder Singh and ASI Jagir Singh at Tea Point of village Noorpur Lobana. At about 5 A.M., a motor cycle Make `Yama' bearing registration No.PB-02V-8281 was seen coming from Amritsar side on which three youth were riding. The youth were signalled to stop and apprehended. They disclosed their names as MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -7- Sukhwant Singh alias Pappi s/o Raghbir Singh, Gurpal Singh alias Pala and Ranjit Singh @ Kala. Personal search of Gurpal Singh led to the recovery of country made pistol .315 bore loaded with one live cartridge and another cartridge was recovered from his pocket. A separate FIR No.19 Ex.PW6/A in this regard was registered. ASI Attar Singh conducted personal search of Sukhwant Singh and Ranjit Singh. From the personal search of accused Ranjit Singh, one country made pistol with two live cartridges was recovered regarding which separate FIR No.20 Ex.PW6/B was registered. On the same day, police party headed by ASI Mohinder Singh arrested accused Sonu Sharma and Jagdip Singh at Naka of village Noorpur Lobana. Accused Mangat Singh @ Manga was also apprehended on 6.4.2002.
Accused Sukhwant Singh @ Pappi on interrogation suffered disclosure statement Ex.PW6/C wherein he stated that in the dacoity, one mobile phone `Nokia', three watches and hair dryer had come to his share which have been kept concealed by him near the road, near sheller of Jaipal Midha at GT Road, after wrapping the same in the polythene bag and he can get the same recovered. Accordingly, Sukhwant Singh got recovered one mobile phone, two gents' watches Maxim and one lady's watch `casio' and also one hair dryer MIA Travel 1200. The same were taken into possession vide recovery memo Ex.PW6/C. Site plan Ex.PW6/C2 was prepared.
Accused Gurpal Singh also made disclosure statement Ex.PW6/D in which he stated that one video camera and one gold MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -8- ring fell to his share which he has kept concealed near a Kikar tree on GT Road Dhilwan bridge, near the road and can get the same recovered. Accordingly, accused Gurpal Singh @ Pala led police party to the said place and got recovered one video camera Mark `Samsung' which was packed in a small black purse bearing writing `TDK' alongwith one ladies' gold ring, which were taken into possession vide recovery memo Ex.PW6/D1. Site plan of the place of recovery was also prepared.
Accused Ranjit Singh also suffered disclosure statement Ex.PW6/E that one gold kara (bangle) fell to his share which he has kept concealed near the sheller of Jaipal Midha near a tree near abandoned well and he can get the same recovered. Accordingly, accused got recovered the Kara of gold which was taken into possession vide recovery memo Ex.PW6/E1. Site plan of the place of recovery Ex.PW6/E2 was also prepared.
On 6.4.2002 Mangat Singh @ Manga suffered disclosure statement Ex.PW6/K that two watches and two time pieces had fallen to his share and have been kept concealed at Amritsar-Jalandhar road near an old road and can get the same recovered. Accordingly, accused got recovered two watches and time pieces which were taken into possession vide recovery memo Ex.PW6/L. From the search of accused Mangat Singh, one 10 pound note of England currency was also recovered.
On 11.4.2002 during the interrogation, accused Mangat Singh @ Manga made a further disclosure statement Ex.PW6/Q that MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -9- he has kept concealed one country made pistol 315 bore and two live cartridges of same bore near the place of peer Baba near the old road and he can get the same recovered. Accordingly, he got recovered the said pistol and cartridges.
During the course of investigation, a film was found loaded in the Kodak camera recovered from the Tata Safari by ASI Attar Singh. The same got developed and photographs were taken into police possession vide separate recovery memo.
On 16.5.2002 Parma Nand, Naib Tehsildar-cum-
Executing Magistrate got identified one mobile phone, three watches, Hair dryer, one Kara of gold, one video camera and two watches gents, two time pieces, 10 pound currency note and two gold rings from Balwinder Singh complainant after mixing the same with other articles, vide recovery memo Ex.PD.
After completion of investigation, challan was presented against the accused in the Court.
Accused were charge sheeted under Sections 395/397 and 342 IPC to which they pleaded not guilty and claimed trial.
In support of its case, prosecution examined Surjit Singh PW1, Gurpreet Kaur wife of complainant PW2, Dr.Ramesh Kumar PW3, ASI Rattan Singh PW4, Parma Nand Naib Tehsildar PW5, SI Charanjit Singh PW6, Rana Punjab Singh, Photographer PW7, SI Attar Singh PW8, HC Gurmail Singh PW9 and Parkash Chand as PW10.
One Surjit Singh made a statement on 3.5.2004 that his MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -10- son Balwinder Singh (complainant) has gone abroad for last two years and his address is not available with him. Therefore, he cannot intimate him about the date of hearing. Therefore, prosecution closed the evidence.
When examined under Section 313 Cr.P.C. accused pleaded that they are innocent and they have been falsely implicated in the present case.
After hearing the learned PP for the State, learned defence counsel and examining the file, learned Additional Sessions Judge, Fast Track Court, Kapurthala convicted and sentenced the accused aforesaid.
Against the said sentence, four of the accused Jagdip Singh, Ranjit Singh and Mangat Singh have filed Crl.A.No.S-2073-SB of 2004 whereas accused Sonu Sharma has filed Crl.Apeal No.S- 2252-SB of 2004. Remaining two convicts did not file any appeal.
I have heard learned counsel for the accused-appellants and learned Deputy Advocate General, Punjab for the respondent- State and have also gone through the case file carefully.
In this case, Balwinder Singh complainant could not be examined as he had left for England and his whereabouts were not known. However, his wife Gurpreet Kaur who is eye witness of the occurrence appeared and supported the prosecution case. She identified all the accused present in the Court and stated that all the accused are the same persons, who had intruded into her house on 13.3.2002 at night. Reiterating the prosecution story, she stated that MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -11- on 13.3.2002 at about 10.30 p.m. when she had gone to bathroom she noticed the shadow of a clean shaven person carrying a pistol in his hand. She raised cry and came out of the bathroom towards her room. Her husband also woke up. In the meanwhile, all the accused entered their room and grappled with her husband in her house near the door and put the pistol on her husband's head and threatened him to hand over all the valuables. Another accused who was Sikh, gave a kirpan blow on the left side of the chest of her husband and another accused gave knife blow in his abdomen. Thereafter, accused tied the hands of her husband with bandage and snatched the gold ring and gold kara, she was wearing. They also snatched gold chain and gold ear rings. They started searching for the valuables in the Almirah and the house. From Almirah, they took away her ear rings, three pairs of gold ear pins, two pairs of gold nose pins, two gold lockets, two gold rings, two wrist watches ladies, one gent wrist watch, one mobile phone, one movie camera and one still camera `Kodak', one telephone set and another documents. Accused also told her husband to hand over `6 lacs to them but her husband Balwinder Singh stated that he does not have this amount with him. Thereafter, accused put a knife on her head and forced her to open the rooms from where they took away mobile phone and keys of Tata Safari No.DL-4CF 9577. Thereafter, accused opened the room after breaking the lock and also took away valuables from there. She stated that later on, Kodak camera and jewellery were recovered by the police. The witness identified Kodak camera. She MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -12- further stated that accused had also started clicking photos in the house with the camera. She stated that she has brought the developed photographs. Ex.P1 to Ex.P10 are the photographs of their house and photographs Ex.P11 to Ex.P15 were clicked in the Safari vehicle showing cash and gold Kara.
PW1 Surjit Singh testified that he was care taker of the house of Manohar Singh and on receiving the information about the incident, he visited the house and found four gold bangles, one pair of gold ear ring, two gold rings, 2 time pieces, 9 watches and one camera missing. He identified two bangles, one pair of ear ring, wrist watch and camera produced in the Court which belonged to his aunt Swaran Kaur and which were stolen from the house.
PW3 Dr.Ramesh Kumar, Medical Officer on 14.3.2002 had examined Balwinder Singh s/o Surjit Singh and found following four injuries on his person:
i) A stab wound .5x.5 cm was present on the right side of the chest 2 cm from the mid line. On the middle part 8 cm from right nipple. Probing was done. Fresh bleeding was present. Advised for surgeon opinion and X ray.
ii) A lacerated wound 8 cm, x 1.5 cm x bone deep was present on the back of chest on left side on its middle part 11 cm from mid line. Blood clot was present. Patient complained of pain during breathing.
iii)Diffuse swelling was present on the dorsum aspect of left hand. Tenderness was present.
iv)A lacerated wound .5 cm x .5 cm x skin deep was present on the left index finger on proximal and middle inter phalangal joint. Blood clot was present.MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -13-
Injury No.4 was found simple. Injury No.1 was caused with sharp-edged weapon and injuries No.2 to 4 were caused with blunt weapon. Injuries No.1 and 2 were advanced for X-ray and Surgeon's opinion. However, he did not state that any of the injuries was found dangerous to life.
PW4 ASI Rattan Singh proved that on the night of the crime i.e. on 14.3.2002 at about 4.15 a.m. three persons came on Tata Safari and fled away while leaving Tata Safari at the spot. Some articles were recovered from said Tata Safari.
PW5 Parma Nand Naib Tehsildar - cum - Executive Magistrate proved that on 16.5.2002 case property alongwith other articles was produced before him and articles were got identified from Balwinder Singh complainant.
PW6 SI Charanjit Singh, CIA staff Jalandhar proved that on 4.4.2002, he apprehended three accused, namely, Sukhwant Singh alias Pappi s/o Raghbir Singh, Gurpal singh alias Pala, Ranjit Singh alias Kala while they were coming on motor cycle. He also proved the recovery of country made pistol from accused Gurpal Singh and Ranjit Singh regarding which separate FIR Nos.19 and 20 were registered. He also proved the interrogation of Sukhwant Singh and recovery of one mobile phone Nokia, three watches and one hair dryer from him. He also proved interrogation of accused Gurpal Singh and recovery of one video camera and one gold ring from the accused. He also proved recovery of one gold Kara from accused Ranjit Singh as per his disclosure statement. He stated that accused MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -14- Jagjit Singh and Sonu Sharma were arrested after they were handed over to him by another police party. He also proved interrogation of accused Mangat Singh and recovery of two watches and two time pieces from him and later on one currency note of 10 pounds was recovered from him. He also proved recovery of country made pistol from accused Mangat Singh on 11.4.2002 as per his disclosure statement.
PW7 Rana Punjab Singh, photographer proved the photographs Ex.PW7/1 to Ex.PW7/10.
PW8 SI Attar Singh proved initial recording of statement of complainant Balwinder Singh and recovery of stolen Tata Safari on the day of occurrence. He stated that finger print expert was also summoned at the spot, who took finger prints from the vehicle. Film of the camera was developed by Punjab Singh, photographer where the photographs of the accused were found. He also corroborated the arrest of the accused and recoveries from them.
Learned counsel for the accused-appellants has argued that in this case the identity of the accused is not established. The identification of the accused in the Court is immaterial.
On the other hand, learned Deputy Advocate General, Punjab for the respondent-State has argued that in this case, five accused namely, Gurpal Singh @ Pala, Ranjit Singh @ Kala, Sukhwant Singh @ Pappi, Sonu Sharma and Jagdip Singh were produced before the court on 5.4.2002 and as per their statement Ex.PW10/B they refused to participate in the identification parade MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -15- stating that they have already been shown to the witnesses. However, there is no evidence to prove their claim.
Learned counsel for the appellants has heavily relied upon the statement of SI Charanjit Singh who stated in his cross- examination that after the arrest, the accused were taken to the house of Balwinder Singh and he identified the accused. However, it is to be added that witness had immediately stated that he had gone to the house of Balwinder Singh but he had not taken the case property and accused with him to his house. Therefore, it cannot be called admission on the part of SI Charanjit Singh that after the arrest, accused were taken to the house of the complainant. The accused were produced in the Court on 5.4.2002 and they had refused to participate in the identification parade. They were arrested on 4.4.2002. When the accused refused to participate in the identification parade and the ground of being shown to the witnesses claimed by the accused, is not proved, then in these circumstances identification in the Court is sufficient and can be relied upon.
Learned counsel for the appellants have further argued that in the complaint, the age of one of the accused is given as 27-28 years and age of all the remaining accused is between 24-25 years. Their height is mentioned 5'-6'. Learned counsel has referred to the identification slip attached with the judicial file as well as the charge sheet whereas age of the accused is mentioned between 18-21 years. I am of the view that occurrence took place at 10.30 P.M. The accused were duly armed. The complainant was under shock. MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -16- Therefore, he had described the age of the assailants by way of guess work. There can be some error in the same. In any case, accused are of young age. Had the accused been of middle age or old age, then it would have been a different story. The cross examination of Gurpreet Kaur PW2 shows that accused stayed in the house for about 2-2 ½ hours. During this period, Gurpreet Kaur had sufficient time to carefully watch the faces of the assailants and she would be in a position to identify them.
Learned counsel for the appellants placed heavy reliance on the statement of Gurpreet Kaur in which she has stated that accused had muffled their faces. However, in the same breath, she has also stated that accused were also removing the cloth from their faces. Therefore, it does not mean that accused had kept their faces muffled for all the time they stayed in the house of Gurpreet Kaur.
Learned counsel for the appellants have further argued that police has tried to put-forward an improved version by stating that accused had clicked their photographs while committing the crime and photographs have been proved on file. These were got developed by ASI Attar Singh from Panjab Singh, photographer. Gurpreet Kaur had also made statement in the Court in this regard. However, it does not find mentioned in her statement Ex.DA recorded under Section 161 Cr.P.C. or the complaint Ex.PB of her husband Balwinder Singh. I am of the view that story of accused clicking the photographs in the house of complainant was not stated in the original FIR or in the statement of Gurpreet Kaur made under Section MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -17- 161 Cr.P.C. and is an apparent improvement. However, even if this improvement is to be ignored, guilt of the accused is still proved.
The statement of PW3 Dr.Ramesh Kumar shows that Balwinder Singh had infact received four injuries. One of which was stab wound on the chest. After the crime, accused stayed in the house for about 2½ hours, which comes to around 1 A.M. (midnight). Thereafter, Balwinder Singh went to his school and after taking one security guard with him, made a complaint to the police which was completed at 2 a.m. In this way, prompt reporting was made. Therefore, there is no question of improvement or fabrication in the prosecution case. Immediately, police laid the Nakabandi and some of the assailants while leaving the stolen Tata Safari at the spot fled away, leaving some of the stolen articles in the Tata Safari itself. Later on, recovery of the stolen articles were effected from accused Sukhwant Singh @ Pappi, Gurpal Singh @ Pala, Ranjit singh @ Kala and Mangat Singh @ Manga.
Learned counsel for the appellants have further argued that in this case independent witnesses of the recovery memo were not examined. I am of the view that it is common knowledge that independent witnesses do not join the investigation of the police and if they join, they do not come forward to depose in the Court for fear of enmity with the accused. Therefore, their non examination is immaterial.
Learned counsel for the appellants have argued that Balwinder Singh, complainant was not examined and the same is MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -18- fatal to the prosecution case. I am of the view that though Balwinder Singh was the complainant and the eye witness, but he was not available for evidence as he had left for foreign country and was not subject to the process of the Court. However, his wife Gurpreet Kaur, who was also eye witness and the victim, proved the prosecution story. It is not the quantity but the quality which matters.
Learned counsel for the appellants have further argued that as per the statement of SI Attar Singh, finger print expert was also called. However, no report of finger print expert is on the file. I am of the view that if the finger print expert's report has not been produced, the remaining evidence is to be examined. Moreover, it has not come on file that any finger print of the accused was found on the Tata Safari and were actually lifted by finger print expert.
Learned counsel for the appellant Ranjit has argued that statement of SI Attar Singh regarding recovery of country made pistol from Ranjit singh is not put to him under Section 313 Cr.P.C. I am of the view that the same has no effect on the merits of this case as separate FIR was registered against accused Ranjit Singh under Section 25 of Arms Act.
In the end, learned counsel for the appellants have argued that in this case no grievous hurt was caused, therefore, Section 397 IPC is not attracted. It has been argued that at the most facts make out a case under Sections 395 or 411 IPC. I am of the view that the contention is without any force.
Section 397 IPC reads as under :
MEENU KUMARI2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. Appeal No.S-2073-SB of 2004 -19-
"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 attempt 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 this case, during the commission of dacoity, offender had used deadly weapon like pistol, sword and knives, therefore, Section 397 IPC is clearly attracted in the present case.
From the foregoing discussion, I come to the conclusion that charges against the accused are proved beyond all reasonable doubts. Appellants were rightly convicted and sentenced under Sections 395/397/342 IPC.
Accordingly, I do not find any force in the present appeals. The appeals are accordingly dismissed. Bail bonds and surety bonds of accused-appellants are cancelled. Accused-appellants, who are on bail, are ordered to be arrested and committed to jail to undergo remaining part of the sentence.
( Kuldip Singh ) 27.8.2014 Judge Meenu MEENU KUMARI 2014.08.28 11:52 I attest to the accuracy and integrity of this document High Court, Chandigarh