Delhi High Court
Mahinder Singh And Dhanpal vs State on 10 April, 1992
Equivalent citations: 1992(2)CRIMES763, 47(1992)DLT239, 1992RLR303
JUDGMENT P.K. Bahri, J.
(1) Vide judgment dated 4/09/1989, an Additional Sessions Judge, Delhi, had convicted Satish, Nand Kishore, Gopal, Mohinder Singh and Mohan Singh for offences punishable under Sections 307, 365, 395 & 397 read with Section 34 of the Indian Penal Code (for short 'IPC') and had also convicted Nand Kishore for an offence punishable under Sections 27/54/59 of the Arms Act and had convicted Dhanpal for an offence punishable under Section 412 Indian Penal Code although in some places in the judgment he is shown to be convicted for an offence punishable under Section 411 Ipc, and vide subsequent order dated 7/09/1989, accused Satish, Nand 'Kishore, Mohan Singh,Mahinder Singh and Gopal were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000.00 each under Section 307 read with Section 34 Indian Penal Code with the direction that 50% of the fine if realised shall be paid to the complainant and in default of payment of fine, to undergo rigorous imprisonment for 15 days each and imposed sentence of five years rigorousimprisonment and a fine of Rs. 200.00 each and in default of payment of fine, to undergo rigorous imprisonment for 10 days for the offence punishable under section 365 read with Section 34 Indian Penal Code and to undergo rigorous imprisonmentfor four years and to pay a fine of Rs. 200.00 each and in default of payment offine, to undergo rigorous imprisonment for 10 days for offences punishable under Sections 395, 397 read with Section 34 Indian Penal Code and Nand Kishore was awarded additional sentence of simple imprisonment for two years and to pay a fine of Rs. 1,000.00 and in default of payment of fine, to undergo simple imprisonment for 15 days for an offence punishable under Sections 27/54/59 of the Arms Act while accused Dhanpal was awarded rigorous imprisonment for two years and to pay a fine of Rs. 1,000.00 and in default of payment of fine, to undergo rigorous imprisonment for 15 days for an offence punishable under Section 412 IPC.
(2) It appears that convict Gopal remained in custody since his arrest and throughout the trial and had undergone the sentences imposed and thus preferred not to file any appeal, Mohinder Singh and Dhanpal in Criminal Appeal No. 114/89 through a Counsel and Mohinder Singh in appeal through Jail being Criminal Appeal No. 91/91, Mohan Singh in Criminal Appeal No.161/89 through Jail and Nand Kishore in Criminal Appeal No. 162/89 throughJail and Satish Kumar in Criminal Appeal No. 123/90 have challenged their convictions and sentences. All these appeals are being disposed of by thisjudgment.
(3) The facts of the prosecution case, in brief, are that PW2 Harinder Parshad Shani, an electrician by profession and resident of Village Chainpur(Bihar) but residing in House No. 105, Village Teh Khand, New Delhi, during the intervening night of March 15-16, 1984, Along with his wife Sudha PW3and a child aged about one and a half years were coming on a bicycle after seeing a movie and had just crossed P-26, Okhla Phase-1 factory, that a car came from behind and someone from the car asked him to stop but on his not stopping the cycle the car was struck against the bicycle and they fell down and out of the persons present in Car four came out and out of whom two had open knives in their hands and they forcibly lifted Sudha and put her at the backseat and had driven the car away. The number of the car was Dhb 6514 and lie pursued the car on his bicycle raising an alarm and in the meanwhile police patrolling on a motorcycle managed to stop the car near A-1, Okhla Phase-1and three of the culprits, namely, Satish, Nand Kishore and Gopal whose names and addresses were found out after they were apprehended and had got out of the car in order to run away but they were nabbed and Nand Kishore was found armed with a knife and the other culprits managed to run away after robbing his wife of a pair of silver pajeb and one golden chain. The sketch of the knife was prepared which Ex. P4 which was taken in possession after converting into a sealed parcel vide Memo Ex. PW2/C. On the statement of Harinder Parshad Shani Ex. PW2/A, the case was registered.
(4) As far as Satish, Gopal and Nand Kishore are concerned, it is quite clear that there has come about sufficient evidence on record for bringing home the offences to them. Harinder Parshad PW2 and his wife Smt. Sudha PW3,who have no reason to falsely implicate these accused for the said offences have unflinchingly deposed in Court that as to how the occurrence has taken place and how these three accused were apprehended at the spot. Even the car in which the culprits had come was taken into possession.
(5) From the cross-examination, nothing has come out to show how these two public witnesses who were victims of this dacoity would have deposed falsely to implicate these three accused who were nabbed at the spot. These witnesses are supported by the police officials who had come on the spot on hearing the alarm, namely, PW6 Constable Kanwarjit Singh, PW7 Constable Lal Singh, PW8 Asi Ram Chander, PW10 Head Constable Mohmad Usmanand PW14 Sho A.K. Saxena. Minor discrepancies which do not go to the root of the matter had appeared in the statements of the two public witnesses as to whether the silver pajeb and the golden chain were removed from the person of Sudha while she was in the car or while she was being forced into the car by the culprits. Harinder Parshad, however, has stated that she was robbed of those ornaments at the point of knife and thereafter she was pushed into thecar. Sudha also in her examination-in-chief stated the same facts but in crossexamination she prevaricated and deposed that she could not remember whether she has stated to the police or not that the chain and pajeb were removed by the accused person inside the car and she could not identify the particular culprit who had, in fact, removed those ornaments. It is to be emphasized thatSmt. Sudha is a household lady and is also illiterate and was aged about 22years at the time of occurrence. Her statement was recorded in Court after about three years of the occurrence. So, such like discrepancies are bound to occur in the statement of any witness. It is also not disputed that it was dark night and it was not possible for her to have seen the faces of the culprits who had escaped from the spot but as far as the culprits who had been nabbed at the spot when they came out of the car there cannot be any dispute about theiridentity. Sudha also mentioned about one of the culprits, namely, NandKishore being armed with knife although in her police statement which she was confronted she had mentioned about two accused being armed with knives.It appears that out of the three culprits who were nabbed at the spot only NandKishore was armed with knife and while giving statement in Court referred to that accused. One of the culprits, namely, Rajpal who had also escaped from the spot Along with other accused had died during the investigation and was not arrested in the case. It has come out in the statement of the Sho that there were certain allegations made against him that Rajpal died due to beating being given to him while in custody and some inquiry was also ordered in thatconnection, Be that as it may, as far as the charges against three accused,namely, Gopal, Nand Kishore and Satish, are concerned, they stand established beyond reasonable doubt in view of the convincing statements of PW2 & PW3duly corroborated with the statements of the police officials who managed to nab them at the spot. I will come to the point as to whether they have been rightly convicted for particular offences or not a bit later after discussing the case of Mohinder Singh and Mohan Singh, who were not nabbed at thespot.
(6) It is quite clear from the perusal of the Fir that no physical features of any nature of the three culprits who escaped from the spot werementioned. It is admitted by Harinder Parshad that it was a dark night although in the second breath he deposed that it was full moon night. At the stage of arguments. Counsel for the State could not controvert the contention of Counsel for the appellants that in fact, it was a dark night. Even Sudha had deposed clearly that due to darkness she could not see the faces of the culprits in the car. It is not understood how could these two witnesses positively identify Mohan Singh and Mohinder Singh as the culprits who had escaped from the spot. Mohinder Singh came to be arrested based on some secret information provided to Public Witness 15 Si Rai Singh who took over the investigation on 23/03/1984. He arrested Mohinder Singh on 2/04/1984 and is stated to have arrested Mohan Singh on pointing out by Mohinder Singh. No pointing. out memo in that respect has been proved in the case. It is alleged that Mohinder Singh while in custody made a voluntary disclosure statement Ex.PWIO/A in which he disclosed that he could get recovered the case property and could also point out Mohan. It is the case set up that on the pointing out of Mohinder Singh a pair of silver pajeb were got recovered from Dhanpal,father-in-law of Mohinder Singh.
(7) The first question which arises in this connection is whether the disclosure statement Ex. PWIO/A made by Mohinder Singh is admissible in evidence ? If we peruse the statement, we find that there is no information being given by Mohinder Singh regarding the said pajeb being given by him to any particular person or being concealed by him at any particular place from where he could get the same revovered. It is settled law that under Section 27of the Evidence Act only that disclosure statement made to the police is admissible which gives information regarding a particular fact and which leads to recovery of the said fact. So, the disclosure statement must disclose the information which could lead to discovery.
(8) The Supreme Court in Ramkishan Mithanlal Sharma & Others v.State of Bombay, Air 1955 Sc 140, clearly held that under Section 27 of the Evidence Act, what is allowed to be proved is the information or such part there of as relates distinctly to the fact thereby discovered. The information would consist of a statement made by the accused to the police officer and Court would have to consider whether it relates distinctly to the fact thereby discovered and then allow the proof thereof only if that condition wassatisfied.
(9) Same principle was reiterated by the Supreme Court in Earabhadrappa v. State of Karnataka, . It was held that for the applicability of Section 27, two conditions are pre-requisite, namely, (1) the information must be such as has caused discovery of the fact; and (2) theinformation must relate distinctly to the fact discovered and under Section 27only so much of the information as distinctly relates to the facts really therebydiscovered is admissible and the word 'fact' means some concrete or material fact to which the information directly relates.
(10) Unfortunately in the present case, the disclosure statement does not disclose any information which may relate distinctly to the fact discoveredi.e. possession of the pajeb by Dhanpal. It is really surprising that no discussion With regard to admissibility of this particular disclosure statement relied upon by the prosecution is found present in the impugned judgment.
(11) In view of the above discussion, I hold that this particular disclosure statement made by Mohinder Singh is not admissible in evidence. So,it cannot be said that the robbed pajeb of Sudha was got recovered from Dhanpal at the instance of Mohinder Singh.
(12) The only evidence against Mohinder Singh and Mohan Singh is their identification made by PW2 and PW3 in Court for the first time. It isthe case of the prosecution that after arrest these accused were produced before Shri M.K. Gupta, Metropolitan Magistrate, (PW9) for holding test identification parade on 3/04/1984 and they refused to participate in theparade. Surprisingly neither the application by which such a request had been made nor the order made by the Magistrate in this connection have been produced. It is not understood how the learned Magistrate could give an oral statement in respect of the judicial acts performed by him about more than three years back. It is not also stated anywhere by the police officials in their statements who produced the accused before the Magistrate that the said two accused were kept under muffled faces all along after their arrest.
(13) It is to be also noticed that PW2 Harinder Parshad admitted in cross-examination that he was called to the Police Station after about 10 days of the occurrence and he had identified these two culprits at the Police Station,whereas according to the prosecution version, these two culprits were arrested after about 18 or 19 days of the occurrence. Mohinder Singh, has, however,produced on record a copy of the telegram Ex. Da issued on 31/03/1984,mentioning that Mohinder Singh had been lifted by police of the Police Post Okhla Phase- 1/03/1984 and has not been produced before anyMagistrate. There is no reason to doubt the statement of PW2 that he had seen these two accused in the Police Station before they were produced in the Court for getting a date fixed for test identification parade. So, even if the accused had refused to participate in test identification parade, they had good reason for doing so.
(14) In Wakil Singh & Others v. State of Bihar, , it was found that the witnesses in their earlier statements to the police had not given any description of the dacoits nor had given any identification marksviz, stature of the accused or whether they were fat or thin or of fair colour or of black colour. The Supreme Court held that in absence of thedescription, the conviction cannot be brought home to the accused on the basis of the single identification in which case the reasonable possibility of mistake in identification cannot be excluded.
(15) So, in view of the above reasons it would not be safe to bring home the offence to these two accused on the ground that they had been identified by PW2 & PW3 for the first time in Court. So, they deserve to beacquitted.
(16) As far as Dhanpal is concerned, a pair of pajeb which was robbed from Sudha in the said occurrence was recovered from Dhanpal on 2/04/1984. Si Rai Singh accompanied by a Constable and accused Mohinder Singh had gone to the house of Dhanpal and Dhanpal is stated to have produced the said pair of pajeb which was taken into possession after converting the same into sealed parcel vide recovery memo Ex. PWIO/B. The said pajeb was identified in test identification held by Shri V.K. Shali, Metropolitan Magistrate, (PW 4/04/1984 and the test identification proceedings in that respect is Ex. PW4/B. No cross-examination was done in respect of this identification proceedings. PW2 & PW3 have identified the said silver pajeb as belonging to Sudha which was robbed from Sudha's person in the said dacoity.However, Dhanpal could not have been convicted for an offence under Section412 Indian Penal Code because there is no evidence that Dhanpal had any information thatthe said pajeb had been robbed in any dacoity. Under Section 114 of theEvidence Act as the robbed pajeb had. been recovered from him after a few days of the occurrence it could be presumed that he was aware that the same was stolen property and thus, he could have been convicted for an offence punishable under Section 411 IPC.
(17) In Sheo Nath v. The State of Uttar Pradesh, , the facts were that the person from whom the robbed property was recovered was not shown to have any knowledge that any dacoity had taken place. The Supreme Court held that only legitimate presumption to be drawn on such facts is that the person knew that the goods were stolen but he did not know that they were stolen in a dacoity and thus, he was convicted for an offencepunishable under Section 411 Indian Penal Code and not under Section 412 IPC. So, following this judgment, I hold that Dhanpal ought to have been convicted for an offence punishable under Section 411 IPC.
(18) Now coming to the main three accused, namely, Nand Kishore,Satish and Gopal, it is proved beyond shadow of doubt that they had committed this dacoity in complicity with three more culprits whose identities remained unproved They had not only committed dacoity but had also kidnapped forcibly Sudha by lifting her and putting her in a car and driving the car away.So, they have been rightly convicted for offences punishable under Sections365, 395, both read with Section 34 IPC.
(19) It is surprising that resort should have been made to Section 34IPC for bringing home the offence under Section 397 to all the accused. Section397 only provides for enhanced punishment and minimum sentence of seven years rigorous imprisonment in respect of the culprit who at the time of committing the robbery or dacoity is armed with a deadly weapon. (See Phool Kumar v. Delhi Administration, ). Only Nand Kishore was found to have an open knife while committing the said dacoity and only he could have been convicted for offence punishable under Section 397 IPC.
(20) Another illegality which appears in the judgment is that instead of awarding minimum sentence prescribed under Section 397, the learned Additional Sessions Judge thought it fit to award only lesser punishment for five years. The provisions of Section 397 are very clear on this aspect and it has been so held also by the Supreme Court in Ram Shankar v. The State of Madhya Pradesh, . However, no application has been moved by the State for enhancement of punishment to Nand Kishore in thisconnection.
(21) As far as Section 307 Indian Penal Code is concerned, I am of the view that the Additional Sessions Judge was not right in bringing home the said offence to the accused inasmuch as there is no evidence that car was being driven at any fast speed which could have resulted in any fatal injuries. Only evidence is that car was struck aginst the cycle and PW2 and PW3 Along with the child had fallen but not even a scratch was shown to have been found on their persons by such fall and they were not medically examined and eyen cycle was not taken into possession to show that any damage had been caused to the cycle by the car striking against the cycle. Even a mild impact of the car with the cycle would have made PW2 & PW3 to fall but it would be preposterous to say that any attempt was made to murder or to cause fatal injuries to saidpersons. . .
(22) Hence, in view of the above discussion, I allow the appeals of Mohinder Singh and Mohan Singh and set aside their convictions and sentences and acquit them. I partly allow the appeals of Satish and Nand Kishore and set aside their convictions and sentences for offence under Section 307 read with Section 34 IPC. I maintain their convictions and sentences for offences punishable under Sections 365 & 395 read with Section 34 Indian Penal Code while NandKishore alone is convicted for an offence punishable under Section 397 Ipc and also for offence punishable under Section 27 of the Arms Act and maintain their sentences. Allowing the appeal of Dhanpal partly, I convert his conviction from Section 412 to Section 411 Indian Penal Code and sentence him to the period already undergone in addition to the fine.