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2011 DIGILAW 1627 (PNJ)

Sarjiwan Lal v. State of Punjab

2011-08-24

A.N.JINDAL

body2011
JUDGMENT Mr. A.N. Jindal, J.:- This judgment of mine shall dispose of four connected criminal appeal Nos. 112, 167, 264 and 625-SB of 2003, having arisen out of the same judgment dated 7.1.2003 passed by the learned Additional Sessions Judge (Fast Track Court), Patiala, and as such are being decided together. However, for convenience, the facts necessary for disposal of these appeals, are taken up from Criminal Appeal No. 112-SB of 2003. 2. In nutshell, the allegations are that on 4.3.2000, at about 10.30 p.m., the accused-appellants (herein referred as, ‘the accused’) were making preparation to commit dacoity. On the aforesaid secret information received by SI Paramjit Singh, he along with other police officials raided the M.B.S. Factory as disclosed by the informant and arrested, Sarjiwan Lal, Bhupinder Singh, Ramesh Mahanto and Rakesh Kumar. Besides house hold articles Ex.P1 to Ex.P92, two trucks bearing registration No. PB12B- 9753 and HRX 1653, one air gun Ex.P93, one gandasi Ex.P94, one kirpan Ex.P95 and one iron rod Ex.P96 were recovered. The Investigating Officer sent ruqa to the police station on the basis of which FIR was registered. The accused were arrested and on completion of the investigation challan against them was presented in the Court. 3. On commitment, the accused were charged under Section 402 IPC to which they pleaded not guilty and claimed trial. 4. The prosecution in order to substantiate the charges examined ASI Ajaib Singh (PW1), Paramjit Singh (PW2), Surjan Singh (PW3), Harbhajan Singh (PW4) and MHC Surinder Singh (PW5). 5. 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. In defence, they examined Bachan Singh (DW1), Kimti Lal (DW2) and HC Satinder Pal Singh (DW3). The trial resulted into conviction. Arguments heard. Record perused. 6. As regards the accused Ram Dhari, no doubt, secret information was received against him as well as the other accused, but he was not arrested at the spot and no recovery was effected from him. He was arrested only on the intervening night of 6/7.6.2000. There is no evidence on the record to show as to how he is connected with the commission of the crime when he was not arrested at the spot nor he is shown to have been absconding from the spot. His assembly with the accused is also doubtful. He was arrested only on the intervening night of 6/7.6.2000. There is no evidence on the record to show as to how he is connected with the commission of the crime when he was not arrested at the spot nor he is shown to have been absconding from the spot. His assembly with the accused is also doubtful. His arrest on mere suspicion, in the absence of any evidence, is hardly of any consequence and is not sufficient to prove his complicity in the commission of the crime. 7. As regards the other accused, they were not found armed at the time when they were arrested. No evidence has been led as to if some body had heard them making preparations for dacoity. No independent witness was associated despite their availability at the time of arresting them and effecting recovery. Reliance in this regard could be placed on the judgment delivered in case State of Punjab v. Ram Chand 2001 (1) RCR (Criminal) (DB) (P&H), in this case, 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 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, from a place located in a busy locality. Under these circumstances, prosecution case was doubted. 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, the court had observed that, the prosecution had failed to establish the charge against the accused beyond reasonable doubt. 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 nonjoining of an independent witness, despite availability, at the time of the alleged raid, therefore, while upsetting the trial court judgment, acquitted the accused. 8. 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 nonjoining of an independent witness, despite availability, at the time of the alleged raid, therefore, while upsetting the trial court judgment, acquitted the accused. 8. No doubt, in this case, four persons were arrested at the spot and some of them are said to have run away, but their mere presence is hardly an evidence that they had assembled there for making preparations to commit dacoity. Similar observations were made by the Apex Court in case Gholtu Modi etc. vs. State of Bihar, 1986 Crl. L.J. 1031. In that case also some persons were found with weapons in a house at night which was under construction. In those circumstances, it was held that mere presence with weapons, at that place, at night, was not, by itself, sufficient to prove that they had assembled there, for the purpose of making preparation to commit dacoity. In Brijlal Mandal and others v. State of Bihar 1978, Criminal Law Journal, 877, the appellants were found sitting in the waiting hall of railway station, armed with various types of weapons. They were apprehended, but there was no proof, that they had assembled for making preparation, to commit dacoity and no other offence. In these circumstances, it was held that they did not commit the offence punishable under Sections 399 and 402 IPC. Ultimately, they were acquitted. 9. The facts of the aforesaid cases are quite identical with the facts of the case in hand. In the absence of any overt act or even in the absence of such evidence that they had assembled for making preparation for dacoity, they could not be convicted for the offence under Section 402 IPC. 10. Having scrutinized the impugned judgment, it transpires that the same is based on mis-appreciation of evidence, and the law point involved in the case, consequently, the judgment has been rendered as invalid warranting interference by this Court. 11. For the foregoing reasons, I hereby accept the appeals, set aside the impugned judgment, acquit the accused persons of the charges framed against them and direct that they be set at liberty forthwith. Bail bonds and surety bonds furnished by them stand discharged. Fine, if any deposited by them, be refunded.