Ghure and Ors., Vs State
of Rajasthan
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1.
This
appeal has been preferred against the judgment and order dated 27.10.2004
passed by the High Court of Judicature for Rajasthan, Jaipur Bench in D.B.
Criminal Appeal No. 1579 of 2002, upholding the conviction and the sentence of the
appellants vide judgment and order dated 2.11.2002 in Sessions Case No. 4 of
2002 (14/2000) passed by Additional District and Sessions Judge, (Fast Track), Laxmangarh,
Alwar, convicting the appellants under Sections 395, 396 and 397 of the Indian Penal
Code, 1860 (hereinafter called the IPC).
2.
Facts
and circumstances giving rise to this appeal are as under:
A. Santosh Jagwayan
(PW.13) lodged an FIR on 17.12.1996 at 8.30 A.M. that in the intervening night between
16th and 17th December, 1996, on hearing a noise, he sent his Chowkidar Gopal
Nepali (deceased) to the roof of his house. Gopal Nepali went upstairs, opened
the gate of the roof, and found that 8 to 10 accused persons were trying to enter
into the house by breaking upon the door of the roof. They immediately fired a shot
at Gopal Nepali (deceased) and entered into the house. The accused persons
locked Shashi Devi (PW.12), wife of complainant and Preeti (PW.14) and Sandhya (PW.15),
his daughters, in the bathroom and started looting moveable properties. Meanwhile,
the complainant's neighbours raised their voices. Thus, the accused immediately
fired a shot at one of the neighbours, Mrs. Anita Yadav (deceased), and as a result,
she died on the spot. Kripa Dayal Yadav (PW.2), husband of Anita Yadav caught
hold of one of the accused but was beaten with a gun's butt by the other
accused persons who managed to get the accused released from his clutches. The accused
decamped with cash, jewellery and silver wares etc.
B. On the basis of the
said complaint, an FIR No. 240 of 1996 (Ex.P-30) was registered under Sections
395, 396, 397 and 398 IPC and investigation ensued. The dead bodies of Gopal Nepali
and Smt. Anita Yadav were recovered and sent for post-mortem examination.
C. During the course of investigation,
the appellants were arrested. Raghuveer was arrested on December 19, 1996 and one
Ambassador car was recovered at his instance. On his further disclosure and instance,
one Kondhani of silver, 2 silver glasses, one silver Katori, one silver spoon and
one torch were recovered. Raghuveer, Ghurelal and Kallu were put to the identification
parade. On December 24, 1996, co-accused Ram Krishan (now dead) was arrested. On
his arrest, case for offence under Section 120B, IPC was also added. On the
information and at the instance of accused Kallu, a 12 bore gun, one silver
Katori, one pair of ear tops and one earring was recovered on December 29,
1996. On the information furnished by Ghurelal, one golden ring, one ear
`jhala', one necklace, one Ilaychidani, one silver spoon and one Kondhani were recovered
on December 30, 1996. On January 1, 1997, accused appellants Rajpal, Samay
Singh and Chunchu @ Bhagwan Singh were arrested. One 12 bore gun, one worship
platter, silver glasses, one Katori and Rs.2,000/- in cash were recovered from
Chunchu @ Bhagwan. On the information furnished by accused Samay Singh, one 32 bore
revolver, two empty cartridges, 4 live cartridges, glasses, one Katori, one
silver spoon and two coin of silver along with Rs.8,900/- in cash and two notes
of Nepal currency were recovered. On the information of appellant Rajpal, one 32
bore Katta, one empty cartridge, 5 live cartridges, two golden bangles
(Kangan), 3 silver button, one Katori of silver, one silver glass and Rs.1000/-
in cash were recovered. Some recoveries were also made at the instance of
co-accused Kuniya and Talevar (acquitted by the High Court). Appellants Samay Singh,
Chunchu and Rajpal were also put to the identification parade.
D. After completing the
investigation, the police filed challan for offences punishable under Sections 395,
396, 397, 120B and 412 IPC, and under Sections 3/25 and 3/27 of the Arms Act,
1950. The charges were framed against the accused appellants. The accused denied
the charges and claimed to be tried. Prosecution produced as many as 34
witnesses and exhibited 80 documents (Ex.P-1 to Ex.P-80) in support of its case.
The accused appellants were examined under Section 313 of the Code of Criminal
Procedure, 1973. They denied the correctness of the statements made against them
and pleaded that they have been falsely implicated.
E. The trial court
convicted all the accused under the provisions of Section 396 IPC and awarded
them punishment to undergo life imprisonment and a fine of Rs. 1,000/-, and in
default of payment of fine, to further undergo six months rigorous imprisonment.
All of them were also convicted for the offence punishable under Section 397 IPC,
and a sentence to undergo rigorous imprisonment for seven years and a fine of
Rs.500/- and in default of payment of fine, three months rigorous imprisonment was
awarded. They were further convicted under Section 395 IPC, awarded life
imprisonment and fine of Rs. 1,000/- and in default of payment of fine, to further
undergo six months rigorous imprisonment. Accused Ghurelal, Chunchu @ Bhagwan
Singh, Kallu, Rajpal and Samay Singh were further convicted under Sections 3/25
and 3/27 of the Arms Act and to each, a sentence was awarded to undergo three years
rigorous imprisonment and a fine of Rs. 500/- and in default of payment of
fine, to further undergo three months rigorous imprisonment.
F. Being aggrieved by the
said decision, all the accused preferred Criminal Appeal No. 1579 of 2002 which
has been decided by the High Court vide judgment and order dated 27.10.2004 acquitting
the accused Talevar and Kuniya, though maintaining the conviction and sentence in
respect of the other accused. Hence, this appeal.
3.
Shri
Altaf Hussain, learned counsel appearing for the appellants has submitted that the
appellants had not been kept baparda. Therefore, the identification was not proper.
He further submitted that there had been most material discrepancies in the
deposition of witnesses which go to the root of this case, and therefore, the
conviction and sentence of the appellants is liable to be set aside.
4.
On
the other hand, Shri Manish Singhvi, learned Additional Advocate General, appearing
for the State of Rajasthan, has opposed the appeal contending that it is a case
wherein two persons had been killed and one seriously injured, valuable moveable
properties have been looted, appellants-accused have been identified by all the
witnesses in jail as well as in court, and recoveries on their disclosure had
been made and proved. Therefore, no interference is required, the appeal lacks
merit and is liable to be dismissed.
5.
We
have considered the rival submissions made by learned counsel for the parties
and perused the record.
6.
In
the instant case, persons were put to trial. One accused, namely, Ram Krishan
died during the course of trial. Two persons, namely, Talevar and Kuniya stood
acquitted by the High Court by the same impugned judgment and order. The appeal
against their acquittal i.e. Criminal Appeal No. 937 of 2005 is being dealt
with separately. Therefore, we are concerned only with the remaining six
appellants.
7.
There
are concurrent findings of fact so far as the involvement and participation of
all the six accused-appellants are concerned. They had been properly identified
in the Test Identification Parades as well as in the Court by the witnesses.
More so, the looted property, particularly, ornaments, jewellery, silver
glasses have been recovered and identified correctly. In respect of this, the
findings recorded by the Trial Court as well as by the High Court are based on the
evidence of Shri G.L. Sharma (PW.26), Judicial Magistrate, who conducted the
Test Identification Parade and by the statements of Narendra Singh Kulhari (PW.20),
the 7Tahsildar who conducted the proceedings of identification of stolen
articles. According to Narendra Singh Kulhari (PW.20), Smt. Shashi Devi (PW.12)
and Santosh Jagwayan (PW.13) accurately identified the stolen articles as 15
silver glasses, 5-7 katories, silver spoons, silver plates, tagri, golden ear
rings and 21 coins of silver as well as packet of notes. Similarly, Shri G.L. Sharma,
(PW.26), Judicial Magistrate, has deposed that on December 23, 1996, he had
conducted the identification parade of accused Raghuveer, Kallu and Ghurelal.
He further deposed that Santosh Jagwayan (PW.13), Smt. Shashi Devi (PW.12) and Kripa
Dayal Yadav (PW.2) were summoned for identifying the accused. Santosh Jagwayan
(PW.13) and Smt. Shashi Devi (PW.12) have also identified the accused
Raghuveer, Kallu and Ghurelal. Thereafter, Kripa Dayal Yadav was summoned and he
identified accused Raghuveer, Kallu and Ghurelal. All the three identified the
aforesaid accused correctly. He further deposed that on January 6, 1997, on the
order of the Chief Judicial Magistrate, Alwar, he also conducted the identification
parade of the accused. Witnesses Santosh Jagwayan (PW.13), Smt. Shashi (PW.12) and
Kripa Dayal Yadav (PW.2) appeared for identifying the accused. First of all,
Santosh Jagwayan (PW.13) was called to identify the accused. He identified the accused
Samay Singh and Bhagwan Singh, but in place of accused Rajpal, he identified another
accused Suraj. Smt. Shashi Devi (PW.12) identified accused Samay Singh, Bhagwan
Singh and Rajpal accurately. He also prepared memos Ex.P-3 and Ex.P-4 of the
identification parade. These two witnesses have been cross-examined. However, nothing
could be elicited by the defence to discredit their testimonies.
8.
So
far as the recovery is concerned, it stood proved by Laxman Gaur (PW.34), the Investigating
Officer that on the disclosure statements made by the accused under Section 27
of the Indian Evidence Act, 1872 and at their instances, he had recovered the stolen
articles, alleged gun, revolver, pellets, scooter and an ambassador car used by
the appellants at the time of committing dacoity. He also faced grilled cross-examination
at length, but nothing came out from his statement which may enable us to draw
an adverse inference against the prosecution.
9.
The
post-mortem report of Smt. Anita Yadav and Gopal Nepali stood proved by Dr.
Jitendra Bundel (PW.21) who deposed that he had conducted the autopsy on the
body of Smt. Anita Yadav and she had gunshot injuries, lot of pellets in her body,
and that she died of excessive bleeding because of gun shot injuries.
Similarly, he deposed that Gopal Nepali also died because of gunshot injuries. He
also deposed that he had examined Kripa Dayal Yadav (PW.2) on 17.12.1996 and
had found 7 simple injuries on his body which had been caused by a blunt
weapon. The said injury had been caused within 12 hours of examination. Thus,
he corroborated the injuries as well as the manner and the weapon with which
such injuries were caused.
10.
The
recoveries made at the instances of the appellants stood proved by examining
the panel witnesses, except in case of recovery made on disclosure statement of
Ghurelal in respect of one gun of 12 bore live cartridges, one golden ear ring,
one necklace of gold, one Iliayachi Dani made of silver, one silver spoon and
one silver bowl, as the two panch witnesses, namely, Sher Singh (PW.30) and
Udaibir Singh (PW.31) turned hostile. Both the courts below have held that the
recovery from Ghurelal, one of the accused, cannot be dis-believed merely
because the panch witnesses turned hostile. We do not find any cogent reason to
take a view contrary to the view taken by the two courts below.
11.
Shri
Altaf Hussain, learned counsel appearing for the appellants, had taken us
through the entire evidence. He could not point out any material discrepancy in
the statements of the witnesses which goes to the root of the case. Nor could
he satisfy us how the judgment impugned requires any interference. We do not
find any cogent reason to interfere with the concurrent findings of fact, recorded
by the courts below. The appeal lacks merit and is accordingly dismissed.
12.
It
is evident from the record, particularly, the order dated 28.4.2006 that all
the six appellants had already served 9 years of actual imprisonment and, thus,
had been enlarged on bail by this Court. Thus, their bail bonds are cancelled
and they are directed to surrender within a period of two weeks from today,
failing which, the Chief Judicial Magistrate, Laxmangarh, Alwar, will take them
into custody and send them to jail to serve out the remaining part of the sentence.
A copy of the judgment and order be sent to the learned Chief Judicial
Magistrate, Alwar, for compliance.
....................................J.
(Dr. B.S. CHAUHAN)
....................................J.
(SWATANTER KUMAR)
New
Delhi,
June
17, 2011
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