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2001 DIGILAW 1158 (PNJ)

Satish Kumar v. State Of Haryana

2001-10-18

M.L.SINGHAL

body2001
Judgment M.L.Singhal, J. 1. Both these criminal appeals shall be disposed of through this common judgment, as they arise out of conviction and sentence passed upon Satish Kumar and others in Crl. Appeal No. 292-SB of 2000 and one Ranbir in Crl. Appeal No. 294-SB of 2000, in case FIR No. 149 of 1996, under Sections 395/397/411/412/216-A of the Indian Penal Code (hereinafter referred to as the Code) of Police Station, Sadhaura (Sessions Case No. 16 of 1997) by Additional Sessions Judge, Jagadhri vide order dated 18.2.2000. 2. The prosecution case, in brief, is that on 27.9.1996, at about 11.30 A.M., Smt. Suman Verma wife of Mohinder Verma, resident of Sadhaura was at her house. Her husband Mohinder Kumar was away to his shop and all her four children were away to school. At the house, she, her maid Shashis daughter Ranjuo Devi aged 13/14 years were present. They were busy in doing domestic chores. The main door of the house was open. Four young men entered the house through the main gate. One of them was wearing pant and shirt. He was sporting a small beard on his chin only. Rest of the three young men were wearing white shirts and pyjamas. There was a white coloured bag hanging on the left shoulder of the young man who was sporting a small beard. He dragged Suman Verma forcibly and took her to the store. He took one knife out of that bag. He placed the edge of that knife on her right eyebrow saying that she should hand over the keys of her almirah to him and also put off the ornaments, she was wearing. Out of fear, she put off her gold ear rings, two gold bangles each she was wearing on her hands and also the rings she was wearing on her left hand fingers and handed over these ornaments to him. He gave her a jerk and wrested the gold chain, she was wearing round her neck. As a result, there appeared scratch on her neck. She suffered injury on her right eyebrow due to the constant prick of the knife on it. He gagged her mouth with a cloth lying nearby. He put that knife in his bag. He took pistol out of that bag and placed that pistol on her chest and started frightening her. Two of those boys started searching the house. She suffered injury on her right eyebrow due to the constant prick of the knife on it. He gagged her mouth with a cloth lying nearby. He put that knife in his bag. He took pistol out of that bag and placed that pistol on her chest and started frightening her. Two of those boys started searching the house. Fourth young man caught hold of Ranjo Devi and took her to the other room. He put her in fear and asked her about the keys of the almirahs. Two young men, who were searching the house, came across the keys of the almirah lying on the top of the almirah and opened the almirah and took out Rs. 4,000/-, 2-1/2 kgs of silver ornaments, two lady ear rings lying in the almirah. From the almirah, they took out some stitched clothes and also some unstitched clothes and put them in a bag. At about 12.15 P.M., all her four children came from the school and started knocking at the main gate of the house. In the meantime, her neighbour Saroj wife of Radhey Shyam Chadha came in front of the main gate of the house. One person unbolted the door and brought the children inside. On finding that stranger in the house, Saroj raised raula `thief, thief. They made off with the aforesaid gold ornaments, cash etc., in a white coloured Maruti car standing nearby. The matter was reported to the police by Suman Verma vide statement Exh. PC, on the basis of which case FIR No. 149 dated 27.9.1996, under Section 394 of the Code was registered at Police Station, Sadhaura. After investigation, Satish Kumar, Ranbir etc., accused (six in number) were challaned. 3. Case was committed to the Court of Session by Shri S.P. Singh, Judicial Magistrate Ist Class, Jagadhri. Vijender, Rajesh, Ranbir, Satish and Ashwani were charged under Section 411 of the Code, all of them were charged under Sections 395/397 of the Code and Krishan Chand was charged under Sections 412/216A of the Code vide order dated 11.5.1998. At the conclusion of the trial, Additional Sessions Judge, Jagadhri found the charge as not proved against accused Krishan Chand and he accordingly acquitted him. At the conclusion of the trial, Additional Sessions Judge, Jagadhri found the charge as not proved against accused Krishan Chand and he accordingly acquitted him. He found the charge under Sections 397 read with Section 395 IPC and 411 IPC proved against accused Ranbir, Satish, Rajesh @ Lala, Vijender and Ashwani alias Sunny and sentenced them to undergo rigorous imprisonment for seven years each and to pay fine of Rs. 1000/- each and in default thereof, to undergo further rigorous imprisonment for six months each under Sections 395/397 of the Code. He further sentenced them to undergo rigorous imprisonment for two years each under Section 411 of the Code. He ordered the sentences to run concurrently. 4. Aggrieved by their conviction and sentence, Satish, Rajesh alias Lala, Vijendar and Ashwani alias Sunny have come up in appeal, namely Crl. Appeal No. 292-SB of 2000. Similarly aggrieved by his conviction and sentence, Ranbir has come up in appeal, namely Crl. Appeal No. 294-SB of 2000. 5. I have heard Shri Gulab Singh Dhankar, Advocate for the appellants in Crl. Appeal No. 292-SB of 2000, Shri Deepak Gupta, Advocate, in Crl. Appeal No. 294-SB of 2000 and the learned Assistant Advocate General, Haryana in both the appeals and have gone through the records. 6. Occurrence took place on 27.9.1996 at 11.30 A.M. and therefore there could be no difficulty in her identifying the accused, who had committed this dacoity. Smt. Suman Verma has vividly narrated the entire sequence of events before the Court, which she had narrated in the first information report. She has stated about the details of the ransacking of her house by the accused and the gold, silver and cash which they made off with them in a maruti car standing nearby. She pointed out in the dock that the person, who was putting on pants and shirt, was Rajesh. She successfully identified Ranbir, Satish and Ashwani. She also successfully identified Vijender, who was there in the car. Her husband Mohinder Verma, PW-5 stated about the incident as narrated to him by his wife on 27.9.1996 at about 12.30 P.M. His wife came to the shop and narrated to him the entire incident. He telephoned the police, came to his house and then took his wife to the hospital. Police came to the hospital at about 3.00 P.M. or 4.00 P.M. and recorded the statement of his wife. He telephoned the police, came to his house and then took his wife to the hospital. Police came to the hospital at about 3.00 P.M. or 4.00 P.M. and recorded the statement of his wife. On 13.10.1996, he was called to CIA staff, Yamuna Nagar. They took him to Ambala. At the bus stand of Mahesh Nagar, Ambala, Ranbir accused was apprehended. He was interrogated. He disclosed that a tagri of silver and a pair of pajeb of silver were kept by him at the house of Krishna Chand Sharma at Mahesh Nagar, Ambala. He also stated that he had pawned two gold rings with Gulab a goldsmith of Kharkhauda. Disclosure statement of Ranbir was recorded, which was attested by him and singed by accused Ranbir. On 13.10.1996, Ranbir got recovered tagri and a pair of pajeb from the house of Krishan Chand Sharma, which belonged to him. On 16.10.1996, Ranbir got recovered two rings pawned by him with a goldsmith for Rs. 3000/-. Pawn deed and two rings were taken into possession by the police. On 26.10.1996, he was again called to CIA staff, Yamuna Nagar police took Satish to Kharkhauda. From inside the house of Satish from under the bricks, gold ring was recovered. He identified the gold ring Ex.P-5 as belonging to him. It was taken into possession. On 12.11.1996, Rajesh was interrogated. On interrogation, he disclosed that he had kept a pair of ear-rings and two bangles of roll-gold concealed at his house at Kharkhauda under the earth. Rajesh then took him and the Police to Kharkhauda. Pursuant to his disclosure statement, accused Rajesh got recovered two bangles and two ear-rings lying buried and concealed under the earth. He identified the same as belonging to him. Pair of bangles Exs. P-6 and P-7 were taken into possession vide memo Ex. P-5 and ear-rings Exs. P-8 and P-9 were taken into possession vide the same memo Ex. PJ. On 13.2.1997, he was again called to CIA staff, Yamuna Nagar. Vijender and Ashwani were in custody at CIA staff, Yamuna Nagar. Vijender took them to a tree, which was near the bridge of Dangri river near Mahesh Nagar, Ambala and there he dug out a small polythene pouch containing one gold ring Ex. P-10 and the same was taken into possession vide recovery memo, Ex. P-4 which was attested by him. Vijender took them to a tree, which was near the bridge of Dangri river near Mahesh Nagar, Ambala and there he dug out a small polythene pouch containing one gold ring Ex. P-10 and the same was taken into possession vide recovery memo, Ex. P-4 which was attested by him. Vijender got the recovery effected from the place in the north of the bridge, Ashwani got the recovery of chain, Ex. P-11 effected from the place in the south of the bridge. He identified these ornaments as belonging to him. 7. Maruti car No. DL-3CB/6765, chassis No. 456385, engine No. 658068 was owned by one S. Chander Sekhran of Delhi. It was stolen on the night intervening 3/4.8.1996 from outside the house of his friend Narinder, who had taken this car from him. He lodged report about the theft of his car at Sector No. 15, Rohini police station at Delhi. On 2.12.1996, people from CIA staff, Yamuna Nagar came to him in the night and told him that a car with this chassis number and engine number had been recovered by them. He came to CIA staff, Yamuna Nagar on 3.12.1996 and identified that car. There was no number plate on the car at that time. He identified that car as belonging to him because of the chasis number, the engine number and also the dents which his car was bearing. 8. Sanjay Sharma, son of Vidya Sagar Sharma, resident of Sadhaura, PW-3 has stated that about two and a half years back at about 11.00/11.30 A.M., he came out of his house. A Maruti car was stopped by the side of his car. One person came out of that Maruti car. He demanded screw driver from him. 4/5 persons were travelling in that car. He did not give them screw driver, as he did not have one with him. Car then went towards the house of Mohinder, a goldsmith. It was white coloured car. Then he came to know that theft had taken place in the house of Mohinder. He stated that he could identify only one from among the occupants of the car, whose name he did not know. He pointed towards Vijender while in the dock. He could retain the imprint of the physical impressions of Vijender in his memory because he saw that car standing by the side of his house for 2/3 minutes. Dr. He stated that he could identify only one from among the occupants of the car, whose name he did not know. He pointed towards Vijender while in the dock. He could retain the imprint of the physical impressions of Vijender in his memory because he saw that car standing by the side of his house for 2/3 minutes. Dr. Kulbir Singh, PW-6 medico-legally examined Suman wife of Mohinder, resident of Sadhaura on 27.9.1996 and found injuries on her body including sharp wound placed vertically on the right eyebrow and abrasion on the right side of the neck. 9. Shri S.P. Singh, Judicial Magistrate Ist Class, Jhajjar PW-7 has stated that on 14.10.1996, an application Ex. PO was made before him. Krishan Chand Sharma and Ranbir accused were produced before him. Face of Ranbir was muffled. He asked Ranbir, if he was willing to participate at the test identification parade. He refused to participate at the test identification parade. His statement was recorded, which was signed by him. On 25.10.1996, Satish accused was produced before him in muffled face. He asked him whether he was willing to participate at test identification parade. He refused to join that test identification parade. On 12.2.1997, accused Ashwani and Vijender were produced before him in muffled cases. He enquired from them, if they wanted to join the test identification parade. They refused to join the test identification parade. Their statements were also recorded. 10. Ranju Devi, aged 15 years, maid servant, resident of Sadhaura, PW-11 deposed to the entire sequence of events relating to the ransacking committed by the accused in the house of Suman Verma on 27.9.1996 at about 11.30 A.M. at village Sadhaura. HC Roshan Lal, PW-12 stated that on 13.11.1996, Rajesh accused was taken out of the lock up. He was interrogated and he disclosed that he had kept one pistol covered with polythene sheet hidden near a shisham tree in HUDA colony, Jagadhri. His disclosure statement was recorded, which was singed by the accused and attested by him, as well as by ASI Sunder Singh. Accused then got recovered country made pistol with one cartridge from the stated place of its concealment. 11. PW-16 ASI Sunder Singh stated about the recovery of gold ring, one mangal sutra, one watch got effected by Satish accused, pursuant to his disclosure statement on 26.10.1996 from the back side of his house. Accused then got recovered country made pistol with one cartridge from the stated place of its concealment. 11. PW-16 ASI Sunder Singh stated about the recovery of gold ring, one mangal sutra, one watch got effected by Satish accused, pursuant to his disclosure statement on 26.10.1996 from the back side of his house. On 13.11.1996, accused Rajesh in pursuance of his disclosure statement got recovered pistol with one cartridge lying concealed in open plot in front of the veterinary hospital, situated in HUDA colony, Jagadhri. On 13.2.1997, a gold chain and a watch concealed near the kikkar tree on the side of Dangri bridge was recovered pursuant to the disclosure statement of Ashwani. Similarly, a pair of ear-rings and a ring made of gold were recovered pursuant to the disclosure statement of Vijender. 12. Inspector Udhey Singh, PW-18 stated about the recovery of one pair of pajeb and one tagri of silver weighing about half kilogram in pursuance to the disclosure statement of Ranbir on 13.10.1996. Similarly, on 16.10.1996, accused Ranbir got recovered two gold rings from the house of Gulab, goldsmith of Kharkhauda. 13. It was submitted by the learned counsel for the appellants that the accused were not put up at test identification parade. It was because the complainant had not indicated their identification marks in the first information report that they could not be put up at test identification parade. It was submitted that when their identification marks had not been mentioned in the statement of Suman or Ranju Devi, how could the Court be sure that these accused are one and the only persons and none else but they who had committed this ransacking (dacoity). Suffice it to say how could Suman, who had been terrified, make any imprint about their physical bearing as to their identity in her memory. Similarly, how could Ranju Devi, who was aged only 15 years form any impression about their facial expression in her statement, when she was equally terrorised. They were carrying knife and pistol. Against their might, how could Suman or Ranju Devi be expected to keep their cool and form imprint as to their physical bearing in their memory. They were sought to be put up at test identification parade, but they refused before the Magistrate. They were carrying knife and pistol. Against their might, how could Suman or Ranju Devi be expected to keep their cool and form imprint as to their physical bearing in their memory. They were sought to be put up at test identification parade, but they refused before the Magistrate. While refusing to be put up at test identification parade, they did not state that as they had been shown earlier to the PWs, they did not want to be put up at test identification parade. In these circumstances, inference had to be drawn against them that if they had been put up at test identification parade, they would have been successfully identified by Suman and Ranju Devi. If the accused had stated that they did not want to be put up at test identification parade, because they had been shown to the PWs earlier or they had not been asked by the Magistrate to keep their faces muffled, and they were sought to be put up at test identification parade, they could have been allowed to benefit themselves because of the failure of the prosecution to put them at test identification parade. It was put to Shri S.P. Singh, Judicial Magistrate Ist Class, Jajjar PW-7 that the accused had told him that they had been shown to the witnesses in the police station and for this reason, they did not want to participate at the test identification parade. He denied this suggestion. He specifically stated that at the time when the accused were produced before him, their faces were muffled. The accused cannot, thus, be allowed to take advantage of their own failure to participate at the test identification parade. 14. It was submitted by the learned counsel for the appellants that no offence of dacoity could be said to have been made out when Smt. Suman has stated that they were four in number, who had entered her house. Suffice it to say she has stated that apart from them, there was another accused, who was sitting in a Maruti car, which was lying parked near her house and decamping with the booty, they got into that car. She particularly pointed towards Vijender, who was the person in the car and Ranbir, Rajesh, Satish and Ashwani as the persons who entered her house for committing the loot and committed the loot. She particularly pointed towards Vijender, who was the person in the car and Ranbir, Rajesh, Satish and Ashwani as the persons who entered her house for committing the loot and committed the loot. Recovery of gold ornaments belonging to Mohinder Verma and his wife Suman Verma also connects Satish etc, which the commission of this booty in the house of Suman and Mohinder Verma. Loot was committed in broad day light. Accused stayed in the house of Smt. Suman Verma for a pretty long time. As such, there could be no difficulty in her identifying them, when they were standing trial. 15. It was submitted by learned counsel for the appellant that after a lapse of 4/5 months of the incident, it is unbelievable that the accused would be carrying the stolen property with them. It was submitted that the stolen property was foisted upon them. It was submitted that no value can be given to the identification of the articles by Suman Verma and Mohinder Verma, when the identification of the ornaments is not witnessed by any respectables. Suffice it to say why could not the ornaments be identified by Mohinder and his wife when they were associated with them since long and Suman Verma was wearing those ornaments and was in possession of those ornaments since long. It was submitted that there is delay in the lodging of the FIR. Incident took place in village Sadhaura itself at about 11.30 A.M. but the matter was reported to the police at 3.00 P.M., at police station Sadhaura. There is no explanation for this delayed lodging of the FIR. Suffice it to say, there is no delay in the lodging of the FIR because when such loot takes place in the house particularly when only the women folk are present on the point of pistol and knife, one is not in a position to maintain her cool for quite some time. Suman Verma went to the shop of her husband, informed him about the incident and then her husband telephonically informed the police, so far as telephone connection at home was concerned, that was snapped by the perpetrators of the carnage. Even otherwise, she has not named any of the accused. Suman Verma went to the shop of her husband, informed him about the incident and then her husband telephonically informed the police, so far as telephone connection at home was concerned, that was snapped by the perpetrators of the carnage. Even otherwise, she has not named any of the accused. If she had named any of the accused, it could be said that time was taken in ascertaining the names of the accused and they might have fallen in error while ascertaining their names. 16. It was next submitted that recoveries took place after 4/5 months of the incident and therefore, no inference can be drawn that the person who was found in possession was either a thief or a receiver of the stolen property, knowing the same to be stolen property. Suffice it to say the accused have denied altogether the material appearing in the prosecution evidence against them. If they had stated that they had received these ornaments from such and such persons and had paid him the price thereof, the Court could have said that as they had paid full price for these ornaments, they bonafide purchased these ornaments not knowing that they were stolen property. It is true that in criminal cases, the prosecution has to prove every bit of the charge against the accused on the strength of its own evidence, but it is equally true that if the accused want to take advantage of some fact and that fact is especially within their knowledge, they must depose to that fact and try to establish that fact though not by the same strength of evidence, which the prosecution is expected to adduce to prove its charge, atleast by some probable evidence, which could create dent in the prosecution story. In my opinion, the learned Addl. Sessions Judge justifiably convicted the appellants. Sentence passed upon them is the minimum which could be passed for an offence punishable under Section 397 IPC. Such offences do not call for any leniency. Instead of taking to honest way of life, the accused took to the making of easy buck not knowing that if they made easy buck, the other person, who is their victim loses whatever he has earned in the past, in a flush of moment and becomes deprived of his life long savings. Instead of taking to honest way of life, the accused took to the making of easy buck not knowing that if they made easy buck, the other person, who is their victim loses whatever he has earned in the past, in a flush of moment and becomes deprived of his life long savings. Sentence has to commensurate with the gravity of the offence and it has to meet the aspirations of the society. Justice demands that the sentence passed should commensurate with the gravity of the offence and also should have the desired effect on the minds of those who are on the road to the making of easy buck leaving the path of virtue altogether. Both these appeals fail and are dismissed. Appeals dismissed.