Dismissed

Gajja Nand and Ors. v. State of Punjab

Punjab & Haryana HC5 Feb 2013CRA-S/382/2003

Case brief

AI extract

What is this about?

The High Court dismissed criminal appeals challenging convictions for dacoity and robbery. The court held that court identification of strangers, corroborated by recovered stolen articles from exclusive knowledge, sustained conviction despite absence of a test identification parade. Wounds on victims and recovery of stolen gold ornaments provided sufficient assurance of guilt.

What did the court decide?

Both criminal appeals were dismissed, allowing the lower court's conviction and sentence.

Gajja Nand and Ors. Vs State of Punjab — Criminal Trial and Appeal | Punjab & Haryana HC (2013)

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Criminal Appeal-S No. 382-SB of 2003

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Appeal-S No. 382-SB of 2003 (O&M) Date of decision : 05.02.2013

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Gajja Nand and others

.....Appellants

VERSUS

State of Punjab

....Respondent

CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr. S.P.S. Sidhu, Advocate and Mr. Manpreet Singh, Advocate for the appellants. (in CRA S No. 382-SB of 2003)

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Mr. N.S. Sodhi, Advocate for the appellant. (in CRA S No. 378-SB of 2003)

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Mr. Kirat Singh Sidhu, DAG, Punjab for the State.

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RANJIT SINGH, J.

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This order shall dispose of CRA-S Nos. 382-SB ( Gajja

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Nand and others versus State of Punjab ) and 378-SB of 2003 ( Vicky alias Bhopra versus State of Punjab ).

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Gajja Nand son of Dev Illa, Haran son of Hukam, John son of Onkar, Sita Ram son of Dev Lal, Vicky alias Bhopra and Sunil alias Shah Kal son of Mehar Singh are six persons, who were prosecuted for offences under Sections 395, 396, 307, 323 IPC on the basis of FIR No. 152 dated 23.08.1998 lodged against them.

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Criminal Appeal-S No. 382-SB of 2003

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Except for Gajja Nand, remaining accused have been convicted for offences under Section 392 IPC and under Section 411 IPC. Gajja Nand has been found guilty of offence under Section 412 IPC. They all have been sentenced to rigorous imprisonment for 10 years coupled with fine of ` 500/- each and in default of fine, they are to undergo rigorous imprisonment for six months. Except for John, remaining accused have preferred appeal to impugn the finding and the sentence imposed on them respectively. Criminal Appeal No. 378-SB of 2003 is filed by accused Vicky alias Bhopra whereas Criminal Appeal No. 382-SB of 2003 has been filed by the remaining four accused to impugn their convictions and sentence is imposed.

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The appellants are accused of having committed dacoity at three separate places on the same night. The evidence on record would reveal that Ajmer Singh and his brother Amar Singh who were residing in their fields were sleeping at their farm house on 22.08.1998 when at about 11.p.m., 8-9 unknown persons came out their houses after scaling the wall. These persons were wearing waist and underwear and were armed with lathis. Ajmer Singh (PW2) was overpowered by 4-5 assailants and so was his brother overpowered by 4-5 persons. These persons gave blows with soti as a result wife of Ajmer Singh succumbed to the injuries and died on the spot. His brother was also done to death in this manner. His son Maninder aged about 8-9 years was also injured. He was hit against the wall. Injuries was also caused to his wife and brother. The assailant also broke open the locks and stole gold ornaments, cash and thereafter they fled from the spot. The injured including Ajmer Singh (PW2) was

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Criminal Appeal-S No. 382-SB of 2003

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shifted to Zira hospital and some of them shifted to Faridkot.

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The prosecution case would further reveal that these very persons then entered into the dwelling house of Sukhwinder Kaur widow of Surjit Singh. Around 11 p.m., Sukhwinder Kaur (PW6) heard some noise at the door which she took to be the noise of buffalo chain. Soon thereafter, two persons were seen entering into the house after scaling the wall. These persons picked up two ' ghotnas ' (wooden log use for grinding) lying near the open kitchen with which they started the beating the witness and, thus, caused injury to her, her husband Surjit Singh, her daughters Kanwaljit Kaur, Sarbjit Kaur and Manpreet Singh. Fortunately, PW6 could identify two persons out of persons present in the court and pointed towards appellants Harn and John. These persons then took away earring and gold chain worn by the witness as well as other articles and cash of 10,000/- in one bundle and another sum of 700/-. They also stole two rings from the trunk. PW 6 identified the earrings, gold chain and other rings before the Court. The appellants, thereafter, had escaped.

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Around midnight at 1/1.30 am, the appellants are alleged to have entered into the house of Parminder Kaur. At that time, she was sleeping at the courtyard. She woke up when her earrings were pulled. At that stage, she saw three young persons standing and saw them while they ran away after snatching the earrings. Parminder Kaur (PW8) ran after these persons but they escaped. As per the allegations, these persons had caused injury with some hard substance on the mendible part of her husband. He could not get up due to the impact of the injury. PW 8 also identified the pair of

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Criminal Appeal-S No. 382-SB of 2003

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earrings, which were snatched by the appellants whom she identified before the Court as Sunil, Vicky and Sita Ram.

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All the appellants were examined under Section 313 Cr.P.C. All the incriminating circumstances were put to them. The appellants denied the circumstances so put to them. All the appellants pleaded that the false case was implanted on them. They also stated that the prosecution witnesses have falsely deposed. The appellants, accordingly, pleaded their innocence and their false implication after being taken out of Moga jail. They, however, did not lead by evidence in their defence.

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Sessions Judge, Ferozepur on the basis of evidence, acquitted the appellants of the charges under Sections396 and 449 IPC but held appellant Gajja Nand guilty of Section 412 IPC. The Court, however, convicted appellants Vicky, Sunil Kumar, Sita Ram and Harn for an offence under Section 392 IPC and under Section 411 of the IPC. Gajja Nand was, accordingly, sentenced to undergo 10 years rigorous imprisonment under Section 412 whereas the remaining appellants were awarded the punishment for 10 years conviction under Section 392 IPC and rigorous imprisonment for three years for their conviction under Section 411 IPC.

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Counsel appearing for the appellants, in this case, have mainly pressed that the appellants were not got identified earlier and they were identified for the first time in Court by the witnesses. Otherwise also, the counsel would contend that in the manner in which the offences are alleged, it would have been difficult for the witnesses to identify such accused appellants in fleeting moments

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they were allegedly seen to have committed these offences. Counsel would also contend that no independent witness was joined during the recovery to make it look authentic.

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The complaint in regard to all these three separate incidents were lodged. the investigation was set in motion. The police officer recorded the statement of injured complainants, which were converted to FIR. The investigation in this case, apparently, has been conducted by two Investigating Officers, who have been examined as witness. The version of Baldev Singh (PW1) would show that he had investigated one of the accused John on 07.10.1998 after taking him out from the police lock up in the presence of Major Singh and ASI Gurcharan Singh. His cross examination would rather show that other accused, who were the appellants before this Court have been investigated by LC Rashpal Singh by getting their production of warrant from the jail and was stated in custody in some other case at Fazilka. It is on the basis of this and the investigation conducted by Balbir Singh that recoveries were effected. As per the version given by Balbir singh, he interrogated Vicky by taking him out from the police lock up and during interrogation, disclosure statement was made that he had kept concealed one watch and one kapa on the left side of the bridge of the canal minor in the area of village Lohgarh under the kikkar tree. He alone was in the exclusive knowledge of the same and stated that it could be recovered. This disclosure statement was reduced in writing and got thump marked of accused Vicky. This was attested by HC Ved Parkash and Karnail Singh. Pursuant to this statement, accused Vicky led to police party in

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custody to the disclosed place and got recovered watch Ex. MO-17 and kapa Ex. MO-18 in pursuance of this disclosure statement. there were taken in possession. The evidence would also show that John during his interrogation conducted by Inspector Baldev Singh (PW11), made a disclosure statement that he had kept concealed pair of earrings of gold, one gold chain, two male gold rings and one knife after wrapping by the paper in plastic dabi in the sarkandas along seepage drain, regarding which he had exclusive knowledge. This accused, apparently, stated that he could get the same recovered. This disclosure statement was also reduced into writing and was attested by Major Singh and ASI Gurcharan Singh. John accused led the police party on custody to the place, where the articles have been got concealed and got recovered the said articles. Ex. MO-7 to Ex.MO-10 and knife Ex. MO-13 and these articles were converted into parcel and recovered through various memos.

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SI Balbir Singh (PW 12), which was posted as Additional SHO had also interrogated Gajja Nand appellant on 07.10.1998 by taking him out of the police lock up. He also allegedly made disclosure statement that he allegedly get concealed one pair of earrings, one kappa wrapped in glazed paper on the left side of the bridge of the canal minor. This disclosure statement was also reduced into writing and led to the recovery of the articles. Balbir Singh, as already noticed, had also interrogated Vicky by taking him out police lock up. SI Amar Singh (PW13) had interrogated accused Harn. This also led to recovery of pair of earrings weighing 10 grams, one male ring weighing5 grams and lady ring weighing 2½ grams

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Criminal Appeal-S No. 382-SB of 2003

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and also kappa, which was kept wrapped in polythene cloth on the left pavement of canal under Tahil tree. Similarly, Suba Singh (PW16) interrogated Sita Ram, which led to recovery of pair of earrings, one kappa etc. Suba Singh also carried out investigation of the accused, which led to recovery of earrings.

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I have considered the submissions made before me by the counsel appearing for the appellants. I find that the trial Judge, has very minutely analyzed the evidence under different heads. The main argument advanced by the counsel regarding the identity of the appellants infact was duly established by the witnesses in whose houses the dacoity was committed. The aspect of the witnesses having first time identifying the appellants in the court, has been considered by the trial Court in the light of legal position. The witnesses, apparently, could see the appellants while they had entered to their houses to commit this dacoity. Wherever there was doubt in regard to identity the Court has acquitted the appellants. The trial Judge had acquitted the appellants of those incidents which included the allegation of murder. The police has thoroughly investigated the case and, apparently, traced this dacoity which is well supported by the evidence of recovery.

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Though Ajmer Singh (PW2) has deposed in his examination-in-chief that the appellants present in the Court were the same persons, who had caused injury to him and had murdered his wife but the doubt in this regard was created due to his version coming on record during his cross examination. In response to question of the defence counsel, this witness admitted that he was

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administered something and became unconscious and, thereafter, he cannot tell as to what all had happened. As per this witness, he regained his consciousness after 4-5 days. The witness also could not tell as to which of the accused had overpowered him and finally had to concede that he could not tell that the accused then present in the Court had come to his house or not.

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Similarly, Jagdish Kaur (PW3) having identified the accused appellant in Court in his examination-in-chief undid the effect thereof while answering questions during her cross examination. This witness also admitted that she was administered some medicine so she became unconscious. She also had to concede that she had not seen the assailants who came to the house. It is because of this state of evidence that the appellants were acquitted of the charge of dacoity alleged against them in regard to the first incident led in evidence by the prosecution.

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The state of evidence, however, of Sukhwinder Kaur (PW 6) and Parminder Kaur (PW 8) cannot be faulted on this count. PW 6 has given a clear and categorical version and two persons entered into the house after scaling the wall. They picked up ghotans lying in the open kitchen, thus, caused injury to the witness as well as the other persons. PW 6 then deposed that she can identifying these two persons out of persons sitting in the court room and then had pointed towards appellants Harn and John. As per the version of PW 6, they took pairs of earrings and a gold chain besides a cash of ` 10,700/-. Nothing much could be extracted from this witness during her cross examination. She clearly maintained that she saw two persons

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entering the house. Even if this witness was made unconscious but she had seen two persons entering the house, which she testified before the Court.

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Sarbjit Kaur (PW 7) is also given evidence in this regard in support of PW 6. She also saw two persons entering the house by scaling the wall. These persons gave beating and then made the witness to inhale some intoxicant. They were seen taking the earrings, chain of her mother, two rings besides the cash. This witness also identified these two accused John and Harn out of six present in the court. During her cross examination, she further confirmed that Parminder Kaur, herself and their grandfather had seen the accused persons.

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In regard to third incident, evidence of Parminder Kaur (PW 8) is again very clear. PW 8 had identified Sunil Vicky and Sita Ram before the Court. No doubt, the witnesses have admitted that the accused were shown to them while in custody but PW 8 confirmed that she had seen the accused in the light of the day of occurrence. She rather stuck to this stand that she had actually seen the accused on the day of occurrence. This coupled with the evidence of recovery would give sufficient assurance to the case of the prosecution against the appellants. Except for simple denial, the appellants have nothing more to state. Accordingly, it is now required to be seen if the case of the prosecution case has sufficiently been established against the appellants or not. When the evidence of the witnesses, who had seen the accused persons and had identified them before the Court, is examined in the light of recovery effected

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Criminal Appeal-S No. 382-SB of 2003

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from them or at their instance it would lend sufficient assurance that the prosecution was able to prove the charges against the appellants for which they were convicted. It is in this light that counsel appearing for the appellant had attacked the finding to the limited extent of the identity of the appellants being not fully established. The counsel have found fault with the witnesses identifying the appellants before the Court for the first time, which according to the counsel, would not be safe to link the appellants with the dacoities alleged against them.

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No doubt, the assailant appellants were unknown to the witnesses. In this background, the identification of the assailants would be important factor, which would require consideration and attention. However, it cannot be lost sight that as a general rule the substantive statement of a witness is the statement which is made in the court. It may be that the evidence of mere identification of accused person at the trial for the first time is considered inherently a weak character evidence but still in order to carry conviction the court can see as to how and under what circumstances the witness has been able to pick up a particular accused person to make him responsible for the crime that is committed by him. For such purpose, a prior test identification may be got conducted to strengthen the trustworthiness of that evidence. This may be for the purpose of corroboration of the sworn testimony of the court as to identity of the stranger, who is so identified in the court but there are exception to this rule and the court if is impressed by the particular witness it can safely rely on the said evidence without such or other corroboration.

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As as has been rightly held that the identification parade

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belongs to investigation stage, they are generally held during the course of investigation with primary object of enabling the witnesses to identify the person concerned of the offence, who are previously not known to them. This serves to satisfying the Investigating Officer of the bona fides of the prosecution witnesses and also to furnish the evidence of corroboration to the testimony in the Court.

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Recently, the Hon'ble Supreme Court has had the occasion to consider the effect of test identification parade and the evidentiary value thereof in a case Heera and another versus State of Rajasthan 2007 (3) R.C.R. (Criminal) 517. It is observed in this case that necessity for holding the identification parade can arise only when the accused are not previously known to the witnesses. Relying upon the case of Matru vs. State of UP 1971 (2) SCC 75, it is observed that identification test do not constitute substantive evidence. These are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in the Court. It is observed that the substantive evidence is the evidence of identification in the Court. This evidence may be of its very nature inherently of a weak character but the purpose of piror test identification is to test and strengthen the trustworthiness of the evidence.

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As has been rightly observed that the failure to hold test identification parade would not make inadmissible the evidence of identification in the Court. The weight to be attached to such

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identification should be matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Administration AIR 1958 Supreme Court 350).

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Accordingly, it can safely be said that absence of test identification parade is not fatal in all cases and that the accused can be convicted on the basis of identification in Court corroborated by other circumstantial evidence. Reference here can be made to Jadunath Singh and another v. The State of Uttar Pradesh 1970 (3) SCC 518.

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In the present case, some of the witnesses have clearly identified the appellants out of six who had allegedly entered into their dwelling units. This in itself would be sufficient assurance that these witnesses had seen them at the time of incident and, thus, were able to pick them up out of the six accused appellants who were before the court. These appellants were identified by these witnesses in the court. They may have been stranger to these witnesses and these witnesses may have just had a fleeting glimpse of these appellants but surely they would have enough opportunity to observe them and this fact is well established by the conduct of the witnesses in picking up these appellants out of total six appellants present before the court. It is not without reason observed that evidence of identification becomes stronger if the witness had an opportunity of seeing the accused not for few minutes but for length of time when he would be able to note the feature.

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I find that merely not holding the test identification parade

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would not in any manner taint the evidence of these witnesses, who stood the test of cross examination and the recovery of the stolen ornaments would lend credence to the identification done by the witnesses of the appellants in the court. I am, thus, clear in my mind that on this count the evidence of these witnesses cannot be discarded and is trustworthy that this evidence, thus, can be relied upon to sustain the conviction of the appellants, especially so when this is well corroborated by the gold ornaments recovered from the exclusive knowledge of the appellants.

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I also see no substance in the submissions made by the counsel for the appellants that the recovery was not in the presence of some independent person. The recoveries have been made pursuant to the disclosure statement and were from such places, which were only known to the appellants who had got these recoveries effected. Mere non-joining of the independent witness would not in any manner taint the recovery which otherwise has remained unexplained. There is no reason or cause of the witnesses to falsely implicate the appellants if indeed they had not been responsible for committing this dacoity.

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Accordingly, I find that the prosecution has been able to establish the offences against the appellants and they were rightly convicted. The sentence imposed is also just and reasonable and would not call for any interference. In view of the above, both the appeals are lacking in merits and are, therefore, dismissed.

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( RANJIT SINGH ) JUDGE

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February 05, 2013 rts

Gajja Nand and Ors. v. State of Punjab

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Gajja Nand and Ors. v. State of Punjab

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