J. K. Maheshwari, J
1. Leave granted.
2. The instant appeal is preferred by the accused against final judgment dated 17.10.2019 passed by High Court of Punjab and Haryana at Chandigarh
in CRAÂDÂ257ÂDBÂ2003 (O&M), whereby the Division Bench of High Court declined to interfere with the judgment of the Sessions Court dated
04.02.2003 by which the appellant was convicted for the charge under Section 302/120ÂB  of Indian Penal Code (‘IPC’) and directed to
undergo imprisonment for life and pay fine of Rs.1000/Â, in default further rigorous imprisonment for six months. The appellant was also convicted
under Section 342/120ÂB of IPC and was sentenced to rigorous imprisonment for six months with an order to run both the sentences concurrently.
3. The prosecution story in brief is that on 03.04.2000 while a police party headed by inspector Atma Singh (hereinafter referred to as 'the
Investigating Officer/IO’) of Police Station, Kotwali Amritsar was on patrol duty at Chowk Katra Jaimal Singh, received information regarding
murder of deceased Banarasi Dass. The police party went to the house of deceased, where complainant Leela Wati, wife of deceased made the
complaint and her statement was also recorded by IO. It is stated that she was residing with the deceased in a house at Katra Jaimal Singh, Amritsar
on first floor. The deceased used to work in the shop with his son Vinod Kumar, which was in the name and style of Sunder Shoes. On the intervening
midnight of 2/3.04.2000 they were sleeping in their house, when she woke up suddenly saw that a Sikh youth wearing a white kurta payjama and
patka of the same colour on his head, aged about 35/36 years along with a clean shaved person, aged about 30/32 years have entered in the house.
Sikh youth was armed with a dagger/chhura, who first strangulated her husband Banarasi Dass thereafter, gave dagger blows above the stomach
while lying on the bed. The Sikh youth demanded keys of Godrej almirah from the complainant, which out of fear she handed over. She was locked in
a bathroom by them. Both the intruders looted gold ornaments, cash and other articles and went back. The chowkidar rang the call bell but because
she was confined in the bathroom so could not open the door. In the morning, the chowkidar with the help of other persons opened the door of house
and also of bathroom, then, she came out. On initial search, she found that the intruders had taken away six gold bangles, Rs.7000/Â in cash and other
articles of gold including cash from the wooden almirah also. The IO after making some endorsement below the statement of complainant sent ruqa to
the police station, on the basis of which, formal FIR No.51 dated 03.04.2000, was registered of the offences under Sections 460, 342, 120ÂB and 34
of IPC at Police Station Kotwali, Amritsar.
4. The IO carried out the inquest proceedings with regard to unnatural death of deceased Banarasi Dass. He drew rough sketch to the place of
occurrence and bloodÂstained bed sheet was kept into sealed parcel. Dead body was sent for post mortem examination. After such examination,
Head Constable Nirmal Singh produced the clothes of the deceased before the IO, which was converted into a sealed parcel and taken into
possession. The IO recorded the statements of other witnesses also. On 19.04.2000, the IO went to the shop of the deceased and collected license to
run the shop and purchase bills. On 03.05.2000, accused Gulzar Singh, Bikramjit Singh and Ashwani Kumar were arrested in this case. During the
course of interrogation, they made disclosure statement to which recoveries were effected. From accused Ashwani Kumar police recovered three
gold biscuits and a wrist watch, whereas, from accused Bikramjit Singh police recovered five gold biscuits of 10 tolas, 20 gold biscuits of 5 tolas each,
one gold necklace, two gold bangles, two ear rings, one wrist watch and cash amount of Rs.2,36,000/Â. From accused Gulzar Singh police recovered
10 gold biscuits weighing 10 tolas each, 10 gold biscuits weighing 5 tolas each, cash amount of Rs.1,20,000/Â along with a pair of ear rings, two gold
bangles, one necklace and a dagger. All the recovered articles were identified by PWÂ12 Vinod Kumar Gambhir, son of the deceased.
5. On 10.05.2000, accused Harpal Singh who is Appellant herein and Pavitar Singh were apprehended while they were coming in a car bearing
No.PBÂ02HÂ3113. They were formally arrested in this case and the car in question was seized. Both the accused were interrogated and they also
suffered disclosure statements, in pursuance thereof, from Harpal Singh police recovered 10 gold biscuits of 5 tolas each and 08 gold biscuits of 10
tolas, in addition to cash amount of Rs.2,84,000/Â, whereas, from accused Pavitar Singh police recovered 2 gold biscuits weighing 10 tolas each and a
ladies’ wrist watch.
These articles were identified by prosecution witness PWÂ12, Vinod Kumar Gambhir, son of deceased.
6. On 18.05.2000, IO went to the hotel Sita Niwas and obtained copy of the entry register of the hotel Ext.PAA. It was seized, vide a recovery memo
Ext.PKK. On 06.06.2000, Head Constable Kapal Dev produced two photographs along with negatives, which were taken into possession. Statements
of witnesses were recorded. After completion of investigation and other formalities, the challan against the accused was filed in the Court of Judicial
Magistrate 1st Class (for short 'JMFC'), Amritsar, who supplied copies of documents relied upon in the challan to the accused free of costs as
provided under Section 207 Cr.P.C and then find the offence under Section 460 was exclusively triable by the Court of Session, vide her detailed
committal order dated 22.08.2000, committed the case to the Court of Session. On committal, learned Session Judge, Amritsar, after finding prima
facie case framed the charges for commission of offences under Sections 460, 302, 342 and 120ÂB of IPC. The accused persons were abjured the
guilt. During the course of trial 15 prosecution witnesses were examined.
7. Statements of the accused were recorded under Section 313 Cr.P.C., in which all the incriminating circumstances appearing against such accused
were put to them but they denied the same, contending that they are innocent and have been falsely implicated in the case. Accused Ashwani Kumar,
Bikramjit Singh and Gulzar Singh had filed written statements, contending that the allegations against them were false. They were kept in illegal
detention and created false evidence against them.
8. Appellant Harpal Singh had filed separate written defence, mentioning therein that he was having a mini bus No.PBÂ02ÂHÂ 9661 which was sold
on 05.11.1999 for consideration of Rs.3,80,000/Â to Hakumat Singh, resident of Village Harpura, Tehsil Batala, District Gurdaspur and delivered the
custody of vehicle to the purchaser. The accused further stated that he wanted to purchase a truck with the sale proceeds of the mini bus which
amount was lying at his house. During the investigation of the case, the police unlawfully recovered that amount and out of which, recovery of a sum
of Rs.2,84,000/Â was shown from the possession of Harpal Singh with a view to create evidence against him as a matter of fact, no recovery had
been effected.
9. Learned Sessions Judge, Amritsar, vide judgment dated 04.02.2003, convicted and sentenced all the accused persons including appellant herein for
the charge under Section 302/120ÂB IPC and directed to undergo sentence for imprisonment of life and to pay a fine of Rs.1000/Â in default further
rigorous imprisonment for six months. All the five accused persons filed appeal against the judgment of their conviction and sentence before High
Court of Punjab and Haryana.
10. In the impugned order passed by the High Court, the testimony of PWÂ1 Leela Wati has been relied upon to support the case of prosecution and
the commission of murder with robbery. In her testimony, she has described the looted articles and also supported the supplementary statement. The
defence taken by the defendant regarding planting of the gold articles by the son of the deceased Vinod Kumar being gold smuggler was not found
worthy to rely upon. For the purpose of commission of the offence, the testimony of PWÂ4 Vinod Singh Chauhan was found worthy of credence,
however, the commission of the offence with the aid of recoveries and also by identification of the looted articles. The High Court has also relied upon
the extraÂjudicial confession made by PWÂ14 Devinder Kumar. Thus, concluded that the conviction of the appellant for the charges proved beyond
reasonable doubt and the finding of the Trial Court do not suffer from any infirmity warranting interference. Consequently, the appeal was dismissed
by the impugned order.
11. Learned counsel for the appellant has strenuously urged that the recovery of articles and cash from him has not been proved as per law. The
recovered articles claimed from the accused were not the same articles as described by the complainant. The appellant has taken several defence
regarding sale of mini bus No. PBÂ02ÂHÂ9661 for the consideration of Rs.3,80,000/Â to Hakumat Singh and the police has illegally recovered the
said consideration amount for the sake of looted article with intent to implicate him falsely. The defence to show false recovery has been supported by
the testimony of DWÂ1 Dhanpal Singh and DWÂ2 Surinder Mohan Luthra. The evidence regarding prior meeting of mind is not on record thereby
the appellant conspired or was a part of conspiracy in committing the loot and murder of the deceased. The connecting evidence regarding recovery
of the record of the hotel has not been produced in original. Thus, merely on the basis of the said evidence and the recovery, which is not summarised
in the FIR, the conviction of the appellant is wholly unsustainable.
12. On the other hand, the State counsel contends that the amount recovered from the possession of the appellant as a sale proceed of the mini bus
has not been proved in support of his defence. The identification of the gold biscuits and looted articles were made by PWÂ12 Vinod Kumar Gambhir
son of the deceased. In the defence, it has not been said that the gold articles seized were of the accused persons. No explanation for huge recovery
of gold items has put forward from the accused, simultaneously Hakumat Singh, to whom the mini bus was sold, has not been examined, hence, the
defence was not found plausible. On the other hand, looking to the testimony of PWÂ1 Leela Wati, PWÂ2 Nasib Singh, PWÂ4 Vinod Singh Chauhan
and also the extra judicial statement given by PWÂ14 Davinder Kumar, the High Court has rightly confirmed the findings of the Trial Court. Thus,
the findings of fact concurrently recorded are based on due appreciation of evidence and those findings are not perverse.
13. After having heard learned counsel for the parties and on perusal of the record, it is seen that ample evidence to have conspiracy between all five
accused have been duly proved. The involvement of the appellant is fully established by the testimony of PWÂ4 Vinod Singh Chauhan, who was an
employee on the shop ‘Sunder Shoes House’. As per his testimony, it is clear that coÂaccused Ashwani Kumar another employee in the shop,
met with appellant/accused Harpal Singh and Pahlwan Bikramjit Singh on the shop at about 4Â5 p.m. on 15.03.2000. At that time deceased Banarasi
Dass was counting the cash currency at the counter. Ashwani Kumar told Harpal Singh and Bikramjit Singh that Banarasi Dass was having ample
money with him and he was also involved in the money lending business keeping the gold as security. Subsequently, on the date of incident i.e.,
02.04.2000, appellant alongwith coÂaccused visited the shop and made inquiry about coÂaccused Ashwani Kumar (another employee of Sunder
Shoes). Thus, by the evidence of this witness, nexus between appellant Harpal Singh and coÂaccused persons is fully established. The defence taken
by the appellant regarding recovery of the cash money of Rs.2,84,000/Â from him by virtue of sale of mini bus has not been proved because the said
mini bus was not sold to him and the buyer of the said mini bus Hakumat Singh has not been examined. DWÂ1 Dhanpal Singh in his crossÂ‐
examination has categorically admitted that the amount was not lying in his bank account or of his father. Thus, the defence of the appellant was not
found plausible. Simultaneously no plausible defence to disprove other looted articles have been brought on record.
14. We have perused the testimony of other witnesses that includes PWÂ1 Leela Wati, PWÂ4 Vinod Singh Chauhan, PWÂ12 Vinod Kumar
Gambhir and PWÂ14 Davinder Kumar on the basis of the same the involvement of the appellant alongwith other co accused has been fully proved
by prosecution beyond reasonable doubt. The Trial Court and the High Court has rightly appreciated the evidence and proved the charges while
convicting the appellant. The minor inconsistencies in the statement of witnesses are not of any consequence looking to the finding concurrently
recorded by two courts. Thus, the findings of fact recorded against the appellant and the other coÂaccused, who have not come forward to file the
appeal before the Court, are neither perverse nor illegal so as to warrant interference by this Court. Therefore, while affirming the view taken by the
High Court and the Trial Court, we dismiss the appeal.
