Sukhdev alias Bhalia vs State of Haryana

Jai Singh Sekhon, J.

Sukhdev Singh accusedappellant was convicted by the Additional Sessions Judge, Sirsa, on a charge for offence punishable under Section 397 of the Indian Penal Code and sentenced to undergo 7 years rigorous imprisonment. In a separate trial, the aforesaid learned Additional Sessions Judge also found the accused guilty under Section 25 of the Arms Act for the possession of a pistol and three live cartridges and sentenced him to undergo R.I. for one year and also to pay a fine of Rs. 200/ or in default of payment thereof, to further undergo R.I. for two months. The pistol is alleged to be the weapon of offence used by the appellant for threatening and extorting Rs. 530/ and a wrist watch from Alladin complainant in the case under Section 397 of the Indian Penal Code. Feeling aggrieved against the abovereferred orders of conviction and sentence, the appellant has preferred. Criminal Appeal No. 377SB of 1990 and Criminal Appeal No. 99SB of 1991. Both these appeals shall be disposed of by this order as these arise out of the same transaction and rest upon the same evidence.

In brief, the facts of the prosecution cases are that Alladin (PW2) used to sell odhni and other clothes in different villages. On 23.12.1984, he was proceeding from village Bharokhan to village Panihari. Then at about 2.30 p.m., Sukhdev Singh accused accosted him on the highway and extorted Rs. 530 and wrist watch at the point of pistol. The accused was yet in the process of fleeing towards the fields when Geja Singh (PW8) also arrived there and identified the accused as Sukhdev Singh of his village Panihari. Geja Singh raised alarm but the accused managed to escape. Alladin then reported the matter to the Panchayat of village Bharokhan. A search for the accused was conducted till 8 p.m. but he was not found available. Thereafter, on the next day, F.I.R. Ex.PA was lodged at Police Station Saddar, Sirsa at 10 a.m. by Alladin complainant. A case under Section 382 of the Indian Penal Code was registered against the accused by ASI Amin Lal (PW4). Thereafter this police officer alongwith Alladin complainant and other police officials arrived at the spot and prepared rough siteplan Ex.PF. He failed to trace the accused till 8.2.1985 when secret information was received about the appearance of the accused in the courts at Fatehabad. The accused was arrested from there in the presence of Alladin. On interrogation, the accused vide statement Ex.PB disclosed having kept concealed one wrist watch in the deodi of Sarpanch Hanuman of village Kharakhera and having kept concealed a pistol alongwith three live cartridges in an iron box in his house in village Panihari. The accused on 9.2.1985 led the police party to the said place and got recovered wrist watch as well as pistol of 315 bore and three live cartridges from his house at village Panihari. These articles were taken into possession vide memo Ex.PC. A separate case under Section 25 of the Arms Act was got registered against the accused as he failed to produce any licence or permit for the possession of pistol and live cartridges. The sanction of the District Magistrate to prosecute the accused under Section 25 of the Arms Act was obtained. After completion of investigation, the accused was arraigned for trial on such like allegations by filing two separate challans under Section 382 of the Indian Penal Code and the other under Section 25 of the Arms Act.

The trial court framed a charge under Section 397 of the Indian Penal Code against the accused in the main case while a charge under Section 25 of the Arms Act was framed in the connected case. The accused, however, pleaded not guilty to both the charges and claimed trial.

In order to prove its case under Section 397 of the Indian Penal Code against the accused, before the trial court the prosecution examined eight witnesses including Alladin (PW2) and Geja Singh (PW8) as witnesses to the actual occurrence while Mohammed Haneef (PW3) deposed about the sale of wrist watch to Alladin. Constable Inder Singh (PW6) and constable Naval Singh (PW7) deposed about the accused having made the disclosure statement and got recovered the abovereferred pistol, live cartridges and wrist watch. Head Constable Brij Lal deposed about the pistol being in a working order and cartridges Ex.P2 to P4 being live cartridges.

In the connected criminal case under Section 25 of the Arms Act, the prosecution also examined same set of witnesses except Mohammed Haneef.

The version of the accusedappellant in both the cases before the trial court in his statement recorded under Section 313 of the Code of Criminal Procedure was that of innocence and false implication due to party faction in the village. He, however, led no evidence in both the cases in defence despite being called upon to do so.

The trial court, however, believing the prosecution evidence in both the cases convicted and sentenced the accused as referred above.

I have heard the learned counsel for the parties besides perusing the records.

Admittedly, Sukhdev Singh accused appellant, was not known to Alladin (PW2) prior to this occurrence. According to him, Geja Singh PW had arrived at the spot when the accused was in the process of running away from there and identified him as Sukhdev Singh Chamar of his village. There is sufficient force in the contention of the learned counsel for the appellant that had Geja Singh PW seen the occurrence and identified the accusedappellant then there was no question of not lodging the report at the Police Station on that very day, i.e., 23.12.1984 especially when the occurrence took place at 2.30 p.m. and there was sufficient time at the disposal of these witnesses to go to Police Station Saddar Sirsa falling at a distance of 171/2 kilometers from the spot. But strangely enough, the matter was reported to the police at 10 a.m. on the next day. Thus, the delay in lodging the F.I.R. would certainly militate against the case of the prosecution in concluding that possibility of Sukhdev Singh accusedappellant being suspected of this episode after making enquiries in village Panihari and village Kharakhera cannot be ruled out. It also probabilise the argument of the learned counsel for the appellant that probably Geja Singh PW had not seen the occurrence.

The explanation of Alladin PW during his testimony at the trial that he informed the Panchayat of village Bharokhan which continued searching for the accused during that day till 8 p.m. is not acceptable because in such a heinous crime like highway robbery at a pistol point, the Panchayat would have accompanied Alladin to the police station for lodging the report instead of itself searching for the accused. Strangely enough, no member of the Panchayat of village Bharokhan has been examined to establish this fact. Consequently, the inordinate delay in lodging the F.I.R. under the circumstances of this case would adversely reflect upon the presence of Geja Singh PW at the time of this occurrence.

The question then arises whether the testimony of Alladin complainant alone is sufficient to prove the identity of the accused. He has during his testimony at the trial stated that the accused present in the court was the same person who had robbed him. This query has to be answered in the negative as admittedly, the accused was not known to Alladin PW prior to this occurrence and no test identification parade was arranged by the prosecution in order to ascertain whether the complainant was in a position to identify the real culprit. The recovery of wrist watch allegedly belonging to Alladin PW from the possession of the accused is of no consequence to establish the participation of the accused in the robbery and extortion as the prosecution has failed to establish beyond reasonable doubt that the wrist watch was found in the possession of the accused. According to PW2 Alladin, the accused appellant was interrogated and he had made the disclosure statement at the Police Station, i.e. Police Station Saddar, Sirsa whereas according to ASI Amin Lal and constable Inder Singh the accused was interrogated on the premises of the courts at Fatehabad. The trial court discarded this discrepancy holding that it has cropped up due to passage of time. This explanation of the trial court does not stand to reason as a person who deals in the sale of cloth cannot be said to be a rustic villager, thus, if actually the accused had made the disclosure statement in the presence of Alladin at Fatehabad, then he was bound to remember this fact and would not have intermingle Fatehabad with Police Station Saddar, Sirsa, which are altogether different places. Moreover, in the disclosure statement Ex.PB, the accused had allegedly disclosed having kept concealed wrist watch in the deodi of Hanuman Sarpanch of village Kharakhera, but according to these witnesses, recovery of the wrist watch was got effected by the accused from his house. The disclosure statement Ex.PB pertains to the concealment of pistol, live cartridges as well as the wrist watch. Thus, in view of the abovereferred material contradictions between the statements of these witnesses, it is not acceptable that the accused had made any disclosure statement under Section 27 of the Indian Evidence Act.

The question then arises whether the recovery of pistol, live cartridges and watch from the house of the accused would be sufficient to infer his exclusive possession. In this regard, it is noteworthy that the accused has four brothers and Alladin (PW2) admitted during crossexamination that other family members including the parents of the accused were present at the place of recovery. Thus, the possibility cannot be ruled out that some other male adult member of the family might have kept concealed these articles there and thus the recovery of these articles from the joint house of the accused, his brothers and parents would not be sufficient to prove his conscious or exclusive possession of these articles.

There is no satisfactory evidence on the file that the wrist watch was purchased by Alladin from Mohammed Haneef (PW3) as both these witnesses admitted that the receipt Ex.PD for the sale of this watch was scribed after the registration of the case on the asking of the police. Thus, it is clear case of padding as the receipt Ex.PD was allegedly scribed on 21.3.1983. Thus, this circumstance clearly shows that the investigator has exhorted to create some evidence against the accused.

For the reasons recorded above, there is no option but to hold that the prosecution has miserably failed to prove the charges under Section 397 of the Indian Penal Code as well as Section 25 of the Arms Act against the accused beyond reasonable doubt and acquit the accused of the abovereferred charges by setting aside the order of conviction and sentence of the trial court in both the cases by accepting these appeals. It is ordered accordingly. The wrist watch may be returned to Alladin PW as the accused has not claimed the same. However, the pistol and live cartridges shall stand confiscated to the State. Fine, if paid, shall be refunded.