Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 554 of 2015, Judgment Date: Apr 06, 2015

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 554 OF 2015
               (Arising out of S.L.P. (Crl.) No. 8663 of 2014)


Jasbir Singh @ Javri @
Jabbar Singh                                                   ... Appellant

                                   Versus

State of Haryana                                               ...Respondent


                               J U D G M E N T

Prafulla C. Pant, J.

      This appeal is directed against judgment  and  order  dated  8.8.2014,
passed by the High Court of Punjab and Haryana, whereby Criminal Appeal  No.
S-1389-SB has been dismissed, and conviction of accused  (appellant)  Jasbir
Singh @ Javri @ Jabbar Singh, recorded by  the  Additional  Sessions  Judge,
Fast  Trek  Court,  Karnal,  has  been  affirmed  in  respect  of   offences
punishable under Sections 399 and 402 of the Indian  Penal  Code  (IPC)  and
one punishable under Section 25 of Arms Act.  However, the sentence  awarded
by the trial court to the appellant under Section 399 IPC has  been  reduced
to the period of imprisonment for five years.

Heard learned counsel for the parties and perused the papers on record.

Prosecution story in brief is that on 26.6.2003, PW-6 Sube Singh,  Assistant
Sub Inspector, Karnal, along  with  PW-4  Head  Constable  Ram  Singh,  PW-1
Constable Satish Kumar, and four others, namely, Head Constable Azad  Singh,
Constable Arvind, Constable Mahender Singh and Constable Rattan Singh  (none
of last four examined), was on duty in connection  with  detection  of  some
crime.  He received a secret  information  that  appellant  Jasbir  Singh  @
Javri @ Jabbar Singh, and co-accused Shamsher Singh, Jagpal,  Rattan  Singh,
Raju and Sumer Singh, armed with deadly weapons,  were  planning  to  commit
dacoity in  a  liquor  shop  on  Meerut  Road,  Karnal.   On  receiving  the
information, Assistant Sub Inspector Sube Singh and other  police  officials
proceeded towards electric pole, Ganda Nala, Sector 5, Karnal.  It was  1.20
p.m. (noon) when the police party observed that  all  the  accused  were  in
blue shirts.  The police team further went near  the  miscreants  and  heard
the conversation of the appellant and  co-accused  that  they  would  commit
dacoity in the night in the liquor  shop  on  Meerut  Road,  Karnal.   After
hearing the conversation, the police officials  surrounded  and  apprehended
four of the accused.  They succeeded in arresting appellant Jasbir  Singh  @
Javri @ Jabbar Singh and recovered from  his  possession  one  country  made
pistol (Ex. PD) with two live cartridges of .315  bore.   The  police  party
further succeeded in  apprehending  co-accused  Shamsher  Singh  @  Chhammi,
Jagpal and Sumer Singh.  On personal search  of  Shamsher  Singh  one  knife
(Ex. PF) was recovered, and one Saria (Iron  Rod)  (Ex.  PG)  was  recovered
from Sumer Singh.  From accused Jagpal one country made pistol  loaded  with
cartridge (Ex. PE) was said to have been recovered.  The other two  accused,
namely, Rattan Singh and Raj Kumar @ Raju succeeded  in  running  away  from
the spot.
After the arrest of the four accused,  as  mentioned  above,  Assistant  Sub
Inspector Sube Singh (PW-6) prepared memo (Ex. PD/1) in respect of  recovery
of pistol, memo (Ex. PE/1) relating to recovery  of  cartridges,  memo  (Ex.
PF/1) relating to recovery  of  knife,  and  memo  (Ex.  PG/1)  relating  to
recovery of iron rod.  Ruqa (memo) (Ex. PH) was sent by  the  Assistant  Sub
Inspector Sube Singh (PW-6) to Police Station, City, Karnal.  On  the  basis
of said report FIR No. 355 dated 26.6.2003 was registered  against  all  the
six accused relating to offences punishable under Sections 399 and 402  IPC.
 As against accused (appellant) Jasbir Singh @ Javri @ Jabbar Singh and  co-
accused Jagpal, crime in respect of offences punishable under Arms Act  were
also registered.  PW-6, Sube Singh, himself conducted the investigation  and
prepared the site plan (Ex. PJ) and recorded statements  of  witnesses.   On
29.6.2003,  co-accused  Rattan  Singh  and  Raju  were  also  arrested.   On
completion of investigation, charge sheet was  filed  against  all  the  six
accused under Section 173 of the  Code  of  Criminal  Procedure,  1973  (for
short "the Code") in the court of Ilaqa Magistrate,  Karnal,  who  committed
the case to the Court of Sessions for trial of the accused.
It appears that after giving necessary copies of documents, and hearing  the
parties, charge was framed by the trial court against  all  the  accused  in
respect of offences punishable under Sections 399 and 402 IPC, in  reply  to
which they pleaded not guilty and claimed to be  tried.   Additional  charge
in respect of offence punishable under Section 25 of Arms  Act,  was  framed
against accused Jasbir Singh and one against accused Jagpal  to  which  also
they pleaded not guilty.


On this, prosecution got examined PW-1 Satish Kumar, PW-2 Prem  Kumar,  PW-3
Balwant Singh, PW-4, Head Constable  Ram  Singh,  PW-5  Narinder  Singh  (an
official in the Office of the District Magistrate) and  PW-6  Assistant  Sub
Inspector Sube Singh.  The oral and documentary  evidence  was  put  to  the
accused under Section 313 of the Code, in reply to which  they  stated  that
the same is false.  In defence, DW-1 Sushil Kumar  Rana  was  got  examined,
who stated that the appellant and  other  three  accused,  as  suggested  by
prosecution, were not arrested  together.   This  witness  has  stated  that
Jagpal was arrested from Government Girls College, Karnal.
The trial court, after hearing the parties, relied upon the testimony of PW-
6, Assistant Sub Inspector Sube Singh,  which  is  supported  by  PW-1  Head
Constable Satish Kumar and PW-4 Head Constable Ram Singh.  It further  found
that the sanction  of  prosecution  given  by  the  District  Magistrate  as
against appellant Jasbir Singh @ Javri @ Jabbar  Singh  was  proved  on  the
record in respect of offence punishable under Section 25 of Arms  Act.   The
trial court held all the six accused  were  guilty  of  charge  of  offences
punishable under Sections 399 and 402 IPC  on  15.5.204.   Appellant  Jasbir
Singh @ Javri @ Jabbar Singh  and  Jagpal  were  further  found  guilty  and
convicted under Section 25 of Arms Act.  After hearing on the  sentence,  on
17.5.204 the trial  court  (Additional  Sessions  Judge,  Fast  Trek  Court,
Karnal) sentenced each of the convicts,  namely,  Jasbir  Singh  @  Javri  @
Jabbar Singh, Shamsher Singh @ Chhammi, Sumer Singh,  Jagpal,  Rattan  Singh
and Raj Kumar @ Raju to rigorous imprisonment for a period  of  seven  years
under Section 399 IPC, and rigorous imprisonment for a period of five  years
under Section 402 IPC.  Appellant Jasbir Singh @ Javri @  Jabbar  Singh  and
co-accused Jagpal were further sentenced  to  rigorous  imprisonment  for  a
period of six months under Section 25 of Arms Act.

Aggrieved by the above judgment and order dated 15.5.2004/17.5.2004,  passed
by the trial court, the convicts, including the  appellant  Jasbir  Singh  @
Javri @ Jabbar Singh, filed appeals before the  High  Court  of  Punjab  and
Haryana.  The High Court, vide impugned judgment and order  dated  8.8.2014,
affirmed the conviction of appellant Jasbir Singh @  Javri  @  Jabbar  Singh
and other co-accused, but reduced the sentence  under  Section  399  IPC  to
rigorous  imprisonment  for  a  period  of  five  years  without  disturbing
sentence on other counts.  Hence, this appeal by  Jasbir  Singh  @  Javri  @
Jabbar Singh before us through special leave.


On behalf of the appellant, it is argued that the  High  Court  has  grossly
erred in law in not accepting the appeal of appellant Jasbir  Singh  as  the
prosecution story was completely false and on the face of  it  unbelievable.
Learned counsel for the appellant contended that the High Court  has  failed
to re-appreciate the  evidence  on  record  independently.   It  is  further
pointed out that the complainant Assistant Sub Inspector Sube  Singh  (PW-6)
has himself investigated the crime.


On the other hand, learned counsel for the  respondent  submitted  that  the
appellant along with other accused was found planning to commit dacoity  and
was arrested along with fire arm at the spot,  as  such,  the  courts  below
have rightly found the appellant guilty of the charge framed against him.


Having considered the submissions of the learned  counsel  for  the  parties
and after going through the papers on record, we are of the view  that  none
of the charge in the present case, against the appellant,  can  be  said  to
have been proved beyond reasonable doubt.   In  this  connection,  we  would
like to quote  following  observations  of  the  High  Court,  made  in  the
impugned, after re-appreciating the evidence: -
"The statement of ASI Sube Singh and H.C. Ram Singh cannot  be  believed  to
the effect that they  had  over  heard  the  conversation  of  the  accused,
details of which are given above to show that the  accused  were  discussing
their plan in detail to commit dacoity  on  the  liquor  shop,  situated  at
Meerut Road, Karnal.  It is apparently exaggeration and padding on the  part
of Investigating Officer."

Strangely, even after observing as above, the High Court  has  believed  the
prosecution story in respect of offences punishable under Sections  399  and
402 IPC, and one in respect of offence punishable under Section 25  of  Arms
Act.  The High Court has erred in law in not taking note  of  the  following
facts apparent from the evidence on record: -



In a day light incident at 1.20  p.m.  within  the  limits  of  City  Police
Station, Karnal, there is no public or any other independent witness of  the
arrest of the appellant along with other accused from the place of  incident
nor that of the alleged recovery of fire arm said to  have  been  made  from
two of them.  (It is not a case where arrest or recovery has  been  made  in
the presence of any Gazetted Officer.)


Complainant  (PW-6)  has  himself  investigated  the  crime,  as  such,  the
credibility of the investigation is  also  doubtful  in  the  present  case,
particularly, for the reason that except  the  police  constables,  who  are
subordinate to him, there is no other witness to the incident.


It is not natural that the six accused, four of whom were armed with  deadly
weapons, neither offered any resistance nor caused any injury to any of  the
police personnel before they are apprehended by the police.


It is strange that all the accused were wearing blue  shirts,  as  if  there
was a uniform provided to them.


It is hard to believe that the appellant and three others  did  not  try  to
run away as at the time of the noon they must have  easily  noticed  from  a
considerable distance that some policemen are coming towards them.   (It  is
not the case of the prosecution that police personnel were not in uniform.)

In view of the above facts and circumstances, which are  apparent  from  the
evidence on record, we find that both the courts below have erred in law  in
holding that the prosecution has  successfully  proved  charge  of  offences
punishable under Sections 399 and 402 IPC, and one punishable under  Section
25 of Arms Act against appellant  Jasbir  Singh  @  Javri  @  Jabbar  Singh,
beyond reasonable doubt.  In our  opinion,  it  is  a  fit  case  where  the
appellant is entitled to the benefit of the reasonable doubt,  and  deserves
to be acquitted.

Accordingly, the appeal is allowed.  The Conviction  and  sentence  recorded
against appellant Jasbir Singh @ Javri @ Jabbar  Singh  under  Sections  399
and 402 IPC and one punishable under Section 25 of Arms Act, is  hereby  set
aside.  The appellant shall  be  released  forthwith,  if  not  required  in
connection with any other trial.


                                    ......................................J.
                                                               [Dipak Misra]



                                    ......................................J.
                                                          [Prafulla C. Pant]
New Delhi;
April 06, 2015