IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

(i) Criminal Appeal S-2157-SB of 2006
Date of Decision: September 7, 2018

Sham Singh and another ……Appellants
Versus

State of Haryana ….. Respondent

(ii) Criminal Appeal S-2290-SB of 2006

Rajbir @ Gadar ….. Appellant

Versus
State of Haryana ….. Respondent

CORAM : HON’BLE MR. JUSTICE T.P.S.MANN

***

Present : Mr. B.S. Bairagi, Advocate
for the appellants.

Mr. Kapil Aggarwal, Addl. A.G., Haryana.

***

T.P.S.MANN, J. (Oral)

Five accused, namely, Sham Singh, Rajbir @ Gadar,

Hans Raj, Satnam and Zile Singh were tried for committing the

offences punishable under Sections 457, 380, 436 and 411 IPC.

Vide impugned judgment and order dated 3/6.10.2006, learned

Additional Sessions Judge, Hisar, acquitted them of the charges

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under Sections 457, 380 and 436 IPC. However, they were

convicted under Section 411 IPC and sentenced to undergo

rigorous imprisonment for one year and to pay a fine of Rs.2,000/-

each and in default of payment of fine, to undergo further simple

imprisonment for two months. The period already spent by them

in jail was directed to be set off against their substantive sentence

of imprisonment.

Aggrieved of their conviction and sentence, Sham

Singh and Hans Raj filed the present appeal, i.e. Criminal Appeal

S-2157-SB of 2006 whereas Rajbir @ Gadar filed connected

appeal, i.e. Criminal Appeal S-2290-SB of 2006. However, no

appeal was filed by Satnam and Zile Singh.

As both the aforementioned appeals arise out of the

same judgment of conviction and sentence, they are being

disposed of by a common judgment.

According to the prosecution, on 3.8.2002

complainant Mohar Singh made a statement before the police on

the basis of which FIR No. 114 dated 3.8.2002 under Sections

457, 380 and 436 IPC was recorded. The said statement when

translated into English reads as under:-

” That I am resident of village Bhairi Akbarpur. I am an
agriculturist by profession. I have installed a disc in
one room of my house. On 14.9.2001, I had gone to

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my relations due to some personal work. None was
present at my house on that day and the house was
duly locked. I came back on 15.9.2001 and found that
lock on the door of my house was broken. I also
noticed smoke in the windows. I peeped inside and
saw that my V.C.R. Panasonic, one TV Samsung 20”,
one remote control and stabilizer, some video
cassettes and about Rs.200/- or 300/- were stolen.
Some clothes, implements of disc and one table were
found in a burnt condition. I tried to search for the
culprits and now I am sure that my articles were stolen
by Rajbir @ Gadar son of Ruli Ram, Sham Singh son
of Mewa Singh, Satnam Singh son of Prem Singh, Zile
Singh @ Gogna son of Ranjit and Hans Raj son of
Hari Singh, all Harijans, residents of Bhairi Akbarpur.
They had broken the lock of my house and committed
theft and burnt some of the articles”.

During the investigation of the case, the police took

into possession burnt articles. All the five accused were arrested

on 6.8.2002 and on the basis of their respective disclosure

statements, various articles which had been stolen, were

recovered. Offence under Section 411 IPC was added to the FIR.

Upon completion of investigation and commitment of

the case, all the accused were charged for the aforementioned

offences, to which, they pleaded not guilty and claimed trial.

In support of its case, the prosecution examined

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seven witnesses.

PW1 Subhash Chand Draftsman deposed that he

visited the spot and prepared the scaled site plan Ex.PA with

correct marginal notes as pointed out by Mohar Singh

complainant.

PW2 Mohar Singh complainant deposed about theft

from his house and proved complaint Ex.PB made by him to the

police. He also deposed that the police took into possession six

receivers, six ACM, one combiner, one VCD converter, three

amplifiers in burnt condition vide recovery memo Ex.PC.

PW7 Inspector Bimla Devi testified that on 6.8.2002,

she interrogated accused Zile Singh, Rajbir, Sham Singh and

Satnam Singh and they had suffered disclosure statements

Ex.PR, Ex.PS, Ex.PT and Ex.PU, respectively and had signed the

same.

She further stated that on 8.8.2002 Zile Singh

accused suffered another disclosure statement Ex.PD and got

recovered stolen articles, i.e. two cassettes Ex.P19 and Ex.P20

from his residential house, which were taken into possession vide

memo Ex.PE, which was attested by Constable Ishwar Singh and

Constable Sohan Lal. She deposed about preparing site plan

Ex.PV of the place of recovery.

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She also deposed that on 8.8.2002 Rajbir accused

suffered another disclosure statement Ex.PF, pursuant to which,

he got recovered the stolen articles, i.e. VCR Panasonic Ex.P21

from his residential house, which was taken into possession vide

recovery memo Ex.PG. She deposed about preparing of site plan

Ex.PW of the place of recovery with correct marginal notes and

stated that Ex.PF and Ex.PG were attested by Constable Ishwar

Singh and Constable Sohan Lal.

She further deposed that on 8.8.2002 accused Sham

Singh suffered another disclosure statement Ex.PH and pursuant

thereto, he got recovered colour TV Samsung Ex.P-22 and

remote control Ex.P23 from his residential house. She proved

recovery memo Ex.PJ and site plan Ex.PX of the place of

recovery. She deposed that Ex.PH and Ex.PJ were attested by

Constable Ishwar Singh and Constbale Sohan Lal. She proved

site plan Ex.PX of the place of the recovery.

She also deposed that on 8.8.2002 Satnam Singh

accused suffered another disclosure statement Ex.PK and

pursuant thereto he got recovered video cassettes Ex.P24 and

Ex.P25 from his residential house. She proved recovery memo

Ex.PL and site plan Ex.PY of the place of recovery. She deposed

that Ex.PL and Ex.PK were attested by Constable Ishwar Singh

and Constable Sohan Lal.

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She further deposed that on 30.8.2002, she arrested

Hans Raj accused, who suffered disclosure statement Ex.PM and

pursuant thereto got recovered stabilizer from his residential

house, which was duly taken into possession vide recovery memo

Ex.PN. The disclosure statement Ex.PM and recovery memo

Ex.PN were attested by HC Ram Phal and Contable Bhup Singh.

She proved rough site plan Ex.PZ with correct marginal notes and

stated that on completion of the investigation, she prepared final

report under Section 173 Cr.P.C. on 26.9.2002.

PW3 HC Ishwar Singh supported the deposition of

PW7 SI/Inspector Bimla Devi. He also deposed about the

disclosure statements made by Rajbir, Sham Singh and Zile

Singh accused and proved the recoveries from them.

PW4 Bhoop Singh supported the deposition made by

PW7 Inspector Bimla Devi regarding joining of investigation on

30.8.2002 and suffering of disclosure statements by accused

Hans Raj and recovery of a stabilizer from him.

PW5 HC Bal Kishan deposed about scribing formal

FIR Ex.PO on receipt of application Ex.PB and proved his

endorsement Ex.PB/1.

PW6 ASI Ramphal deposed that on 3.8.2002 MHC

Bal Kishan recorded formal FIR Ex.PO. Thereafter, he took over

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the investigation of the case and alongwith complainant Mohar

Singh visited the spot and prepared rough site plan Ex.PQ with

correct marginal notes and took into possession burnt articles, i.e.

amplifier, receiver, cassettes, VCR and electric articles vide

recovery memo Ex.PC. He deposed that recovery memo Ex.PC

was attested by complainant Mohar Singh and after that he

handed over the investigation of this case to Inspector Bimla

Devi. He further stated that he joined investigation on 30.8.2002

with Inspector Bimla Devi and arrested Hans Raj accused, who

suffered disclosure statement Ex.PM regarding theft and pursuant

thereto, he got recovered one stabilizer from his residential house

which was taken into possession vide recovery memo Ex.PN

attested by him and Constable Bhup Singh.

When examined under Section 313 Cr.P.C., all the

accused denied the incriminating evidence and circumstances

appearing against them and claimed themselves to be innocent.

However, in their defence, they did not examine any evidence.

As mentioned above, all the accused were convicted

under Section 411 IPC and, accordingly, sentenced to undergo

imprisonment and fine.

This Court has heard learned counsel for the parties

and scanned the evidence with their able assistance.

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The occurrence in question is said to have taken place

on the night intervening 14/15.9.2001 whereas the statement

was made by complainant Mohar Singh to the police only on

3.8.2002, i.e. after a period of about eleven months of the

incident. Further, the complainant without any basis, named the

accused to be the one, who had broken open the lock of his

house and committed theft besides burning some of the articles.

It was not mentioned as to how the complainant came to know

that it were the accused, who were responsible for committing the

crime. No satisfactory explanation has been given to explain the

delay in lodging of the FIR.

According to the prosecution, the accused were

arrested on 6.8.2002 and after they were subjected to

interrogation, they suffered disclosure statements, pursuant to

which, they got recovered the various articles, which according to

the complainant had been stolen from his house. In support of the

factum of the accused suffering disclosure statements and getting

recovered various articles, the prosecution relied upon the

testimonies of only official witnesses. No independent

corroboration was sought by the prosecution. Even the ownership

of the various articles said to have been stolen is not proved to be

that of the complainant. Complainant Mohar Singh while being

examined as PW2 stated in his cross-examination that he had not

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given the receipt of the articles mentioned in his application

Ex.PB to the police in order to prove that he was the owner of

those articles. He also stated that the articles mentioned in Ex.PB

were readily and easily available in the market.

PW2 Mohar Singh has also a chequred record. He

admitted that he was facing the criminal trial in two cases. One of

those cases was pertaining to the theft while other about causing

hurt. He also stated that one another case under Section 377 IPC

was registered against him though he was subsequently acquitted

of the same. He further stated that another criminal case was filed

by him against Dalbir etc. who were his neighbours relating to

causing of hurt. He also admitted that he had filed the criminal

complaint against the police officials earlier but in both those

cases compromise was effected. Merely because, the accused

did not claim the ownership of the case property is not sufficient

to hold that those articles belonged to the complainant or the

accused were in possession of the same, which were got

recovered pursuant to their disclosure statements.

In view of the above, this Court finds that the

prosecution has miserably failed to prove its case against the

appellants beyond reasonable doubt. Accordingly, the judgment of

conviction and sentence passed by the learned trial Court while

convicting and sentencing Sham Singh, Hans Raj and Rajbir @

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Gadar is set-aside and they are acquitted of the charge against

them. Criminal Appeal S-2157-SB of 2006 filed by Sham Singh

and Hans Raj and Criminal Appeal S-2290-SB of 2006 filed by

Rajbir @ Gadar are, accordingly, accepted.

All the three appellants are presently on bail. Their bail

bonds and surety bonds shall stand discharged.

September 7, 2018. ( T.P.S. MANN )
amit rana JUDGE

Whether reasoned/speaking : Yes/No

Whether reportable : Yes/No

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