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2011 DIGILAW 1897 (PNJ)

Daini Bhati v. State of Haryana

2011-10-19

NARESH KUMAR SANGHI, RAJIVE BHALLA

body2011
JUDGMENT Mr. Naresh Kumar Sanghi, J.: - Vide judgment dated 21.7.2005, learned Additional Sessions Judge (I), Faridabad, had convicted and sentenced Daini Bhati, Arvind Kumar alias Doctor and Baleshwar alias Ajay under the various provisions of Indian Penal Code as mentioned below:- ------------------------------------------------------------------------------------------------------------------------------------ Section Substantive Fine Sentence in Sentence default of payment of fine ------------------------------------------------------------------------------------------------------------------------------------ 394 read with RI for ten years Rs.10,000/- RI for two and a Section 397 IPC half year. ------------------------------------------------------------------------------------------------------------------------------------ 302/34 IPC RI for life Rs.20,000/- RI for three years ------------------------------------------------------------------------------------------------------------------------------------ 307/34 IPC RI for 10 years Rs.10,000/- RI for two and a half year ------------------------------------------------------------------------------------------------------------------------------------ 459 IPC RI for 10 years Rs.10,000/- RI for two and a half years ------------------------------------------------------------------------------------------------------------------------------------ 460 IPC RI for life Rs.20,000/- RI for three years ------------------------------------------------------------------------------------------------------------------------------------ 2. In addition to the above, appellants Baleshwar alias Ajay and Arvind Kumar alias Doctor were further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.3000/- each for the offence under Section 25 of the Arms Act. In default of payment of fine, the defaulting appellant was ordered to undergo further rigorous imprisonment for three months. 3. All the sentences were ordered to run concurrently. 4. Learned trial Court also ordered that on recovery of the fine, 75% shall be paid in equal shares to the legal representatives of the deceased, namely, Ashok Madan and Radhey Lal whereas the remaining 25% would be paid in equal shares to the injured, namely, Jitender and Durga Parshad. 5. Daini Bhati has filed Criminal Appeal No. 546-DB of 2005 while Arvind Kumar alias Doctor and Baleshwar alias Ajay have filed Criminal Appeal No. 665-DB of 2005. Both these appeals arise out of one and the same judgment, they are being decided by this common judgment. 6. Briefly stated the facts of the case are that Ashok Madan (since deceased) was running a wholesale cigarette shop in Chawla Colony, Ballabhgarh, District Faridabad. Radhey Lal (since deceased), Jitender(PW3) and Durga Parshad(PW7) were also working at the said shop of Ashok Madan. 7. On 1.7.2003 at about 7.30 P.M., Ashok Madan with the assistance of Jitender, Durga Parshad and Radhey Lal was counting the sale proceeds of that day. In the meantime, four persons with muffled faces, armed with knives and country made pistols, entered the shop. 7. On 1.7.2003 at about 7.30 P.M., Ashok Madan with the assistance of Jitender, Durga Parshad and Radhey Lal was counting the sale proceeds of that day. In the meantime, four persons with muffled faces, armed with knives and country made pistols, entered the shop. One of the intruders brought down the shutter of the shop from inside while another inflicted a blow with the butt of the country made pistol on the mouth of Jitender (PW3), who fell down. The assailants started inflicting injuries with knives to Jitender and his co-employees. The assailants dragged all the above said three persons to a cabin where Ashok Madan was sitting. Ashok Madan was also assaulted with knives by the assailants. Ashok Madan and Radhey Lal were tied and caused several injuries. One of the assailants picked up the bag containing the cash and tried to run away. The three employees, named above, tried to stop the assailants with a view to save the money and during that exercise, the mask of one of the assailants slipped down. The assailants also caused injuries to the employees, threatened them with dire consequences of death in the event of their raising an alarm and ran away with the bag containing the cash. Ashok Madan and Radhey Lal breathed their last on account of the injuries received by them at the hands of the assailants. Jitender (PW3) informed his maternal uncle, Ved Parkash alias Bittu, who was residing in the vicinity of the shop of Ashok Madan who informed the police and shifted the injured to the hospital. Police reached the hospital and recorded the statement of Jitender (Ex.PC), on the basis of which formal FIR (Ex.PC/2) was recorded. 8. Appellant Daini Bhati was arrested on 1.8.2003, while remaining appellants were arrested on 2.8.2003. During the course of investigation, the appellants suffered disclosure statements on the basis of which, Rs.1,00,000/- were recovered from each of them. In addition to the above, one pistol and two live cartridges were recovered from Baleshwar alias Ajay appellant, pants, pistol and two live cartridges from appellant Arvind Kumar alais Doctor; and a Reebok bag, one pair of shoes and a motor cycle used for the commission of the crime from appellant Daini Bhati. After completing the investigation, report under Section 173 Cr.P.C. was submitted against the appellants. 9. The case was committed to the Court of Session. After completing the investigation, report under Section 173 Cr.P.C. was submitted against the appellants. 9. The case was committed to the Court of Session. Charges were framed and to substantiate its allegations, the prosecution examined the following witnesses:- PW1 HC Rajender Singh- In his presence, appellant Daini Bhati suffered disclosure statement Ex PA; PW2 Jan Mohd- He brought the packets containing the clothes of the deceased from the hospital after postmortem examination and produced the same before Sub Inspector, Ashok Kumar; PW3 Jitender, complainant- He received injuries at the hands of the assailants and witnessed the occurrence. PW4 Dr. O.P. Sethi- He alongwith two other doctors conducted the post-mortem exmintions on the dead bodies of Ashok Madan and Radhey Lal; PW5 ASI Vijay Pal- He on receipt of the statement (Ex.PC), recorded the formal FIR (Ex.PC/2) and sent the special report to the Area Magistrate; PW6 Harsh Kumar- He on hearing of the incident, reached the spot and identified the dead bodies. On 1.8.2003, appellant Daini Bhati suffered extra-judicial confession before him. PW7 Durga Bahadur- He is an employee of the shop. He suffered injuries at the hands of the appellants and witnessed the whole incident. PW8 ASI Ashok Kumar - He recorded the statement (Ex.PC) of Jitender PW and forwarded the same to the police station for registration of the FIR and also investigated the case; PW9 Constable Satish Kumar- He delivered the special report at the residence of the Area Magistrate; PW10 ASI Nand Ram- In his presence, on 3.8.2003, appellants Baleshwar alias Ajay and Arvind Kaman alias Doctor suffered their disclosure statements and on 5.8.2003 their supplementary disclosure statements, and got effected the recoveries; PW11 Inspector Ram Niwas- He being the Investigating Officer, recorded the disclosure statements of the appellants and effected the recoveries; PW12 HC Hitender Kumar - He inspected the two country made pistols of .315 bore and tested the live cartridges, allegedly got recovered from the appellants; PW13 SI Vishnu Dutt- He on completion of the investigation, submitted the report under Section 173 Cr.P.C.; PW14 Manpreet Singh- He was auto-rickshaw driver and had brought the cash amount to the shop of Ashok Madan prior to the occurrence. He remained associated with the police during the investigation of the case; PW15 Constable Sarwan Kumar- A draftsman who prepared the scaled site plan (Ex.PV) of the place of incident. He remained associated with the police during the investigation of the case; PW15 Constable Sarwan Kumar- A draftsman who prepared the scaled site plan (Ex.PV) of the place of incident. PW16 Mahesh Sharma- He was Reader to District Magistrate, Faridabad, who identified the signatures of the District Magistrate on the sanction order whereby sanction to prosecute the appellants under Section 25 of the Arms Act was accorded; PW17 Gopi Chand- A photographer who took the snaps of the place of occurrence; PW18 Shri Chander Bhan Sheoran, Additional Chief Judicial Magistrate, Faridabad- The appellants refused to join the test identification parade and hence their statements were recorded by this witness; PW19 Dr. A.K. Gupta- He medico-legally examined Durga Bahadur (PW-7) and Jitender (PW-3). PW20 Ved Parkash alias Bittu- Appellants Baleshwar alias Ajay and Arvind Kumar alias Doctor confessed their guilt before him and, in turn, he produced both of them before Inspector Ram Niwas on 2.8.2003. The appellants also suffered disclosure statements in his presence. 10. Learned Public Prosecutor tendered in evidence the report of Forensic Science Laboratory (Ex.PDD), and that of Serologist (Ex.PEE) and closed evidence for the prosecution. 11. The incriminating evidence was put to the appellants in terms of Section 313 Cr.P.C. Daini Bhati denied the allegations and said that the police had detained him un-lawfully and forced his friends and relatives to bring the money so as to coin the disclosure statements and plant the false recovery with a view to lend support to the false case. The remaining appellants totally denied the allegations levelled against them and pleaded false implication. 12. In defence, the following witnesses were examined:- DW1 Jagdish Bhati- He was real uncle of Daini Bhati, who inter-alia, deposed that on 30.07.2003, police had called Daini Bhati and detained him. On 1.8.2003, when an application was moved before the learned Judicial Magistrate, Faridabad, Inspector Ram Niwas assured to release him and demanded Rs.1,00,000/-. He also deposed about his contribution of Rs.25,000/- and borrowing of equal amount from Gautam, Rs.20,000/- from Suresh Pal and Rs.30,000/- from Satbir. He also deposed that the said amount of Rs.1,00,000/- was handed over to Inspector Ram Niwas on 5.8.2003 and the same was later on shown to have been recovered from Daini Bhati. DW-2 Suresh Pal- He, inter alia, deposed that uncle of Daini Bhati had borrowed Rs.20,000/- from him on 3.8.2003. He also deposed that the said amount of Rs.1,00,000/- was handed over to Inspector Ram Niwas on 5.8.2003 and the same was later on shown to have been recovered from Daini Bhati. DW-2 Suresh Pal- He, inter alia, deposed that uncle of Daini Bhati had borrowed Rs.20,000/- from him on 3.8.2003. DW3 Gautam- He deposed to the effect that Jagdish Bhati (DW1) had taken Rs.25,000/- from him. DW4-Satbir - He deposed about the payment of Rs. 30,000/- to Jagdish Bhati on 2.8.2003. 13. We have heard learned counsel for the parties and perused the record with their assistance. 14. Mr. K.D.S. Hooda, learned counsel for the appellants, argued that the appellants were not previously known to the witnesses and as no test identification parade was ever conducted, the prosecution has failed to bring on record any evidence to prove as to how the identity of the appellants was established. He further argued that the recovery of fire arms and the live cartridges would not connect the appellants with the alleged crime as no fire arm injury was found on the person of the deceased or the injured, PW-3 Jitender and PW-7 Durga Bahadur. 15. It was also submitted that the alleged recovery of the cash amount from the appellants could not connect them with the crime. While elaborating his submissions, it was submitted that the police had called Daini Bhati on 30.7.2003 and, thereafter, never released him. The family members of appellant Daini Bhati were called to the police station by Inspector Ram Niwas (PW-11) who induced them to arrange for Rs.1,00,000/- in lieu of release of Daini Bhati. To support his submission, learned counsel has referred to the statements of DW1- Jagdish Bhati, DW2-Suresh Pal, DW3- Gautam and DW-4 Satbir. All the defence witnesses, inter-alia, deposed that the money was arranged and handed over to Jagdish Bhati for passing on the same to the police. 16. Learned counsel for the appellants has stressed that there was huge delay in recording the statements; special report was delivered to the Area Magistrate after a considerable delay; and the names of Baleshwar alias Ajay appellant was not mentioned in the FIR in spite of the fact that he was previously known to PW-3 Jitender and PW-7 Durga Bahadur. 16. Learned counsel for the appellants has stressed that there was huge delay in recording the statements; special report was delivered to the Area Magistrate after a considerable delay; and the names of Baleshwar alias Ajay appellant was not mentioned in the FIR in spite of the fact that he was previously known to PW-3 Jitender and PW-7 Durga Bahadur. It was also submitted that most of the witnesses joined in the investigation were interested in the success of the prosecution version and in spite of the availability, no independent persons were joined to witness the disclosure statements suffered by the appellants and the recoveries effected at their behest. He also argued that the appellants would not suffer extra-judicial confession before unknown persons and that too after gap of a month. On the strength of the above, learned counsel for the appellants has prayed for the acceptance of the appeal and acquittal of the appellants. 17. On the other hand, Mr. S.S. Randhawa, learned Additional Advocate General, Haryana, has controverted the submissions made by learned counsel for the appellants and submitted that the test identification parade for establishing the identity of the appellants was to be arranged by the Investigating Agency but the appellants refused to joint it. To support his submissions, he has referred to the statement of Shri Chander Bhan Sheoran, learned Additional Chief Judicial Magistrate, Faridabad (PW-18) who had deposed that on 1.8.2003, Inspector Ram Niwas had moved an application (Ex.PY) for conducting the identification parade of appellant Daini Bhati who was produced before him in muffled face but he (Daini Bhati) refused to join the test identification parade, vide his statement Ex.PY/1. It was also deposed by the learned Magistrate that application (Ex.PZ) was presented before him for holding test identification parade in respect of the appellants Baleshwar and Arvind Kumar. They also refused to join the test identification parade by making their statements (Ex.PZ/1) and (Ex.PZ/2) respectively. In the cross examination, learned Magistrate answered to a question put to him that he warned the aforesaid appellants that their refusal to join the identification parade might lead to an inference being drawn against them, though the said fact was not mentioned in the order passed by him in that regard. In the cross examination, learned Magistrate answered to a question put to him that he warned the aforesaid appellants that their refusal to join the identification parade might lead to an inference being drawn against them, though the said fact was not mentioned in the order passed by him in that regard. Therefore, the court should presume that if the appellants would have joined test identification parade, then they must have been identified as the assailants by the witnesses. It was also submitted that Baleshwar alias Ajay appellant had worked at the shop of Ashok Madan prior to the alleged incident and hence he was previously known to Jitender PW-3 and Durga Bahadur PW-7. Though, the appellants had muffled their faces by pieces of clothes at the time of incident but the cover from the face of Baleshwar alias Ajay had slipped during the course of incident. Moreover, the appellant Daini Bhati voluntarily confessed his guilt before Harsh Kumar (PW-6) while the remaining two appellants confessed before Ved Parkash alias Bittu (PW-20) and the said witnesses produced the appellants before the police. Hence, there was no anomaly so far as the identification of the appellants is concerned. 18. Learned counsel for the State further argued that from the very inception, it is the case of the prosecution that the assailants were carrying knives and country made pistols while making entry into the shop. One of the assailants had used the butt of the pistol for causing injuries on the mouth of Jitender (PW3) and, thereafter, the knives were used to cause injuries to Ashok Madan, Radhey Lal, Durga Bahadur and Jitender. The recovery of pistol, two live cartridges and a broken knife from Baleshwar alias Ajay appellant coupled with the recoveries of cash amount of Rs.1,00,000/- from him would clinch the matter. Recovery of Rs.1,00,000/-, a pistol, two live cartridges and a pant at the behest of appellant Arvind Kumar alias Doctor would further establish his involvement in the alleged incident. Recovery of Reebok bag, a pair of shoes, motor cycle and Rs.1,00,000/- from Daini Bhati appellant would clearly establish his involvement in the crime. 19. Learned State counsel further argued that the incident had taken place at about 7.30 P.M. in which two lives were lost while two others were seriously injured. Recovery of Reebok bag, a pair of shoes, motor cycle and Rs.1,00,000/- from Daini Bhati appellant would clearly establish his involvement in the crime. 19. Learned State counsel further argued that the incident had taken place at about 7.30 P.M. in which two lives were lost while two others were seriously injured. In such a situation, everyone must be in a hurry to first save the lives of the injured persons and anxiety was to shift the injured to the hospital. The injured themselves were under severe shock, therefore, in such a situation, it was not expected that they would wait for the police to come to the spot and record their statement prior to medical aid. The injured Jitender and Durga Bahadur were shifted to the hospital at Faridabad and after receiving information about their arrival; the police went to the hospital and recorded the statement (Ex.PC) of PW-3 Jitender without any delay and the same was sent to the police station on the basis of which formal FIR (Ex.PC/2) was registered. After completing the formalities, the copies thereof were sent to the Area Magistrate and other officials. The copy of the FIR was delivered at the residence of the Area Magistrate at 6.30 A.M. on 2.7.2003, which was at a distance of about seven kilometers from the police station and hence the appellants cannot derive any benefit from the said circumstance. 20. Mr. Randhawa, learned Additional Advocate General, further argued that absence of the name of Baleshwar alias Ajay or his co-appellants in the FIR would not cause any dent to the prosecution version because appellants Daini Bhati and Arvind Kumar alias Doctor were not previously known to the witnesses whereas appellant Baleshwar alias Ajay had covered his face with a piece of cloth at the time of incident. No doubt, the said cloth had slipped from his face after causing of injuries on the person of Jitender (PW3) and as such he was under severe pain and agony. It was not expected from him to narrate the minute details of the occurrence immediately after the occurrence. 21. No doubt, the said cloth had slipped from his face after causing of injuries on the person of Jitender (PW3) and as such he was under severe pain and agony. It was not expected from him to narrate the minute details of the occurrence immediately after the occurrence. 21. It was also submitted that the deposition of Harsh Kumar (PW6) before whom Daini Bhati confessed his guilt and the statement of Ved Parkash alias Bittu (PW20) in whose presence Baleshwar alias Ajay and Arvind Kumar alias Doctor appellants admitted their guilt, could not be shattered by the defence and hence the said piece of evidence would strengthen the case of the prosecution. 22. In the end, learned State counsel submitted that the chain of events coupled with the version emerging from the mouths of injured witnesses would clearly establish the guilt of the appellants and they have rightly been convicted and sentenced by the learned trial Court. 23. From the rival contention, it has emerged that the test identification parade in the case of robbery/dacoity is a vital issue. If the identity of the appellants is not established then positively their conviction would be bad. The submission made by the learned counsel for the appellants prima facie appears to be attractive but factually incorrrect. The deposition of PW-3 Jitender and PW-7 Durga Bahadur to the extent that Baleshwar alias Ajay had worked on the shop belonging to Ashok Madan prior to the alleged occurrence has not been shattered. It has come in the evidence that during the course of the incident, the piece of cloth by which Baleshwar alias Ajay had covered his face, slipped and Jitender-PW3 and Durga Bahadur-PW7 had identified him. Both the injured, namely, Jitender- PW3 and Durga Bahadur-PW7 had correctly identified the three assailants in Court. The refusal on the part of the appellants without reasonable explanation, to participate in the test identification parade which was to be arranged by the investigating officer would further lead the Court to draw a presumption against them, particularly when the learned Additional Chief Judicial Magistrate cautioned them that their refusal to participate in the test-identification parade could be used against them. The extra judicial confession suffered by the three appellants would be discussed at a later stage of this judgment but when the three appellants had admitted their guilt before Harsh Kamar (PW6) and Ved Parkash alias Bittu (PW20), the same has ruled out false implication of any of the appellants. It is apposite to mention that appellant Daini Bhati had confessed his guilt on 1.8.2003 before Harsh Kumar(PW6) who produced him before the police. Likewise appellants Arvind Kumar alias Doctor and Baleshwar alias Ajay confessed their guilt before Ved Parkash alias Bittu (PW- 20) on 2.8.2003 and, thereafter, he produced both of them before Inspector Ram Niwas, who arrested them. From the above circumstances, it can be concluded that the identity of the appellants was well established and they cannot derive any benefit so far as this circumstance is concerned. 24. So far as the submission raised by the learned counsel for the appellants with regard to the recoveries of broken knife, pistols and live cartridges is concerned, the same does not find favour with us to hold that the recoveries of the above articles would not connect the appellants with the alleged crime. The injuries found by the doctors on the two injured persons and two dead bodies of Ashok Madan and Radhey Lal would clearly show that knives were used for causing the injuries. There is every possibility that Jitender (PW3) had received the injury on his mouth by means of butt of the pistol. At the very inception, the prosecution witnesses had brought this fact to the notice of the authorities that the appellants were carrying pistols and knives when they entered the shop. Therefore, the recoveries of pistols and the piece of knife can very well be construed as a circumstance against Baleshwar alias Ajay and Arvind Kumar alias Doctor appellants. In addition, a pants and Rs.1,00,000/- were also recovered from appellant Arvind Kumar alias Doctor. No explanation has come forward from him as to how he came in possession of such a huge amount. No doubt, the identity of the currency note cannot possibly be established without any special features, but in the case in hand, Durga Bahadur PW-7 has very clearly deposed that wads of the currency notes were prepared and, thereafter, those were stamped. No doubt, the identity of the currency note cannot possibly be established without any special features, but in the case in hand, Durga Bahadur PW-7 has very clearly deposed that wads of the currency notes were prepared and, thereafter, those were stamped. During the course of his statement before learned trial Court, the witness had identified not only the bag, in which the currency was kept, but also the wads of the currency notes, duly stamped, which were taken away by the appellants. Therefore, the recovery of those articles from Arvind Kumar alias Doctor would further strengthen the submission of the learned counsel for the State. Likewise, recovery of Rs.1,00,000/- at the behest of Baleshwar allias Ajay appellant would make us to believe that the other articles like pistol, two live cartridges and a broken knife were got recovered by Baleshwar alias Ajay appellant. So far as, appellant Daini Bhati is concerned, he got recovered a Reebok bag, a pair of shoes, one motor cycle, in addition to Rs.1,00,000/- in cash. It is apposite to mention that the shoes so recovered were smeared with human blood. There is no good reason to disbelieve the recoveries so effected from appellant Daini Bhati. The defence of the appellant Daini Bhati that Rs.1,00,000/- were collected from different relatives and friends to pay the same to the Investigating Officer for his release from the custody of the police, appears to be an after thought. Therefore, the circumstance of recovery of the said articles from Daini Bhati can be used against him. 25. It is relevant to mention that the recovery of the huge cash amount from the three appellants would impel the Court to raise a presumption as enshrined under Section 114 of the Indian Evidence Act particularly when no credible explanation is coming from the appellants as to how the said incriminating articles came into their respective possession after the occurrence. To affirm the above view this Court finds support from a judgment of the Hon’ble Apex Court in Mukund alias Kundu Mishra and another Vs. State of M.P., (1997) 10 Supreme Court Cases 130, wherein it was held that a Court may legitimately draw the presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. State of M.P., (1997) 10 Supreme Court Cases 130, wherein it was held that a Court may legitimately draw the presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. Reference can also be made to the judgment in Gulab Chand Vs. State of M.P., (1995) 3 SCC 574, where the Hon’ble Apex Court had held that in case the appellant was not affluent enough to possess the ornaments and from the recovery of the said articles from his possession and his dealing in ornaments of the deceased immediately after the murder and robbery, a reasonable inference of the commission of the said offence could be drawn. 26. So far as the circumstances of the alleged delay in reporting the matter to the police and late delivery of the copy of the FIR to the Area Magistrate are concerned, we are not convinced with the arguments raised by the learned counsel for the appellants. The occurrence is alleged to have taken place at about 7.30 P.M. on 1.7.2003, wherein two persons were murdered and two persons received serious injuries. After the occurrence, both the injured, PW3- Jitender and PW7-Durga Bahadur, were shifted to Escort Hospital at Faridabad from Ballabhgarh. The doctor informed the police about their arrival and ASI Ashok Kumar rushed to the hospital at 10.00 P.M. and completed the recording of the statement (Ex.PC) of Jitender (PW3) at 10.30 P.M. Thereafter, the said statement was sent to the police station, on the basis of which formal FIR( Ex.PC/2) was registered and, thereafter, copies thereof were sent to the officials including the Area Magistrate. No doubt, the residence of the Area Magistrate was at a distance of seven kilometers from the police station and the copy of the FIR could be delivered at an early stage but the slackness on the part of the police constable in delivering the copy of the FIR a little late would not create a dent in the prosecution case, particularly when no prejudice has been caused to the appellants. We do not have any cogent reason to discard the evidence of PW-6 Harsh Kumar and PW-20 Ved Parkash alias Bittu with regard to the admission of the guilt by the appellants before them. We do not have any cogent reason to discard the evidence of PW-6 Harsh Kumar and PW-20 Ved Parkash alias Bittu with regard to the admission of the guilt by the appellants before them. Their evidence is in consonance with the evidence of Inspector Ram Niwas, the Investigating Officer of this case. 27. In view of the above, we have no hesitation to hold that the learned trial Court rightly convicted and sentenced the appellants. Resultantly, the decision of the learned trial court is upheld and both the appeals are dismissed. ----------