Tejpal and Another vs State of Haryana

Anita Chaudhry, J.—These are two appeals arising out of the judgment of conviction dated 26.08.2010 and order of sentence dated 27.08.2010 passed by the Additional Sessions Judge, Gurgaon who convicted the appellants in FIR No. 131 dated 01.04.2009, registered at Police Station Sohna for commission of offences punishable under Sections 395, 397, 394 and 458 IPC. Five accused had been challaned by the police out of whom Amit and Naresh were acquitted, the remaining three were convicted and sentenced to the following imprisonment:-

The substantial sentences were ordered to run concurrently.

The facts which led to the lodging of the FIR may now be discussed. Narinder Singh owns a Farm House bearing No. D-118 and D-120, Ansal Golden Height Farm House, situated in the hills of Sohna. He had employed gardeners and cooks who remained on the farm house. On the night of 31.03.2009, three men entered the farm house after scaling the wall and confined the gardeners and cooks, bundled them in a room and snatched the money, the mobile phones, the house hold articles at pistol point. The complainant gave a detailed narration of the looted property in his complaint. The assailants had also damaged the property and left in the wee hours of the morning at about 2:30-3:00 AM. While leaving, the assailants also took the landline telephone apparatus and threatened to kill the inmates if the matter was reported to the police. The inmates of the farm house managed to break open the glass and informed the care-taker, Mahesh who reached the spot and then lodged the complaint Ex. PA with the police. The case of the prosecution further is that on 11.04.2009 accused Narinder suffered a disclosure statement in another case and he was formally arrested and he suffered a disclosure statement and led the police party to the place of occurrence and got a country made pistol .12 bore and one live cartridge recovered from the hills of Sampki Nangli. He also got recovered two mobile phones and other articles detailed in the recovery memo Ex. PL.

The prosecution case further is that on 24.05.2009 Naresh, Tejpal and Surender who were already in custody in some other criminal case were produced in the Court through production warrants and they were interrogated and they suffered separate disclosure statements Ex. PG, Ex. PH as well as Ex. P1 respectively and demarcated the place of occurrence. Accused Naresh led the police party to the hills of Nasal and got one country made pistol .315 bore recovered. Accused Amit was arrested on 28.05.2009 and he demarcated the spot.

Sanction for prosecution of Narinder and Naresh under the Arms Act was obtained from the District Magistrate, Gurgaon and after completion of the investigation, the report was laid against the accused.

Charge against all the accused was framed u/s 392, 394 and 358 IPC and u/s 25 of the Arms Act against accused Narinder and Naresh to which they did not plead guilty and claimed trial.

The prosecution examined Mahesh, Laxman Inder Singh, Upender and Hari Chand who were in the farm house that night. They narrated the occurrence. Each one of them identified Naresh, Narinder and Tejpal. Hari Chand PW 3 identified Tejpal, Naresh and Amit. Besides them, the prosecution had examined the Investigating Officer, the draftsman and the Ahlmad who proved the sanction report.

In the statements recorded u/s 313 Cr.P.C. all the accused abjured the trial and pleaded false implication but led no evidence in defence.

The trial Court accepted the statement of the witnesses and convicted Tejpal, Naresh and Narinder under the various Sections whereas Surender and Amit were acquitted.

I have heard the submissions made on behalf of both the sides and with the assistance of the learned counsels representing the appellants, have gone through the record.

It was contended on behalf of the appellants that the FIR was against unknown persons and no description of their height etc. had been detailed and the FIR was delayed and no reason has come as to why the FIR was not registered at the earliest. It was vehemently urged that the police had got the spot demarcated from the accused but that place was already known to the police and the witnesses. It was urged that the ownership of the looted articles had not been proved and even the trial Court did not accept that evidence as the case property was not produced before the Court. It was urged that no test identification parade was held and identification for the first time in the Court was meaning-less. It was urged that the evidence is against all the accused was the same but the trial Court acquitted two of the accused. It was contended that the witnesses had firstly disclosed that the faces of the assailants were muffled and they had made improvements that the faces were not covered and there was no light. It was urged that there was no reason for the accused to keep the articles in their houses and the illicit weapon in the nearby hills and it appears unnatural. It was contended that there was no evidence that any person had been injured and there is no medical evidence. Therefore, story put forth is concocted and the conviction was bad. It was urged that no independent witness was joined though the police had the opportunity. It was contended that if the arguments did not find favour then as the accused were in custody for almost five years then the sentence be reduced to already undergone.

Per contra, the submission was that recovery was effected from the accused but it is another matter that the prosecution was not able to lead evidence to prove the ownership of the house-hold articles and it had given benefit of doubt to accused Amit as he was identified by only one of the witnesses. It was urged that there was no delay in lodging the FIR and the incident had occurred during the intervening night of 31.03.2009 and 01.04.2009 and the FIR was registered at 9:15 A.M. on 01.04.2009. It was contended that the custody certificate would show that there are several cases pending against the appellants and they are involved in such kind of activities and no leniency should be shown.

The occurrence took place the intervening night of 31.03.2009 and 01.04.2009. Three persons entered the farm house by scaling the wall. The farm house was owned by Narinder Singh. Upender, Laxman, Inder Singh and Hari Chand were caught and shuffled and confined in a room at gun point. The keys of the farm house bearing No. D-120 were snatched at pistol point. One of the assailants snatched the mobile phone of the workers and the amount they were possessing besides the blanket, utensils, table fan etc. The assailants were not known to the witnesses, but they were duly identified in the Court. The statement of the witnesses was recorded only eight months after the occurrence. It would not have been difficult for them to identify the persons who were kept in captivity for almost four hours.

Laxman PW 2 had deposed that he and Inder Singh were sleeping and they heard the knocking at the door and they opened it and found the persons pointing a pistol at them. The witnesses have deposed that they took away the keys of the house and opened the house and snatched their mobile phones and then confined them in different rooms.

The in-mates of the house had spoken of the loss of Rs. 35000/-, four mobile phones and other house-hold articles. The assailants also took the landline apparatus. The persons had also threatened the farm helpers and had also beaten some of them. Laxman PW 2 identified accused Naresh and Tejpal. He was consistent that there were three persons who had entered the farm house. Probably the rest of them stood outside guarding the main door. Inder Singh PW 3 identified accused Naresh, Narinder and Tejpal of having looted them. He stated that they had also damaged the articles lying in the house. He was categoric that accused had not kept their faces muffled.

Upinder PW 7 had identified accused Tejpal. He stated that his mobile phone was also taken away by the accused persons.

The police did not get any test identification parade conducted and this is one of the main arguments of the defence. The prosecution case cannot be thrown out merely because the police failed to carry out the test identification parade. The accused were duly identified by the eyewitnesses in the Court. The identification in the Court was for the first time but it makes no difference as that time gap between the date of incident and the identification in the Court was not long. The witnesses did not come to the Court after several years. The witnesses had no previous enmity with the accused so as to falsely implicate them. They did not tow the line of the police and identified only those persons whom they had seen and were involved.

None of the witnesses had identified Surender. Only one witness had identified Amit and the trial Court rightly gave him the benefit of doubt holding that his involvement had not been established beyond reasonable doubt. The other witnesses were consistent and had identified Naresh, Narinder and Tejpal. The failure to hold the test identification parade does not affect the credibility or truthfulness of the evidence of the witnesses who had identified the accused in Court. Their identity was imprinted in their minds. They are truthful witnesses and their testimony can not be discarded.

The Apex Court had held that identification parade is not a substantive piece of evidence and it can only be used as a corroborative piece of evidence and non-holding of test identification parade is not fatal.

The argument of the appellants that there was a delay in lodging the FIR and that it would automatically render the prosecution case doubtful cannot be accepted. There is no such hard and fast rule that any delay would automatically make the case doubtful. It necessarily depends upon the facts and circumstances of each case, whether there has been any delay in lodging the FIR and that it had caused doubt upon the veracity of the prosecution case. Knowing the Indian conditions, one cannot expect the farm labourers to rush to the police station immediately after the occurrence. They were expected to inform their manager who in turn informed the owner and that took time which is quite natural and there is no fabrication. As regards the non-production of the case property is concerned, the trial Court had noted that the case property had not been produced but had rightly accepted the testimony of the private witnesses. The witnesses did not have any previous enmity or hostility towards the accused. The testimony of the private as well as the official witnesses is consistent and inspires confidence and is free from any blemish and the prosecution had successfully proved its case and the involvement of the appellants. They deserve no sympathy nor a lenient view should be taken. The judgment of the trial Court is affirmed. Both the appeals are dismissed. Lower Court record be sent back.