Punjab-Haryana High Court
Raj Kumar Shah vs State Of Haryana on 19 November, 2014
Author: Lisa Gill
Bench: Lisa Gill
CRA-S No.215-SB of 2013 and connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. Crl. Appeal-S No.215-SB of 2013(O&M)
Date of Decision: November 19 , 2014.
Raj Kumar Shah ...... APPELLANT(s)
Versus
State of Haryana ...... RESPONDENT (s)
2. Crl. Appeal-S No.229-SB of 2013(O&M)
Anwar Ali ...... APPELLANT(s)
Versus
State of Haryana ...... RESPONDENT (s)
3. Crl. Appeal-S No.293-SB of 2013(O&M)
Rahis and another ...... APPELLANT(s)
Versus
State of Haryana ...... RESPONDENT (s)
CORAM:- HON'BLE MRS.JUSTICE LISA GILL
Present: Mr. Deepak Aggarwal, Advocate in CRA-S No.215-SB of 2013
Mr. Ashok Tyagi, Advocate and
Mr. Gaurav Tyagi, Advocate in CRA-S No.229-SB of 2013
Mr. Atul Gaur, Advocate for
Mr. Sumeet Goel, Advocate in CRA-S No.293-SB of 2013
for the appellants.
Mr. Aditya Sanghi, Addl.AG, Haryana.
*****
OMKAR SINGH
2015.02.26 09:57
I attest to the accuracy and
authenticity of this document
Chandigarh
CRA-S No.215-SB of 2013 and connected cases 2
1. Whether reporters of local papers may be allowed to see
the judgment?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the digest?
*****
LISA GILL, J.
This judgment shall dispose of CRA-S No.215-SB of 2013 (Raj Kumar Shah v. State of Haryana); CRA-S No.229-SB of 2013 (Anwar Ali v. State of Haryana) and CRA-S No.293-SB of 2013 (Rahis and another v. State of Haryana).
Appellants challenge the judgment of conviction dated 20.12.2012 and order of sentence dated 22.12.2012 passed by the learned Additional Sessions Judge, Palwal whereby they have been convicted and sentenced to undergo rigorous imprisonment for a period of ten years each besides, pay a fine of `10,000/- each and in default thereof, to further undergo rigorous imprisonment for two years and six months for the offences punishable under Sections 395/412 IPC and to undergo rigorous imprisonment for a period of seven years each for the offence punishable under Section 397 IPC. Appellants Rahis and Aftab Alam were also convicted and sentenced to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 25 of the Arms Act, 1959. All the sentences were ordered to run concurrently.
As per the prosecution version, FIR No.452 dated 19.11.2010, under Sections 395/397/412 IPC and Section 25 of the Arms Act, 1959 (Ex.PK) was registered on the basis of an application (Ex.PV) moved by Vishal Gupta (PW7). It is alleged that on the intervening night of 18/19.11.2010 at about OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 3 1.30 a.m., complainant Vishal Gupta was sleeping on the ground-floor of his house alongwith his son and wife. Other family members were sleeping on the first floor. About 10/12 persons barged into their house. Out of them, 7/8 persons were with muffled faces. They were armed with weapons like country made pistol, Farsa etc. The accused persons pointed weapons at him, his wife and son and threatened to kill them in case any noise was raised. He was given a butt blow on the head. Out of fear for his life as well as other family members' life, he pointed towards almirah where valuable articles were locked. The almirah was broken open by the accused persons and they took away valuables, ornaments etc. and cash amounting to `50,00,000/- was looted. Thereafter, the said persons fled away. While fleeing, they also took two mobile phones No.9812032025 and 9812593025 as well as the key of Santro car. The complainant alongwith his family members as well as one watchman were tied up by the accused persons. Police on intimation reached at his house.
On 05.12.2010 PW8 SI Jeet Singh received a secret information regarding the involvement of some persons in robbery cases. The said persons were informed to be present at the main market, Malviya Nagar, New Delhi. Pursuant thereto, SI Jeet Singh alongwith his fellow companions reached Malviya Nagar, New Delhi and apprehended appellants - Raj Kumar Shah and Aftab Alam. On search of the accused, various ornaments and valuable articles as well as cash amount was recovered and taken in possession vide memo Ex.PV/1 and Ex.PV.
Disclosure statement (Ex.PV/2) was suffered by appellant - Aftab Alam that he had come in contact with Raj Kumar Shah who was an ex- OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 4 employee of complainant, Vishal Gupta. Raj Kumar Shah revealed that Vishal Gupta is a rich businessman and in case dacoity is committed, they would be able to procure handsome commodities. He contacted his friend Anwar Ali and Raj Kumar Shah contacted Sushil. Rahis son of Hardeep was also contacted. Raj Kumar Shah asked for arrangement of more persons. Pursuant thereto, he called Dulal of Bangladesh, whom he had met him in Tihar Jail. He was asked to arrange for 5/6 boys. Thereafter, they went to Palwal. Raj Kumar Shah and Sushil stayed outside Vishal Gupta's house while others went inside, over- powered Vishal Gupta and his family members and got away with handsome valuable jewellery, cash etc. Booty was distributed amongst themselves. He (Aftab Alam) deposited a sum of `1,00,000/- in his wife's account and `1,10,000/- were paid as earnest money to purchase a plot. Cash amount which was recovered from his possession was the same which was looted by him.
Appellant - Raj Kumar Shah vide his disclosure statement (Ex.PA) admitted to being a domestic servant at Vishal Gupta's house earlier, having left his job about 3/4 months prior to the occurrence. The details of the manner in which robbery was committed as well as disposal of the respective shares was narrated by him. As per his disclosure statement, Ex.PB, he received a sum of `2,50,000/- and the same was kept concealed by him at his village in Bihar.
Appellant - Anwar Ali was apprehended on 06.12.2010 from Malviya Nagar, New Delhi. Anwar Ali suffered a disclosure statement (Ex.PD) disclosing his involvement in the said crime. He disclosed the involvement of appellant Rahis, who is stated to have arranged a knife and a country-made pistol. Recovery of valuable jewellery, cash etc. was also effected from Anwar OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 5 Ali vide memo Ex.PF. Anwar Ali also disclosed that an amount of `40,000/- of the looted money was kept concealed by him at his village in Uttar Pradesh, which could be got recovered.
Appellant - Aftab Alam suffered a disclosure statement (Ex.PG) to the extend that some of the looted money and knife was kept concealed by him at his rented house in Delhi. A sum of `90,000/- was deposited by him in his wife's account, which could be got recovered.
Recoveries were effected pursuant to their disclosure statements. Appellant - Rahis was arrested on 14.12.2010 from Rohini, Delhi. He also suffered a disclosure statement (Ex.PR) regarding his involvement in the offence. On the basis of his disclosure statement, recovery of valuable ornaments, cash etc. and a key of Santro car belonging to Vishal Gupta, one pistol and live cartridges was effected.
Ultimately, report under Section 173 Cr.P.C. was filed against the accused persons and charge for the offences punishable under Sections 395/397/ 412 IPC against all the appellants-accused and charge for the offence punishable under Section 25 of the Arms Act, 1959 was framed against Rahis and Aftab Alam on 12.03.2011. All the appellants pleaded innocence and claimed trial.
Prosecution examined as many as ten witnesses to prove its case. Appellants-accused denied their involvement in the crime in their statements recorded under Section 313 Cr.P.C. DW1 Farzana wife of Aftab Alam was examined in defence wherein she states that 3/4 items of jewellery belonging to her were taken by the police.
OMKAR SINGH2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 6
The learned trial court after looking into the facts and circumstances of the case and appreciating the evidence on record, convicted all the four appellants-accused and sentenced them as aforementioned.
All the four appellants have impugned the said judgment and order passed by the learned trial court by way of instant appeals. Raj Kumar Shah and Anwar Ali have preferred Crl. Appeal-S No.215-SB of 2013 and Crl. Appeal-S No.229-SB of 2013, respectively. Rahis and Aftab Alam are the appellants in Crl. Appeal-S No.293-SB of 2013.
Learned counsel for the appellants vehemently argued that the appellants have been falsely implicated in this case. There is no evidence worth its name to show the involvement of appellants in the commission of the alleged offence. The fact that no independent witness has been joined at the time of alleged recovery effected from the appellants, goes to show their false implication. Appellants are identified for the first time in court by the complainant, therefore, the identity of appellants is doubtful. Complainant Vishal Gupta fails to identify the recovered items as his own. He has not suffered any injury on his head. It is submitted that Section 397 IPC is not attracted in this case as no grievous hurt has been proved on record. There is nothing on record to show that a but-blow was indeed suffered by the complainant. Prosecution examined only interested witnesses. Complainant's wife and son have not been examined. Chowkidar who was stated to be present and tied-up by the accused has not been examined. Thereby, causing a dent in the prosecution story. As many as 19 prosecution witnesses were listed but only ten have been examined. It is also urged that the secret informer should have OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 7 been produced and examined before the trial court to buttress the case of prosecution. The arms allegedly recovered have not been test fired. Learned counsel for the appellants further submit that the evidence on record does not point to their guilt.
It is also submitted on behalf of appellant Raj Kumar Shah that in case he had been involved, he would necessarily have been named by the complainant at the very outset. The fact that he has not been named in the FIR proves that he has nothing to do with the offences in question.
Learned counsel for the State, on the contrary, has argued that there is sufficient evidence on record to prove the commission of the abovenoted offences by the appellants. Non-joining of independent witnesses at the time of recoveries cannot be of any avail to the appellants as there is no allegation of mala fide or prejudice against the police officials, who had no axe to grind against the appellants. Valuable articles including jewellery, cash amount have been recovered from the possession of the appellants at the time of their search as well as on the basis of their disclosure statements. In respect to the identification of the accused persons for the first time in court, it is submitted that appellants - Raj Kumar Shah and Anwar Ali had refused to submit to identification parade. Their statements (Ex.PO/1 and Ex.PO/2) to this effect were duly recorded before the learned Magistrate though, appellant - Aftab Alam was willing to join identification parade. Investigating Officer PW5 Ram Babu did not opt for the identification parade in view of the fact that accused - Aftab Alam had earlier stated that he was keeping vigil outside Vishal Gupta's house and when interrogated by PW5 Ram Babu, he catapulted and stated that he was inside the house. Reference is made to the testimony of PW7 Vishal OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 8 Gupta, who has duly identified accused Aftab Alam as the person armed with knife at the time of occurrence, appellant - Anwar Ali as the person armed with a Saria and appellant - Rahis who had pointed a pistol at him at the time of occurrence. Appellant - Raj Kumar Shah was identified by Vishal Gupta as his former domestic servant.
It is further submitted that recoveries were effected from the appellants within a short span of 16/17 days. The articles recovered were released on Superdari to the complainant. There is no question of non- identification of the said articles by the complainant. It has also come on record that some of the money indeed stood deposited in the bank account of appellant Aftab Alam's wife after 19.11.2010 but before 10.12.2010. There is no explanation for this amount.
It is submitted the prosecution has proved its case beyond reasonable doubt. Thus, conviction and sentence imposed upon the appellants deserves to be upheld.
I have heard learned counsel for the parties and gone through the record.
Complainant Vishal Gupta has clearly stated that on the intervening night 18/19.11.2010, a dacoity was committed at his residence by 10/12 persons. One of them pointed a pistol on him and threatened to kill him in case he did not disclose the valuables or tried to raise any noise. A butt blow was inflicted on him. He pointed to the almirah where valuables were kept. All the accused persons fled away with valuables, jewellery and cash amount to the tune of `50,00,000/-. They took away his mobiles and a key of Santro car while fleeing.
OMKAR SINGH2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 9
The details of the commission of offence were revealed on the arrest of appellants - Raj Kumar Shah and Aftab Alam on receipt of a secret information by SI Jeet Singh. It is only then it came to light that it is the former employee of the complainant who is instrumental in the said dacoity alongwith other persons. It is an admitted fact that appellant - Raj Kumar Shah was a domestic servant previously employed with the complainant. It is duly proved on record that he alongwith other co-accused looted the valuables from the complainant's house in the intervening night of 18/19.11.2010. Specific recoveries have been effected from the accused persons. The same formed a part of the loot as well as the weapons used in the commission of the offence. Pistol was recovered from appellant - Rahis who gave a but-blow on the head of the complainant. Aftab Alam has been proved to be armed with a knife.
Absence of independent witnesses at the time of alleged recoveries is not fatal to the prosecution especially in the face of absence of any allegations of mala fide against the police officials. There is nothing on record to show that they were inimical towards the appellants or had any axe to grind against them.
The averment that the recovered articles were not identified by the complainant is falsified by the evidence on record. Apart from the fact that the said articles were released on Superdari, PW7 Vishal Gupta has clearly stated that he identified the recovered material when he was called on 08.12.2010 by the officials of CIA Palwal revealing that the accused persons have been arrested by the Delhi Police. In view of the overwhelming evidence on record the plea that the Camera alleged to have been stolen was of Sony company but the one recovered was of Kodak brand cannot improve the case of the OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 10 appellants. Some of the articles recovered from each of the appellants are detailed in Para 43 of the impugned judgment. On going through the record, it clearly emerges that recoveries have been effected from each of the accused person pursuant to their disclosure statements. On disclosure (Ex.PA and Ex.PB) by Raj Kumar Shah, numerous valuables including jewellery, cash and gold bar were recovered (Ex.PC and Ex.PV/1). On disclosure (Ex.PG and Ex.PH) by Aftab Alam, jewellery, cash and watches etc. were recovered (Ex.PI). One knife (Ex.PJ) was also recovered from Aftab Alam. Valuables and Currency were also recovered from Anwar Ali pursuant to his disclosure statement (Ex.PE and Ex.PF). One pistol, live cartridges, `2,80,000/- and jewellery (Ex.PS) were recovered from Rahis consequent to his disclosure (Ex.PS).
Keeping in view the articles recovered from the appellants-accused, it cannot be said that the same were planted upon them.
It has been vehemently urged that necessary and material witnesses have not been examined inasmuch as the wife, son or other family members or even the Chowkidar of the complainant have not been examined. Chowkidar was an independent witness who should have been examined.
In my considered opinion, non-examination of the said witnesses by itself does not render the prosecution version improbable. It is the quality of the evidence and not the quantity which is material. The complainant has given the details of the occurrence. His version has not been shaken despite a lengthy cross-examination. Contention of the learned counsel for the appellants that the secret informer was not examined thereby benefit of doubt be given to the OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 11 appellants, is misconceived and liable to be rejected. It has been held in Kashmiri Lal v. State of Haryana, 2013(6) SCC 595 that it is not necessary to examine the secret informer.
Similarly the argument advanced on behalf of appellant - Raj Kumar Shah that his false implication is apparent from the fact that he was not named at the first instance is not tenable. It is a matter of record that at the time of occurrence complainant - Vishal Gupta had no idea or clue as to who had committed the robbery/dacoity or who was responsible for the same. There was no occasion for him to suspect the involvement of his former employee. The details were revealed only on the arrest of Aftab Alam and Raj Kumar Shah. It is clear from the testimony of PW7 Vishal Gupta that Raj Kumar Shah may have been present with a muffled face. He has been duly identified as his former domestic servant. As per disclosure statement of Raj Kumar Shah, he was standing outside the house at the time of the occurrence. Therefore, the contention of learned counsel that Raj Kumar Shah has not been identified to be present at the time of occurrence cannot be of any benefit to him especially in the light of the overwhelming evidence against him.
In the case of appellant - Aftab Alam it is urged that the recoveries effected from him are planted, the same belong to his wife Farzana. On a perusal of the testimony of DW1 Farzana it is apparent that it is only a few pieces of jewellery which are stated to have snatched by the Delhi Police. A sum of `90,000/- is stated to have been withdrawn from the Bank and handed over to SI Ram Babu. It is, however, a matter of record that recovery of jewellery items is much more than 4 or 5 items from appellant - Aftab Alam. OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 12 An amount deposited in her bank account was after 19.11.2010 and before 12.12.2010. There is no explanation from where this amount had come to their hands.
Similarly, argument that no offence punishable under Section 397 IPC is made out qua the appellants because there is no injury proved on the person of complainant, is untenable. It has been proved on record that they were armed with deadly weapons and committed dacoity.
Doubtlessly it is the prosecution which has to prove its case. In the instant case there is overwhelming evidence to show the involvement of all the accused persons in the commission of the aforesaid offences.
Learned counsel for the appellants in the alternate submit that the sentence imposed upon them be reduced to that of already undergone by them.
Keeping in view the peculiar facts and circumstances of the case, I do not find any mitigating circumstance which would justify the reduction of sentence imposed upon the appellants. It is clear that appellant - Raj Kumar Shah, who was a former domestic servant of Vishal Gupta, alongwith the other accused persons have looted the complainant's house and got away with valuables and cash to the tune of `50,00,000/-. Raj Kumar Shah having earlier served Vishal Gupta was aware of financial position of the complainant. Having used the knowledge he had gained while engaged as an employee, he executed his evil design alongwith others.
Prosecution has successfully proved the commission of offences as alleged by the appellants beyond reasonable doubt by leading clear, cogent and convincing evidence. There is no ground or extenuating circumstance to reduce OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh CRA-S No.215-SB of 2013 and connected cases 13 the sentence imposed upon the appellants.
No other point has been raised by learned counsel for the appellants.
Resultantly, all the appeals are dismissed.
( LISA GILL ) November 19, 2014. JUDGE 'om' OMKAR SINGH 2015.02.26 09:57 I attest to the accuracy and authenticity of this document Chandigarh