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2010 DIGILAW 2488 (PNJ)

Rajesh v. State Of Haryana

2010-08-30

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. This judgment of mine shall dispose of two appeals, namely, CRA No. 638-SB of 2002 and CRA No. 698-SB of 2002, as the same are directed against the common judgment dated 28.03.2002 (for short impugned judgment) passed by the learned Additional Sessions Judge, Fast Track-II, Faridabad (hereinafter referred as trial Court). However, the facts are being taken from CRA No. 638-SB of 2002. 2. The present appeal has been directed against the impugned judgment passed by the learned trial Court, convicting the appellants for committing offence under Section 402 and 399 of IPC and against the order dated 30.3.2002 thereby sentencing each of them to undergo three years rigorous imprisonment and to pay a fine of Rs.500/- and in default of payment of fine, to further undergo imprisonment for a period of one month under Section 402 IPC and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- and in default of payment of fine, to further undergo imprisonment for a period of one month under Section 399 IPC. However, both the sentences were ordered to run concurrently. 3. The case of the prosecution, as narrated in para 2 of the impugned judgment, reads as under :- "2. The case of the prosecution as narrated by SI Ravi Dutt examined as PW4 is that on 29.1.1999, he was posted in CIA Staff, Palwal. On that date, he along with ASI Randhir Singh, HC Sarvsukh, HC Ramesh Chand and other police officials was present on Sohna turning Hathin road for detection of crimes. There, he received secret information that some persons sitting in a Piyao on Hathin road were making preparations to commit robbery of the vehicles. He had formed raiding party and divided the same into two - one headed by him and the other by ASI Randhir Singh. Thereafter, they all reached near the Piyao and heard conversation of the accused. Accused were talking with each other that they would place stones on the road and thereafter commit robbery of the vehicles. ASI Ravi Dutt challenged the accused sitting in the Piyao warning them they had been surrounded by the police and should surrender themselves. The accused tried to run away but were apprehended on the spot. They were 7 in all. ASI Ravi Dutt challenged the accused sitting in the Piyao warning them they had been surrounded by the police and should surrender themselves. The accused tried to run away but were apprehended on the spot. They were 7 in all. On making their personal search, a spring actuated knife Ex.P1 was recovered from accused Naresh and one country-made pistol P2 with live cartridge P3 from the left pocket of the trousers of accused Kallu. From remaining five accused Dandas Ex.P4 to P8 were recovered. He prepared recovery memo Ex.PB and rough site plan Ex.PE. He also recorded the statements of the witnesses and had sent ruqa Ex.PA to the P.S., on the basis of which formal FIR Ex.PA/1 was recorded by PW.2 ASI Gulzari Lal. He had also got prepared scaled site plan Ex.PF from PW6 constable Manoj Kumar. One, out of the accused, namely Surinder was of the age of less than 16 years and, therefore, his case was separated from the main case as he was to be tried by the Juvenile Court." 4. After conclusion of the investigation, the accused were sent to face trial. Accordingly, accused were charge-sheeted under Section 399/402 IPC to which they pleaded not guilty and claimed trial. 5. To substantiate its case, the prosecution examined as many as 6 witnesses, namely, SI Sadhu Ram, who had prepared report u/s 173 Cr.P.C. as PW1; Gulzari Lal, who had recorded formal FIR Ex.PA/1 on receipt of ruqa Ex.PA, as PW2; SI Randhir Singh as PW3; SI Ravi Dutt as PW4; HC Sarv Sukh as PW5 and Manoj Kumar, Draftsman as PW6. 6. In the statement under Section 313, Cr.P.C. the entire incriminating material coming on record against the accused in the prosecution case was put to them which they denied and pleaded their innocence. No evidence was led in defence by the accused. 7. After hearing both the parties and perusing the entire material on record, the learned trial Court convicted the accused-appellants for commission of offence punishable under Section 399/402 IPC and sentenced them for the term indicated in para 2 of this judgment. Hence the present appeal. 8. Learned counsel for the appellants has argued that the conviction is solely based on the statement of police officials. No effort was made to join any independent witness. Hence the present appeal. 8. Learned counsel for the appellants has argued that the conviction is solely based on the statement of police officials. No effort was made to join any independent witness. The statement of Ravi Dutt, PW4, to the extent that no witness from the general public was available due to night time cannot be relied upon in view of the fact that the police party remained present at the site i.e. main road frequently used by commuters for about four hours. 9. Learned counsel has further argued that there are material contradictions in the statements of official witnesses. According to ASI Randhir Singh, PW3 and HC Sarv Sukh, PW5, the police party remained present at the site for about four hours, whereas as per the statement of SI Ravi Dutt, PW4, the police party remained present at the site for about one hour. 10. It has also been pointed out that there is discrepancy with regard to the sequence of recoveries of alleged weapons. According to ASI Randhir Singh, PW3, first the pistol was recovered from the possession of the accused Kallu, whereas it has come in the statement of SI Ravi Dutt, PW4 that recovery of the knife was first effected from the possession of the accused Naresh and thereafter the recovery of other weapons i.e. pistol and dandas was made. 11. Learned counsel has further argued that as per the statement of Randhir Singh, PW3, the Constable Chittar Parshad, who took ruqa to the police station, had returned at the spot, whereas according to SI Ravi Dutt, PW4, the said constable met the police party at Sohna turning while the police party was going back to the police station after completing investigations. He has also argued that neither ASI Randhir Singh, PW3 nor SI Ravi Dutt, PW4 has mentioned the registration number of the official vehicle that was used during the course of conducting the raid. 12. It has also been argued that the weapons of offence were not sealed into parcels before the same were seized and taken in the possession by the police. 13. Learned counsel has further stated that in the instant case, SI Ravi Dutt, PW4, challenged and overpowered the accused/appellant, therefore, the principle of natural justice required that the investigations should have been handed over to some other police official. 13. Learned counsel has further stated that in the instant case, SI Ravi Dutt, PW4, challenged and overpowered the accused/appellant, therefore, the principle of natural justice required that the investigations should have been handed over to some other police official. Lastly, it has been argued that at the time of occurrence, the appellants were in their prime youth and aged between 20-23 years. The learned Trial Court ought to have taken a lenient view with reformative approach while convicting the accused/appellants and sending them to the custody. 14. On the other hand, learned counsel for the State has argued that, the case of the prosecution is fully established. The accused were arrested with their respective weapons from the spot. He has further argued that there is no perversity in the impugned judgment. 15. I have heard the learned counsel for the parties and perused the record with their able assistance. 16. From the facts on record, it is established that no effort was made to involve any independent witness. It has also not been properly explained by the prosecution as to why the independent witness could not be joined when the police received prior information and in view of the fact that the police party remained present at the spot about four hours which is a busy road. In the circumstances, it is impossible to believe the version of the prosecution that while being present on the main road they did not come across even with a single person who could be joined as an independent witness. 17. From the evidence on record, it is apparent that there are material discrepancies in the statements of official witnesses. According to ASI Randhir Singh, PW3 and HC Sarv Sukh, PW5, the police party remained present at the site for about four hours, whereas as per the statement of SI Ravi Dutt, PW4, the police party remained present at the site for about one hour. Apart from this, there is another contradiction with regard to the sequence of the alleged recovery of weapons effected from the accused by the police. Apart from this, there is another contradiction with regard to the sequence of the alleged recovery of weapons effected from the accused by the police. According to ASI Randhir Singh, PW3, firstly, the recovery of pistol was effected from the possession of accused Kallu, thereafter, the recovery of self actuated knife was made from the accused/Naresh, whereas SI Ravi Dutt, PW4, has stated that firstly the knife was recovered from the possession of the accused/appellant Naresh and thereafter the recoveries of other weapons were effected from the other accused. There is further contradiction with regard to re-joining of Constable Chittar Parsahd with the police party after taking ruqa to the police station. As per statement of SI Ravi Dutt, PW4, it has come on record that Constable Chittar Parshad, who carried ruqa, had returned back at the spot, whereas acording to the statement of ASI Randhir Singh, PW3, the said constable met them at Sohna turning point while the police party was going back to the police station. 18. All the witnesses in the prosecution case are official witnesses and if these descriptions had come from a layman, perhaps in that eventuality, the same could have been ignored. However, in the instant case, the witnesses being official witnesses i.e. the police officials, as such contradictions noticed above fall in the category of material contradictions which are fatal to the prosecution case. 19. Surprisingly, the registration number of the official vehicle used by the raiding party has not come on record, which also goes against the prosecution. There is no report either of FSL or of Armour to the effect whether the alleged pistol recovered from the accused/appellant Kallu was in working condition, coupled with the fact that prior secret information was received by SI Ravi Dutt, PW4. In the circumstances, it is imperative upon SI Ravi Dutt, PW4, to reduce the said secret information into writing. There is nothing on record to prove conclusively that the accused/appellants formed an unlawful assembly for the purpose of making preparation for committing dacoity. In the circumstances, it is imperative upon SI Ravi Dutt, PW4, to reduce the said secret information into writing. There is nothing on record to prove conclusively that the accused/appellants formed an unlawful assembly for the purpose of making preparation for committing dacoity. Precision with which the description has been given by the prosecution needs to be examined with great care in view of the fact that SI Ravi Dutt, PW4, has himself made a generalised allegation with regard to the conversation of the accused that they were planning to loot after putting stones on the road does not seem to be probable and based on record. Honble the Supreme Court in Chaturi Yadav and others v. State of Bihar, 1979 (3) SCC 430 has observed as under :- 4. The courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being dearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court. It has also not come on record that what was the distance from where the conversation of the accused was allegedly heard by SI Ravi Dutt, PW4. Honble the Supreme Court in Suleman v. State of Delhi through Secretary, 1999 (2) RCR (Crl.) 377, has held as under :- "4. To prove why the five accused had assembled at Dharamshala of Sarup Nagar, the prosecution had mainly relied upon the evidence of P.W.2 who was the only witness who had gone near the Dharamshala and heard conversation amongst the accused. He was accompanied at that time by ASI- Bhagat Ram but the prosecution did not examine ASI - Bhagat Ram as a witness. P.W.2-Head Constable Chand Singh in his examination- in- chief did not depose anything about the conversation, he was declared hostile and permitted to be cross- examined by the learned public prosecutor. In crossexamination, he stated that the conversation which he had heard and reported to Sub-Inspector Om Prakash was about looting a petrol pump. According to this witness, he had remained near this Dharamshala for about 15 minutes. His further cross-examination on behalf of the accused discloses that when he had gone near the Dharmashala, it was dark as there was no light either inside or nearby. Dharamshala consisted of only one room and it had only one door and no window. He had stood outside that room and a little away from the door. His further cross-examination on behalf of the accused discloses that when he had gone near the Dharmashala, it was dark as there was no light either inside or nearby. Dharamshala consisted of only one room and it had only one door and no window. He had stood outside that room and a little away from the door. He had not told anything more than that five persons inside the Dharamshala were planning to rob a petrol pump that night. He had not narrated what they had spoken or discussed. It is also doubtful that they were speaking so loudly that their conversation could be heard outside. It is also surprising as to how he could have reported to S.I. - Om Prakash that two of them had pistols and remaining three had knives. As the evidence discloses, the weapons were kept concealed on heir persons and there was complete darkness inside this room. P.W. 2 had not even gone near the door. This would clearly indicate that P.W. 2 was not telling the truth when he stated that he had heard the accused talking about looting a petrol pump. It is, therefore, not possible to sustain the conviction of the appellants under Sections 399 and 402 IPC. Their conviction under Sections 399 and 402 IPC will have to be set aside." 5. But as regards possession of arms, the evidence of all the three witnesses is consistent. A revolver was found from Sadhu Ram, a pistol from Suleman and knives from the remaining three. The revolver carried by Sadhu Ram was found loaded with five live cartidges and the pistol of Suleman was found loaded with one live cartidge. The report of the Central Forensic Science Laboratory shows that the evolver was in working condition and all the five cartidges were live cartidges. The pistol was not in working order in the sense that firing mechanism was found defective. The cartidge found from it was a live cartidge. Live cartidge is an explosive within the meaning of Section 5 of the TADA Act. Therefore, even if evidence regarding possession of pistol by Suleman is ignored, his conviction under Section 5 can be sustained. We see no reason to doubt the evidence of PWs. 2, 3 and 6 regarding their having apprehended the appellants and seized from them the fire arms." 20. Therefore, even if evidence regarding possession of pistol by Suleman is ignored, his conviction under Section 5 can be sustained. We see no reason to doubt the evidence of PWs. 2, 3 and 6 regarding their having apprehended the appellants and seized from them the fire arms." 20. The appellants have been shown to be armed with dandas, therefore, it is difficult to comprehend that if the accused/appellants had planned and assembled to commit dacoity, they would be carrying dandas only. The requirement of independent witness may not be based upon rule of law but the said requirement is certainly based upon rule of prudence particularly in the cases where there is prior information. In the instant case, there was sufficient opportunity with the raiding party to join an independent witness. The same was not done. The statements of the prosecution witnesses are ridden with material contradictions. 21. SI Ravi Dutt, PW4, is the complainant as the secret information was received by him. In order to rule out any biasness, he ought not to have investigated the matter as there is apprehesion of imputation of subjectivity when one official is performing a dual role/duty at the sometime, the objectivity of the matter is lost. 21. In view of the above discussions, both the appeals are allowed. The judgment/order dated 28/30.3.2002 passed by the learned Trial Court is set aside. The appellants are stated to be on bail. Their bail bonds shall stand discharged.