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Judgment
Mohinder Pal, J.—This judgment will dispose of Criminal Appeal No. 1654 -SB of 2003, Criminal Appeal No. 302 -SB of 2008 and Criminal Appeal No. 1570 -SB of 2008 as they arise out of the same First Information Report.
Appellants Kanhiya, Kalu alias Pachpachi, Jiva and Rajinder Singh have filed these appeals against the judgments of conviction and the sentence orders passed by the Court of Session at Kurukshetra whereby they were convicted and sentenced under Sections 342, 459 and 460 read with Section 34 of the Indian Penal Code (for short `the Code''). It may be mentioned here that appellants Rajinder and Jiva along with their co-accused Bhagtu and Dhuni (non-appellants) absconded and were declared Proclaimed Offenders by the trial Court vide order dated 20.3.2002. In respect of appellants Kanhiya and Kalu alias Pachpachi, the judgment of conviction and the sentence order are dated 4.7.2003 and 7.7.2003, respectively whereas in respect of appellants Jiva and Rajinder Singh the judgment of conviction and the sentence order are dated 21.11.2007 and 22.11.2007, respectively.
Appellants Kanhiya and Kalu alias Pachpachi, u/s 342 read with Section 34 of the Code were sentenced to undergo rigorous imprisonment for one year; u/s 459 read with Section 34 of the Code, they were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 5,000/- each, in default whereof to undergo further rigorous imprisonment for six months and u/s 460 read with Section 34 of the Code, they were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 5,000/- and in default thereof to undergo further rigorous imprisonment for six months. All the sentences were ordered to run concurrently.
Appellants Jiva and Rajinder Singh, u/s 342 read with Section 34 of the Code were sentenced to undergo rigorous imprisonment for six months; u/s 459 read with Section 34 of the Code, they were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 10,000/- each, in default whereof to undergo further rigorous imprisonment for six months and u/s 460 read with Section 34 of the Code, they were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 10,000/- and in default thereof to undergo further rigorous imprisonment for six months. All the sentences were ordered to run concurrently.
The prayer made in these appeals is to set aside the impugned judgments and the sentence orders by way of acceptance of these appeals and to acquit the appellants of the charges framed against them.
Brief facts of the prosecution case are as under:
On 20.10.2001, Lekh Raj son of Labbu Ram resident of House No. 540, Sector 1, Urban Estate, Shahbad, got his statement recorded with Assistant Sub Inspector Ramesh Kumar. As per complainant Lekh Raj, at the time of occurrence, their residential area i.e Sector 1, Urban Estate, Shahbad, had not been fully developed and there were scattered houses in that Sector. Because of that, five/six house-owners had installed safety alarms in their houses.
On the night intervening 19/20.10.2001, at about 2.15 A.M, all of a sudden alarm bell started upon which he (Lekh Raj) and Balwinder came out. They heard some noise from House No. 536, Sector 1, Urban Estate, Shahbad, in which Jagjit Singh was residing with his family. Three persons with muffled faces carrying gun and swords were standing in front of the house of Jagjit Singh. They raised `lalkara'' and threatened Lekh Raj and Balwinder. They came back and gave a telephonic call to Subhash Bawa. Thereafter, Subhash Bawa came out of his house along with his licenced gun and fired two shots from his gun. The persons who were standing outside the house of Jagjit Singh then ran away.
The complainant and other persons then reached the house of Jagjit Singh. Jagjit Singh was found dead near the gate of his house. Wife of Jagjit Singh and his two minor sons were found locked in the bathroom. The door of the bathroom was opened. Smt. Surender Kaur, wife of Jagjit Singh, had also sustained injuries on her head. She was taken to hospital at Shahbad for treatment.
Complainant and other persons started searching for the Watchman and he was not traceable. Later on, it was found that the Watchman had been tied with ropes in the ''Kotha'' at a tube-well behind the house of Jagjit Singh. The Watchman was set free.
As per complainant, some unknown persons had trespassed into the house of Jagjit Singh with the intention to commit robbery and while committing robbery they killed Jagjit Singh and caused injuries to his wife. The robbers had taken away valuable articles from the house of Jagjit Singh.
On the basis of the aforesaid statement of Lekh Raj, the instant case was registered. Finger Print Expert and Dog Squads were summoned and the spot was inspected. Inquest report on the dead body of Jagjit Singh was prepared by the Investigating Officer. Rough site plan of the place of occurrence was prepared. Statements of the witnesses were recorded.
On 21.11.2001 appellants Kanhiya and Kalu alias Pachpachi were apprehended by Inspector Om Parkash while they were planning to commit dacoity and were sitting in Sadhna Ashram near V.I.P Ghat, Kurukshetra.
Appellants Kanhiya and Kalu alias Pachpachi suffered separate disclosure statements to the effect that about one month back they along with appellants Rajinder Singh and Jiva and non-appellants Bhagtu and Dhuni had committed dacoity in a `Kothi'' at Shahbad. Appellants Kanhiya and Kalu alias Pachpachi were joined for the purpose of investigation and they got identified the place of occurrence.
After completion of investigation and due formalities, report against appellants Kanhiya and Kalu alias Pachpachi u/s 173 of the Code of Criminal Procedure was submitted in the Court of the Ilaqa Magistrate, who committed the case to the Court of Session.
Appellants Rajinder Singh and Jiva were arrested later on and supplementary challan against them was presented in the Court of the Ilaqa Magistrate, who committed the said appellants to the Court of Session for trial.
The accused-appellants were charged for the aforesaid offences. They did not plead guilty to the charge sheet and claimed trial.
The trial Court, after recording prosecution evidence, statements of the accused u/s 313 of the Code of Criminal Procedure, taking on record the documents in defence evidence and hearing the learned Counsel for the parties, convicted and sentenced the appellants as mentioned above.
I have heard Mrs. Kiran Bala Jain, Advocate, assisted by Mrs. Kamla Malik, Advocate, and Mr. Arshad, Advocate, appearing for appellant Jiva, Mr. Sameer Sachdeva, Advocate, appearing for appellant Rajinder Singh and Ms. Sushma Chopra, Additional
Advocate Genera, Haryana, appearing for the State-respondent and have gone through the records of the case.
Learned Counsel for appellants Kanhiya and Kalu alias Pachpachi did not appear in Court when the matter was taken up for hearing in spite of the fact that his presence was requisitioned by the Reader of this Court by displaying his name in the notice board through the Computer installed in the Court.
In this case, Surinder Kaur, wife of deceased Jagjit Singh, appeared in Court twice i.e firstly when the trial was being proceeded against appellants Kanhiya and Kalu alias Pachpachi and secondly at the time when the trial against appellants Rajinder Singh and Jiva was in progress. She identified appellants Kanhiya and Kalu alias Pachpachi while appearing in Court in the first instance and appellants Rajinder Singh and Jiva when she appeared in the witness box in the second instance as the perpetrators of crime. During her deposition in Court against appellants Kanhiya and Kalu alias Pachpachi, she pointed out towards appellant Kalu alias Pachpachi and stated that he had killed her husband Jagjit Singh. While pointing towards appellant Kanhiya, she stated that he had dragged her, slapped her and looted the articles from the almirah. She further stated that since there had been incidents of looting in their colony, her husband used to sleep by keeping a sword with him for his protection. Her husband tried to save himself. The accused snatched sword from her husband and assaulted him with it. Her husband fell down near the main gate of the house. She was also assaulted on her head with a sharp edged weapon like cutter. After some time, the neighbours came there. She was taken to hospital at Shahbad. Her husband had succumbed to the injuries on the spot. When she was removed in an injured condition by the neighbours to the Hospital, the dead body of her husband was lying at the gate. After giving some first aid, she was referred to P.G.I, Chandigarh where she was treated. Police had recorded her statement on 21.10.2001. She had also identified Exhibits P.1 to P.3, the parts of sheath of the sword etc., Exhibit P.4, the ladypurse belonging to her and stolen by the accused from her house, the bunch of keys snatched from her by the accused, photographs Exhibits P.12 to P.21 of the place of occurrence and dead body of her husband etc. She also identified Exhibits P.36 and P.37, a pair of ear rings belonging to her. Lekh Raj (complainant) while deposing in Court, has reiterated the version given by him in his statement made before Assistant Sub Inspector Ramesh Kumar, leading to the registration of the instant case against the accused.
It is a case where the police has not as yet, been able to arrest accused Bhagtu and Dhuni (co-accused of the appellants) despite knowing their identity. It points towards the lawlessness created in the society by the perpetrators of such heinous crime. The accused-appellants had chosen the place to commit robbery in the locality in Shahbad which was not thickly populated. It shows that it was a pre-planned robbery in which the accused caused grievous hurt to Surinder Kaur whilst committing lurking house-trespass and caused the death of her husband Jagjit Singh.
Surinder Kaur, the wife of deceased Jagjit Singh, would be the last person to falsely implicate the accused-appellants in the case if they had not actually committed this crime. As mentioned above, Surinder Kaur had identified the appellants while deposing in Court. No lady will substitute innocent persons for the real culprits, who had committed the murder of her husband before her in her own house.
Dr. K.K. Chawla, who, in the company of Dr. Surinder, had conducted autopsy on the dead body of Jagjit Singh had found seven incised wounds, nine abrasions and one contusion on the dead body. The incised wounds were on scalp, above right eye-brow, nose, lateral end of right eye-brow, just below right eye, occipital region right side and left temporal occipital region. The contusions were on chest, anterior lateral aspect of right thigh, later aspect of left thigh, anterior medial aspect of left leg, in front of left leg and abrasions (four in number) on dorsum of right hand. The contusion was on the back of right side inter scapular and infra scapular region. The cause of death of Jagjit Singh was opined to be shock and haemorrhage and injury to the vital organ i.e. brain. The injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was within few minutes while being death and post mortem it was between 6 to 24 hours. The medical evidence furnished by Dr. K.K. Chawla depicts that Jagjit Singh was brutally murdered by the appellants.
Another fact which deserves to be highlight here is that the accused being desperadoes could not produce any evidence in defence except producing copies of judgments dated 30.9.2004 (Exhibit D.1) and dated 10.3.2004 (Exhibit D.2) on record. Exhibit D.1 is the judgment rendered by the Additional District & Sessions Judge, Fast Track Court, Ambala, passed in F.I.R. No. 50 dated 20.6.2001 in case u/s 560 of the Code in which appellant Jiva was acquitted of the charge framed against him u/s 460 of the Code. However, in the said case co-accused of appellant Jiva i.e. appellants Kalu alias Pachpachi and Kanhiya were sentenced to undergo rigorous imprisonment for eight years vide judgment dated 23.5.2003 passed by the Court of Session at Ambala. However, appellant Jiva in that case was arrested on 19.8.2003 and tried separately. It shows that the appellants are habitual offenders indulging in crime like the present one. A perusal of judgment dated 10.3.2004 (Exhibit D.2) passed by the Additional Distrcit & Sessions Judge, Fast Track Court, Ambala, shows that appellants Kalu alias Pachpachi, Jiva and Kanhiya were involved in case F.I.R. No. 286 dated 31.8.2000 under Sections 459 and 460 of the Code registered against them at Police Station Baldev Nagar, District Ambala. That case had ended in the acquittal of appellant Jiva. Be that as it may, the fact which has emerged on record is that the accused persons were active in committing house trespasses and robberies in the area between Ambala and Shahbad, which are at a distance of about 30/35 Kms between each other.
During the course of arguments, much emphasis was laid by the learned Counsel for the appellants on the point that no test identification parade was conducted by the police in this case and in the absence of such parade, it cannot be said that the accused stood connected with the crime.
I have given my thoughtful consideration to the argument raised. However, I do not find any substance therein. As mentioned above, Surinder Kaur, wife of Jagjit Singh (deceased) had ample time to identify the assailants including the accused facing trial as she was also caused injuries by the accused. Surinder Kaur having received injuries in the occurrence is the stamped witness of the prosecution. In the presence of the statement of eye-witness Surinder Kaur, who stood the test of cross-examination well, non-conducting of test identification parade by the police cannot, in any way, be said to be fatal to the prosecution case.
For the aforesaid reasons, I do not see any ground warranting interference in the impugned judgments of conviction. The same are accordingly upheld. The sentence awarded to the accused-appellants also commensurates with the offence committed by them. The impugned sentence orders also do not call for any interference. The same are also confirmed. Resultantly, these appeals fail and are dismissed.