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2010 DIGILAW 1183 (PNJ)

Mastan Singh And Others v. State Of Punjab

2010-03-15

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1 Seven accused namely Gurmail Singh, Jaswinder Singh @ Choni, Balwinder Singh @ Biindri, Tarlochan Singh @ Bittu, Rajwinder Singh @ Ninda, Balwinder Singh @ Binder and Mastan Singh were prosecuted for the offence under Section 412 IPC and ultimately, they were convicted vide judgment dated 25.10.1999 passed by the learned Additional Sessions Judge, Hoshiar- pur, and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 1000/- each for the aforesaid offence. However, no appeal was preferred by Gurmail Singh, Balwinder Singh alias Bindri sonof Banta Singh and Balwinder Singh alias Binder son of Nishan Singh. As such, this is an appeal by the remaining four accused. 2 The prosecution version in brief is that on 10.12.1993 SI Ram Parkash along with ASI Bakshish Singh and other police officials was present at the turning of Prempur of village Talwandi Sallan, where Ranjit Singh complainant (herein referred as the complainant) accompanied by Sarpanch Gurmukh Singh came and made a statement that on the previous night he was sleeping in the varandah of the house, whereas, his wife Jaswant Kaur and daughter Varinderjit Kaur were sleeping in another room. In the midnight, he woke up after hearing the noise of some persons and saw in the electric light that five persons with muffled faces and tying turbans standing near his bed. Out of them one person was armed with naked kirpan and other persons were armed with datars, one person told him that they should be served with meals, but the second person told that they did not want to be served with meals but they be paid Rs. 3 lacs. When he regretted his inability on the ground that he was not having any money, the person holding kirpan took him to the bed room and threatened him. In the meanwhile his wife and daughter also woke up and they were also brought in the said room. The accused threatened them also and made them, to sit quietly. On being threatened, the complainant had to part with the keys of the locks. They were kept confined in one room under the supervision of two persons. The other accused opened the almirah and iron boxes and fled away with the golden ornaments, an imported VCR make National and one record player and deck system make Akai. On being threatened, the complainant had to part with the keys of the locks. They were kept confined in one room under the supervision of two persons. The other accused opened the almirah and iron boxes and fled away with the golden ornaments, an imported VCR make National and one record player and deck system make Akai. While going, they threatened that they will have to face dire consequences if they raised hue and cry. During the night, the complainant stayed in the house out of fear. However, in the morning at about 6.30 a.m. some people gathered at the spot and on checking from steel almirah, the complainant detected that gold ornaments belonging to him, his daughter Varinderjit Kaur, his mother, his wife Narinderjit Kaur daughter in law and son Paramjit Singh were missing which included one neckless weighing two tolas, four golden bangles weighing around four tolas, two karhas (one small and one big) weighing about two tolas, one golden chain weighing two tolas, one neckless weighing 2-1/2 tolas, four pairs of ear rings weighing around 4-1/2 tolas, one pair of ear rings weighing around half tola and one pair of silver pajeb and two silver rings. They also took six watches and Rs. 700/- in cash. (The word tola in the common parlance is used to say ten grams). 3 On the aforesaid statement of the complainant, a case was registered. The accused were arrested along with the stolen property near focal point. After completion of the investigation challan was presented in the court. 4 They were charged under Section 412 IPC, to which they pleaded not guilty and opted to contest. 5 In order to substantiate the charges, the prosecution examined Ranjit Singh (PW1), Varmderpal Land Acquisition Officer (PW2), Inspector Tarlochan Singh (PW3) Gurjit Singh (PW4), C-II Chanan Singh (PW5) and Inspector Ram Parkash (PW6). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, they further explained that they were taken away from their houses and later on falsely implicated in the case. They did not lead any evidence in defence. The trial ended in" conviction. Arguments heard. Record perused. However, they further explained that they were taken away from their houses and later on falsely implicated in the case. They did not lead any evidence in defence. The trial ended in" conviction. Arguments heard. Record perused. 6 It is established on the record from the statement of Ranjit Singh complainant (PW1) that in the midnight of 10.12.1993, the accused ransacked his house, threatened them and stole away various ornaments as well as electronic goods from his house. He is very categoric about the fact that on the day of occurrence five persons with muffled faces surrounded him while he was in his bed room; compelled him to part with Rs. 3 lacs, they forcibly took the keys from him; searched the house while confining him and his family members inside the room and forced him to part with keys. The complainant as well as his wife and daughter were made to sit in one room and were guarded by two persons, whereas, the remaining accused searched the house, removed one VCR, deck, record player from the room in which they were sitting and also removed certain ornaments and valuable from the other room and fled away with the stolen property..No doubt, they could not identify the accused. 7 Now in order to bring home the charge against the accused, the prosecution was liable to prove if the stolen property was recovered from the accused. There is definite evidence that on the mid night of 10.12.1993, some unidentified persons burgled the house of the complainant, took away some golden ornaments and electrical goods. Tarlochan Singh (PW3) Investigating Officer in the case arrested the accused and got recovered the stolen property. He is categoric in his statement to the effect that on 17.12.1993, when he along with other police officials was present at Focal Point, Nathupur, he received a secret information tha,t some suspects were dividing stolen goods amongst themselves, then he searched the building at the said Focal Point and found that Gurmail Singh son of Hari Singh resident of village Bariar, Tarlochan Singh alias Bittu son pf Hazara Singh resident of Ranipind and others who were busy in dividing the articles stolen from the house of Ranjit Singh. He apprehended all the accused. He apprehended all the accused. From the personal search of the accused Gurmail Singh he got recovered one motor cycle make hero honda without number plate Ex.P23, which was taken into possession vide recovery memo Ex.PE. He also recovered one golden kara weighing 13-1/2 grams, one gold neckless weighing 12-1/2 grams, two male gold ripgs weighing 6-1/2 grams, one female ring weighing 3-1/2 grams, pair of ear rings weighing 4 grams, from him. On personal search of the accused Rajwinder Singh @ Ninda a bag containing VCP, make Akai Model No. VS/P8 EV-3 made in Japan, one remote control unit with one plastic envelope containing two male watches make citizen and one old watch were recovered from the plastic bag and the same were taken into possession vide memo Ex.PG. Further, one pair of ear rings (Jhale) weighing 9-1/2 grams, one male ring weighing 7 grams and one pair of ear rings (walian) weighing 4- 1/2 grams were recovered from his shirt under the jacket and these articles were taken into possession vide memo Ex.PH. From the personal search of the accused Jaswinder Singh @ Choni, one garland of gold with 8 bugties weighing 27-1/2 grams, one pair of ear rings (kanta) of gold weighing 12 grams were recovered and the same were taken into possession vide memo Ex.PJ. On personal search of the accused Balwinder Singh @ Bindiri son of Banta Singh, one pair of ear rings (golden kante), one golden karha were recovered from the front side pocket of his shirt and on weighment it came to be 10 grams and 7-1/2 grams respectively and the same were taken into possession vide memo Ex.PK. On personal search of the accused Tarlochan Singh @ Bittu, one pair of ear rings Fancy weighing 6-1/2 grams one golden chain weighing 19 grams were recovered from the right pocket of his pant. The same were taken into possession vide recovery memo Ex.PL. From the personal search of the accused Balwinder Singh alias Binder son of Nishan Singh, one golden garland weighing 25 grams, one female ring weighing three grams and one small golden karah weighing 5 grams were recovered from the front pocket of his shirt and the same were taken into possession vide memo Ex.PM. From the personal search of the accused Balwinder Singh alias Binder son of Nishan Singh, one golden garland weighing 25 grams, one female ring weighing three grams and one small golden karah weighing 5 grams were recovered from the front pocket of his shirt and the same were taken into possession vide memo Ex.PM. From the personal search of the accused Mastan Singh 4 bangles of gold weighing 39-1/2 grams, one pair of Pajeb silver and one Kangan and 2 female rings weighing 56 grams were recovered vide recovery memo Ex.PN. He further deposed that from the personal search of the accused Gurmail Singh Ex.PO, Tarlochan Singh Ex.PQ, Rajwinder Singh alias Ninda Ex.PR, Jaswinder Singh @ Choni Ex.PS, Balwinder Singh @ Bindri Ex.PT, Balwinder Singh @ Binder Ex.PU and that of Mastan Singh Ex.PV. Nothing more was recovered. The recoveries of the stolen articles were identified by Ranjit Singh as well as Varinder Pal Singh who while appearing as PW2 has testified that on 21.12.1993 when he was posted as Naib Tehsildar, Tanda, then he identified the ornaments i.e. one golden neckless, four bangles of gold, one karha of gold big size and one karha of gold small size, one golden chain, one another golden neckless, pair of ear rings -and pair of Fancy ear rings, five pairs of ear rings, one lady ring and one gents ring, one pair of silver Pajeb, one silver kangan, two ladies silver rings. These articles have been exhibited in the court as Ex.Pl to Ex.P22. 8 The necessary ingredients to constitute an offence under Section 412 IPC, the prosecution has to prove as under :- 1. that the property in question was stolen property; 2. that the possession of such property was transferred by commission of dacoity; and 3. that the accused remained or received such stolen property. In so far as recovery of the stolen property from the possession of the accused is concerned, unless the accused explain as to how he acquired possession over the property, a presumption can be drawn under Section 114 of the Evidence. that the accused remained or received such stolen property. In so far as recovery of the stolen property from the possession of the accused is concerned, unless the accused explain as to how he acquired possession over the property, a presumption can be drawn under Section 114 of the Evidence. 9 The Section 412 IPC further envisages that if it is not proved as to who were the persons to steal the recovered stolen property, even then on proof of recovery of such property, as identified by the witnesses that it was the same property which was stolen from their house and such property if it is in the hands of the accused who had stolen the same or it has been received or retained by them or some other person to whom the same had been transferred, then retention of such property with the knowledge that the same was stolen, the offence under Section 412 IPC would be treated as complete. 10 It was observed in case Roshen Behari v. State of Punjab, ILR 1956 Punj. 140 that the recovery from the possession of the accused of certain ornaments identified to be forming part of the proceeds of the dacoity within three weeks was sufficient to establish a case under Section 412 of the IPC. It is also settled law that when the stolen property is found in possession of some persons or in a house under joint possession of two brothers, then the presumption would be that the accused were retaining the stolen property unless it is otherwise established by them that the property was not stolen one. 11 In the instant case, the dacoity had taken place at the house of the complainant on intervening night of 9/10.12.1993, the property as . robbed from his house and recovered from the accused as identified by the witnesses, was proved to be the same as stolen from their house. The accused have failed to prove as to if they were the owners of the property or had purchased or otherwise, how they came in possession of the same, therefore, in the circumstances, the necessary inference which could be drawn against the accused is that they had received the goods knowing them to be stolen and the presumption under Section 114 of the Evidence Act would be attracted. As such, conviction recorded by the trial court under Section 412 IPC stands fully established. 12 No plausible defence has been led by the accused in order to prove their innocence. The recovery of the stolen goods within a week from the accused, cannot be said that it was after a long delay. After all, when the accused while concealing their identity Committed dacoity, took away the ornaments and other valuables from the house and concealed themselves at some secret place, therefore, it must have certainly taken time to detect such crime. As such, delay in such cases, when particularly the recovery is effected, assumes insignificance. No other point has been advanced. 13 Keeping in view the heinous crime committed by the accused who trespassed into the house of the complainant with the deadly weapons and took away the electric as well as golden ornaments or whatsoever was there in the house, no leniency could be extended. Resultantly, finding no merit in the appeal, the same is dismissed. Copy of the judgment be sent to the learned Chief Judicial Magistrate, Hoshiarpur for compliance. Appeal dismissed.