Baldev Singh vs State of Haryana

Ujagar Singh, J.

These five Criminal Appeals, i.e. Cr. Appeals No. 283SB/1985, 341SB/1985, 342SB/1985, 343SB/1985, and 344SB/1985 have been filed by Baldev Singh, Jaimal Singh, Sukhbir Singh, Avtar Singh and Balbir Singh respectively and as these arise out of the same trial and judgment, the same are being disposed of by this judgement.

All the appellants have been convicted under Section 402 of the Indian Penal Code (briefly the Code) and Section 25 of the Arms Act (the Act in short) and sentenced to rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 550/ each or in default of payment of fine, to further undergo rigorous imprisonment for 6 months under Section 402 of the Code and to undergo R.I. for 3 months; R.I. for 2 years and a fine of Rs. 500/ and in default of payment of fine, further R.I. for 6 months; undergo R.I. for 11/2 years and a fine of Rs. 300/ and in default of payment of fine to further undergo R.I. for 4 months; to undergo R.I. for 1 year and to pay a fine of Rs. 100/ and in default of payment of fine, to further undergo R.I. for a month and to undergo R.I. for a 11/2 years and a fine of Rs. 300/ or in default of payment of fine, to undergo R.I. for 3 months respectively. The rifle DBBL gun, khokhari, pistol, cartridges and the spear recovered from the possession of the appellants have been directed to be forfeited to the State and to be disposed of after the expiry of appeal or revision. Vide judgment of the trial Court, 6 cases, i.e. case First Information Report 252 dated 1.10.1984, under sections 399/402 of the Code, Police Station Shahbad, District Kurukshetra against all the 5 appellants; case FIR 253 dated 2.10.1984, under section 25 of the Arms Act, Police Station Shahbad, against Jaimal Singh appellant; case FIR 254 dated 2.10.1984, under Section 25 of the Act, Police Station, Shahbad against Sukhbir Singh appellant; case FIR 255 dated 2.10.1984, under section 25 of the Act, Police Station Shahbad against Avtar Singh appellant; case FIR 256 dated 2.10.1984, under Section 25 of the Act of Police Station Shahbad against Balbir Singh accused and case FIR 257 dated 2.10.1984 under Section 25 of the Act of Police Station Shahbad against Baldev Singh accused were disposed of. The main case out of which all the 6 cases arise is that on FIR 252 dated 1.10.1984 all the five appellants were found sitting in a deserted kothi in the area of village Deegh where they were sitting for committing a dacoity after having made preparations.

A raid was conducted by the Police in company of Yog Raj and karnail Singh, prosecution witnesses. While they were going towards the said place, Deputy Superintendent of Police Ved Prakash met them along with other Police Officials and he was apprised of the situation and thereon he accompanied the Police party. Inspector Amar Singh asked the accompanying Police constables to surround the Kothi from all sides and he, along with Deputy Superintendent of Police Ved Parkash, 3 SubInspectors, 1 ASI and Yog Raj and Karnail Singh, PWs went to the first floor and there they found all the five appellants presents. Earlier Inspector Amar Singh gave a Lalkara to all the persons present therein not to move and told them that whosoever made an attempt to move would be shot dead. All the five appellants were apprehended at the spot. Their persons were searched and the following recoveries were made from each of them :

Jaimal Singh

(i) Rifle Ex. P1 from his right hand.

(ii) Bag Ex. P2 from his right shoulder containing 165 live cartridge Ex. P3 to P167.

(iii) Magazine Ex. P1 68 from the pockets of his pant.

Sukhbir Singh

(i) One DBBL.12 gun Ex. P169 from his right hand.

(ii) Bag Ex. P170 from his shoulder containing 30 live cartridges Ex. P171 to P200.

Baldev Singh

Spear Ex. P201 from his right hand.

Balbir Singh

(i) One countrymade pistol Ex. P202 loaded with a cartridge.

(ii) Three live cartridges Ex. P203 to P205 from his pocket.

(iii) Cartridges Ex. P206 taken out of the pistol.

Avtar Singh

Khokhri Ex. P207 kept underneath his shirt.

Rifle and remaining articles recovered from Jaimal Singh were sealed into two separate parcels. Seal after use was handed over to Yog Raj PW 5 and remaining articles recovered were also similarly sealed vide separate parcels. Apart from this recovery from each of the appellants, about 135 articles more were found in the room from where the appellants were apprehended and the same were also taken into possession under Section 02 of the Code of Criminal Procedure vide separate recovery memo. Thereafter, against each of the appellants a separate case under Section 25 of the Arms Act was registered as indicated in the beginning of this judgment. Thus, the main case under Sections 399/402, IPC along with five cases under section 25 of the Arms Act were submitted before the Ilaqua Magistrate and the same were committed for trial before the Session Court and ultimately entrusted to Additional Sessions Judge (III) Kurukshetra. All the six cases were tried together.

During the trial, the prosecution examined PW 1 AC, Maya Chand, Dharam Pal PW 2, Pawan Kumar PW 3, Head Constable, Hardeep Kumar PW 4, Yog Raj PW 5, Joginder Singh Patwari PW 6 Arjan Singh, Head Constable PW 7, and Inspector Amar Singh PW 8, in support of its case. The prosecution tendered affidavits Ex. IQ/1, PQ/2 and PQ/3 of Head Constable Sushil Kumar and affidavit Ex. PQ/4 of Constable Manphul Singh. Sanction orders Ex. PR/1 in respect of Jaimal Singh, Ex. PR/2 in respect of Sukhbir Singh and Ex. PR/3 in respect of Balbir Singh were also tendered in evidence. Copies of FIRs Ex. PS. PS/1, PS/2 and PS/3 were also tendered in evidence. Prosecution witnesses namely Constable Nar Singh, Surjit Singh, S.I. Ved Parkash, DSP, Reader to Deputy Commissioner Hari Kailash, ASI Bir Singh, ASI Bachan Singh, SI Pritam Singh, SI and Head Constable Mam Chand were given up as unnecessary. Thereafter Karnail Singh PW was given up as having been won over.

When examined under Section 313, Code of Criminal Procedure, the appellants denied the allegations of the prosecution. They examined DW 1 Constable Banarsi Das of Police Station Shahbad who produced the summoned record, i.e. nine FIRs for the years 1974, 1975, 1978, 1979, and 1980 in respect of offences under section 25 of the Arms Act, under Section 61 of the Excise Act, under Section 9 of the Opium Act, under Section 457 IPC, under Section 13 of the Gambling Act, under Section 160 IPC and under Sections 506/323/148/149 IPC of that Police Station. According to this witness, Yog Raj PW in this case was also cited as a witness in the said cases covered under the said FIRs. The appellants also tendered into evidence Ex. DB, a copy of earlier statement of Yog Raj (PW 5), Ex. DC, copy of an order; mark X, copy of an application; and Y, copy of an affidavit, and thereafter the defence evidence was closed.

The trial Court relying on the prosecution evidence convicted and sentenced the appellants as indicated above. Against this judgment of the trial court, Jaimal Singh, Sukhbir Singh, Avtar Singh, and Balbir Singh have filed separate appeals through jail while Baldev Singh has filed appeal through counsel.

The trial court acquitted the appellants under Section 399 IPC on the grounds given below :

"In the present case, besides having assembled with firearms in distant places from their villages in the middle of the night, there are no circumstances on the file to show that the accused had made preparations for committing dacoity. The circumstances adduced on the file are only consistent with their having assembled for the purpose of committing dacoity."

With this conclusion, the appellants were convicted only under Section 402 IPC.

Requirement of Section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of five appellants was for the purpose of committing dacoity. The trial court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity. A similar case came up before their Lordships of the Supreme court (Chatuir Yadav and others v. State of Bihar, 1979 SCC (Crl.) 502) where it was observed :

"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 1.00 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 1.00 a.m. does not, by itself, prove 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. 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 clearly 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 other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court."

In Pahalwan Singh v. State of Madhya Pradesh, 1987 MP LJ 449, the facts were that on the night intervening 22nd and 23rd June, 1977, RS Tiwari received an information and with police force and Panch witnesses proceeded towards the forest situated between Rahatwas and Hanwas villages and found all the accused planning and preparing for committing a dacoity. On being challenged, three accused persons ran away and the rest of the accused were apprehended. Two guns and one sword were seized and all the seven persons were apprehended and taken to the police station where First Information Report was recorded. The three persons who absconded, were arrested later. Sanction for prosecution under Sections 25 and 27 of the Arms Act was obtained from the District Magistrate. All the trials were consolidated into one, and, thus, all the accused were tried and evidence recorded in one trial. In these circumstances, High Court of Madhya Pradesh observed as under :

"After going through the evidence, there is no dispute that in between the two villages mentioned above, there is a jungle. There is also no dispute that the accused did not have any house breaking implement or any instrument which can be said to be of use while committing dacoity, that is to say, an instrument to break open a lock or any instrument to break open any room or window. The only evidence against them is that they were having arms with them. The other evidence is that before they could be apprehended, some one from the gang said in a loud voice that the time is up to commit dacoity and, therefore, we must proceed. Excepting this, there is nothing to show that the appellants, in any way, were preparing to commit dacoity."

Cases Veer Singh and three others v. The State of Madhya Pradesh, Cr. Appeal No. 142 of 1980 decided on 26.11.1980, Chamariya v. State of M.P., 1976 WN(1) 306 and Chaturi Yadav v. State of Bihar 1979 SC (Crl.) 502, were referred to by the Court for similar facts and with above observations the appellant were acquitted of the charges under Sections 399/402 IPC. So far as the cases under Sections 25 and 27 of the Arms Act, the appellants were also acquitted thereunder on the abovereferred to facts.

In the instant case also, the only evidence against the appellants is that the said abandoned kothi was raided on secret information and all the five appellants were found armed, there with firearms, i.e., one with a rifle, the other with a DBBL gun and the tried with a countrymade pistol while out of the remaining two, one being in possession of a Khokhari and the other of a spear. So far as said 135 articles found in the room from where they were apprehended there was no charge against the appellants nor the presence of those articles in the room has been taken into consideration for drawing an adverse inference against them. In view of these facts, I am of the view that no inference can be drawn against the appellants to sustain the charge under section 402, IPC. The possibility of the appellants having gathered there to commit an assault or a murder cannot be ruled out. Thus, the appellants are entitled to be acquitted of the charge under Section 402 IPC, and their convictions and sentences thereunder liable to be set aside.

Even if we consider the facts of this case it is most doubtful that the appellants were found present, and that too in possession of the arms as stated above, on the first story of the said abandoned kothi on the night intervening Ist and 2nd October, 1984. The secret information was received by PW 8 Inspector Amar Singh, CIA Staff Kurukshetra who happened to come to Police Station Shahbad on September 30, 1984, in connection with the investigation of case FIR Nos. 350 and 251/1984 of that police station and made his arrival report vide Daily Diary No. 3 of that date. According to his statement, he was present in the said police station on Ist October, 1984, and at about 10.00 p.m. he received the secret information on the basis of which he brought into existence FIR No. 252 (Ex. PT/1), and according to that secret information all the appellants were stated to be staying on the second floor in the building of the Army near village Deeg and were saying that they shall commit a dacoity in the house of Sukhdev Singh in village Jadoli and that every thing shall be looted from there an if anybody came forward he will be shot. On this information, the said FIR was treated as a special report, copies of which were sent to officers concerned through Manphul Singh, Constable No. 373 while one copy was immediately sent to Judicial Magistrate Ist Class, Kurukshetra, which is at a distance of about 20 km. from Police Station Shahbad, but received by him only at 10.18 a.m. on 2nd October, 1984. This distance of 20 kms. could be covered, taking the maximum time, within three to four hours, and this delay of nearly seven to eight hours, may be more, has not been explained by the prosecution; and in such circumstances, the very registration of the case at 10.00 p.m. on Ist October, 1984, cannot be said to be true. I have looked into affidavit Ex. PO/4 of Constable Manphul Singh which indicates that on Ist October, 1984, the special report was handed over to him at 11.00 p.m. and he delivered it to the S.P. and D.S.P. on the morning of 2nd October, 1984, and at the 10.18 a.m. on that day to the Magistrate concerned. There is no explanation whatsoever for the said delay as per this affidavit.

There is another infirmity in the prosecution case. The presence of Yog Raj PW at the police station at 10.00 p.m. is highly doubtful. As karnail Singh, another independent witness, was given up having been won over the prosecution could rely upon on the testimony of only independent witness, i.e., Yog Raj PW 5. The cause for the presence of this witness given by him is that his buffalo got loosened and had left his house, and therefore, he had gone to the police station to lodge a report. I do not find any such report on record and, so the very cause for this said presence cannot be given any credence. According to his statement, after going to the police station he remained for fifteen to sixteen hours at the place of the apprehension of the appellants and left at 4.00 p.m. on 2nd October, 1984, for the police station where all of them arrived at 5.00 p.m. According to Inspector Amar Singh PW 8 Yog Raj PW 5 was known to him earlier, out of the population of Shahbad being approximately 35,00040,000. Amar Singh PW further deposed that during the period they remained at the spot, none from the village came there while yog Raj PW 5 stated that first they had gone to a place near the village school and parked their jeep there, and the Inspector did not join any respectable from the village. According to PW 5, the distance of the village is only 1 km. and there is a road passing just near the said building. In such a situation, it was required of the investigator to joint some respectable from the village at least to have an independent corroboration from the locality, and it cannot be expected that no body from the village came there for fifteen to sixteen hours especially when the distance of the place is not more than 12 km. In one of the connected appeals (Crl. A No. 338 SB/1985) filed by Jaimal Singh, copy of judgment in Sessions case State v. Sheron under Section 302 IPC of Police Station Shahbad, decided on 13th February, 1982. by Additional Sessions JudgeII, Kurukshetra, has been attached, according to which Yog Raj PW 5 appeared in that case also as PW 5 and the trial court relying on Hira Lal v. State AIR 1971 SC 356, holding that the testimony of a witness appearing four or five times for the prosecution in cases of a particular police station does not carry any value, held this witness to be a stock witness of the police as it was proved that he had appeared in eight or nine cases earlier of Police Station Shahbad. On these circumstances, the testimony of this witness was held to carry not much value.

Once the FIR is held not to have been received at the time by the Ilaqua Magistrate after unexplained delay, the Court has to be cautions about the time at which the First Information Report purports to have been recorded. The very fact of recording the First Information Report also becomes doubtful. The contents of the First Information Report Ex. PT/1 make it clear that not only the names and parentage of the appellants are recorded, but I also find that their villages and eve their arms are mentioned therein. The relevant portion of the First Information Report is reproduced below :

"........Jaimal Singh s/o Hari Singh Jat r/o Kharindwa, Sukhbir Singh s/o Faquir Chand, caste Saini r/o village Gheespur, Avtar Singh alias Tari r/o Chamrodi, Baldev Singh s/o Hari Singh Saini, r/o village Nachron, Balbir Singh s/o Waryam Singh, r/o village Bir Mathana, are staying in the second story room in that building, who have in their possession rifle, gun, pistol and barchha etc."

Their names appear in the sequence and also all their weapons except one. For instance, Jaimal Singh is mentioned first of all and his weapon rifle is also mentioned first of all; Sukhbir Singh is mentioned at No. 2 and also gun is mentioned at No. 2; and Baldev Singh is mentioned at No. 4 and his weapon barchha (spear) is also mentioned at No. 4. These details are said to have been given by the secret informer. The details do not look to be incidental and rather, it appears that these appellants were already in custody of the Police and to make it a heinous crime, the version of this raid looks to have been framed some time in the morning of 2.10.1984. The secret informer is not likely to have so much detail, especially when he is silent about 135 articles found in that room where the raid was made. Another factor which throws doubt on the prosecution version is the sealing of the weapons with the seal of Inspector Amar Singh (PW 8) and its having been handed over after use to Yog Raj (PW 5). This version is sought to be supported by Head Constable Arjan Singh, Armourer of Police Lines, kurukshetra, according to whose statement rifle, DBBL gun and 12 bore pistol were already sealed in parcels with the seal of `AS'' and that after breaking that seal, he took these fire arms and tested. After test, he submitted his test reports Ex. PO, PO/1 and PO/2 respectively. After the test, this witness states that seal of `AS'' was taken from Yog Raj PW and the packets were again sealed with that seal. This fact of taking back the seal from Yog Raj PW is not corroborated by the latter himself. His statement is conspeicuoulsy silent about the alleged test by Arjan Singh (PW 7) and the fact of obtaining the seal from him by this witness. The alleged testing of weapons does not seem to be correct. In my view, Yog Raj (PW 5) is a procured witness and worked to the tune of Inspector Amar Singh (PW 8), as the purpose of this witness to intimate the Police authorities in the Police Station about the loss of his buffalo from the house does not get corroborated from the circumstances. He is stated to have come to the Police Station about the loss of his buffalo from the house does not get corroborated form the circumstances. He is stated to have come to the Police Station and there at the instance of Inspector Amar Singh (PW 8), is stated to have accompanied the latter to village Deegh for this raid. He came back to the Police Station on the next day at about 5.00 p.m., and during all this period, he never made an attempt to inform the members of his family as to what steps had been taken by him to find out the missing buffalo. Had this been a fact, it was required of him to send a message after he was asked to join the raid, especially when his house is located only at a distance of 200 yards. In these circumstances, the very recovery of the weapons on the search of all the appellants becomes a mystery and cannot be relied upon.

Yog Raj (PW 5) in his crossexamination has stated that he had gone to the Police Station Shahbad at about 1.00 during night, although in his examinationinchief, he stated that they reached the said abandoned kothi at about 11.45 p.m./12.00 at night. This fact also indicates that he was not at all present and the prosecution version of the raid and the recoveries is the framework of the mind of Inspector Amar Singh (PW 8). The appellants were involved in some other cases also and this fact must be to his knowledge.

As I have disbelieved whole of the prosecution version, it is not necessary to discuss whether sanction orders Ex. PR/1, PR/2 and PR/3 can be read in evidence by merely tendering the same in the statement of the Public Prosecutor.

In view of the foregoing discussion, these appeals are accepted and the convictions and sentences awarded by the trial Court are set aside and the appellants are acquitted of charges against them. JUDGMENT of forfeiture of weapons is maintained, as the appellants have not claimed the same in their statements under Section 313, Crl. P.C.