Hawa Singh vs State of Haryana

A.S. Nehra, J.

This judgment will dispose of Criminal Appeal No. 654SB of 1994 (Hawa Singh v. State of Haryana), Crl. Appeal No. 18SB of 1995 (Jitender alias Kala v. State of Haryana), Crl. Appeal No. 127SB of 1995 (Zile Singh v. State of Haryana), Crl. Appeal No. 155SB of 1995 (Bhim Singh v. State of Haryana), Crl. Appeal No. 245SB of 1995 (Harpal v. State of Haryana), Crl. Appeal No. 381 SB of 1995 (Roshan Lal v. State of Haryana) and Crl. Appeal No. 563SB of 1995 (Soma v. State of Haryana) as these are directed against the common judgment and order dated 28.11.1994 and 30.11.1994 respectively, passed by the learned Additional Sessions Judge, Kaithal, by which the appellants have been convicted under Section 392 read with Section 397 of the Indian Penal Code and each one of them has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 200/ and in default of payment of fine, to further undergo rigorous imprisonment for three months. They have also been convicted under Section 148 of the Indian Penal Code and each one of them has been sentenced to undergo rigorous imprisonment for three months. However, their substantive sentences were ordered to run concurrently.

Briefly stated, the case of the prosecution as culled out from the statements of complainant Parbhu Dayal (PW 7), Sukhbir Singh (PW 8) and Raj Kumar (PW 9) is that on December 5, 1991, at about 1.00 A.M., all the seven accused came to the house of Parbhu Dayal (PW 7) and broke open lock of the kitchen. Out of them, 3/4 persons armed with lathis and iron rods entered through service window of the kitchen, in the bed room of Parbhu Dayal where he was sleeping along with his wife Krishna; made them get up and demanded their valuables by giving beating to Parbhu Dayal and Krishna. They removed the earrings of Krishna and snatched Rs. 900/ and one wrist watch from Parbhu Dayal. On his resistance, Parbhu Dayal was given a danda blow on his head. On hearing alarm, Pritam Singh, Sukhbir Singh, and Raj Kumar rushed towards Parbhu Dayal. Accused Harpal who was armed with a knife, inflicted knife blow in the stomach of Sukhbir Singh, whereupon the latter fell down. When Raj Kumar and Pritam Singh intervened, they were given beating with lathis and iron rods. In the meantime, some of the neighbourers came out of their houses and raised alarm; whereupon the accused made good their escape along with the valuables of Parbhu Dayal and his wife Krishna. The injured were taken to Civil Hospital, Kaithal, where they were admitted and medicolegally examined. On receipt of a ruqa from the doctor, police reached the hospital and recorded the statement of Parbhu Dayal; on the basis of which this case was registered at Police Station City, Kaithal. Accused Roshan was arrested on December 13, 1991 from his house at Amargarh Gamri, Kaithal. On December 15, 1991, Pritam Singh and Parbhu Dayal, PWs, had gone to Hind Cinema to see a movie. There, they noticed Soma and Bhima accused, whom they had seen in the house and courtyard of Parbhu Dayal in electric light along with their coaccused. They quietly slipped away from the Cinema Hall and informed the police, whereafter the A.S.I. rushed to the Cinema Hall and arrested both the accused. On December 16, 1991, in the presence of Pritam Singh and Parbhu Dayal, PWs, accused Roshan was interrogated in the Police Station and he disclosed that he had kept concealed one pair of earrings, a bucket, kurta and pyjama in his rented room in Arjan Nagar, Kaithal. His disclosure statement, Ex. PE, was recorded. He was taken to the disclosed place where he got recovered the aforesaid articles. Similarly, accused Bhima and Soma, on interrogation by the police, made disclosure statements, Exhibits PF and PG, respectively in pursuance whereof banyan and pyjama of Sukhbir Singh (PW 8) were recovered from the disclosed places and as per report of Forensic Science Laboratory, human blood was detected thereon. Similarly, human blood was also detected by the Forensic Science Laboratory in the bloodstained earth which too had been taken into possession by the police. After completion of the investigation, all the accused were challaned in the Court of the Ilaqa Magistrate.

To prove charges against the accused, prosecution examined PW 1 Dr. S.K. Singal, Radiologist, PW 2 Dr. B.B. Kakkar, PW 3 Pritam singh, PW 4 Bhoop Singh, Inspector, PW 5 Inder Singh, Tehsildar, PW 6 Dr. Neelam Kakkar, PW 7 Parbhu Dayal complainant, PW 8 Sukhbir Singh injured, PW 9 Raj Kumar, PW 10 Navita Singh and PW 11 ASI Gurcharan Singh. Besides, the prosecution tendered in evidence affidavits, Exhibits PL, PM and PS, of HC Raghbir Singh and Constables Sat Pal and Raghbir Singh, respectively and gave up Som Parkash, Harish, Krishna and Om Parkash as unnecessary. It also tendered in evidence reports, Exhibits PY and PY/1, of Forensic Science Laboratory, Madhuban (Karnal).

PW 1 Dr. S.K. Singal, Radiologist, stated that on December 5, 1991, he had conducted Xray examination of Parbhu Dayal (PW 7) and did not detect any fracture. He further stated that on the same day, he had radiologically examined Sukhbir Singh injured (PW 8) and found no abnormality. The Xray reports of Parbhu Dayal and Sukhbir Singh, injured PWs, are Exhibits, PA and PB respectively.

PW 2 Dr. B.B. Kakkar stated that on December 5, 1991, on police application, Ex. PC, he had declared Smt. Krishna, Sukhbir Singh and Parbhu Dayal unfit to make statement, vide his endorsement, Ex. PC/1.

PW 3 Pritam Singh, one of the eyewitnesses of the occurrence, supported the case of the prosecution as narrated in the earlier part of this judgment. During his lengthy crossexamination, but for one minor contradiction, his testimony could not be shaken.

PW 4 Bhoop Singh, Inspector stated that on February 12, 1992, he had challaned the accused vide report under Section 173, Criminal Procedure Code.

PW 5 Inder Singh, Tehsildar, stated that on December 27, 1991, on application, Ex. PN, made by the police, he had held identification parade for Hawa Singh, accused, on December 30, 1991, in the Jail premises, where Parbhu Dayal and Pritam Singh, PWs, had correctly identified accused Hawa Singh, one of the members of gang of dacoits headed by accused Roshan Lal. The identification proceedings are Ex. PN/2 to Ex. PN/6.

PW 6 Dr. Neelam Kakkar stated that on December 14, 1991, she had medico legally examined accused Roshan Lal on police request, Ex. PQ/1, and vide her report, Ex. PQ, found one abrasion on the occipital region of the head of Roshan Lal.

PW 7 Parbhu Dayal, complainant, fully supported the prosecution case as detailed in the earlier part of this judgment and his testimony needs no reiteration.

PW 8 Sukhbir Singh stated that on the night intervening December 4/5, 1991, he alongwith his parents was sleeping in their room while Parbhu Dayal (PW 7) alongwith his wife was sleeping in another room. On hearing an alarm at about 2.00 A.M., they came out and at that time, he pushed aside his father in order to catch hold of the accused who were in the house. He further stated that there were seven persons in all, four persons inside the room of Parbhu Dayal PW, while three were standing outside, and when he tried to catch hold of one of the accused standing outside the room, he was given a knife blow in his stomach by Harpal accused. He kept his hand on his wound and sat down. The accused removed some articles from the house of Parbhu Dayal and ran away. He further stated that he had identified Roshan Lal, accused, at the spot because he was known to him prior to the occurrence.

PW 9 Raj Kumar stated that on the night intervening December 4/5, 1991, he was sleeping in his shop and on hearing noise, he came out and saw accused Roshan Lal running and being followed by 4/5 persons. He further stated that he had caught hold of Roshan Lal, accused, but one of his companions had hit him with a brickbat on his head; as a result whereof he fell down and Roshan Lal and his companions made good their escape. He further stated that he had seen Roshan Lal and his companions running out of the house of Parbhu Dayal, PW, which is located close to his shop, being intervened by one plot. He further stated that the police had recorded his statement and had also got him medicolegally examined.

PW 10 Navita Singh, the then Chief Judicial Magistrate, Kaithal, stated that on January 13, 1992, accused Harpal and Jitender had been produced before her by the police for their test identification parade but the accused vide their respective statements, Ex. PT and PT/1, had declined to take part in the identification parade. Ex.PT/2 is the order passed by her in this regard.

PW 11 ASI Gurcharan Singh, the Investigating Officer, deposed that on December 5, 1991, while he was going to the hospital on receipt of a ruqa, Pritam Singh (PW 3) met him near Hind Cinema at about 4 A.M. and got recorded his statement, Ex. PD. After making his endorsement, Ex. PD/1, thereon, ASI Gurcharan Singh sent it to the Police Station; on the basis of which formal F.I.R., Ex. PD/2, was recorded by S.I. Darshan Kumar. He further stated that thereafter he went to the hospital where Parbhu Dayal and Sukhbir Singh, injured PWs, were admitted and on their being declared unfit to make statement, he accompanied by Raj Kumar, PW, reached the spot, prepared rough site plan, Ex. PU, lifted bloodstained earth from the house of Parbhu Dayal, made it into a sealed parcel and took the same into possession in the presence of Raj Kumar and Pritam Singh, PWs, vide recovery memo, Ex. PR. This witness further stated that on December 13, 1991, he had arrested accused Roshan Lal from his house in Amargarh Gamri, Kaithal and on the following day, after interrogation, accused Roshan Lal made a disclosure statement in the presence of Parbhu Dayal and Pritam Singh, PWs, that he had kept concealed one pair of earrings, one HMT wrist watch, one pant, one shirt, one bucket of aluminium in his rented room and in pursuance thereof, recovery of those articles was got effected on December 15, 1991. He further stated that Bhim Singh and Soma, accused, were arrested from Hind Cinema, Kaithal and on their interrogation, they made disclosure statements, Exhibits PF and PG, respectively. Accused Hawa Singh was arrested from village Padla on December 25, 1991, and was produced with muffled face for test identification parade, which was held by Tehsildar, Kaithal, on December 30, 1991. He further stated that on January 12, 1992, accused Harpal and Jitender were arrested from Kaithal and, on the following day, they were produced before the Chief Judicial Magistrate, Kaithal, with their faces muffled, for test identification parade but they declined to join the same. He further stated that on January 14, 1992, accused Harpal was interrogated and he made a disclosure statement to the effect that he had kept concealed one spring actuated knife on the back of some room on the SiwanKaithal road and he, accordingly, got effected recovery of the knife from the disclosed place. He further stated that on December 4, 1992, he had arrested Zile Singh, accused, and produced him before the Court with muffled face for his test identification parade but he, too, declined to join the same. Exhibit PX/1 is the order passed by Shri N.D. Achint, Judicial Magistrate Ist Class, Kaithal, in this regard.

The appellants, when examined under section 313, Criminal Procedure Code, denied the prosecution allegations and pleaded innocence. Accused Harpal tendered in defence copy of judgment, Ex. DC.

Mr. Gurnam Singh, Advocate, learned counsel for Hawa Singh, appellant, contended that in the absence of identification of the accused in court, identification of Hawa Singh, appellant, in identification test parade cannot be used for any corroborative purpose. In support of his argument, he relied upon a judgment of the Calcutta High Court reported as Moktar Singh v. The State, 1985 Cri. L.J. 90, and two judgments of the Allahabad High Court reported as Asharfi & another v. The State, 1961(1) Cri. L.J. 340, and Prithi & another v. The State, 1966 Cri. L.J. 1369.

Mr. S.S. Pattar, Assistant Advocate General, Haryana, on behalf of the State contended that Pritam Singh (PW3) had stated in the trial Court on oath that during the night intervening 4th/5th December, 1991, while he was sleeping along with his family in his house, he had heard raula at about 2.00 A.M., that he and his son Sukhbir Singh came out and their outer light was on; that his son was ahead of him and that when he opened the door of the house to come out, he was stabbed in the stomach by Harpal accused. Pritam Singh, PW, also pointed out towards the accused present in Court. The witness further stated that accused Harpal was accompanied by six other persons, and that about three persons were bringing out Parbhu Dayal in injured condition who lives in the other portion of the house which has a common compound. He further stated that other three persons, who were inside the room of Parbhu Dayal, were trying to remove the earrings of Krishna and one of them was putting his hand on the mouth of Krishna, wife of Parbhu Dayal. Pritam Singh, PW, further stated that all the accused present in Court were having long dandas which are used as a part of cot, besides iron rod and that Krishna was bleeding from her ears while the accused took away her earrings. Mr. Pattar further contended that Hawa Singh, appellant, was identified by the injured eyewitnesses in the Court and he was also identified by the witnesses in the identification test parade and, therefore, the argument raised by the counsel for the appellant Hawa Singh has no force. He further contended that PW 7 Parbhu Dayal, injured, had also stated in Court on oath that during the night of December 4/5, 1991, while he was sleeping in his house, seven persons armed with lathis and iron rods had entered his house at about 2.00 A.M.; that four of them had beaten him up and the other three had caught hold of his wife Krishna and santched her earrings, and that Roshan accused present in court had been identified by him at the spot and Hawa Singh, Soma and Bhima accused present in court were also with Roshan Lal and they had committed the aforesaid crime while the remaining accused present in Court were the same persons who had entered his house along with their coaccused. To the same effect is the statement of Sukhbir Singh (PW 7), who specifically stated that all the accused were present in Court and that Roshan Lal, accused, was identified by him at the spot because he knew him prior to the occurrence. He also stated that Harpal accused had given him injuries.

Harpal, Jitender alias Kala and Zile Singh, appellants, had refused to join the identification test parade. Pritam Singh, Sukhbir Singh, Parbhu Dayal and Raj Kumar, PWs, had identified all the accused in Court. Pritam Singh (PW3) had categorically deposed that electric light in the courtyard of Parbhu Dayal''s house was on and one of the accused, namely, Roshan Lal, was already known to Sukhbir Singh injured as well as Raj Kumar, PW. From the house of Roshan Lal accused, one pair of earrings of Krishna wife of Parbhu Dayal (PW7) and other domestic articles were recovered. As already observed, three of the accused had refused to join the identification parade under the fear of being identified. Therefore, I find no merit in the contention raised by Mr. Gurnam Singh, Advocate for Hawa Singh, appellant.

Mr. J.K. Goel, Advocate, learned counsel for Zile Singh, appellant, Mr. Rajinder Goyal, Advocate for Jitender alias Kala, and Mr. S.S. Rana, Advocate for Harpal, appellant, contended that the identification of the appellants by the prosecution witnesses in the Court after a lapse of four months of the commission of the crime cannot furnish any evidence against the appellants. In support of their argument, they relied upon a judgment of the apex Court reported as Mohd. Abdul Hafeez v. The State of Andhra Pradesh, 1983(1) R.C.R. 141.

On the other hand, Mr. S.S. Pattar, Assistant Advocate General, Haryana, for the State contended that Roshan Lal, coaccused of the appellants had been identified by the PWs at the spot while Soma and Bhim Singh, appellants, were identified after 3/4 days of the occurrence. He further contended that Harpal, Jitender alias Kala and Zile Singh, appellants, did not join the identification parade organised by the prosecution and had declined to join the identification parade under the fear of being identified after their arrest by the police.

After hearing the respective arguments of counsel for the parties, I am of the considered view that Mohd. Abdul Hafeez''s case (supra) is not applicable to the facts of the present case.

Learned counsel for Zile Singh and Jitender alias Kala, appellants, next contended that no offence under Section 397, Indian Penal Code, was made out against these appellants because they had not used any deadly weapons at the time of commission of robbery. In support of this argument, they relied upon a Single Bench judgment of this Court in Paviter Singh v. State of Punjab, 1992(2) RCR 233. It has been held in Paviter Singh''s case that scope of Section 397, Indian Penal Code, was examined by the apex Court in Shri Phool Kumar v. Delhi Administration, 1975 S.C.C. (Cri) 336 and it was held that the term ''offender'' as contained in Section 397, Indian Penal Code, is contended to the offender who uses any deadly weapon and that the use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon.

Mr. S.S. Pattar, Assistant Advocate General, Haryana, contended that if the weapon was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to using the weapon within the meaning of Section 397, Indian Penal Code. In support of his argument, he also relied upon and contended that the law laid down by a Single Bench of this Court in Paviter Singh''s case (supra) is not correct in view of the judgment of the apex Court.

Learned counsel for the appellants further contended that full description of the accused assailants was not given in the statement, Ex.PD, on the basis of which F.I.R. was recorded. After giving thoughtful consideration to the whole matter, I hold that the prosecution has proved its case against the appellants beyond any reasonable doubt. In the case in hand, one of the appellants, namely, Roshan Lal, was known to Sukhbir Singh, injured PW, and Raj Kumar (PW9). Sukhbir Singh PW also identified that Harpal, appellant, had inflicted a knife blow in his stomach. Pritam Singh (PW3) deposed that electric light in the courtyard of their house was on. Parbhu Dayal (PW7) owns a house comprised of two rooms intervened by a kitchen and a courtyard having a wall of the height of 41/2'' with an iron main gate. All the appellants armed with lathis, iron rod and a knife had entered the house of Parbhu Dayal on December 5, 1991 at about 2.00 A.M. They broke open the lock of the kitchen. 3/4 appellants entered the kitchen and through the service window of the kitchen, they entered the bed room of Parbhu Dayal in which Parbhu Dayal and his wife Krishna were sleeping. They woke them up by using force, inflicted danda blow on the head of Parbhu Dayal and snatched his wrist watch and Rs. 900/ from his pocket. Krishna''s earrings were also snatched by them. The remaining appellants remained standing with lathis and iron rods in the courtyard. When Pritam Singh (PW 3), upon hearing noise, had opened the door, he was pushed aside by his son Sukhbir Singh (PW 8) with the object to overpower the accused and he caught hold of accused Harpal but the latter with an intention to escape, inflicted a knife blow in the stomach of Sukhbir Singh. Sukhbir Singh put his hand upon his wound and sat down. Thereafter Pritam Singh (PW 3) tried to intervene but he was hit with a lathi. The appellants who were taking the valuables, on arrival of neighbourers, started running. Raj Kumar (PW 9) tried to catch hold of one of the appellants, but he was hit with a brick on his head and fell down. All the appellants had been identified by the PWs. Since Roshan Lal, appellant, was previously known to PWs Sukhbir Singh and Raj Kumar so he was chased in order to secure his custody. First, Soma and Bhim Singh, appellants, were arrested from Hind Cinema, Kaithal; Roshan Lal appellant was arrested from his village and thereafter the remaining appellants were arrested. The disclosure statement made by Roshan Lal appellant led to the recovery of one pair of ear rings of Krishna wife of Parbhu Dayal (PW 7) from his residential house. Three of the accused, namely, Harpal, Jitender and Zile Singh, did not join the identification parade. Injuries on the persons of Parbhu Dayal, Pritam Singh and Raj Kumar, PWs, were detected when they were medicolegally examined. When Sukhbir Singh (PW 8) was medicolegally examined, a stab wound injury was also observed in his stomach. Full description of the accused assailants could not be given by Pritam Singh (PW 3) in his statement, Ex. PD, on the basis of which, F.I.R., Ex. PD/2, was recorded. Had the F.I.R. been recorded on the statement of Parbhu Dayal (PW 7), in that eventuality, more details were expected.

In view of the above discussion, I am of the considered view that all the appellants armed with lathis, iron rods and Harpal appellant with a knife, had criminally trespassed the house of Parbhu Dayal (PW 7) with an intention to commit dacoity. They broke open the lock of the kitchen, four of them entered the bedroom of Parbhu Dayal through the service window of the kitchen, snatched wrist watch and currency notes of Rs. 900/ from Parbhu Dayal and the earrings from Krishna and took away other articles, clothes, buckets etc. from the house of Parbhu Dayal and Krishna. When PWs Sukhbir Singh, Pritam Singh and Raj Kumar tried to catch hold of them, Sukhbir Singh was given a stab wound in his stomach, while Pritam Singh and Raj Kumar were given head injuries. This eyewitness account has come from the statements on oath made by Pritam Singh (PW 3), Parbhu Dayal (PW 7), Sukhbir Singh (PW 8) and Raj Kumar (PW 9). Their statements do no suffer from any infirmity, benefit of which may be given to the appellants. All the four PWs were medicolegally examined and injuries were found on their persons. Roshan Lal, appellant, was previously known to Sukhbir Singh and Raj Kumar, PWs, and he was correctly identified. The appellants were interrogated and the disclosure statement made by Roshan Lal, appellant, led to the recovery of earrings, bucket and clothes. Harpal appellant''s disclosure statement made during interrogation led to the recovery of knife. The prosecution version is supported by the investigating officer as well as by the doctors who had medicolegally examined the aforesaid injured PWs. The judgments relied upon by the counsel for the appellants are not applicable to the facts of the present case. I, therefore, hold that the prosecution has been able to prove its case against the appellants beyond any reasonable doubt.

In view of the above discussion, I find no merit in these appeals and the same are dismissed.