Hari Gunga and Others vs State of Haryana

R.P. Nagrath, J.

CRA-S-1411-SB of 2009 and CRA-S-1621-SB of 2009 are being disposed of by a common judgment as both these appeals arise out of the same judgment of the trial Court in FIR No. 118 dated 25.05.2006 under Sections 458, 459, 380, 382, 386, 392, 394, 395 and 397 of Indian Penal Code (IPC) and Section 25 of the Arms Act, registered at Police Station Indri.

Seven persons faced joint trial of the charges under Sections 458, 459, 460, 395 read with Section 397 and 380 IPC. Except for the appellants, namely; Hari Gunga and Gandhi, who have preferred these appeals, rest of the accused persons, namely; Bittu, Parmod, Satbir, Kuldip Singh and Nitti @ Pandit absented during trial and declared the proclaimed offenders. The appellants were convicted of the charges under Sections 458, 460, 395, 397 read with Section 149 IPC and they were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 10,000/- each under Section 458 IPC and in default of payment of fine to further undergo rigorous imprisonment for six months. They were also awarded similar sentences for offence under Sections 460 and 395/397 read with Section 149 IPC. All the sentences were to run concurrently.

As per custody certificate dated 21.03.2015, filed by learned State counsel, both the appellants have undergone about 9 years and 9 months of imprisonment out of the total sentence of 10 years of imprisonment awarded to them which includes more than one year of the remission earned by them.

The prosecution was launched on the statement of Rajinder Dass, one of the injured in the incident. The family of Rajinder Dass was present in the dera situated in village Garhi Labkari. There is a temple known as Dera Milk Aapo-Aap, which owns about 42 acres of land. Rajinder Dass, the complainant are six brothers and their father Pritam Dass was the incumbent Mahant of the dera. On the intervening night of 24/25.5.2006, the complainant was sleeping in the room of the dera whereas his elder brother Radhey Sham and their servant Sher Singh were sleeping outside. Sumitra wife of Radhey Sham, Kamla Rani mother of the complainant and Pritam Dass their father were also present in the house.

It was about 01.30 a.m. in the mid-night that Sumtira bhabhi of the complainant raised an alarm calling Rajinder Dass P.W. from the courtyard to save them. When Rajinder Dass went there one of the assailant gave him lathi blow on the head and started opening back door of the house. When Sumtira tried to stop that person from opening the door, the assailant gave a lathi blow on her head and forced open the back door. Seven other miscreants entered inside the dera from the door which was opened. Two of the assailants were armed with country-made pistols whereas rest of them with lathis/dangs. One of the culprit was wearing a small sword.

The complainant and his bhabhi fell on the ground on receiving injuries. Two of the assailants remained standing near them whereas rest of the culprits went upstairs towards the room of Pritam Dass father of complainant. The culprits tried to force open the door. Since they were unable to break the door the assailants took Rajinder Dass-complainant upstairs and made him to stand near the window. Pritam Dass fired 2-3 shots from his licenced weapon but Rajinder Dass asked his father not to fire shots because the same could hit him. One of the assailants warned Pritam Dass to hand over his gun. Pritam Dass handed over his weapon to one of the assailants and then they threw Rajinder Dass P.W. inside the room of his father from the window. One of the assailants also entered in the room and opened the bolt of the door from inside. The miscreants looted the cash amount of Rs. 1,60,000/-, 4 gold rings, 2 gold chains of his father. They also took away double barrel gun and eight live cartridges with them. The assailants came down stairs and took some more articles. While fleeing from there, the assailants also took away motorcycle Hero Honda Passion bearing registration No. HR-02N-2611 and mobile phone Soni Erricson belonging to Rajinder Dass. Mobile phone number of this handset was 94162-27440. The assailants also caused injuries to Radhey Sham and Sher Singh. Jaswinder Singh of the village was informed who took the injured to Civil Hospital in his vehicle. The police party came there and recorded, Ex. P-27, the statement of Rajinder Dass, which was sent to the Police Station and FIR Ex. P-42 was registered.

The police party visited the spot and prepared site plan and recovered lathies/dangs from the spot.

Some miscreants were apprehended by the police station of Sirhind, District Fatehgarh Sahib on 27.06.2006 for which FIR No. 114 dated 23.06.2006 for offences under Sections 399 and 402 IPC was recorded. Copy of that FIR is Ex. P-13. Those miscreants are Bittu, Parmod, Satbir, Gandhi (appellant in CRA-S-1621-SB of 2009) and Hari Gunga (appellant in CRA-S-1411-SB of 2009). Recovery of arms and ammunition was made from Bittu, Satbir, Gandhi and Parmod during investigation of FIR Ex. P-13 for which separate FIRs under the Arms Act and Section 411 etc. IPC were recorded and copies of those FIRs are Ex. P-14 to P-17. These accused were arrested in the instant case on 27.06.2006 by obtaining their production warrants.

The relevant part of prosecution version for disposal of these appeals is, that the appellants refused to join test identification parade on 20.07.2006. It is further the story that on 23.07.2006, accused Gandhi suffered a disclosure statement Ex. P-32, while in custody, in pursuance whereof he got recovered a gold chain near the bank of Markanda, which was taken into possession vide memo Ex. P-33. This was prepared into sealed parcel bearing seal impression ''AS'' of P.W.-16 Inspector Angrej Singh. Hari Gunga-appellant also got recovered a gold chain and necklace in pursuant to the disclosure statement Ex. P-34. The recovery memo was prepared in this regard Ex. P-35. Rest of the accused also got recovered certain articles belonging to the family of Rajinder Dass. On completion of investigation challan against the accused persons was presented before the Magistrate. The case was committed to the Sessions Court for trial. The prosecution examined 19 witnesses in support of its case.

During their examination under Section 313 Cr.P.C., both the appellants, namely; Hari Gunga and Gandhi denied all the incriminating circumstances appearing against them in the prosecution evidence and pleaded false implication. No evidence was led by them in defence. The trial Court convicted and sentenced the appellants as aforesaid.

I have heard learned counsel for the appellants, the State counsel and have thoroughly gone through the record.

For supporting prosecution case against the appellants, the relevant evidence comprises of testimony of P.W.-14 Rajinder Dass, P.W.-16 Inspector Angrej Singh, P.W.-17 Radhey Sham and that of the doctors. Rest of the evidence is either formal or pertaining to the accused persons who are since proclaimed offenders.

Statements of P.W.-3 ASI Virender Singh, P.W.-4 EHC Yoginder Singh, P.W.-7 Inspector Manvir Singh, P.W.-10 Raghbir Singh, P.W.-11 Aman, P.W.-12 Inderjeet and P.W.-15 Amit are all relevant to mobile data or exchange of mobile phone statedly belonging to Rajinder for which accused Nitti (proclaimed offender) was concerned.

P.W.-5 SI Sukhjeet Singh Virk was SHO of Police Station Sirhind on 23.06.2006. He received a secret information regarding the culprits armed with deadly weapons planning for dacoity for which FIR Ex. P-13 was recorded as already referred. P.W.-6 ASI Nafe Singh went to Police Station Sirhind and collected the gun belonging to Pritam Dass from MHC Gurmeet Singh of the Police Station, Sirhind. It is not the prosecution case that recovery of gun was made from the appellants before this Court. There are a few witnesses relating to the recovery of gun and handing over the same to the Police Station Indri where the instant FIR was investigated.

The occurrence in which the family members of Rajinder Dass received serious injuries on their person is fully corroborated from medical evidence which has been elaborately discussed in the judgment of the trial Court. P.W.-18 Dr. Pawan Kumar medico-legally examined Radhey Sham P.W. on 25.05.2006 and found 17 injuries on his person as described in paragraph No. 22 of the judgment of trial Court. Copy of the medico-legal report is Ex. P-57. This doctor also examined Sher Singh servant of the family of Rajinder Dass who suffered one injury in the occurrence.

P.W.-19 Dr. Roopa Saxena conducted medical examination of Rajinder Dass-complainant and found two injuries on his person. One of the injury was an incised wound on the head. Copy of the medico-legal report is Ex. P-59. Pritam Dass father of Rajinder Dass was medically examined on the same day and an incised wound on his right hand thumb was found. Sumitra wife of Radhey Sham suffered two injuries on her person. Kamla mother of Rajinder Dass also suffered two injuries on her person as found by Dr. Roopa Saxena.

P.W.-1 Dr. Iqbal Singh was posted as Radiologist and conducted x-ray examination of the injuries on the person of Radhey Sham on 26.05.2006 and found fracture base of right second metacarpal and fracture of right fifth metacarpal bone. X-ray report is Ex. P-1. X-ray films are Ex. P-2 to P-9. P.W.-2 Dr. Vidya Rattan stated that Sher Singh was examined in Emergency Surgical Ward on 25.05.2006 with fracture of mandible right body and left para symphysis region. Sher Singh was operated upon, on 31.05.2006 under general anesthesia and plating for fracture mandible was done. The patient was discharged on 03.06.2006.

Now coming straight to the evidence against both the appellants. The prominent is the testimony of P.W.-14 Rajinder Dass, the complainant. He reiterated the story mentioned in the complaint as reported to the police. P.W.-14 stated that two of the culprits were speaking Punjabi language and rest of them the mixed language of the State of U.P. Injured Rajinder Dass, Radhey Sham and Sher Singh handed over their blood stained clothes to the police, which were taken into possession vide memo Ex. P-28. From the spot the police took into possession one lathi and three dandas used by the miscreants as weapons vide memo Ex. P-29. Lathi and three dandas from Ex. MO4 to MO7 were produced during examination of P.W.-14.

P.W.-14 stated that on 23.07.2006, Gandhi-appellant suffered disclosure statement before the police, which is Ex. P-32, in pursuance whereof, Gandhi-appellant got recovered a gold chain from the bank of Markanda for which memo Ex. P-33 was prepared. The witness identified the gold chain Ex. P-9 as belonging to them.

P.W.-14 further stated that at the same time Hari Gunga-appellant in CRA-S-1411-SB of 2009 was also interrogated by the police. This appellant made disclosure statement, Ex. P-34, in pursuance whereof he got recovered one gold chain from near the bank of Markanda, which was prepared into sealed parcel and that gold chain is Ex. MO10. The important factor is that recovery of aforesaid stolen articles belonging to the family of P.W.-14 was made from the appellants after about two months of the incident. At the time when FIR was registered, the witnesses could never imagine that the stolen articles belonging to them would be possibly recovered.

The above evidence of recovery in pursuance to the disclosure statement of the appellants is supported by P.W.-16 Inspector Angrej Singh. There is nothing in cross-examination of P.W.-16 to challenge the story of prosecution for contending their false implication in this case especially when the articles belonging to the complainant were recovered from appellants after such a long period.

The basic question would be the proof of identity of the culprits who committed dacoity by entering into the house of the complainant during the mid-night of 24/25.05.2006. P.W.-14 testified that both the appellants and Parmod (since proclaimed offender) were present in the court on the day of his examination. Rest of the accused were obviously proclaimed offenders before the examination of P.W.-14 by the trial Court.

P.W.-14 has convincingly proved the identity of the appellants to be the culprits. His statement is further corroborated from recovery of the stolen articles from the appellants. In cross-examination P.W.-14 stated that the lights of dera were already switched on at the night time in routine. On the night of incident, the lights of all the four verandahs, focus light on the top of the temple and three rooms were glowing. In further cross-examination, P.W.-14 stated that out of the accused, two persons came towards him and three others were standing guard in the courtyard and other two were standing outside the room of his father. The persons who were standing in the courtyard were Hari Gunga-appellant in CRA-S-1411-SB of 2009 and two others were Bawa and Ramu who are since proclaimed offenders.

According to P.W.-14, the culprits remained in the dera for about 1 1/2 hours and they left the place after the operation was over at about 03.45 a.m. P.W.-14 stated that the accused persons beat him outside the room of his father. Pritam Dass had not opened the door. Thereafter, the accused started breaking open the wooden window of the room of his father. P.W.-14 was fully conscious at that time. He had seen all the accused in the dera and the accused persons caused injuries to all the family members before causing injuries to P.W.-14. There has been at least 20 pages of cross-examination of P.W.-14 but the witness remained quite consistent and there is nothing to suspect his testimony. P.W.-14 also stated that he had been going to the police to know about the fate of his case. The statement of P.W.-14 with regard to identity of the appellants as two of the culprits is fully supported and corroborated by Radhey Sham P.W.-17, the brother of P.W.-14. P.W.-17 specifically stated that the accused present in the court were among the assailants. In cross-examination, P.W.-17 stated that he had seen the accused persons at the time of incident as the lights of the dera were glowing. According to him, the assailants remained present inside the dera for about 3 hours as stated by P.W.-17.

There is no allegation of the witnesses having prior enmity against the appellants for implicating them falsely in this case. Unless the witnesses are quite sure about the identity of the culprits they would not have courage to identify desperadoes in the court for such a serious crime.

The testimony of eye-witnesses cannot be doubted as the prosecution also led evidence of granting opportunity to the appellants to join test identification parade but they refused. It is well established principle that if the accused refuse to join test identification parade, the court can possibly draw an adverse inference against him (them).

P.W.-16 Inspector Angrej Singh of Police Station Indri stated that on 27.06.2006 he received an information from Police Station, Sirhind about the arrest of accused persons. P.W.-16 filed application for obtaining production warrants of the accused and they were thus produced in the court of area Magistrate on 14.07.2006. P.W.-16 then moved an application, Ex. P-49, dated 14.07.2006 before the Magistrate for holding the test identification parade. It is pertinent to mention that the appellants and four other accused persons were produced in the court of Magistrate with their faces muffled as stated in the application Ex. P-49.

This incident took place in the area of Police Station Indri during the intervening night on 24/25.05.2006. The accused persons were arrested in an FIR at Police Station Sirhind and the information was received by P.W.-16 about their arrest on 27.06.2006. Both these police stations are not located nearby. The distance between two places is about 150 kms. as stated by P.W.-6 ASI Nafe Singh in his cross-examination. He further stated that the distance may be 250-300 kms. in fact. P.W.-16 then moved an application on 18.07.2006, Ex. P-47, before the District Magistrate, Karnal for deputing Executive Magistrate for conducting test identification parade of these accused. On 20.07.2006, P.W.-16 alongwith Tehsildar and complainant reached District Jail, Karnal and there he moved an application where the Hari Gunga-appellant had made statement, Ex. P-48/A and Gandhi-appellant, Ex. P-48/C, refusing to join test identification parade. In further cross-examination, P.W.-16 stated that he had not informed the complainant regarding the issuance of production warrants of the accused persons. He informed the complainant only subsequently to come to District Jail, Karnal on 20.07.2006. The complainant was alone at that time.

The complainant himself as P.W.-14 stated that on 20.07.2006, he was called by the police and taken to District Jail, Karnal but all the accused persons refused to join the test identification parade.

From the above discussion, the prosecution convincingly and cogently proved the recovery of stolen property from the appellants who were also properly identified by the witnesses. There is no question of finding fault in the evidence of prosecution. Learned trial Court rightly held the charges against the appellants to be proved. The sentences awarded to the appellants are also quite appropriate and not on higher side.

There is no merit in the instant appeals and the same are dismissed.