Jasmer Singh vs State of Haryana

I.S. Tiwana, J.—The appellant has been convicted and sentenced to seven years'' rigorous imprisonment and a fine of Rs. 1,000/- u/s 397, read with Section 392, Penal Code by the Additional Sessions Judge, Gurgaon, vide his judgment dated 18th July, 1985. He has also been awarded two years'' rigorous imprisonment u/s 25, Arms Act.

What has been found established against him by the trial Court is that on 29th November, 1983, at about 1.30 p.m. he along with his co-accused, Kirpal Singh, trespassed into the building of the Union Bank of India on New Railway Road at Gurgaon, and after using the firearms (revolvers) they robbed Head Cashier of the Bank, S. S. Raghav, of Rs. 38,148/-. At the time of this robbery, they also fired some shots with a view to frighten the Bank employees and the persons present there. However, while escaping, the appellant was overpowered and apprehended by some persons including Sub-Inspector Ram Parkash, P. W. 10 and Kishan Chand, P.W. 3, at a short distance from the Bank premises and the looted money to the extent of Rs. 37,648/- was also recovered from a Thaila'' (Exhibit P.323) which the appellant was carrying at that time. These currency notes were the property of the Bank and were in the shape of stitched bundles (Exhibits P.1 to P.26) bearing the stamps and the slips of the Bank. Some currency notes were of course in lose form. This money was taken into possession in the presence of Kishan Chand, P.W. 3 and one Bharat Bhushan, Pistol Exhibit P.314 and a fired cartridge in its Chamber Exhibit P.324 besides other eight live cartridges, Exhibits P.315 to P.322 were also recovered from the Thaila'' Exhibit P.323 which the appellant was holding at that moment. The appellant had no explanation for the possession of the firearms. Report about this occurrence was immediately lodged with the Police by Shri Naurang Rai, P.W. 2 who was the officiating Manager of the Bank. As a result of the investigation that followed, Sub-Inspector Lala Ram P.W. 6, S.H.O. Police Station City, Gurgaon, took into possession the shell of the fired cartridge from a place which is just outside the building of the Bank. Since the appellant refused to join the identification parade, he was sent up for trial after the completion of the investigation.

At the trial, the above noted prosecution version was supported by S. S. Raghav, P.W. 1, Head Cashier, from whose cabin the entire amount had been looted, Shri Naurang Rai, P.W. 2, the officiating Manager of the Bank, Kishan Chand Chhabra, P.W. 3 and Ram Parkash, Sub-Inspector, P.W. 10, who along with others had apprehended the appellant.

At the time of his examination u/s 313, Cr.P.C, the appellant pleaded innocence and stated that he had a quarrel with the Police at a place on Dundahera Border, i.e. the border between Haryana and Delhi Union Territory and, for that a false case was concocted against him. He denied the recovery of any amount or the fire arms from him. He, however, did not examine any evidence in defence.

Now to dislodge the conclusions recorded by the trial Court, what is urged by Shri Bindra, learned Counsel for the appellant, is that (i) as none of the witnesses and more particularly P.Ws. 1 and 2 have been able to fix the identity of the appellant inside the Bank premises, the participation of the appellant is very much doubtful; and (ii) if at all the appellant can be held guilty u/s 412, Penal Code and not under Sections 397 and 392, as all that can be held to have been established against him was that he dishonestly received the looted property. Having given my thoughtful consideration to the entire matter in the light of the evidence on record. I, however, find no merit in these submissions.

No doubt, it is true that P.Ws. 1 and 2 have stated in no uncertain terms that they were not sure about the participation or the presence of the appellant inside the Bank building at the time of the occurrence as they were too scared to notice the features or identity of the perpetrators of the crime, yet I find that the recovery of the looted currency notes just after the occurrence and at a short distance from the Bank building is itself sufficient to fix the identity of the appellant as one of the accused. Such an assumption is well merited by illustration (a) to Section 114, Evidence Act. In a case where some looted property was got recovered by the accused soon after the robbery, their Lordships of the Supreme Court in Lachhman Ram and Others Vs. State of Orissa, , held as follows:

The factum of recovery of articles at the instance of the accused persons in the presence of police officers and panch witnesses who have deposed to the same is itself sufficient to bring the case not under the provisions of Section 412 but also u/s 391 with the aid of Section 114, Evidence Act when the recoveries were made very soon after the occurrence. In such a case, the fact that the persons acting as panchas to the recovery could not identify the accused would not render their evidence as to recovery, liable to be rejected. Further, recovery could not be said to be made from places open and accessible to one and all when the articles recovered were kept concealed either under a stone or under a bridge or at other places which cannot be said to be accessible to any ordinary person without prior knowledge.

In the instant case, it is firmly established in the light of the evidence of Kishan Chand, P.W. 3 and Sub-Inspector Ram Parkash, P.W. 10, that the appellant who was yet in the process of escaping after the commission of the crime was overpowered and apprehended by them and two other persons from the public. In the face of this evidence, I hardly find any doubt about the participation of the appellant in the crime.

Again, so far as the second contention of Mr. Bindra is concerned, I find no facts or circumstances to sustain the same. It is not a case where the robbed property had been recovered from the appellant after some interval from the date of the commission of the crime in the light of which it could possibly be assumed that the appellant may not have actually participated in the commission of the crime. As has been pointed out earlier, recovery of the robbed property was almost without any loss of time from the moment it was looted by him and his co-accused. I, therefore, repel this contention also.

Similarly there is hardly anything to doubt the recovery of the fire arms from his possession.

Since the appellant has been awarded the minimum sentence which could be awarded u/s 397, Penal Code, I find no merit in this appeal and the same is thus dismissed in toto.