Punjab-Haryana High Court
Criminal Appeal No. 1129-Sb Of 2003 vs State Of Punjab on 11 January, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal Nos. 1129-SB, 1182-SB 1
and 1705-SB of 2003
In the High Court of Punjab and Haryana, at Chandigarh
1. Criminal Appeal No. 1129-SB of 2003
Mahabir
... Appellant
Versus
State of Punjab
... Respondent
2. Criminal Appeal No. 1182-SB of 2003
Mani Ram and Others
... Appellants
Versus
State of Punjab
... Respondent
AND
3. Criminal Appeal No. 1705-SB of 2003
Lekh Ram
... Appellant
Versus
State of Punjab
... Respondent
Date of Decision: 11 .1.2012
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Anmol Partap Singh Mann, Advocate
for the appellant (In Criminal Appeal No.
1129-SB of 2003).
None for the appellants (In Criminal Appeals
No. 1182-SB and 1705-SB of 2003).
Criminal Appeal Nos. 1129-SB, 1182-SB 2
and 1705-SB of 2003
Ms. Gagan Mohini, Assistant Advocate General,
Punjab, for the respondent.
Kanwaljit Singh Ahluwalia, J.
Eight accused, namely Mani Ram, Balbir Singh, Mangal Singh, Mahabir, Lekh Ram alias Lekhi, Kalu Ram, Jawahar Singh and Sukhbir were tried in case arising out of FIR No. 159 dated 2.10.2000, registered at Police Station Khuian Sarwar, under Sections 399, 402 and 411 IPC and Section 25 of the Arms Act, 1959 (hereinafter referred to as "the Act").
The Court of Additional Sessions Judge, Fast Track Court, Ferozepur, vide its impugned judgment dated 17.5.2003, had acquitted all the accused for the offence under Section 411 IPC and Section 25 of the Act, however, held them guilty of offence under Sections 399 and 402 IPC and vide a separate order of even date, sentenced them as under:-
Sr. Name of Under Sentence awarded
No. Accused Section
1 All the 399 IPC To undergo rigorous
accused imprisonment for a period of
three and a half years and
to pay a fine of ` 500 each,
in default whereof to further
undergo rigorous
imprisonment for the period
of three months each.
2 All the 402 IPC To undergo rigorous
accused imprisonment for a period of
two and a half years and to
pay a fine of ` 500 each, in
default whereof to further
undergo rigorous
imprisonment for the period
of three months each.
Criminal Appeal Nos. 1129-SB, 1182-SB 3
and 1705-SB of 2003
The sentences, awarded on both the counts, were ordered to run concurrently.
Aggrieved against the impugned judgment of conviction and order of sentence, seven of the accused have preferred three appeals. Criminal Appeal No. 1129-SB of 2003 has been preferred by Mahabir, Criminal Appeal No. 1182-SB of 2003 by Mani Ram, Mangal Singh, Kalu Ram, Jawahar Singh and Sukhbir, whereas Criminal Appeal No. 1705-SB of 2003 by Lekh Ram alias Lekhi. However, Balbir Singh has not preferred any appeal.
Paramjit Singh Sandhu, Deputy Superintendent, Central Jail, Ferozepur, has furnished an affidavit dated 6.11.2011, wherein it is stated that Balbir Singh was released from Jail having completed his sentence after he was given benefit of Government and Jail remissions.
PW.4 Sarabjit Singh, Inspector, on 2.10.2000 at about 6.50 P.M. was present at Bus Stand Ghallu in connection with patrol duty along with his companion police officials. When they were making preparations to hold nakabandi, then a special informant gave a secret information that seven/eight persons armed with weapons had concealed themselves in the isolated factory at village Ghallu and were making preparations to commit dacoity and in case a raid is conducted, a huge quantity of arm and ammunitions along with looted property could be recovered from them. Considering the information to be reliable, he had sent a ruqa Ex.P28 to Police Station by hand through Balwinder Singh, Constable, for registration of the case. On the basis of the ruqa Ex.P28, formal FIR Ex.P29 was registered by Darshan Singh, Criminal Appeal Nos. 1129-SB, 1182-SB 4 and 1705-SB of 2003 Moharrir Head Constable. After sending the ruqa, Inspector Sarabjit Singh along with Ved Parkash, Assistant Sub Inspector, PW.3 Ram Sarup, Head Constable, lateron promoted as Assistant Sub Inspector, PW.5 Jagtar Singh, Head Constable and other police officials, proceeded towards the spot where the alleged accused were hiding themselves. The police party surrounded the isolated factory and apprehended the accused at the spot. The accused, on interrogation, disclosed their names as Balbir Singh, Mani Ram, Mahabir, Kalu Ram alias Sainapati, Jawahar, Sukhbir and Lekh Raj. One accused Mangal Ram is stated to have escaped at the time of raid. Thereafter, personal searches of the accused were carried. A knife was recovered from the possession of Lekh Raj, a chhuri from Jawahar, a kappa from Sukhbir, . 12 bore pistol along with four live cartridges from Balbir Singh, another .12 bore pistol along with five live cartridges from Mani Ram were recovered. Separate proceedings qua recovery of weapons, from the accused persons, were carried out and the same were taken into possession vide recovery memos prepared to this effect. On the next day i.e. 3.10.2000, Sarabjit Singh, Inspector, interrogated Mani Ram, who had suffered a disclosure statement that he had kept concealed ornaments on the east side of the isolated factory by digging a pit. In pursuance of his disclosure statement Ex.P15, he got recovered the same. Thereafter, on interrogation of accused Kalu Ram, he made a disclosure statement Ex.P16 that he had kept concealed one air pistol, one deck mark Delco along with nine Audio Cassettes, which were stolen from Dhaka Basti, Abohar, in the bushes of the isolated factory in Criminal Appeal Nos. 1129-SB, 1182-SB 5 and 1705-SB of 2003 a suitcase. In pursuance of his disclosure statement, he got recovered the said articles. On interrogation of accused Balbir Singh, he made a disclosure statement Ex.P17 that he had kept concealed the stitched and unstitched clothes, which were stolen from a Tailor Shop in Abohar, in the southern side of the isolated factory in a gunny bag. In pursuance of his statement, he got recovered the said stolen articles. Thereafter, on interrogation of accused Lekh Raj, he made a disclosure statement Ex.P18 that he had kept concealed a khaki uniform and the uniform used by the Army personnel, used by him and Sukhbir in the northern side of the isolated factory in an old bag. In pursuance of his statement he got recovered the said stolen articles.
PW.3 Ram Sarup, Assistant Sub Inspector, who was then posted as Head Constable, corroborated the statement of PW.4 Sarabjit Singh, Inspector, regarding arrest of the accused and recovery of the weapons.
PW.5 Jagtar Singh, Constable, also supported the prosecution case regarding apprehension of the accused and recovery of the weapons.
PW.1 Dr. Ajay Narang, on 4.10.2000 had medicolegally examined all the accused, whereas PW.2 Dr. Rajesh Kumar Sharma, on 4.10.2000, had medicolegally examined Mangal Ram and found one lacerated wound on his right foot. The prosecution had only examined the above said five witnesses.
Thereafter, statements of all the accused, under Section 313 Cr.P.C., were recorded. They denied all the incriminated circumstances Criminal Appeal Nos. 1129-SB, 1182-SB 6 and 1705-SB of 2003 put to them and pleaded innocence.
The trial Court, as stated earlier, had charged the appellants for the offence under Sections 399, 402 and 411 IPC and Section 25 of the Act, but acquitted them of the charges under Section 411 IPC and Section 25 of the Act.
The prosecution case, as is evident, rests entirely on the testimony of three police officials i.e. PW.2 Ram Sarup, Assistant Sub Inspector, PW.4 Sarabjit Singh, Inspector and PW.5 Jagtar Singh, Constable.
The trial Court, for recording acquittal of the accused, for offence under Section 411 IPC, held as under:-
"20...In the present case there is nothing on record to show that the property got recovered from the accused pursuant to their disclosure statements proved on record was stolen. Prosecution has failed to even prove on record FIRs of cases to which the property in question pertain so on the mere basis of the possession of property accused cannot be convicted. In this connection, incidentally it may be pointed out that under Section 411 IPC it is not upon the accused to prove how he came to possess the property which is said to be stolen property. It is elementary principle of criminal law, that in all cases the burden of proof lies upon the prosecution to bring the guilt home to the accused and this section Criminal Appeal Nos. 1129-SB, 1182-SB 7 and 1705-SB of 2003 does not admit any exception."
The trial Court also recorded acquittal of the accused for the offence under Section 25 of the Act, by observing as under:-
"28...In my considered view, charge against accused Mani Ram and Balbir Singh u/s 25 of the Arms Act is itself rendered as redundant, in view of admitted fact of separate registration of cases by the Police against them in regard to recovery of .12 bore country made pistols. So, the question of proof of charge against them under Section 25 of the Arms Act does not arise at all."
Since acquittal of the accused has been recorded for the offence under Section 411 IPC and there is no evidence that the recovered articles pertain to any theft, dacoity or robbery, the only evidence which remained against the accused is that the police party had apprehended them from an isolated factory in village Ghallu and at the time of their apprehension, they were armed with deadly weapons. These facts have emerged, as stated earlier, in the statements of three official witnesses.
Mr. A.P.S. Mann, appearing for appellant-Mahabir (in Criminal Appeal No. 1129-SB of 2003), has placed reliance upon a Division Bench judgment of this Court rendered in Mahavir v. State of Haryana 2010(6)Recent Criminal Reports 3073 to contend that until the prosecution, by leading positive evidence, proves that the accused had assembled for the purpose of making preparation to commit dacoity, Criminal Appeal Nos. 1129-SB, 1182-SB 8 and 1705-SB of 2003 mere presence or recovery of weapons is not sufficient to hold their conviction for the offence under Sections 399 and 402 IPC. The Division Bench of this Court in Mahavir's case (supra) held as under:-
"15. Now coming to the factum, as to whether, the accused were allegedly making preparation to commit dacoity, while sitting in a room, armed with iron rods, a dagger, and a country made pistol, it may be stated here, that the same is not proved, as would be discussed hereinafter. Sections 399 and 402 of the Indian Penal Code, are confined to making preparation for commission of dacoity and have no reference to any other offences. Therefore, the prosecution must prove, from some evidence, directly or indirectly, or from attending circumstances, that the accused persons had assembled for no other purpose than to make preparation, for commission of dacoity. If the evidence falls short of it, the case must fail. Though the word "preparation" has not been defined, in the Penal Code, the prosecution must show some such conduct, to prove the factum of "preparation" by the assembly, and that the accused persons had conceived any such designs for committing dacoity, and, in fact, intended to achieve the object, for which they had assembled. Therefore, the mere fact Criminal Appeal Nos. 1129-SB, 1182-SB 9 and 1705-SB of 2003 that some persons were found sitting at a lonely place, at night, in a house which was under
construction, and incriminating articles like firearms, some bombs and a Bhujali were recovered from their possession would not be sufficient to prove the charge that they had assembled for making preparation for commission of dacoity. The evidence must be such, which may plainly manifest the main charge to satisfy the conscience of the Court that the members of the assembly did some such act, or acts, which may lead to irresistible presumption, that they had assembled for the purpose of committing dacoity and were making preparation for the same, but, in absence of any such evidence, mere assemblage and recovery of firearms do not prove the charge. In the instant case, at about 7.30 PM, the accused were allegedly found sitting in the tube-well room, just near the Engineering College having a hostel. Some of the accused were allegedly found in possession of iron rods and one of them was allegedly found in possession of a country made pistol. Manohar Lal, Assistant Sub Inspector, PW-7, during the course of cross- examination stated that he did not overhear the conversation of the accused, when they were Criminal Appeal Nos. 1129-SB, 1182-SB 10 and 1705-SB of 2003 allegedly making preparation to commit dacoity, but was told about the same by Ganga Bishan, Assistant Sub Inspector, (PW-8). Gaga Bishan, Assistant Sub Inspector, ( PW-8 ), however, did not state that he told the aforesaid factum to Manohar Lal, Assistant Sub Inspector. The evidence of Manohar Lal, Assistant Sub Inspector, in this regard, therefore, can be said to be hearsay and, thus, inadmissible, to prove the charge against the accused."
On the touchstone of the above said observations, made by the Division Bench of this Court, I have perused the testimonies of the witnesses. Except that PW.4 Sarabjit Singh, Inspector, had received a secret information that the accused were planning to commit dacoity, not even an iota of evidence is available wherefrom it can be inferred that the accused have assembled to make preparations for committing dacoity. No direct or indirect evidence has been led by the prosecution in support of this material requirement of law. Furthermore, PW.3 Ram Sarup, Assistant Sub Inspector, stated in his cross-examination that around the bus stand, there were four/five shops which were open at that time and some customers could also be seen at some shops but the police party had not made any attempt to join any of the shopkeepers or the customers in the raiding party. PW.4 Sarabjit Singh, Inspector, also admitted in his cross-examination that the police party had raided the bus stand Ghulla at about 6.30 P.M. and at that time two/four persons Criminal Appeal Nos. 1129-SB, 1182-SB 11 and 1705-SB of 2003 might have been available on the bus stand. He further stated that bus stand falls on the main road leading from Fazilka to Abohar. This witness further stated that Ghulla is a big village and it had a Panchayat. There were Nambardars and Members of Panchayat. The said village starts from the distance of about 50/100 yards from the place of occurrence. Even though the isolated factory was at a distance of 50/100 yards from the road, yet no witness was joined by the raiding party. Furthermore, this witness contradicted the testimony of PW.3 Ram Sarup, Assistant Sub Inspector, by saying that when the information was received, all the shops were closed.
From the perusal of the evidence, it is apparent that the police party had made no effort to join any independent or respectable person from the village in the raiding party. The Division Bench of this Court in Mahavir's case (supra) had observed as under:-
"14...Since an independent witness was not joined, despite availability, though there was sufficient time, with the Investigating Officer, to do so, the case of the prosecution became doubtful. In State of Punjab v. Ram Chand 2001(1) RCR (Criminal) (DB) (P&H), no independent witness was joined despite availability, at the time of effecting recovery.
In these circumstances, it was held that it was imperative, in the given circumstances, to join and examine an independent witness to vouchsafe the fair investigation. On account of this reason, the Criminal Appeal Nos. 1129-SB, 1182-SB 12 and 1705-SB of 2003 accused was held entitled to be given the benefit of doubt. In State of Punjab v. Bhupinder Singh, 2001(1) RCR ( Criminal ), 356 (DB) (P&H), no independent witness was joined, though the recovery was effected, in a busy locality. Under these circumstances, it was held by this Court that the case of the prosecution became doubtful. In Ritesh Chakarvarti v. State of Madhya Pradesh, 2006(4) RCR (Criminal), 480 (SC), no effort was made to join an independent witness despite availability. The names of the persons, from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held that the case of the prosecution was doubtful and ultimately, the accused was acquitted. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the instant case. As stated above, a cloud of doubt, was cast, on the prosecution case, on account of non-joining of an independent witness, despite availability, at the time of the alleged raid. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into an error in recording conviction and awarding sentence."
Criminal Appeal Nos. 1129-SB, 1182-SB 13and 1705-SB of 2003 In the present case also, the testimony of official witnesses is not such that the implicit reliance can be placed on the same. Therefore, examination of the independent witness would have lent necessary credence to the deposition of the official witnesses.
Taking totality of circumstances into consideration, this court is of the view that it is not safe to uphold the conviction of the appellants. The view formulated by this Court is also supported with the observations made by learned Single Judge of this Court in State of Haryana v. Randhir Singh alias Dheera and Others 2009(3) Recent Criminal Reports 227.
Hence, all the appeals are accepted. The impugned judgement of conviction and the order of their sentence, are set aside. The appellants are acquitted of the charges. They shall be set at liberty, at once, if not required in any other case.
(Kanwaljit Singh Ahluwalia) Judge January 11, 2012 "DK"