Baldev Singh vs State of Haryana

R.L. Anand, J.

This is a criminal appeal filed by Baldev Singh and Jaswant Singh and has been directed against the judgment and order dated 1.9.1992, passed by the court of Additional District and Sessions Judge, Sirsa, who convicted the appellants u/s 395, IPC, and sentenced them to undergo RI for a period of 7 years each.

Before I start further, I may mention that this appeal has arisen from case FIR No. 63 dated 27.3.1990, registered in Police Station Sadar, Sirsa. In continuation of the chain of the facts of the present case, one more FIR No. 162 was registered against the appellants in Police Station City, Sirsa, u/s 458 IPC. In the second FIR, the appellants faced separate trial and they also suffered separate conviction.

To continue with the present appeal, the facts can be described as follows :

On 26.3.1990 at about 11.30 PM, complainant Balbir Chand was sleeping in his house situated in Dhani Nanakpura along with his wife Sudesh Rani, brother Baldev Raj and his wife Gurdeep Kaur, his brother Kewal Krishan and some children of the house. Balbir Chand woke up on hearing the barking of some dogs and noticed four miscreants had trespassed into his house. Those persons were holding revolvers under their clothes. They demanded from Balbir Chand his gun. Balbir Chand told them that the gun was not in the house. Upon this, the miscreants bolted the gate of that room from outside. After some time, they brought in that very room brothers of Balbir Chand; namely Kewal Krishan and Baldev Raj. They further removed the golden ear balis of his wife Sudesh Rani, wife of Balbir Chand, and Gurdeep Kaur, wife of Baldev Raj. They further removed a cash amount of Rs. 600/ from the pocket of Kewal Krishan. One Patilli (container) containing 10 kg. of pure ghee and some unstitched clothes were also removed by the miscreants. A wrist watch of Recoh make and another wrist watch of HMT make were also removed. Then, three of those four persons took Sudesh Rani and Gurdeep Kaur on a tractor No. 2054, Hindustan make. The tractor belonged to Balbir Chand and his family members. The ladies were taken to C Block, Sirsa, where some other members of the family of Balbir Chand used to reside. One of the miscreants remained as guard as Balbir Chand and his two brothers were confined in one room in Dhani Nanakpura. Inder Dass and Mulkh Raj, neighbours, in the early morning opened the gate of the room, in which the three brothers were confined. After being free from there, these persons reached Police Station, Sadar, Sirsa, and Balbir Chand lodged FIR regarding this incident on 5.15 AM and FIR No. 63 dated 27.3.1990 u/ss 342/452/393/506, IPC, and section 25, Arms Act was registered. Section 5 of the TADA was also added in this FIR, which was lodged before SI Bal Kishore, PW4. In the said FIR, the bodily description of the four miscreants was given.

The story of the prosecution further proceeds in the same transaction that out of four miscreants three brought Sudesh Rani and Gurdeep Kaur to ''C'' Block, Sirsa, for committing robbery there but they failed in their design after entering the said house on account of scuffle which ensued there as a result of which, one of the miscreants was injured and overpowered by Sukhdev Singh and Rattan Lal, who are the brothersinlaw of Gurdeep Kaur. The miscreant, who was captured at the spot was Baldev Singh, one of the appellants. The remaining two miscreants became successful in running away. In this scuffle, Gurdeep Kaur also received injuries as a result of fire arm given by one of the miscreants, who had run away. Gurdeep Kaur and Baldev Singh were taken to Civil Hospital, Sirsa, for medical aid by Rattan Lal.

Clue regarding the names of three miscreants; namely, Nirvair Singh, Jaswant Singh and Jaswinder Singh, was recieved by the police from Baldev Singh, who was apprehended at the spot. Out of them, Nirvair Singh and Jaswant Singh were arrested on 13.4.1990 near Ottu Head by SI Bhagwan Dass who was then posted in CIA Staff, Sirsa. After the accused Nirvair Singh and Jaswant Singh were apprehended, they were interrogated by SI Bhagwan Dass, in the presence of Bhagwan Singh and Ram Chander, residents of Dhani Nanakpura. Upon interrogation accused Nirvair Singh suffered a disclosure statement, Ex.PE, to the effect that he had kept concealed one pair of golden balis, one gents wrist watch of HMT make and another ladies wrist watch of HMT make, which had fallen as a booty in his share, in his residential house situated in village Jagmalera and he could get the same recovered. Similarly, accused Jaswant Singh suffered a disclosure statement Ex. PC, to the effect that he had kept concealed one golden ring, a gents wrist watch of Recoh make, the ladies wrist watch of HMT make and cash amount of Rs. 500/ in his residential house, situated in J.J. Colony, Sirsa.

On the same day, SI Bhagwan Singh produced accused Nirvair Singh and Jaswant Singh before Shri Surinder Kumar, Judicial Magistrate Ist Class, and moved an application, Ex.PH, for their further police remand so as to effect recovery in pursuance of their disclosure statements. Both the accused were produced before the Magistrate with muffled faces so that the identification parade could be conducted, if desired by the accused. Accused Nirvair Singh declined to participate in the identification parade by making statement, Ex. PH/2 and Jaswant Singh also declined to participate in the identification parade vide statement, Ex.PH/3. Both the accused took the stand before the Magistrate that their faces had already been shown by the police to the witnesses. Resultantly, the learned Magistrate granted police remand of these two accused upto 17.4.1990.

On 16.4.1990, Nirvair Singh, nonappellant, while in police custody got two watches, Ex. P1 and P2, and a pair of balis, Ex. P3, from his house situated in village Jagmalera. All these articles were taken into possession vide recovery memo, Ex. PB. These articles were identified by Balbir Chand as the same which had been removed from his house on the night intervening 26/27.3.1990. Similarly, Jaswant Singh, appellant, got recovered watches, Ex. P4 and P5, cash amount of Rs. 500/ and two rings, Ex.P6 and P7, which were taken into possession vide recovery memo. Ex.PD. These articles were again identified by Balbir Chand as the same, which had been taken by the miscreants from his house.

All the three accused namely, Nirvair Singh, Jaswant Singh and Baldev Singh were also identified by Balbir Chand and his family members. The fourth accused namely Jaswinder Singh, however, could not be apprehended and he was declared a proclaimed offender.

On the completion of the investigation of the case FIR No. 63, all the three accused were challaned in the court of the Illaqa Magistrate, who supplied the copies of the documents to the accused according to law free of cost and vide order dated 26.3.1991, these three accused were chargesheeted u/s 395/397, IPC. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined PW1 Balbir Chand, PW2 SI Bhagwan Dass, PW3 Ram Chander, PW4 Baldev Kaur, PW5 Gurdeep Kaur and PW6 SI Dharam Singh.

The statements of the accused were recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Nirvair Singh, nonappellant, took the stand that he was innocent. Similarly, Jaswant Singh and Baldev Singh, appellants, took the stand that they were also innocent.

When called upon the enter into their defence, the two appellants did not lead any evidence and closed the case.

The learned trial court believed the prosecution story in part and convicted and sentenced the appellants in the manner as stated above. Aggrieved by their conviction and sentence, the present appeal.

I have heard Mr. P.C. Chaudhary, Advocate, on behalf of the appellants and Mr. Shailender Singh, DAG, Haryana, on behalf of the respondent and with their assistance have gone through the record of this case.

The story of the prosecution in this case is that the present two appellants along with their two companions Nirvair Singh and Jaswinder Singh, firstly, committed robbery in the house of Balbir Chand. After removing the articles, such as golden balis and watches, they took into custody two ladies Gurdeep Kaur and Sudesh Rani. These ladies were taken to the house of the relations of Balbir Chand after confining Balbir Chand and his brothers in one room. One person was put at guard. The story of the prosecution is further that an electric light was burning in the house of Balbir Chand. The miscreants spent sufficient time in the house of Balbir Chand so as to rob the valuable articles of the house. They had even conversation with the inmates of the house. In this situation, it was not very difficult for Balbir Chand, Gurdeep Kaur, Sudesh Rani and the two brothers of Balbir Chand to identify the accused irrespective of the fact that they had earlier muffled their faces when they trespassed into the house of Balbir Chand. The story of the prosecution further proceeds that after confining Balbir Chand and his brothers in one room, the miscreants took away the tractor of Balbir Chand and by making Gurdeep Kaur and Sudesh Rani detenus, went to the house of Sukhdev Raj and Mohar Chand as they wanted to snatch more articles from there. Fortunately for the aggrieved persons and unfortunately for the accused, Baldev Singh, appellant, was captured in the house of Sukhdev Raj. Baldev Singh, appellant, was also injured. Gurdeep Kaur remained in the company of the miscreants and the possibility is always there that she could identify the assailants/miscreants, who earlier went to the house of Balbir Chand and those miscreants, who accompanied her and Sudesh Rani to the house of Sukhdev Raj. So much so, Baldev Singh was overpowered. In these circumstances, the identity of Baldev Singh, accused, became a very easy affair for Gurdeep Kaur and the inmates of the house of Sukhdev Raj. The particulars of Jaswant Singh. Nirvair Singh and Jaswinder Singh also became very easy for the police, the moment Baldev Singh was interrogated. Two persons Jaswant Singh and Nirvair Singh were arrested in consequence of interrogation of Baldev Singh. Both these persons were produced before the Judicial Magistrate with muffled faces. They refused to participate in the identification parade.

Now, it is to be seen what is the testimony of Balbir Chand and Gurdeep Kaur. Balbir Chand, while appearing in the trial court, stated as follows :

"On 26.3.1990 at about 11.30 PM four persons came to our dhani and entered in the room of my brother Baldev Raj, who informed me from the common gate that some persons had come there. Both my brothers namely Kewal Krishan and Baldev Raj were tied by them and then on the point of the revolver, they brought my brother''s wife Gurdeep Kaur and made me to open the gate of my room. Then they demanded my rifle, which was however at Sirsa on that day. They took away my wrist watch, ring, balis of my wife and also of Gurdeep Kaur. They also removed the ring of my brother Baldev Raj and 2/3 more watches from our house. Then Nirvair Singh accused present in the court broke open the lock of our box and all our clothes were taken away by them. They made us to start our tractor. Sudesh Kumari and Gurdeep Kaur were made to sit on the tractor bearing R.C. No. 2054 and we were lodged inside. They took away the tractor along with the two ladies. I identify the accused Nirvair Singh, Jaswant SIngh and Baldev Singh present in the court today and their fourth companion Sukhwinder Singh is not in the court today. All the accused were armed with revolvers."

Gurdeep Kaur appearing as PW5, corroborated the statement of Balbir Chand. In addition to that, she stated as follows :

"The three out of those persons brought me and Sudesh Kumari in a tractor to Sirsa and one remained behind. They took us to CBlock Sirsa after midnight. Under their threat I got opened the door of the house of my brotherinlaw Sukhdev in CBlock Sirsa. Sukhdev Singh raised his hands at the instance of the accused and they demanded the gun from him. Sukhdev told them the gun was in the adjoining room. Sukhdev Singh''s wife Amarjit Kaur was also in that room. They bolted Sukhdev Singh and his wife in that room and took me and Sudesh Kumari in the other room. Then my fatherinlaw Mohar Chand, brotherinlaw Rattan Lal etc. came outside. Sukhdev and his wife also came out through a window. Then the accused Nirvair Singh present in the court fired a shot, which hit my left arm even though the firing was aimed at Sukhdev Singh. His second fire however missed. Sukhdev then caught the accused present in the court namely Baldev Singh and his pistol fell down. Then Baldev Singh accused was overpowered there and the remaining two accused present in the court ran away with the pistol of Baldev Singh. I can even identify the fourth accused if he is brought in the court. I and the accused Baldev Singh were then got admitted in the hospital by my brotherinlaw Rattan Lal."

In this view of the matter, when the appellants refused to participate in the identification proceedings, identification by the witnesses in court does not lose weight. Otherwise also, Balbir Chand and Gurdeep Kaur were in a position to identify the assailants who earlier robbed the house of Balbir Chand and, later on, the house of Sukhdev Raj. As I have stated earlier, Baldev Singh was arrested on the same night. He was overpowered with injuries. The miscreants were armed with deadly weapons and they used those weapons when they even threatened Balbir Chand and the inmates of his house in order to part with the valuable articles. Jaswant Singh was arrested on 18.4.1990, after about 16/17 days of the occurrence. From the possession of Jaswant Singh, the valuable articles such as two watches, two rings and Rs. 500/, were recovered. These articles were identified to be belonging to the family of Balbir Chand. Recent and unexplained possession of the stolen articles from the possession of Jaswant Singh is a presumptive proof that he was one of the participants who committed robbery in the house of Balbir Chand. The recovery is under section 27 of the Evidence Act. Conscious possession of Jaswant Singh is proved. There is no cogent circumstance which has been brought on the record to show that Balbir Chand and Gurdeep Kaur wanted to implicate Jaswant Singh and Baldev Singh and their companions Nirvair Singh and Jaswinder Singh.

In this view of the matter, I am inclined to maintain conviction of both the appellants u/s 397, IPC. Minimum sentence has already been awarded to them by the trial Court. Therefore, the present appeal is dismissed in toto.