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2011 DIGILAW 631 (PNJ)

Bagga Alias Bangu v. State Of Haryana

2011-02-23

KANWALJIT SINGH AHLUWALIA

body2011
Judgment Kanwaljit Singh, J. 1. By this common order, four appeals viz. (1) Criminal Appeal No.183-SB of 2003 preferred by Bagga alias Bangu; (2) Criminal Appeal No.221-SB of 2003 filed by Sukhdev Singh; (3) Criminal Appeal No.327-SB of 2003 preferred by Kashmir alias Seera and (4) Criminal Appeal No.488- SB of 2003 filed by Jassi alias Jaswinder Singh and Loveli alias Balwinder Singh shall be decided altogether. 2. All the above named five appellants were nominated as accused in a case FIR No.259 dated 04.12.2001 registered at Police Station Sadar Sirsa under Sections 399/402 IPC and Section 25 of the Arms Act, 1959 . The Court of Additional Sessions Judge, Sirsa vide its impugned judgment dated 8th January, 2003 held all the five appellants guilty of an offence punishable under Sections 399/402 IPC. The trial Court also found Jassi alias Jaswinder Singh and Loveli alias Balwinder Singh guilty of an offence punishable under Section 25 of the Arms Act, 1959 . Vide a separate order of even date, all the appellants were sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- each, in default of payment of fine to further undergo imprisonment for two years under Section 399 IPC. They were also sentenced under Section 402 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- each, in default of payment of fine to further undergo imprisonment for two years. Appellants Jassi alias Jaswinder Singh and Loveli alias Balwinder Singh alias Buta Singh were also sentenced under Section 25 of the Arms Act, 1959 to undergo rigorous imprisonment for a period of three years. All the substantive sentences of each accused were ordered to run concurrently. 3. The appellants have filed present four appeals assailing their conviction and sentence recorded by the Court below. 4. A police party headed by Inspector Jaipal Singh PW-8 on 4th December, 2001 was present at T-point Bhamboor in connection with detection of crime of robbery and dacoity. A secret information was received by Inspector Jaipal Singh PW-8 that accused Jassi, Lovely, Sukhdev Singh, Kashmir alias Seera and Bagga are making a plan to commit dacoity. 4. A police party headed by Inspector Jaipal Singh PW-8 on 4th December, 2001 was present at T-point Bhamboor in connection with detection of crime of robbery and dacoity. A secret information was received by Inspector Jaipal Singh PW-8 that accused Jassi, Lovely, Sukhdev Singh, Kashmir alias Seera and Bagga are making a plan to commit dacoity. The secret information further revealed that the accused are hatching a plan while sitting at a brick kiln in the area of village Mangla and in case an immediate raid is conducted at the brick kiln, the accused could be apprehended. On receipt of the information, Inspector Jaipal Singh PW-8 formed a raiding party and reached near the brick kiln. They parked their jeep on the road and went towards the brick kiln. Thereafter, the brick kiln was surrounded. Inspector Jaipal Singh PW-8 along with SI Punjab Singh and SI Bharat Singh stood adjacent to the Kotha and heard the accused saying that Kashmir Singh will flash a torch light to stop the vehicles and Jaswinder Singh will threaten the passengers with a pistol and thereafter, they will snatch the cash amount, and in case money is not handed over by the passengers, Bagga Singh will fire a shot from the air pistol. After hearing the plan, Inspector Jaipal Singh PW-8 announced that all the accused have been surrounded from all sides and they should surrender themselves before the police party. Thereafter, the police party apprehended all the accused at the spot. One torch (Battery) containing three cells was recovered from accused Kashmir Singh, a sketch whereof Ex.PD was prepared. One loaded pistol of .12 bore along with a live cartridge was recovered from accused Loveli. One .315 bore pistol along with a live cartridge was recovered from accused Jassi alias Jaswinder Singh. One air pistol was recovered from Bagga Singh and one Chhura (knife) was recovered from accused Sukhdev Singh. All the weapons were taken into possession vide separate memos and a ruqa Ex.PL was sent to the Police Station, on the basis of which formal FIR Ex.PL/1 was registered. The torch recovered has been proved as Ex.P1, pistol recovered from Loveli as Ex.P2, pistol recovered from accused Jassi alias Jaswinder Singh as Ex.P3, the air pistol recovered from accused Bagga Singh as Ex.P4 and the knife recovered from accused Sukhdev Singh as Ex.P5. 5. The torch recovered has been proved as Ex.P1, pistol recovered from Loveli as Ex.P2, pistol recovered from accused Jassi alias Jaswinder Singh as Ex.P3, the air pistol recovered from accused Bagga Singh as Ex.P4 and the knife recovered from accused Sukhdev Singh as Ex.P5. 5. SI Bharat Singh, appearing as PW-6, corroborated the version given by Inspector Jaipal Singh PW-8. He stated that on receipt of information, a raiding party was constituted. It was headed by Inspector Jaipal Singh PW-8. A raid of the brick kiln was conducted. This witness was standing along with Inspector Jaipal Singh PW-8 and he also overheard the conversation of the accused. He stated that from the conversation, it was apparent that the accused were planning to commit robbery on the road. He further stated that in his presence, recovery of the weapons and a torch was effected from the accused. 6. ASI Ranbir Singh PW-1 stated that on 23rd December, 2001 he was working as an In-charge of the Police Post Mallekana. He had partly investigated the case and had recorded statement of MHC Raja Ram and Constable Subhash Chander under Section 161 Cr.P.C. 7. Ved Parkash, Reader to the District Magistrate, Sirsa appeared as PW-2 and proved the sanction order Ex.PA passed by the District Magistrate, Sirsa under Section 39 of the Arms Act, 1959 , whereby permission was granted to prosecute Jassi alias Jaswinder Singh and Loveli alias Balwinder Singh for having weapons in their possession. 8. MHC Raja Ram PW-3 and Constable Subhash Chander PW-7 tendered their affidavits Ex.PB and Ex.PJ respectively to prove link evidence. 9. SI Sher Singh PW-4 had prepared a report under Section 173 Cr.P.C. Mohan Lal Draftsman PW-5 had proved scaled site plan Ex.PC of the spot, from where the accused were arrested and recovery was effected. 10. Mr. Rahul Vats, Advocate appearing on behalf of the appellants, has placed reliance upon Suleman v. State of Delhi through Secretary 1999(2) RCR (Criminal) 377 and Chaturi Yadav and others v. State of Bihar 1979 AIR (SC) 1412 to contend that the entire version, which has come in the evidence of Inspector Jaipal Singh PW-8 and SI Bharat Singh PW-6 is unnatural, improbable and unconvincing, and therefore, no reliance can be placed upon their testimonies. 11. Mr. 11. Mr. Anoop Sharma, Assistant Advocate General, Haryana has contended that even though no independent witness has been examined, the testimonies of Inspector Jaipal Singh PW-8 and SI Bharat Singh PW-6 aspire confidence. 12. I have given my thoughtful consideration to the rival submissions made by counsel for the parties. It has come in the evidence of Mohan Lal Draftsman PW-5 that the place of occurrence was about 450 feet away from the metalled road and no gate was affixed to the rooms and they opened towards the east. I have also perused the site plan Ex.PC, wherein it is stated that at point A the accused were holding the conversation and at point B Inspector Jaipal Singh PW-8 along with SI Punjab Singh and SI Bharat Singh was standing and they overheard the conversation of the accused. The site plan has not given the distance between point A and point B, however, it is stated therein that a scale of 1 feet = 25 feet has been applied. If that is so, the distance between point A and point B was considerable and it is doubtful that the witnesses will be able to overhear the conversation from such a distance. It is difficult to believe that the accused, who had assembled in a deserted brick kiln, were speaking so loudly that the police party could hear their conversation. It has come in the evidence of Mohan Lal Draftsman PW-5 that the rooms at the brick kiln had no doors, therefore, the accused were not required to speak so loudly so that others could hear their conversation. A secret information, in the present case, that accused are hatching a plan to commit robbery, was received by the police party and thereafter, it had proceeded to the spot. It is improbable that after the secret information was received till the police party reached at the spot, the accused were continuing to repeat their plan. It is also very improbable that at the very nick of the moment, when the police party reached at the spot, the accused started their conversation. 13. It has been held in Chaturi Yadavs case (supra) that merely because the accused had assembled armed with weapons is not sufficient to hold that they were planning to commit dacoity. It is also very improbable that at the very nick of the moment, when the police party reached at the spot, the accused started their conversation. 13. It has been held in Chaturi Yadavs case (supra) that merely because the accused had assembled armed with weapons is not sufficient to hold that they were planning to commit dacoity. A similar view has been taken by the Patna High Court in Gholtu Modi and others v. State of Bihar 1986 Cri.L.J. 1031. Thus, in view of the observations made above, this Court is not in a position to uphold the conviction of the appellants under Sections 399 and 402 IPC. Hence, conviction recorded and the sentence awarded upon the appellants by the trial Court on these counts is set aside and they are hereby acquitted of the charges. 14. Appellants Jassi alias Jaswinder Singh and Loveli alias Balwinder Singh have also been convicted under Section 25 of the Arms Act, 1959 and a sentence of three years rigorous imprisonment has been awarded to them on this count. Weapons have been recovered from the custody of these two appellants. Therefore, their conviction under Section 25 of the Act is upheld. However, occurrence, in the present case, pertains to the year 2001. A period of more than nine years has elapsed. Appellants have suffered mental pain and agony of a protracted trial. Accordingly, sentence awarded to Jassi alias Jaswinder Singh and Loveli alias Balwinder Singh under Section 25 of the Act is reduced from three years to one year rigorous imprisonment. However, sentence of fine and default clause on this count are maintained. 15. In terms of what has been stated above, present appeals are disposed of.