Punjab-Haryana High Court
Hy. State vs Raghbir on 8 May, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
In the High Court for the States of Punjab and Haryana
At Chandigarh
(I) CRA-D-420-DBA-2001 (O&M)
State of Haryana ... Appellant
Versus
Raghbir Singh and others ... Respondents
(II) CRA-S-990-SB-2000 (O&M)
Khichu ... Appellant
Versus
State of Haryana ... Respondent
(III) CRA-S-1091-SB-2000 (O&M)
Raghbir and another ... Appellants
Versus
The State of Haryana ... Respondent
Date of Decision:-8.5.2024
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE N.S. SHEKHAWAT
Present:- Ms. Sheenu Sura, DAG, Haryana,
for the appellant -State of Haryana in CRA-D-420-DBA-2001 &
for the respondent - State of Haryana in CRA-S-990-SB-2000 &
CRA-S-1091-SB-2000.
Pankaj Kakkar
2024.05.09 15:17
I attest to the accuracy and
authenticity of this document
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) (2)
Mr. Rajiv Sharma, Advocate,
for the appellant in CRA-S-990-SB-2000 and
for respondent No.6 in CRA-D-420-DBA-2001.
Mr. Karan Pathak, Advocate,
for the appellant in CRA-S-1091-SB-2000 and
for respondent No.1 CRA-D-420-DBA-2001.
*****
GURVINDER SINGH GILL, J.
1. This judgment shall dispose of the aforsaid three appeals which are directed
against the same very judgment dated 12.9.2000 passed by learned
Additional Sessions Judge, Faridabad.
2. While CRA-S-990-SB-2000 & CRA-S-1091-SB-2000 have been filed by the
accused Raghbir, Gattan @ Riyasat and Khichu, who stand convicted for
having committed offence under Section 412 of Indian Penal Code, CRA-D-
420-DBA-2001 has been filed on behalf of State of Haryana challenging
acquittal of the aforesaid accused in respect of charges under Sections 332,
353, 395, 397 and 307 IPC and complete acquittal of the remaining remaining
accused. Vide judgment dated 12.9.2000 passed by learned Additional
Sessions Judge, Faridabad, accused Raghbir, Gattan @ Riyasat and Khichu
have been sentenced as under:
Name of the Offence Under Imprisonment Fine In default
Convict/s Section/s of payment
of fine
Raghbir 412 IPC Rigorous Imprisonment Rs.5,000/- R.I. for One
for Seven Years year
Gattan @ 412 IPC Rigorous Imprisonment Rs.5,000/- R.I. for One
Riyasat for Seven Years year
Khichu 412 IPC Rigorous Imprisonment Rs.3,000/- R.I. for 9
for Four Years months
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) (3)
3. The FIR in question came to be lodged on the basis of statement (Ex.PT)
made by Gautam Chand on 3.6.1992, wherein it is alleged that on the night
intervening 2.6.1992 and 3.6.1992 he went to sleep on the roof of his house
as usual. However, during midnight he heard noises of a door being pushed.
The complainant woke up and saw that 10-12 persons armed with weapons
like axes etc. had entered into his house after breaking open the door and
were beating children and the said persons were looting household articles as
well as gold ornaments. After looting the house of complainant, the said
persons entered into house of complainant's neighbour namely Babu Ram
and committed dacoity therein as well. It is further the case of prosecution
that pursuant to receipt of said information, the police rushed to the spot and
had an encounter with the dacoits during the course of which Constable
Vinay sustained gunshot injuries. It is alleged that the dacoits injured several
other police officials and managed to escape from the spot. Investigation was
conducted by the police, during the course of which cartridges were
recovered from the spot; rough site plan of the place of occurrence was
prepared and statement of witnesses were recorded.
4. On 29.6.1992, the police received information that 19 persons had committed
dacoity in the house of Gautam Chand and Babu Ram and that the said
persons had moved to Uttar Pradesh (UP) from Haryana on a tractor. The
police conducted raids at several places and was able to intercept Massey-
Fergusson tractor bearing registration No.UP-81-9284. The occupants of the
said tractor were arrested and their search was effected leading to recovery of
3 gold coins from the possession of one Sapeeha, which were taken into
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) (4)
possession by the police vide recovery memo Ex.PG. Three gold bangles
were recovered from possession of one Fakruddin, while another 2 gold
bangles were recovered from possession of Ram Kishore, which were taken
into possession by the police vide recovery memos Ex.PF and PE,
respectively.
5. It is further the case of prosecution that on 19.8.1992, accused Raghbir
appeared before the police and produced a pair of gold ear-rings and 4 gold
buttons, which were taken into possession by the police vide recovery memo
Ex.PCC. The aforesaid recovered articles were duly identified by
complainant Gautam Chand and Babu Ram as belonging to them. On
9.9.1992, a raid was conducted at the houe of Gattan, who was arrested and
pursuant to his disclosure statement, he got recovered a pair of 'Kandula' one
pair of 'pajeb' and one Hassali, which were taken into possession vide
recovery memo Ex.PFF on 17.9.1992. He (Gattan) further disclosed that he
had handed over some of the looted properties to his relative Khichu.
Pursuant to said disclosure statement, Khichu was also arrested and a pair of
'Kadula', one silvar hasli and a pair of 'pajeb' were recovered from
possession of said Khichu, which were taken into possession vide Ex.PA on
17.9.1992.
6. It is further the case of prosecution that on 18.8.1992, accused Safiya got a
12 bore pistol and 2 live cartridges recovered pursuant to his disclosure
statement. On 24.8.1992, accused Kallu @ Guddu was arrested and 2 gold
coins (mohars) were recovered from his possession. On 20.10.1992 accused
Sadhu @ Lalla was arrested and pursuant to his disclosure statement 2 silver
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) (5)
'tagris' were recovered, which were taken into possession by the police vide
Ex.PLL on 22.10.1992. Accused Zahid was also arrested on the same day i.e.
on 22.10.1992 pursuant to secret information and who also made a disclosure
statement leading to recovery of 40 'Lachhe' of silver from his house.
7. Accused Sahab Khan, Sindi, Furkan, Shambir, Islam, Fajjar, Yasin, Aas
Mohmmad and Guljar were declared proclaimed offender, while efforts were
still being made to arrest remaining accused namely Johra, Mangal, Kamal
and Subhash through warrants. It is thus the case of prosecution that 13
accused came to be arrested. However, before challan could be presented,
accused Kallu @ Guddu and Shambir absconded and were declared
proclaimed offenders. Consequently, charge were framed against 11 accused,
but during the course of trial Zahid also absconded and was declared a
proclaimed offender, while Juhru and Furkan expired. Thus, ultimtely it is
only 8 accused, who face trial.
8. The prosecution in order to establish its case examined 25 witnesses. On the
other hand, the accused also led evidence and examined as many as 7 DWs
to establish their plea of false implication. The Trial Court, upon marashlling
the evidence on record, held that the prosecution was able to establish its
case qua offence under Section 412 of Indian Penal Code only qua 3 of the
accused namely Raghbir, Gattan @ Riyasat and Khichu and acquitted them
of the remaining offences. The remaining accused, who had faced trial, were
acquitted of all the charges framed against them.
9. Learned State counsel submitted that the evidence led by prosecution clearly
established all the charges framed against the accused and that once the Trial
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) (6)
Court had accepted the factum of recovery of stolen articles from the 3
accused, their complicity in respect of the remaining offences was also
clearly borne out particularly having regard to the statement made by the
injured police official. It has further been submitted that the Trial Court also
fell in error in acquitting the remaining five accused of all the offences,
despite the fact that they were also found in possession of some of the stolen
articles.
10. On the other hand, learned counsel representing the accused have not only
supported the findings of Trial Court as regards acquittal of the 5 accused
namely Shafi Mohamad @ Sapeeha, Fakruddin, Ram Kishore, Sabu @ Lalla
and Kamal, but have also assailed the conviction of three accused namely
Raghbir, Gattan @ Riyasat and Khichu in respect of offence under Section
412 IPC.
11. This Court has considered rival submissions addressed before this Court and
have also gone through the evidence led by the prosecution as well as the
accused.
12. The relevant discussion pertaining to acquittal of all the accused with respect
to offences under Sections 332, 353, 395, 397 and 307 IPC is reproduced
hereinunder:
"12. As regards to the offences punishable under Section 332, 353, 395,
397 and 307, the prosecution has miserably failed to prove the
same. None of the dacoits was apprehended on the spot, an
encounter ensued between the police party and the dacoits and
thereafter the dacoits were able to escape from the spot. None of the
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) (7)
police officials had seen any of the dacoits nor any of them
(dacoits) was earlier known either to the police party or to the
complainants. PW - 4 Babu Ram Aggarwal, the person in whose
presence the dacoity was committed, has deposed on the factum of
dacoity and also proved the identification memo Ex.PJ and
recovery memos Ex.PK and Ex.PL but failed to identify the
accused persons to be those persons who had committed dacoity in
the house. He was declared hostile on that fact but to no effect.
Only Gautam Chand complainant, as PW - 11 tried to identify the
accused persons deposing that the accused persons had refused to
join the test identification parade. The identification of PW-11
Gautam Chand is not proved beyond doubt. He made a casual
statement that the accused person present in the Court were the
same who had committed the dacoity. As already pointed out it had
come during investigation that about 19 persons had committed
dacoity. Some of the accused persons facing trial and present in the
Court on 21.9.1999 when the statement of Gautam PW-11 was
recorded, were not those who had participated in the commission of
dacoity. Some of them were those persons who had subsequently
acquired the possession of the stolen articles after dacoity. Thus the
statement of the complainant cannot be taken as trus worthy. He
made a cursory statement implicating all the accused in the act of
commission of dacoity when some of accused persons had not
participated in dacoity but have been charged under Section 412
IPC only. Once the statement of PW-11 complainant in XXXX
disbelieved on this fact. Charges under Section 332, 353, 395, 397
and 307 IPC are not proved against any of the accused persons and
hence all the accused are hereby acquitted thereunder. "
13. This Court finds that it is a case where none of the accused was identified at
the spot nor any of the said persons was known to any of the members of the
police party or to the complainant. PW-4 Babu Ram Aggarwal, in whose
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) (8)
presence dacoity had been committed and who had also signed on various
recovery memos, failed to identify the accused and was declared hostile.
Although the complainant - Gautam Chand did state regarding identification
of the accused, but his statement is shorn of any other reliable corroborative
evidence. It need to be borne in mind that it is a case where the occrrence had
taken place during the midnight and while the complainant was on the roof
of his house, the occurrence had taken place on the ground floor and thus
identification of accused would certainly be difficult. Even though, one of
the injured police official i.e. PW - Vinay Kumar had been examined by the
prosecution, but even in his statement not a word has been stated regarding
identification. Rather, in his examination-in-chief he categorically stated that
he cannot identify any of the dacoits, who had fired at him. Thus, while it can
be said that there is evidence to the effect that a dacoity had taken place, but
the prosecution has failed to establish that it is the accused, who had
committed the said offences. Consequently, this Court does not find any
ground to take a view different from what has been taken by the Trial Court
as regards acquittal of the accused for offences under Sections under Sections
332, 353, 395, 397 and 307 IPC .
14. As far as offence under Section 412 IPC is concerned, this Court finds that
charges were framed by the Tria Court only in respect of the jewellery
recovered from the three accused namely Raghbir, Gattan @ Riyasat and
Khichu belonging to the complainant Gautam Chand only and no charges
were framed with respect to the jewellery, which had been recovered from
the remaining accused. Thus in the absence of any specific charges
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) (9)
pertaining to the articles recovered from the remaining 5 accused namely
Shafi Mohamad @ Sapeeha, Fakruddin, Ram Kishore, Sabu @ Lalla and
Kamal, they certainly could not have been convicted for the said offences.
The articles of jewellery recovered from the accused Raghbir, Gattan @
Riyasat and Khichu have not only been identified by the complainant, but the
factum of recovery also stands duly established from the testimonies of the
prosecution witnesses. Under these circumstances, the conviction of three
accused namely Raghbir, Gattan @ Riyasat and Khichu is fully justified and
does not suffer from any infirmity and is upheld. The remaining accused, in
the absence of any evidence, deserve to be acquitted in respect of offence
under Section 412 IPC as have been rightly acquitted by the Trial Court.
15. As a sequel to the discussion made above, the appeal i.e. CRA-D-420-DBA-
2001 filed on behalf of State of Haryana is found to be devoid of merits and
is hereby dismissed.
16. While the conviction of appellants namely Raghbir, Gattan @ Riyasat and
Khichu in respect of offence under Section 412 is upheld, but having regard
to the fact that appellant - Raghbir was aged 68 years, appellant - Khichu
was aged 55 years and appellant - Gttan @ Riyasat was aged 32 years at the
time of passing of impugned judgment and there is no evidence that they are
involved in multiple cases, it will be in the fitness of things that the
substantive sentence of rigorous imprisonment as imposed upon appellants -
Raghbir & Gattan @ Riyasat i.e. 7 years and appellant - Khichu i.e. 4 years
be reduced to the one already undergone. Thus the appeals filed by the
aforesaid accused i.e. CRA-S-990-SB-2000 filed on behalf of appellant -
CRA-D-420-DBA-2001 (O&M)
CRA-S-990-SB-2000 (O&M) &
CRA-S-1091-SB-2000 (O&M) ( 10 )
Khichu & CRA-S-1091-SB-2000 filed on behalf of appellants - Raghbir and
Gattan @ Riyasat are accepted to the limited extent of reduction in
substantive sentence of imprisonment as indicated above. The fine imposed
shall, however, remain unaltered. Their bail bonds/surety bonds shall stand
dischrged.
17. A copy of this order be placed on the file of each connected case. All quarters
concerned be informed.
( GURVINDER SINGH GILL )
JUDGE
8.5.2024 ( N. S. SHEKHAWAT )
Pankaj JUDGE
Whether speaking /reasoned Yes
Whether Reportable No
