Punjab-Haryana High Court
Raj Kumar @ Mota @ Ganja @ Sonu @ Shankar & ... vs The State Of Haryana on 27 September, 2013
CRA NO. S-913-SB OF 2011(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO. S-913-SB OF 2011
DECIDED ON : SEPTEMBER 27, 2013
RAJ KUMAR @ MOTA @ GANJA @ SONU @ SHANKAR & OTHERS
..........APPELLANTS
VERSUS
THE STATE OF HARYANA
........RESPONDENT
CORAM : HON'BLE MR. JUSTICE S.P. BANGARH
PRESENT:- Mr. Pritam Saini, Advocate
for the appellant No.2 Ankit and
Amicus Curiae for the appellant No.1-Raj Kumar
Mr. J.S. Lali, Advocate
for the appellant No.3(Titu @ Sunil@ Sushil)
Mr. H.S. Deol, Addl. A.G. Haryana, for the State of
Haryana.
S.P. BANGARH, J.
The present FIR was registered on the basis of statement of Sahab Singh-complainant son of Randhir Singh resident of Sabeelpur Jattan, P.S. Chhappar, District Yamuna Nagar. He made statement Ex. P7 before Inspector/SHO Karan Singh PW10 to the effect that he is employed as driver on Canter No. HR-02GA/0105. On 20.11.2009, he had proceeded for Ambala after loading chickens in the Canter (supra) from Uttam Nagar, Delhi. Near Panipat, three boys had flashed signal and he stopped the Canter and gave them lift, therein. When at about 8.00 O' clock, he reached ahead of Umri Chowk, then a boy Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 2 asked him to stop the Canter, as he was to go for vomiting. On his request, he stopped the Canter. Then the boy who was wearing jacket pointed country made pistol on the left side of his head. Other boy pulled out mobile Nokia bearing SIM No. 97292- 49069 and currency notes of ` 850/- from his pocket. Thereafter, they took him in the same vehicle near a liquor vend in the area of Mohan Nagar, from where, they purchased a bottle of liquor and, thereafter, the boy who was wearing jacket started driving the Canter. Near Old Bus Stand, one person took lift in the Canter. When they reached about two kilometers ahead of village Bhore Saidan, then all the three boys and other person alighted from the Canter and the said boys started looting other person, who had taken lift in the Canter. Taking the benefit of occasion, he (complainant) started the Canter and proceeded towards Pehowa. On the way, 10-12 persons met him and he disclosed the entire incident to them. The passenger who was looted disclosed his name as Balaiti Ram son of Badhawa Ram resident of Fatehgarh Sahib (Punjab), to whom the injuries were also caused by the assailants. He was taken to Pehowa Hospital. When he (complainant) was going to Pipli Police Station for reporting the matter, the police met him at Pipli Chowk, where he made his statement (supra) Ex. P7.
Statement Ex. P7 of Sahab Singh, as already noticed, was recorded by Inspector Karan Singh, who made his endorsement Ex. P10, thereon, and sent the same to Police Station, where formal FIR Ex. P-11 was recorded by ASI Ram Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 3 Kumar.
On 06.12.2009, SI Jagbir Singh (PW-12) along with other police officials was present at Bus Stand Pipli in connection with the investigation in this case, where Ankit Saini (appellant No.2) was arrested and interrogated by SI Jagbir Singh and during interrogation, he made a disclosure statement Ex. P-18 to the effect that on 20.11.2009, he along with Raj Kumar (appellant No.1) and Titu @ Sunil@ Sushil (appellant No.3) made a plan for looting the vehicles being plied on G.T. Road by way of taking lift, therein. He further disclosed that as per the plan, they had taken the lift in a TATA 407 from near over bridge, Panipat and after taking the lift, they sat down in the cabin of the driver. When the Canter reached near Umri Chowk on the G.T. Road, Raj Kumar (appellant No.1) got stopped the vehicle (supra) on the pretext of vomiting, who was having country made pistol in his hand and he gave blow of his pistol on the forehead near the right side of the eye of the driver of the vehicle (supra). He further disclosed before PW-12 that he had snatched one mobile phone and cash of ` 850/- from the driver of the Canter.
Ankit Saini (Appellant No.2) further disclosed before PW-12, that all the three persons consumed the liquor and after snatching the vehicle (supra) from its driver, they started driving the said vehicle towards Pehowa Road. He further disclosed that they got boarded one passenger from Old Bus Stand, Kurukshetra and started towards Pehowa road. He Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 4 further disclosed that on the pretext of urination, Raj Kumar (appellant No.1) got stopped the vehicle (supra) near Majha Farm in the area of Village Garhi Roran and, thereafter, they all three along with the aforesaid passenger, who took the lift in the vehicle (supra) from old Bus Stand Kurukshetra, boarded down there from the aforesaid Canter, whereas, the Canter driver remained sitting inside the cabin of his Canter. Ankit Saini (appellant No.2) further disclosed before PW-12 that he along with Titu @ Sunil@ Sushil (appellant No.3) gave rod blow on the back and legs of the said passenger, who took lift in the Canter from old Bus Stand, Kurukhestra. He also disclosed that Raj Kumar (appellant No.1) pointed out the revolver on his temple. They all snatched one mobile phone and cash of ` 3,000/- from the said passenger. Ankit Saini (appellant No.2) further disclosed before PW-12 that in the meantime, the Canter driver along with his Canter fled away from the spot towards Pehowa. He further stated that he could get demarcated the place, from where, they snatched the cash amount and the mobile phone from the canter driver and the said passenger. Disclosure statement Ex. P-18 was recorded by PW-12 that was signed by Ankit Saini (appellant No.2) and witnessed by EHC Jagpal and E/HC Ramesh Kumar.
PW 12 further testified that pursuant to the disclosure statement Ex. P-18, Ankit Saini (appellant No.2) led the police party to the disclosed place and got demarcated the place of occurrence i.e. near Majha Farm in the area of village Garhi Roran, where, they had beaten the said passenger and Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 5 looted cash and mobile phone from him. In this regard, demarcation memo Ex. P-19 was prepared by PW-12 and was signed by Ankit Saini(appellant No.2) and witnessed by the above named witnesses.
PW-12 further testified that on the same day, pursuant to the disclosure statement Ex. P-18, Ankit Saini (appellant No.2) further led the police party to the disclosed place and got demarcated other place of occurrence i.e. near Umri Chowk on the divider of Sectors 2-3 on the G.T. Road, from where, they had snatched mobile phone and ` 850/- in cash from the Canter driver. In this regard, memo of demarcation Ex. P-20 was prepared that was signed by Ankit Saini (appellant No.2) and witnessed by the aforementioned witnesses.
PW-12 further testified that on 07.12.2009, Ankit Saini (appellant No.2) was again interrogated by him and during interrogation, he made a disclosure statement Ex. P-21 to the effect that he had kept concealed the iron rod used in the crime near 100 feet road near Braham Sarover, Kurukshetra and he could get the same recovered on demarcation. Pursuant to disclosure statement Ex. P-21, Ankit Saini(appellant No.2) led the police party to the disclosed place and got recovered one iron rod from the said disclosed place. Thereafter, a rough sketch Ex. P- 22 of the recovered iron rod was prepared by him that was signed by Ankit Saini(appellant No.2) and witnessed by aforementioned persons. Thereafter, the said iron rod was converted into a parcel that was sealed with seal bearing Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 6 impression J.S. and the parcel was seized vide recovery memo Ex. P-22 that was signed by Ankit Saini (appellant No.2) and witnessed by the witnesses(supra). PW-12 handed over the seal after use to EHC Ramesh Kumar. He also testified that a rough site plan Ex. P-33 of the place of recovery of iron rod was prepared by him with the correct marginal notes.
On 13.01.2010, Titu @ Sunil @ Sushil (appellant No.3) was arrested by PW-12 from Bus Stand Pipli in the presence of the aforesaid witnesses. Thereafter, he was interrogated by PW-12 and during interrogation, he made a disclosure statement Ex. P-24 and pursuant, thereto, he led the police party to the disclosed place of occurrence and memo of demarcation Ex. P-25 was prepared by PW-12 and that was thumb marked by the appellant No.3 and witnessed by the witnesses (supra) Pursuant to the disclosure statement, Titu @ Sunil @ Sushil (appellant No.3) led the police party to another place of occurrence i.e. in the area of village Garhi Roran near Majha Farm, where, they had looted ` 3000/- and one mobile phone from a passenger after beating him. In this regard, memo of demarcation Ex. P-26 was prepared by PW-12 that was thumb marked by Titu @ Sunil @ Sushil (appellant No.3) and witnessed by the witnesses (supra). Titu @ Sunil @ Sushil (appellant No.3) led the police party to the disclosed place i.e. "Shamshan Ghat"
near Majha Farm on Pehowa Road, from where, he got recovered one iron rod. Then PW-12 prepared a rough sketch Ex. P-27 of Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 7 the recovered iron rod that was thumb marked by the accused and witnessed by the witnesses (supra).
PW-12 converted the said rod into sealed parcel that was sealed by him with a seal bearing impression J.S. and that parcel was seized vide recovery memo Ex. P-28 that was thumb marked by Titu @ Sunil @ Sushil (appellant No.3) and witnessed by witnesses (supra). Rough site plan Ex. P-34 of the place of recovery of iron rod was prepared by PW-12 with correct marginal notes. PW-12 also recorded the statements of the witnesses during the investigation of this case on 18.01.2010 and after completion of the investigation of the present case, final report in terms of Section 173 Cr.P.C. was prepared by Inspector Shamsher Singh, whose signatures were identified by PW-12. Iron rod Ex. P-29 is the same, which was got recovered by Ankit Saini (appellant No.2) from the disclosed place. The wrapper of the parcel was Ex. P-30. Another iron rod Ex. P-31, was got recovered by Titu@ Sunil @ Sushil (appellant No.3) from the disclosed place. The wrapper of the said parcel was Ex. P-32. Both iron rod and its wrapper were produced during the deposition of this witness.
On 01.12.2009, ASI Ramesh Kumar along with Sub Inspector Mahabir Singh brought Raj Kumar (appellant No.1) to CIA staff, Kurukshetra and interrogated him. During interrogation, Raj Kumar (appellant No.1) suffered a disclosure statement Ex. P-35 to the effect that on 20.11.2009, he along with his accomplices Ankit Saini (appellant No.1) and Titu @ Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 8 Sunil@ Sushil (appellant No.3) made a plan for looting the vehicles being plied on G.T. Road by way of taking lift, therein and they had taken a lift in TATA 407 from near fly over, Panipat and they sat down in the cabin of the driver of the Canter. He further disclosed that when the Canter reached near Umri Chowk, on the G.T. Road, he got stopped the aforesaid vehicle on the pretext of vomiting. At that time, he was having a country made pistol in his hand and he gave a blow of his pistol on the forehead near the right side of the eye of the driver of the vehicle(supra). He further disclosed that he had snatched one mobile phone and cash amount of ` 850/- from the driver of the Canter. He further disclosed that they all the three persons consumed liquor and after snatching the vehicle (supra) from its driver, they started driving the said vehicle and proceeded towards Pehowa Road. He further disclosed that they got boarded in one passenger from old Bus Stand Kurukhestra and they started towards Pehowa Road. He further disclosed that on the pretext of urination, he got stopped the vehicle(supra) near Majha Farm in the area of village Garhi Roran and, thereafter, they all three along with the aforesaid passenger, who took the lift in the vehicle from Bus Stand Kurukhestra, boarded down there from the Canter and the Canter driver remained sitting inside the cabin of his Canter.
He further disclosed that Ankit Saini (appellant No.2) and Titu @ Sunil @ Sushil(appellant No.3) gave rod blow on the back and legs of the said passenger while he pointed out his revolver on his temple. Thereafter, they all snatched one Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 9 mobile phone and cash amount of ` 3000/- from the said passenger. He further disclosed that by taking the benefit, the Canter driver along with his Canter fled away from the spot towards Pehowa. He further stated that accused Titu @ Sunil @ Sushil (appellant No.3) could disclose about the weapon. He also disclosed that he had kept concealed the country made pistol along with one cartridge and mobile phone make Micromax at the house of his uncle Kewal in Sultanpur Delhi and he could get the same recovered on demarcation.
Pursuant to his disclosure statement Ex. P-35, Raj Kumar (appellant No.1) led the police party to the disclosed place and got demarcated place of occurrence i.e. near Umri Chowk on the divider of Sectors 2-3 on the G.T. Road, from where they had snatched mobile phone and ` 850/-. In this regard, memo of demarcation Ex. P-36 was prepared by SI Mahabir Singh that was thumb marked by Raj Kumar (appellant No.1) and witnessed by ASI Ramesh Kumar and Constable Kashmir Singh.
On the same day, Raj Kumar (appellant No.1) got demarcated the other place of occurrence at Pehowa Road in the area of Majha Farm, near Shamshan Ghat. In this regard, memo of demarcation Ex. P-37 was prepared by Sub Inspector Mahabir Singh, that was thumb marked by Raj Kumar (appellant No.1) and witnessed by above named witnesses.
On 02.12.2009, when Raj Kumar (appellant No.1) was being taken to Sultanpur, Delhi to the house of his Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 10 Uncle, on the basis of his disclosure statement Ex. P-35, he stated that earlier he had made a false disclosure statement regarding the concealment of country made pistol. He suffered another disclosure statement Ex. P-38, wherein, he stated that indeed he had kept concealed the country made pistol in the bushes existing on Satluj Yamuna Link Canal on Kaithal- Kurukshetra Road and he had already spent the amount, which came to his share and he could get recovered the said country made pistol on demarcation.
Pursuant to the disclosure statement Ex. P-38, Raj Kumar (appellant No.1) led the police party to the place of concealment and got recovered one country made pistol of .12 bore along with one live cartridge from the disclosed place. Thereafter, a rough sketch Ex. P-39 of the said country made pistol was prepared by Sub-Inspector Mahabir Singh that was witnessed by ASI Ramesh Kumar and Constable Kahsmir Singh. Thereafter, the said country made pistol along with the cartridge was converted into sealed parcel by S.I. Mahabir Singh with the seal bearing impression M.S. that was seized vide memo Ex. P-40 which was thumb marked by Raj Kumar (appellant No.1) and witnessed by the abovesaid witnesses. Thereafter, a rough site plan Ex. P-44 of the place of recovery of country made pistol was prepared with the correct marginal notes. The country made pistol Ex. P-41 and live cartridge Ex. P-42 were produced during deposition of Sub Inspector Mahabir Singh.
Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 11
After completion of the investigation, Station House Officer of Police Station Sadar, Thanesar, instituted police report in terms of Section 173 Cr.P.C. before the learned Illaqa Magistrate to the effect that it appeared that the appellants have committed offences punishable under Sections 392, 394, 397 IPC and 25 of the Arms Act. On presentation of the police report, copies of documents as required under Section 207 Cr.P.C. were supplied to the appellants and the case was committed to the Court of Session at Kurukshetra that was assigned to the learned Additional Sessions Judge, Kurukshetra, who framed charge under Section 392 IPC, read with Section 397 IPC, under Section 394 IPC against all the appellants and under Section 25 of the Arms Act against Raj Kumar (appellant No.1), whereto, the appellants pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution has examined as many as 15 witnesses, who testified as under:
PW-1 Inspector Shamsher Singh testified that on 18.01.2010, after completion of the investigation, he prepared the final report under Section 173 Cr.P.C. against all the appellants, which bears his signatures.
PW-2 Dr. V.K. Gupta of Sarswati Mission Hospital, Pehowa deposed that on 20.11.2009 at about 10.00 P.M., he medico legally examined Balaiti Ram son of Badhawa Ram, aged 31 years, resident of village Sidhupur, Fatehgarh Sahib (Punjab), who was brought by one Sewa Ram and there Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 12 was alleged history of kidnapping and assault by some unknown persons. He found following injuries on his person:
1)Lacerated wound of Size 4x4x1 cms cross, on right side of occipital-prital region with fresh bleeding was present.
2)Multiple lacerated wound on nose brim, forehead, left eye region, face with fresh bleeding was present in both nostrils.
Advised C.T. Scan.
3)Lacerated wound of size 3 cms x 1 cm occipital region of left side of scalp(head).
4)Both eyes were swollen with black in colour. Patient was unable to open eyes.
5)There was pain in left fore arm. Blunt injury. Advised x-ray forearm AP lateral.
6)There was pain and swelling with blunt injury on left knee and leg. Advised x-ray left knee AP lateral.
7)There was pain in left ankle region with blunt injury. Advised x- ray of left ankle AP lateral.
PW-2 further testified that the probable duration of injuries was within six hours, which were caused with blunt weapon. He also deposed that Photostat copy of M.L.R. Ex. P-1, bears his signature. He also sent a medical ruqa Ex. P-2 to the Police Post, Pehowa, bearing his signatures.
He further stated that on the same day, he radiologically examined patient Balaiti Ram and on examination, no fracture was seen qua the injuries advised for x-ray examination. In this regard, the x-ray report was Ex. P-3. He also Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 13 testified that on 21.11.2009, Police moved an application Ex. P-4 before him for seeking his opinion regarding the fitness of patient Balaiti Ram in which, he declared him to be fit to make statement vide his endorsement Ex. P-5 on the application Ex. P-4. The patient (supra) was discharged on 21.11.2009.
PW-3 Dr. Dinesh Singh, Medical Officer of Primary Health Center, Pipli deposed that on 21.11.2009 at about 11.10 A.M., he medico legally examined Sahab Singh son of Randhir Singh, 42 years old, male, caste Jat, resident of Sabeelpur, Police Station Chhappar, District Yamuna Nagar, who was brought by Mohinder Singh no. 51/A of Police Station Sadar Thanesar. There was alleged history of assault on G.T. Road Umri Chowk at 8.00 A.M. on 21.11.2009 as stated by the patient. At that time, patient was conscious, well oriented in time, place and person and he found following injury on his person.
Abrasion wound of size 0.1x 0.2 cms on right eye brow. There was no active bleeding from the wound. There was no local swelling on the wound. Eye movements were normal. Blood stains were present. PW-3 also testified that injury was simple caused by blunt weapon within the duration of 24 hours. The carbon copy of the M.L.R. is Ex. P-6 that bears his signatures.
PW-4 Sahab Singh, is the complainant of this case, who deposed as per his statement Ex. P-7 that has been reproduced in the earlier part of this judgment, which need not be reproduced.
Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 14
PW-5 Jai Parkash testified that on 04.02.2010, he was posted as Reader to District Magistrate, Kurukhestra and on that day, he received the file of this case for according sanction for launching prosecution against Raj Kumar @ Mota @ Ganja @ Sonu (appellant No.1), son of Raghbir Singh, caste Harijan, resident of Sultanpur, P.S. Buhana, Delhi-30 at present, Jaurasi Road, Gandhi Nagar, Samalkha, District Panipat from the office of Superintendent of Police, Kurukshetra. Thereupon, he put the file before Shri Pankaj Aggarwal, learned District Magistrate, Kurukshetra, who after going through the contents of the file passed sanction order Ex. P-8 whereon, he identified his signatures.
PW-6 ASI Mukesh Kumar deposed that on 23.02.2010, he visited the place of occurrence and prepared the scaled site plan Ex. P-9 with correct marginal notes that bears his signatures PW-7 ASI Ram Kumar testified that on 21.11.2009, he was posted at Police Station Sadar, Thanesar and on that day, he received a ruqa Ex. P-10 sent by Inspector Karan Singh through E/HC Isham Singh for registration of the case and on the basis, thereof, he recorded formal F.I.R. Ex. P-11, that bears his signatures. In this regard, he also made his endorsement Ex. P-12 on the ruqa Ex. P-10 that also bears his signatures. He also testified that after recording the formal F.I.R., he handed over three envelopes containing the special reports to Constable Balkar Singh for delivering the same to learned Illaqa Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 15 Magistrate, S.P. and D.S.P. Kurukshetra.
PW-8 Constable Sher Singh deposed that on 16.02.2010, he reached Police Station Sadar, Thanesar on the directions of S.H.O. of P.S. Sadar Thanesar, where, Mohinder Singh, SI/SHO produced before him, one sealed parcel of a country made pistol with a live cartridge that was unsealed and out of that parcel, one country made pistol and a live cartridge were taken out. Thereafter, he mechanically checked and tested the said country made pistol, that was found to be fit for firing. He further stated that after testing the country made pistol, he engraved the mark S.S. on its left side and, thereafter, converted the same into sealed parcel and handed over the parcel back to S.I. Mohinder Singh. He also prepared his report Ex. P-13, in this regard, which bears his signatures. He further deposed that the country made pistol Ex. P-14 is the same country made pistol, which was tested by him. The live cartridge Ex. P-15 is also the same, which was produced before him along with the country made pistol.
PW-9 S.I. Mohinder Singh also testified that on 16.02.2010, the investigation of the present case was conducted by him and during investigation, the sealed parcel of country made pistol of .315 bore was produced before Armour Constable Sher Singh for testing the same. After testing the same, Constable Sher Singh handed over the test report Ex.P-13 along with the country made pistol after re-sealing the same in a parcel. The Armourer also affixed his Mark "SS" on the said Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 16 country made pistol.
PW-10 Inspector Karan Singh also testified that on 21.11.2009, he along with other police officials was present at Pipli Chowk for patrolling, where complainant Sahab Singh met him and got recorded his statement Ex. P-7. He attested his signatures and made his endorsement Ex. P-10 on Ex. P-7. Thereafter, he sent the ruqa to the police station for registration of the case. He also inspected the place of occurrence and prepared rough site plan Ex. P-16, thereof, with correct marginal notes on the demarcation of Sahab Singh-Complainant. He also prepared another rough site plan Ex. P-17 of another place with correct marginal notes. He also recorded the statement of Balaiti Ram under Section 161 Cr.P.C. in CHC, Pehowa.
PW-11 E/HC Jagpal testified that on 06.12.2009, he along with E/HC Ramesh Kumar joined the investigation of this case with ASI Jagbir Singh and deposed on the lines of investigation that has been reproduced in the earlier part of this judgment.
PW-12 S.I. Jagbir Singh also deposed on the lines of the investigation that has been reproduced in the earlier part of this judgment.
PW-13 ASI Ramesh Kumar also joined the investigation of this case with Sub Inspector Mahabir Singh and deposed on the lines of investigation that has been reproduced in the earlier part of this judgment.
Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 17
PW-14 Balaiti Ram testified that on 20.11.2009, he did not take any lift in TATA 407 from old Bus Stand, Kurukshetra, wherein, accused persons present in the Court were travelling. He further deposed that neither the accused persons present in the Court caused any injury to him nor they looted any money from him. He categorically deposed that the accused persons present in the Court, are not the same persons, who caused injuries to him or looted money from him and he has seen them in the Court for the first time. This witness did not support the prosecution version and was declared hostile to the prosecution and was cross-examined by the learned Public Prosecutor for the respondent before the learned trial Court.
PW-15 SI Mahabir Singh also conducted the investigation of this case and deposed on the lines of investigation that has been reproduced in the earlier part of this judgment.
After closure of prosecution evidence, appellants were examined in terms of Section 313 Cr.P.C., wherein, they denied the allegations of prosecution, pleaded innocence and false implication in the case. Titu @ Sunil @ Sushil (appellant No.3) gave his own version that they were picked up from liquor vend near Mohan Nagar, Kurukshetra, where they were consuming liquor. He also stated that a false recovery was implanted upon him and in fact nothing was recovered either from him or his accomplices. He also stated that entire investigation is tainted one. Ankit Saini (appellant No.2) also Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 18 gave his own version that has been given by Titu @ Sunil @ Sushil. Raj Kumar @ Mota @ Ganja @ Sonu @ Shankar gave his own version that has been given by his accomplices.
Appellants were called upon to enter into defence, but they closed the same without examining any witness in defence.
After hearing both the sides, as also, after perusal of the evidence and documents on record, learned Additional Sessions Judge, Kurukhestra, vide judgment of conviction dated 31.01.2011 convicted the appellants for commission of offences punishable under Sections 392, 397 and 394 I.P.C. and Raj Kumar @ Mota @ Ganja @ Sonu @ Shankar (appellant No.1) under Section 25 of the Arms Act and vide order dated 10.02.2011 sentenced them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ` 50,000/- each in default of payment of fine to further undergo rigorous imprisonment for a period of three years for commission of offence punishable under Section 392 IPC. All the three appellants-accused, namely Raj Kumar @ Mota @ Ganja @ Sonu @ Shankar, Ankit Saini and Titu @ Sunil @ Sushil were further sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of ` 50,000/- each and in default of payment of fine to undergo further rigorous imprisonment for three years for commission of offence punishable under Section 397 I.P.C.
Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 19
All the three appellants were further sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 50,000/- each and in default of payment of fine to undergo further Rigorous imprisonment for three years each for commission of offence punishable under Section 394 I.P.C.
Convict-accused Raj Kumar @ Mota @ Ganja @ Sonu @ Shankar was found in conscious possession of country made pistol of .315 bore along with one live cartridge, without any permit or licence and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of ` 5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months for commission of offence punishable under Section 25 of the Arms Act. All these sentences were ordered to run concurrently.
Aggrieved against the judgment of conviction dated 31.01.2011 and order of sentence dated 10.02.2011 (supra), the appellants have come up in this appeal with prayer for acceptance, thereof, and for their acquittal of offences, wherefor, they were convicted and sentenced.
Learned counsel for the appellants contended that Canter No. HR-02-GA-0105 i.e. TATA 407 was not recovered during investigation, as also, Nokia Mobile Phone of the complainant and ` 850/- were also not recovered from any of the appellants during investigation. Learned counsel for the appellants also contended that none of 10-12 persons were associated with the investigation of this case, which were Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 20 mentioned by the complainant. They also contended that PW-14, who was allegedly injured in the incident turned hostile and deposed that none of the appellants neither caused any injury to him, nor they looted any money from him. They also contended that the alleged mobile phone and ` 3,000/- of Balaiti Ram PW- 14 also could not be recovered from any of the appellants. Learned counsel for the appellants also contended that PW-2 Dr. V.K. Gupta, who examined Balaiti Ram injured deposed that possibility of the injuries to the said witness having been caused in an accident could not be ruled out and the said doctor failed to explain the nature of injuries. He further contended that according to PW-2, the patient was normal and, therefore was discharged. Learned counsel for the appellants also contended that PW-3 Dr. Dinesh Singh deposed that there was alleged history of assault of complainant Sahab Singh at G.T. Road at 8 a.m. on 21.11.2009 and one abrasion of 0.1x0.2 cms on the right eye was found and that injury was simple and with blunt weapon. They also contended that as per deposition of PW-3, possibility of the said injury by fall cannot be ruled out.
Learned counsel for the appellants also contended that sanction order issued by District Magistrate pertains to .315 bore country made pistol, while .12 bore country made pistol was alleged to have been recovered from Raj Kumar (appellant No.1) on 2.12.2009.
On the other hand, learned counsel for the State contended that there is no illegality or impropriety in the Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 21 impugned judgment of conviction and order of sentence that may be upheld and affirmed, as they do not suffer from any illegality or infirmity.
Thoughtful consideration has been given to the contentions raised by learned counsel for the parties, as also, evidence and material on the record of learned trial Court have been perused with their assistance.
Learned counsel for the appellants rightly contended that Canter No. HR-02-GA-0105 was never associated during the investigation of the present case. One fails to understand, as to why this vehicle was not seized by the police in connection with the investigation of this case. In absence of seizure of this vehicle, it is arduous to hold that the appellants, complainant and Balaiti Ram travelled, therein, on the day of alleged incident. It was, therefore, required of the Investigating Agency to seize this vehicle during investigation and non-seizure, thereof, makes the prosecution version utterly doubtful and leads to a conclusion that no alleged incident took place in this vehicle.
In order to establish the employment/deployment of Sahab Singh-Complainant (PW-4) on the alleged vehicle, it was required of the police to seize registration certificate of this vehicle and locate its owner to collect evidence that complainant- Sahab Singh(PW-4) was employed as a driver on this Vehicle. In absence of registration certificate of Canter No. HR-02-GA-0105 and in absence of evidence of owner of this vehicle, the presence of Sahab Singh (PW-4), as the driver of the Vehicle on the day of Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 22 incident becomes utterly doubtful. The presence of Sahab Singh- Complainant PW-4 could be established on the Vehicle(Canter) No. HR-02-GA-0105 only, if the owner of this vehicle had deposed that he had deployed Sahab Singh (PW-4) as a driver on this vehicle, wherein, the alleged incident had taken place.
When the owner of Canter No. HR-02-GA-0105 has not come forward to depose that the incident had taken place in his vehicle, then how it could be held that the alleged incident had taken place in this vehicle. Even, it is not clear as to whether Canter No. HR-02-GA-0105 exists or not. The existence of this vehicle could be established by the prosecution by proving its registration certificate, as also, by examining its owner that he owns this vehicle and on the day of alleged incident, Sahab Singh (PW-4) was a driver, thereon. Even, it was required of the prosecution to lead evidence to the effect that Sahab Singh(PW-
4) was deployed/employed as a driver on Vehicle (Canter) No. HR-02-GA-0105 by its owner and on the alleged day of incident, he was driver, thereon.
It is the case of the prosecution that the appellants allegedly robbed Nokia Mobile Phone of the complainant (PW-4) and ` 850/- from him. Indubitably, no bill or receipt of the alleged robbed Nokia Mobile Phone was proved on the record. In absence of such bill, it is arduous to hold that PW-4 Sahab Singh was having any mobile with him at the time of alleged incident. Even, mobile phone and ` 850/- were not recovered. In absence of recovery of Mobile phone and ` 850/- of Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 23 the complainant from the appellants, it is arduous to hold them guilty for robbing those from the complainant PW-4 Sahab Singh.
As per complainant Sahab Singh, appellants and Balaiti Ram alighted from the vehicle at village Bhore Saidan and by taking the benefit, the complainant started the vehicle and proceeded towards Pehowa. On the way 10-12 persons met him and he disclosed the entire incident to them. Strange enough, none of those 10-12 persons was associated during investigation of this case. It is not the case of Sahab Singh that he identified the alleged robbers and dacoits at the place of incident itself. If he had identified the alleged robbers and dacoits, he would have mentioned in his statement Ex. P-7, that he could identify those robbers and dacoits, when produced before him. Only then his identification of the robbers and dacoits at a subsequent time like his deposition in the Court could be accepted. It is, no doubt, true that PW-4 testified that the accused facing trial are those who boarded his vehicle and robbed him and Balaiti Ram(PW-14), on the day of the incident. This evidence was wrongly relied upon by the trial Court for convicting and sentencing the appellants as this evidence could be accepted to be true, if PW-4 during investigation had stated in his statement Ex. P-7 that he could identify the assailants, if produced before him.
Besides, the evidence of PW-4 has not been corroborated by Balaiti Ram (PW-14). Indeed PW-14 spent more time with the alleged robbers and his identification of the alleged robbers and dacoits was at a better footing than that of PW-4 Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 24 who being the driver did not have much opportunity to identify the robbers than PW-14. He also could not see Balaiti Ram (PW-
14) being injured by those alleged robbers. Indeed, he was not present, when Balaiti Ram (PW-14) was given injuries by those alleged robbers. Balaiti Ram (PW-14) did not support the prosecution version. He candidly testified that none of the appellants either caused any injury to him or robbed his money. Even the alleged mobile phone and ` 3000/- robbed from Balaiti Ram (PW-14) were not recovered during investigation from the appellants. Balaiti Ram (PW-14) was declared hostile to the prosecution, cross-examined by the learned State Prosecutor before the learned trial Court, who confronted him with portions of his statement under Section 161 Cr.P.C. that was recorded by the police during investigation but this witness refused to yield any ground and maintained his stand taken in his examination-in- chief to the effect that none of the appellants either caused any injury to him or robbed any money from him.
Even Dr. V.K. Gupta PW-12, who medico legally examined Balaiti Ram (PW-14) deposed that injuries to the said witness could be caused in an accident. Even, his condition was normal and he was discharged. In this view of the matter, it is arduous to hold that the appellants in order to rob Balaiti Ram (PW-14) caused him injuries. He was the best person to know who caused him injuries. As already noticed, PW-4 fled away with the vehicle from the place of incident and, therefore, he also could not know who caused injuries to Balaiti Ram (PW-14). His Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 25 testimony to this effect that the appellants robbed Balaiti Ram (PW-14) and caused injuries to him cannot be relied upon. Even, PW-3 Dr. Dinesh Singh deposed that the patient told him that there was alleged history of assault at G.T. Road at 8.00 A.M. on 21.11.2009, while the complainant deposed that he was assaulted in the night of 21.11.2009 on the way.
The sanction order of the District Magistrate Ex. P-8 is of .315 bore country made pistol. As per prosecution version, .12 bore country made pistol was allegedly recovered from Raj Kumar (appellant No.1) on 02.12.2009. Even, PW-8 Constable Sher Singh, Armourer, deposed that he had tested .315 bore pistol, whereas, the words .12 bore have been written on the wrapper of the parcel. In the recovery Memo, .12 bore pistol has been mentioned. This proves the falsity of the weapon. The police had recovered .12 bore country made pistol Raj Kumar (appellant No.1) allegedly on 02.12.2009, while the sanction order of the District Magistrate Ex.P-8 pertains to .315 bore country made pistol. There is no sanction of .12 bore country made pistol that was allegedly recovered from Raj Kumar (appellant No.1). In this manner, there was no valid sanction to prosecute this appellant for offence punishable under Section 25 of the Arms Act. So, he is entitled to be acquitted of offence punishable under Section 25 of Arms Act.
Identification of the appellants was made by PW-4 (complainant) in the Court only, but he failed to tell their names. No Test Identification Parade was got arranged by the Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 26 police during investigation. No explanation is coming for this non- compliance. Complainant PW-4 testified in the cross-examination that he was called for Test Identification Parade by CIA Staff, Kurukshetra, but the prosecution failed to explain the circumstances as to why the Test Identification Parade could not be arranged to get the appellants identified from complainant PW-4 and Balaiti Ram (PW-14). Non conducting of Test Identification Parade must compel to the Court to draw adverse inference against the prosecution and it must be held that the Test Identification Parade was not deliberately got conducted, as complainant PW-4 and Balaiti Ram (PW-14) would have refused to identify the appellants during investigation.
It is no doubt true that identification for the first time in the Court is valid, but PW-4 failed to tell the names of the appellants. Names of Titu @ Sunil @ Sushil and Ankit Saini (appellants No. 3 and 2, respectively) came during the disclosure of Raj Kumar (appellant No.1). The only recovery from the appellants Ankit Saini and Titu @ Sunil @ Sushil is of iron rods which as per Investigating Officer himself, are easily available in the market.
Even, the offence under Section 397 IPC is not made out in this case, as there was no attempt to cause death or grievous hurt nor any deadly weapon was alleged to have been used by the appellants. Injuries on persons of PW-4 and PW-14 that have come in the testimonies of PW-2 and PW-3 are simple in nature. Reliance can be placed upon in the case of Dilawar Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 27 Singh Vs. State of Delhi AIR 2007 SC 3234, wherein, it was held that the term "Offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for imposition of minimum punishment on another offender who had not used any deadly weapon. There is no distinction between 'uses' as used in Sections 397 and 398 IPC. Section 397, IPC connotes something more than merely being armed with deadly weapon.
Therefore, in this case, offence under Section 397 IPC has not been clearly established in view of the judgment (supra). Even, PW-14 did not disclose the names of the appellants as robbers and assailants. The sole testimony of PW-4 could not be used for basing conviction and sentence upon the appellants.
The learned trial Court, thus, wrongly convicted and sentenced the appellants vide impugned judgment and order of sentence that must be set aside.
Resultantly, the appeal is allowed; impugned judgment of conviction and order of sentence are set aside; the appellants are acquitted of the offences punishable under Sections 392,397,394 IPC and 25 of the Arms Act by according them benefit of doubt. They be set at liberty forthwith in this case, if not required in any other case.
(S.P. BANGARH) 27.09.2013 JUDGE ANJAL Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh CRA NO. S-913-SB OF 2011(O&M) 28 Anjal Gupta 2013.10.24 16:26 I attest to the accuracy and integrity of this document high court chandigarh