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2008 Supreme(P&H) 738
PUNJAB & HARYANA HIGH COURT
J.S.Khehar and Sham Sunder JJ.
Manoj Kumar
Versus
State Of Haryana
Criminal Appeal No. 889 of 2006,
Decided On : MARCH 24, 2008
Recovery of articles--Some recoveries were allegedly got effected after very long time--The statutory illustration (a) appended to section 114 of the Evidence Act,1872, could not be invoked.
Foot moulds--Refusal to give--Original foot moulds, which were lifted from the spot, never saw the light of the day, nor the same were sent to FSL--Alleged refusal was hardly of any consequence.
Headnote:(A) Evidence Law--Recovery of articles--Dacoity with murder--Recoveries were allegedly got effected for the first time by some of the accused, after about 25 days, after the alleged occurrence, and some recoveries were allegedly got effected after very long time--The statutory illustration (a) appended to section 114 of the Evidence Act,1872, could not be invoked--Evidence Act, 1872, Section 114. (Para 29)
(B) Criminal Law--Dacoity and murder--Acquittal--Grounds:-
(i) PW1 and PW2 in clear cut terms stated that they could not identify the accused as the preparators of crime.
(ii) No evidence was produced by the prosecution, to prove that the currency notes, allegedly got recovered by some of the accused, in pursuance of the disclosure statements, made by them, were part of the amount allegedly looted from deceased.
(iii) PW 7 who remained SHO of the Police Station till 5.11.2004 clearly proved the mode and manner in which the recoveries were planted against the accused by PW16 who took over the charge of P.S. on 6.11.2004--It could be said that neither any disclosure statements were made by the accused, nor any recoveries were got effected by them, and they were falsely implicated.
(iv) Original foot moulds, which were lifted from the spot, were never, nor the same were sent to FSL.
(v) No identification parade, was held to pin point the identity of the accused.
(vi) The recoveries were allegedly got effected for the first time by some of the accused, after about 25 days, after the alleged occurrence, and some recoveries were allegedly got effected by them after a very long time--Penal Code, 1860, Sections 395, 396 and 398.
(C) Evidence Law--Foot moulds--Refusal to give--Case of dacoity with murder--Accused refused to give sample foot moulds--Original foot moulds, which were lifted from the spot, never saw the light of the day, nor the same were sent to FSL--The Magistrate concerned did not adopt the proper procedure, in asking the accused, as to whether, they wanted to give their foot moulds--Alleged refusal was hardly of any consequence--Evidence Act, 1872, Section 3. (Para 28)
SHAM SUNDER, J.
1. This judgment shall dispose of Criminal Appeals No. 889-DB of 2006 filed by Manoj Kumar and Raj Kumar @ Raju, 939-DB of 2006 filed by Karan Singh @ Kama, 3-DB of 2007 filed by Shree Bhagwan @ Dhollu and 29-DB of 2007 filed by Vinod, Accused/appellants, arising out of the judgment of conviction and the order of sentence dated 11.11.2006 rendered by the Additional Sessions Judge (I). Bhiwani vide which it convicted the accused/appellants and sentenced them as under :
(i) all the accused were sentenced u/s. 396 of the Indian Penal Code to undergo imprisonment for life and to pay fine of Rs. 50,000.00 each. In the event of the benefit of provisions of Sec. 433 (a) Cr. P. C. being extended to any of these accused, for their release upon expiry of 14 years and on the failure on the part of any of the accused to pay the aforesaid amount of fine, each defaulter to undergo further R. I. for a period of 4½ years.
(ii) all the accused were further sentenced u/s. 395 of the Indian Penal Code to undergo imprisonment for 10 years and to pay fine of Rs. 10,000/- each. In the event of default, each defaulter to undergo further R. I. for a period of 2½ years; and
(iii) all the accused were also sentenced u/s. 398 of the Indian Penal Code to undergo imprisonment for 7 years and to pay fine of Rs. 3,000/- each. In the event of default, each defaulter to undergo further R. I. for a period of 1½ years.
However, all the sentences were ordered to run concurrently. No separate conviction u/s. 302 of the Indian Penal Code, was recorded by the trial Court, on the ground that the offence u/s. 396 of the Indian Penal Code related to murder in dacoity. It was directed by the trial Court that 75% of the amount of fine, shall be paid, as compensation, to the legal representatives of Vinod Kumar, deceased, in equal shares.
2 The facts, in brief, are that on 12.10.1994, Vinod Kumar (since deceased), along with his driver, Avnish, and his employee, namely, Satish Kumar, had set out from Jind in Car No. HR-31C-4154, driven by Avnish for collecting payment from his various clients at Kosli, Narnaul, Kanina, Dadar, Bhiwani and Tosham, but while on their way back, from Tosham towards Jind, via Bawani Khera, they were chased by a Bolero Jeep at about 8.30 p. m. Avnish driver of the Car however, made an attempt to avoid being over taken by the aforesaid Bolero Jeep, but he could not succeed and had to stop the vehicle, in a narrow lane near a brick kiln, thus, necessitating the abandonment of the car, at which juncture, the occupants of Bolero Jeep, after alighting therefrom, fired a shot, at Vinod Kumar, as a result whereof, he died, whereas, his driver, Avnish, escaped, after having concealed himself, and Satish Kumar escaped, by pleading with the assailants, that he was merely an employee. Cash amount of Rs. 95,000.00, which was statedly, in the brief case, lying in the car, was taken by the assailants. During the course of investigation, the accused were arrested, for having participated, in the aforesaid occurrence.
3. The challan was initially presented against accused Shree Bhagwan, Raj Kumar alias Raju and Manoj Kumar on 8.01.2005. Thereafter, Karan Singh, accused, was arrested and supplementary challan was filed against him on 7.09.2005. Thereafter, another absconding accused, Vinod, was also arrested on 23.08.2005, and a supplementary challan against him was filed on 14.12.2005. However, the sixth accused remained absconding and could not be arrested.
4. On their appearance in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by way of commitment, charge under Ss. 395, 396, 398 and 302 of the Indian Penal Code was framed, against the accused. It was read over and explained to them, to which, they pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Satish Kumar (PW1), who was accompa
