Ghurelal & Ors vs State Of Rajasthan

Ghure and Ors. ...Appellants

Versus

State of Rajasthan ...Respondent

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.

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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, 4 silver

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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, 5 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

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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

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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.

6 5. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

6. In the instant case, 9 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

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Tahsildar 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

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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 gun shot injuries, lot of pellets in her body, and that

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she died of excessive bleeding because of gun shot injuries.

Similarly, he deposed that Gopal Nepali also died because of gun

shot 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.

10 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)

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.....................................J.

(SWATANTER KUMAR)

New Delhi,

June 17, 2011

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