Raju vs State of Haryana

Rekha Mittal, J.—By way of this order, I shall dispose of CRA-S-198-SB of 2010 titled "Raju @ Rajender Kumar and another vs. State of Haryana", CRA-S-486-SB of 2010 titled "Wazir Chand @ Wazira vs. State of Haryana" and CRA-S-585-SB of 2010 titled "Jai Kumar vs. State of Haryana", as these have emerged out of the judgment of conviction and order of sentence dated 11.1.2010 and 13.1.2010, respectively whereby appellants Raju @ Rajender Kumar, Surender @ Joginder have been convicted for commission of offence punishable u/s 395 of the Indian Penal Code (in short "IPC") and the co-accused namely Wazir Chand @ Wazira and Jai Kumar have been convicted and sentenced for commission of offence punishable u/s 412 thereof. For the sake of convenience, facts are taken from CRA-S-198 of 2010.

The facts, in brief, are that Smt. Ravinder Kaur (complainant) presented an application before Sub Inspector Karnail Singh alleging that she is resident of H. No. 2363, Sector 13, Urban Estate, Karnal. On 24.8.2007 at about 12-30 p.m., she and her maid servant Seema were present in the verandah of their house. Three persons in the age bracket of 30-32 years came there and told the complainant that her husband had sent them for work. When she informed them that work had already been completed, one of them took out a knife and threatened the maid servant. Another person took out a pistol and put its barrel in her mouth. The third accused pushed them inside the bed room and removed their jewellery. He also demanded keys of the almirah from her (complainant). When she stated that she did not have the keys with her, they broke open the almirah, took away Rs. 1,05,000/-. The complainant and Seema were shut in the bath room while the accused looted the house. At about 1.05 p.m., her mother-in-law came there and got them released. The accused decamped with about 25 tolas gold jewellery besides cash etc. Her mother-in-law told that she had seen four persons leaving the house.

During investigation, the accused were arrested, statements of the witnesses were recorded. On completion of investigation, challan was presented in the Court for commencement of trial.

After due compliance with the provisions of Section 207 of the Code of Criminal Procedure (in short "Cr.P.C."), the case was committed to the Court of Sessions as offence under Sections 395 and 397 IPC being exclusively triable by the Court of Sessions.

On consideration of materials relied upon by the prosecution and arguments advanced by counsel for the parties, finding a prima facie case, the accused were charged for committing offence punishable u/s 395 read with Section 397 IPC. The accused Surender @ Joginder was additionally charged for offence punishable u/s 25 of the Arms Act. The accused pleaded not guilty and claimed trial.

To prove its case, the prosecution examined as many as 10 witnesses namely, SI Jodha Ram PW1, ASI Amarjit Singh PW2, Constable Narinder Kumar PW3, HC Satish Kumar PW4, Kuldeep Kaur PW5, Inspector Karnail Singh PW6, ASI Mukesh Kumar PW7, Inspector Rattan Singh PW8, Ravinder Kaur, complainant PW9 and Charanjit Singh PW10.

On evidence of the prosecution being closed, the accused were examined in terms of Section 313 Cr.P.C. In their statements, they denied the incriminating material put to them and raised usual plea of innocence and false implication. However, they did not adduce any evidence in defence.

On appreciation of evidence led by the prosecution and after having heard rival submissions made by counsel for the parties, the learned trial court held the appellants guilty for the aforesaid offences, detailed hereinbelow:-

Surender @ Joginder and Raju @ Rajender Kumar

To undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 10,000/- each for commission of offence u/s 395 IPC. In default of payment of fine to further undergo rigorous imprisonment for a period of six months.

Wazir Chand @ Wazira and Jai Kumar

To undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 10,000/- each for commission of offence u/s 412 IPC. In default of payment of fine to further undergo rigorous imprisonment for a period of six months.

Feeling aggrieved by the verdict of the learned trial court, one appeal has been jointly filed by Raju @ Rajender Kumar and Surender @ Joginder whereas other two appeals have been separately filed by convicts Wazir Chand @ Wazira and Jai Kumar.

The appeals were admitted in the year 2010. As per custody certificates, Raju @ Rajender Kumar has undergone actual custody for a period of about five years. Accused Surinder @ Joginder and Wazir Chand @Wazira have undergone actual custody for a period of about six years. Accused Jai Kumar has undergone actual custody for a period of more than six years.

Counsel for the appellants contends that the trial court grossly erred in holding the appellants guilty of offence punishable under Sections 395 IPC. It is contended that the alleged eye witnesses of the occurrence failed to establish identity of the accused to be the author of the crime. Seema, one of the alleged eye witness was not examined in the case. Ravinder Kaur complainant, another eye witness of the occurrence has candidly and categorically deposed that she is unable to identify the accused present in the Court to be the persons who committed dacoity in her house. Similarly, Smt. Kuldeep Kaur, mother-in-law of Ravinder Kaur who allegedly had seen four persons leaving the place, did not identify the accused to be the persons spotted by her near the house on the date of occurrence.

Counsel for the State, on the other hand, has supported the judgment of the trial court with the submissions that the findings recorded by the trial court may be affirmed.

Before proceeding further, testimony of Ravinder Kaur and Kuldeep Kaur require to be looked into. A relevant extract from their testimony in regard to identity of accused reads as follows:-

Ravinder Kaur

All the said persons were between 30-32 years of age. None of those person is present in the Court today. I cannot identify those persons as about 2-3 years have passed.

Kuldeep Kaur

At about 1-00 p.m. I returned to my house. I saw that four persons were going by the side of our kothi towards green belt. I cannot identify them as I had seen them from back. I have weak eye sight so I could not identify those assailants.

The learned trial court despite noticing that Ravinder Kaur and Kuldeep Kaur have together refused to connect the accused with the crime, still proceeded to hold Surender @ Joginder and Raju @ Rajender Kumar guilty of committing offence u/s 395 IPC primarily on the basis of alleged disclosure statement made by them during their police custody and in pursuance thereof identifying the place of occurrence.

The question now arises, if the said disclosure statement of Surender @ Joginder and Raju @ Rajender Kumar can form basis of conviction u/s 395 IPC. At the outset, the answer appears to be in the negative. The learned trial court has held that it is fairly settled by now that the expression "fact discovered" includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to this. The court has referred to the judgment in Anupam and etc. Vs. State of Haryana, wherein it has been held that confession of accused to police leading to discovery of fact is admissible. A fact can be discovered by the police (investigating officer) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes, recovery of an object is only one such cause. Pointing out place to the police officer where offence was committed would be admissible as conduct u/s 8 of the Evidence Act.

Indisputably, the prosecution has an obligation to prove culpability of the accused beyond a shadow of reasonable doubt. The learned trial court committed a serious error in holding Surender @ Joginder and Raju @ Rajender guilty of the offence u/s 395 IPC merely on the basis of their alleged disclosure statement in police custody and nishandehi/demarcation of the place of occurrence in pursuance thereof. The trial court failed to appreciate that the word "discovered" indicates a fact being made known which was not so known earlier. In the case at hand, the place of occurrence was already known to the complainant as well as to the investigating agency much prior to the arrest of accused Surender @ Joginder and Raju @ Rajender Kumar, therefore, any such disclosure made by them cannot be said to be discovery of fact and thus, be a legal evidence to become foundation for conviction of the accused for the said offence. The prosecution has miserably failed to lead any tangible evidence on record to establish charge u/s 395 IPC against convicts Surender @ Joginder and Raju @ Rajender Kumar. This apart, Section 395 IPC provides for punishment in regard to commission of offence of dacoity. Section 391 IPC defines dacoity. A relevant extract therefrom reads as follows:-

Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity�.

In the case at hand, four accused were charged for committing offence of dacoity and one of the co-accused was not challaned having not been arrested in the case. Firstly, as per the statement of complainant Ravinder Kaur, three persons came to the spot and looted the complainant of gold jewellery and money. Smt. Kuldeep Kaur had stated that she had seen four persons leaving the place. It is never the case of the prosecution that the offence u/s 391 IPC punishable u/s 395 thereof was committed by five or more than five persons. Secondly, two of the accused namely Wazir Chand @ Wazira and Jai Kumar charge sheeted for committing offence u/s 395 IPC were acquitted by the trial court. In the circumstances of the present case, conviction of Raju @ Rajender Kumar and Surender @ Joginder for offence punishable u/s 395 IPC by no stretch of imagination can stand the test of judicial scrutiny and accordingly liable to be set aside.

With regard to appeals preferred by Wazir Chand @ Wazira and Jai Kumar qua their conviction and sentence for offence punishable u/s 412 IPC, counsel has submitted that once these accused have been acquitted of the offence u/s 395 IPC, they cannot be held guilty for committing offence u/s 412 IPC in the absence of any material on record that they had knowledge that the property allegedly recovered from them was the subject matter of dacoity. It is further submitted that occurrence in question took place on 24.8.2007 but both the appellants were arrested after about one year in August 2008. Another submission made by counsel is that a serious prejudice would be caused to the appellants in case their conviction is sustained for the said offence in the absence of charge u/s 412 IPC.

Counsel for the State, while refuting the contentions of counsel for the appellants has submitted that an accused can be convicted for an offence proved against him even if no formal charge has been framed against him for the said offence.

Be that as it may, it is an admitted position of the case that Wazir Chand @ Wazira and Jai Kumar were charged for committing offence of dacoity punishable u/s 395 IPC and were acquitted of the said offence meaning thereby that they had not committed offence of dacoity. Jai Kumar is a resident of village Ballah, District Karnal though Wazir Chand @ Wazira is resident of Ashok Nagar, Meerut Road, Karnal. As per the case of the prosecution, the perpetrators of the crime took away an amount of Rs. 1,05,000/- and gold jewellery weighing 25 tolas. Admittedly, no one sustained injuries in the occurrence despite the accused being armed with a knife and a pistol. It is difficult to believe that such an occurrence would have been made known in the area or even in the adjoining villages etc. in order to infer that the accused had necessary knowledge of commission of offence of dacoity involving looting of money and gold jewellery.

The accused were admittedly arrested in the case after about one year of the occurrence. There is nothing on record that the accused had knowledge of commission of dacoity in order to arrive at a conclusion that they were in possession of articles of dacoity knowing the same to be the subject matter of dacoity.

Another aspect of the case is that it is well settled that only that statement of the accused recorded during custodial interrogation is admissible which leads to discovery of a fact. The statement which does not have a direct bearing to the discovery of a fact is not admissible being hit by the provisions of Section 25 of the Evidence Act. Under these circumstances, the statement of the accused that they had committed the offence of dacoity cannot be taken into consideration in order to hold that the accused had the necessary knowledge that the articles which were possessed by them are the subject matter of dacoity. This apart, as the recovery was effected from the accused after one year of the commission of offence, no such knowledge or belief on the part of the accused otherwise can be inferred in the circumstances of the present case. The learned trial court misdirected itself in holding the appellants guilty of committing offence punishable u/s 412 IPC. The findings of the learned trial court are unfounded and in the absence of even an iota of evidence to prove that the appellants dishonestly received or retained any stolen property, the possession whereof they knew or had reason to believe to have been transferred by the commission of dacoity, or dishonestly received from a person, whom he knew or had reason to believe to belong or to have belonged to a gang of dacoits. In this view of the matter, the judgment of conviction and order of sentence passed against Wazir Chand @ Wazira and Jai Kumar are liable to be set aside.

In view of what has been discussed hereinabove, the appeals are allowed. The conviction and sentence of Raju @ Rajender and Surender @ Joginder for offence punishable u/s 395 IPC and that of Wazir Chand @ Wazira and Jai Kumar for offence punishable u/s 412 IPC are set aside. The appellants be set at liberty forthwith, if not required in any other case.