Gulzar Singh and Others vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—The Court of Additional Sessions Judge, Kurukshetra had tried the Appellants in a case FIR No. 31 dated 31.01.2001 registered at Police Station Sadar Thanesar under Sections 399 and 402 of IPC and Section 25 of the Arms Act, 1959. After conclusion of the trial, the Court vide its impugned judgment dated 26th April, 2002 held the Appellants guilty of an offence punishable under Sections 399 and 402 IPC. Appellants Suba Singh and Rajinder Singh alias Kuka were also held guilty of an offence punishable u/s 25 of the Arms Act, 1959 (hereinafter referred to as, ''the Act''). Vide a separate order dated 27th April, 2002, the trial Court sentenced all the accused Appellants to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 2,000/-each, in default of payment of fine to further undergo rigorous imprisonment for three months u/s 399 IPC. They were further sentenced u/s 402 IPC to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1,000/-each, in default of payment of fine to further undergo rigorous imprisonment for two months. Appellants Suba Singh and Rajinder Singh alias Kuka were also sentenced u/s 25 of the Act to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/-each, in default of payment of fine to further undergo rigorous imprisonment for one month. All the substantive sentences were ordered to run concurrently.

In the present appeal, conviction recorded and the sentence awarded to the Appellants has been assailed.

A police party, headed by Gurdawaya Ram, SI, CIA Staff, Kurukshetra PW-8, on the night of 31st January, 2001 in a Govt. jeep driven by Mohinder Singh driver, was on duty for detection of crime. At that time, they received a secret information that Gulzar Singh, Bhupinder Singh and Richhpal Singh, residents of Ram Nagar, Rajinder Singh alias Pali resident of Haldaheri and Suba Singh resident of Salpani Kalan had assembled in an abandoned hotel for making preparations to rob the persons or vehicle at the GT road. The accused were also having a Tata Sumo bearing registration No. HR 07-D 6386. The special informant informed that in case a raid is conducted, the accused can be caught red-handed. The police party organized itself and reached behind the above said hotel after parking their vehicle at some distance and found that the above said Tata Sumo was parked in front of the hotel. The police party cordoned off the area. The police personnel also heard the conversation of the accused, who were sitting inside the hotel. The accused were saying that they shall loot the passengers after stopping the cars or Sumo on the GT road. The plan, which was being hatched and was overheard by the police personnel, was that Gulzar Singh will stop the vehicles by standing in front of them and remaining persons shall commit the robbery of the passengers after putting them under fear by showing the pistols. After commission of the loot, they will proceed towards Babain road in the Tata Sumo. After the plan was overheard, Gurdawaya Ram PW-8 raised a lalkara and said that the area has been cordoned off and the accused should surrender themselves before the police. He also flashed a big torch light. The accused made an attempt to run away but all the five accused were nabbed by the police party. On interrogation, they disclosed their names. Suba Singh was armed with a 315 bore pistol along with two live cartridges. Rajinder Singh alias Kuka was also having a 315 bore pistol in his hand along with two live cartridges. Gulzar Singh was armed with a Gandasi of iron and Richhpal Singh alias Pali was armed with a Kirpan, whereas Bhupinder Singh was having a toy pistol of plastic in his hand. A rough sketch of the above said recovered weapons was prepared separately. The weapons were taken into possession and were sealed with a seal ''GR''. The seal after use was handed over to SI Des Raj and all the five accused were arrested for an offence punishable u/s 399 and 402 IPC and Section 25 of the Arms Act. After arrest of the accused, a ruqa Ex.PE/2 was sent to the Police Station on the basis of which a formal FIR Ex.PE was registered.

The above said FIR was investigated and a report u/s 173 Code of Criminal Procedure was submitted.

The Court of Additional Sessions Judge, Kurukshetra charged the Appellants for an offence u/s 399 IPC. The charge stated that on 31st January, 2001 in the area of village Ramgarh, Police Station Sadar Thanesar, all the accused were apprehended by a police party while making preparation for committing dacoity. The second charge u/s 402 IPC stated that they had assembled in a room by the side of GT road and were members of the assembly, which was called to commit dacoity and thereby they committed an offence punishable u/s 402 IPC. The accused denied the charges. Rajinder Singh and Suba Singh were separately charged for an offence punishable u/s 25 of the Arms Act also.

Prosecution obtained sanction order Ex.PF to prosecute Suba Singh and Rajinder Singh alias Kuka under the Arms Act case. The prosecution commenced its evidence.

Investigating Officer SI Gurdawaya Ram appeared as PW-8 and reiterated as to what was recorded in the ruqa Ex.PE/2. He further stated that the Tata Sumo bearing registration No. HR 07-D 6386 was taken into possession vide recovery memo Ex.PN. The pistol and two live cartridges recovered from Suba Singh were exhibited as Ex.P1 to Ex.P3 respectively. The country made pistol and two live cartridges recovered from Rajinder Singh alias Kuka were exhibited as Ex.P4 to Ex.P6 respectively. The toy pistol of plastic recovered from Bhupinder Singh was proved as Ex.P7, Sword recovered from Richhpal as Ex.P8 and the Gandasi recovered from Gulzar Singh as Ex.P9. In cross-examination, this witness identified the accused. He stated that the police party had left for patrol duty on 31st January, 2001 at about 7.00 p.m. It reached at the turning of Partapgarh on GT road at about 8.00 p.m. and the secret information was received ten minutes after arrival of the police party at the turning of Partapgarh. The secret informant had disclosed the names of all the accused. In cross-examination, this witness further stated that he had not sent anyone of the police party to summon any Panch, Sarpanch, Lambardar or respectables of any of the nearby villages. He further stated that Ramgarh was situated at a distance of 1 1/2 kilometers from the turning of village Partapgarh. He had not joined any person from the public on his way to the abandoned Dhaba (hotel). He further admitted that in the recovery memo Ex.PN he had put a line beneath FIR No. 31 to indicate that this number has been inserted after registration of the case. In cross-examination, he further stated that he had parked the vehicle about 2 acres away from the Dhaba, where the accused had gathered. He further admitted it to be correct that the weapon shown to him did not bear any distinctive identification mark. This witness admitted that in the rough site plan, he had not shown the place where he stood and overheard the conversation of the accused. However, he stated that SI Des Raj was standing along with him when he was hearing the conversation.

SI Des Raj, who was a member of the police party, appeared as PW-7 and corroborated the testimony of SI Gurdawaya Ram PW-8. However, in cross-examination he admitted that SI Gurdawaya Ram PW-8 is still a Sub Inspector, whereas he has been promoted to the post of Inspector about ten months before his deposition in the Court. The defence failed to make any dent in the testimony of this witness.

At this stage, it will be necessary to notice the testimony of other witnesses also.

HC Nasib Singh PW-1 tendered his affidavit Ex.PA to prove link evidence. HC Mukesh Kumar PW-2 was posted as a Draftsman in the SP Office, Kurukshetra. He had prepared scaled site plan Ex.PB of the spot. This witness, in cross-examination, stated that the place where the accused were planning to commit dacoity and the place where they were apprehended was a deserted Dhaba. HC Kashmiri Lal PW-3 had examined the two weapons recovered and gave a report that they were in working condition. ASI Sukhdev Singh PW-4 stated that on receipt of ruqa sent by ASI Gurdawaya Ram PW-8, he had recorded the formal FIR Ex.PE. SI Chander Pal PW-5 stated that he was posted as SHO of Police Station Sadar Thanesar on 24th February, 2001. He had submitted a report u/s 173 Code of Criminal Procedure

Arjun Dass, Reader to the District Magistrate, Kurukshetra appeared as PW-6. He proved the sanction order Ex.PF issued by the District Magistrate for prosecution of Suba Singh and Rajinder Singh alias Kuka under the Arms Act, 1959.

Thereafter, prosecution closed its evidence and statements of the accused Appellants were recorded u/s 313 Code of Criminal Procedure They denied all the incriminating circumstances put to them and pleaded innocence.

No witness was examined in defence.

Mr. P.K.S. Phoolka, Advocate appearing on behalf of the Appellants, has placed reliance upon ''Suleman v. State of Delhi through Secretary'' 1999(2) RCR 377 to contend that it cannot be believed that the accused, who had assembled in a deserted Dhaba, were speaking so loudly that the police party could hear their conversation. Counsel has further stated that the witnesses have not stated that at that time, which of the accused was speaking and in the site plan prepared, the place, wherefrom the conversation was overhead and where the police officials were standing, has not been shown.

I have given my thoughtful consideration to the arguments advanced by counsel for the Appellants. In Chaturi Yadav and Others Vs. State of Bihar, , Hon''ble the Apex Court held that merely because the accused had assembled armed with weapons is not sufficient to hold that they were planning to commit dacoity. In the present case, the only evidence to infer planning of dacoity and overhearing of conversation of the Appellants is based upon the testimony of SI Gurdawaya Ram PW-8. SI Des Raj PW-7 stated that they overheard the accused making such a conversation. Applying the standards of probability, in Suleman''s case (supra), this in itself does not aspire confidence. It is too much to fathom that at the nick of the moment, when the police party reached at the spot after receiving the secret information, the accused had uttered these words. According to the testimony of SI Gurdawaya Ram PW-8, the secret information that accused had assembled in an abandoned hotel was received at about 8.00 p.m. The police party reached there at about 9.30 p.m. It is beyond comprehension that the accused were waiting for the police party to arrive there and begin their conversation. The view formulated by me is further fortified by the Patna High Court in ''Gholtu Modi and Ors. v. State of Bihar'' 1986 Cri.L.J. 1031. Thus, this Court will discard testimonies of two official witnesses, namely SI Gurdawaya Ram PW-8 and SI Des Raj PW-7 to the extent that they overheard the conversation of the accused. Accordingly, the conviction of the Appellants for an offence punishable under Sections 399 and 402 IPC cannot be sustained. Thus, all the Appellants are hereby acquitted of the charges leveled against them under Sections 399 and 402 IPC. The conviction recorded and sentence awarded to them by the trial Court on this count is set aside.

Appellants Suba Singh and Rajinder Singh alias Kuka have also been convicted u/s 25 of the Arms Act, 1959 and a sentence of two 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 u/s 25 of the Act is upheld. However, occurrence, in the present case, pertains to the year 2001. A period of more than ten years has elapsed. Appellants have suffered mental pain and agony of a protracted trial. Accordingly, sentence awarded to Suba Singh and Rajinder Singh alias Kuka u/s 25 of the Act is reduced from two years to one year rigorous imprisonment. However, sentence of fine and default clause on this count are maintained.

In terms of what has been stated above, present appeal is disposed of.