GHURELAL AND ORS.versusSTATE OF RAJASTHAN

                      [2011] 6 S.C R. 1062


A                    GHURELAL AND ORS.
                                v.
                     STATE OF RAJASTHAN
               (Criminal Appeal No. 1636 of 2005)
                         JUNE 17, 2011
B
    [DR. 8.5. CHAUHAN AND SWATANTER KUMAR, JJ.]

       Penal Code, 1860:

c      ss. 395, 396 and 397 - Dacoity with two murders -
  Conviction of six accused-appellants affirmed by High Court
  - HELD: There are concurrent findings of fact of courts below
  about involvement and participation of all accused-appellants
  in the crime - They had been properly identified in test
0 identification parades as well as in court by witnesses - The
  looted property recovered also correctly identified - Recovery
  of looted property as also weapons and vehicle used in
  offence on disclosure statement made by accused, also stood
  proved - There is no cogent reason Iv take a view contrary
E to that taken by courts below.
       The six accused-appellants along with three others
  were prosecuted for committing offences punishable ul
  ss 395, 396, 397 and 398 IPC. An FIR was lodged by PW-
  13 on the morning of 17.12.1996 stating that in the
F previous night, 8-10 miscreants committed dacoity in his
  house, shot dead his chowkidar and one of the
  neighbours and decamped with cash, jewellery and silver
  wares etc. Nine accused were arrested. On the disclosure
  statements made by the accused, two 12-bore guns, one
3 revolver, and one katta, some empty cartridges, some live
  cartridges, one ambassador car, and the looted jewellery,
  cash and silver wares etc. were recovered. One of the
  accused died pending trial. The trial court convicted all
  the remaining 8 accused ulss 395, 396 and 397 IPC and
H                              1062
  GHURELAL AND ORS. v. STATE OF RAJASTHAN 1063


sentenced them to imprisonment for life. Five of the            A
accused were also convicted u/ss 3/25 and 3/27, Arms
Act. On appeal, the High Court upheld the conviction and
sentence of the accused u/ss 395, 396 and 397 IPC and
acquitted two. Aggrieved, the six convicts filed the
appeal.                                                         B

    Dismissing the appeal, the Court

      HELD: 1.1. There are concurrent findings of fact so
far as the involvement and participation of all the six
accused-appellants is concerned. They had been                  C
properly identified in the test identification parades as
well as in the court by the witnesses. More so, the looted
property, particularly, ornaments, jewellery, silver glasses
have been recovered and identified correctly. In respect
of this, the findings recorded by the trial court as well as    D
by the High Court are based on the evidence of 'PW.26',
the Judicial Magistrate, who conducted the Test
Identification Parades and by the statements of 'PW.20',
the Tahsildar, who conducted the proceedings of
identification of stolen articles. According to 'PW.20',        E
'PW.12' and 'PW.13' accurately identified the stolen
articles. Similarly, 'PW.26', the Judicial Magistrate, has
deposed that on 23.12.96, he had conducted the
identification parade of accused 'RV', 'K' and 'G'; and
'PW.13', 'PW.12' and PW-2 identified the three accused          F
correctly. He further deposed that on 6.1.1997, he
conducted the identification parade of accused 'SS', 'BS'
and 'R' wherein PW.13 identified accused 'SS' and 'BS'
correctly, but in place of accused 'R', he identified
another accused. PW.12 identified accused 'SS', 'BS' and        G
'R' accurately. PW.26 also prepared memos Ext.P-3 and
Ext.P-4 of the identification parades. These two.witnesses
have been cross-examined. However,. nothing could be
elicited by the defence to discredit their testimonies. [para
7] [1069-B-H; 1070-A-B]
                                                                H
    1064   SUPREME COURT REPORTS               (2011] 6 S.C.R.

A        1.2. The post-mortem report of the two deceased
    stood proved by the doctor (PW.21) who had conducted
    the autopsies. He deposed that the victims had died of
    the gun shot injuries. He also deposed that he had
    examined 'PW.2' on 17.12.1996 and had found 7 simple
s   injuries on his body which had been caused by a blunt
    weapon. The said injury had been caused within 12
    hours of examination. Thus, he corroborated the injuries
    as well as the manner and the weapon with which such
    injuries were caused. [para 9) (1070-E-F]
c      2.1. So far as the recovery is concerned, it stood
  proved by the Investigating Officer (PW-34), who stated
  that on the disclosure statements made by the accused
  u/s 27 of the Evidence Act and at their instances, he had
  recovered the stolen articles, alleged gun, revolver, pellet,
D scooter and an ambassador car used by the appellants
  at the time of committing dacoity. He also faced grilling
  cross-examination at,length, but nothing came out from
  his statement to draw an adverse inference against the
  prosecution. [para 8) (1070-C-D]
E
       2.2. The recoveries made at the instances of the
  appellants stood proved by examining the panel
  witnesses, except in case of recovery made on
  disclosure statement of accused 'G' in respect of one gun
F of 12 bore, live cartridges, some jewellery and a few
  silverwares, as the two panch witnesses, namely, 'PW.30'
  and 'PW.31' turned hostile. Both the courts below have
  held that the recovery from accused 'G' cannot be dis-.
  believed merely because the panch witnesses turned
G hostile. There is no cogent reason to take a view contrary
  to the view taken by the two courts below. [para 10)
  [1070-H; 1071-A-B]
       3. No material discrepancy in the statements of the
  witnesses has been pointed out which goes to the root
H of the case. There is no cogent reason to interfere with
  GHURELAL AND ORS. v. STATE OF RAJASTHAN 1065


the concurrent findings of fact, recorded by the courts            A
below. [para 11) [1071-C]

    CRIMINAL APPELALTE JURISDICTION: Criminal Appeal
No. 1636 of 2005.

    From the Judgment & Order dated 27.10.2004 of the High         B
Court of Judicature for Rajasthan Bench at Jaipur in D.B.
Criminal Appeal No. 1579 of 2002.

    Manish Singhvi, AAG, Milind Kumar, Altaf Hussain,
Harbans Lal Bajaj for the appearing parties.                       C

     The Judgment of the Court was delivered by

     DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the judgment and order dated 27.10.2004 passed by
the High Court of Judicature for Rajasthan, Jaipur Bench in D.B.   D
Criminal Appeal No. 1579 of 2002, upholding the conviction and
the sentence of the appellants vide judgment and order dated
2.11.2002 in Sessions Case No. 4 of 2002 (14/2000) passed
by Additional District and Sessions Judge, (Fast Track),
Laxmangarh, Alwar, convicting the appellants under Sections        E
395, 396 and 397 of the Indian Penal Code, 1860 (hereinafter
called the IPC).

    2. Facts and circumstances giving rise to this appeal are
as under:                                                          F
     A. Santosh Jagwayan (PW.13) lodged an FIR on
17.12.1996 at 8.30 AM. that in the intervening night between
16th and 17th December, 1996, on hearing a noise, he sent
his Chowkidar Gopal Nepali (deceased) to the roof of his
house. Gopal Nepali went upstairs, opened the gate of the roof,    G
and found that 8 to 10 accused persons were trying to enter
into the house by breaking upon the door of the roof. They
immediately_ fired a shot at Gopal Nepali (deceased) and
entered into the house. The accused persons locked Shashi
                                                                   H
    1066    SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A Devi (PW.12), wife of complainant and Preeti (PW.14) and
  Sandhya (PW.15), his daughters, in the bathroom and started
  looting moveable properties. ,Meanwhile, the complainant's
  neighbours raised their voices. Thus, the accused immediately
  fired a shot at one of the neighbours, Mrs. Anita Yadav
B (deceased), and as a result, she died on the spot. Kripa Dayal
  Yadav (PW.2), husband of Anita Yadav caught hold of one of
  the accused but was beaten with a gun's butt by the other
  accused persons who managed to get the accused released
  from his clutches. The accused decamped with cash, jewellery
c and silver wares etc.

       B. On the basis of the said complaint, an FIR No. 240 of
  1996 (Ex.P-30) was registered under Sections 395, 396, 397
  and 398 IPC and investigation ensued. The dead bodies of
  Gopal Nepali and Smt. Anita Yadav were recovered and sent
D for post-mortem examination.

         C. During the course of investigation, the appellants were
    arrested. Raghuveer was arrested on December 19, 1996 and
    one Ambassador car was recovered at his instance. On his
E   further disclosure and instance, one Kondhani of silver, 2 silver
    glasses, one silver Katori, one silver spoon and one torch were
    recovered. Raghuveer, Ghurelal and Kallu were put to the
    identification parade. On December 24, 1996, co-accused
    Ram Krishan (now dead) was arrested. On his arrest, case for
F   offence under Section 1208, IPC was also added. On the
    information and at the instance of accused Kallu, a 12 bore gun,
    one silver Katori, one pair of ear tops and one earring was
    recovered on December 29, 1996. On the information furnished
    by Ghurelal, one golden ring, one ear 'jhala', one necklace, one
G   llaychidani, one silver spoon and one Kondhani were recovered
    on December 30, 1996. On January 1, 1997, accused
    appellants Rajpal, Samay Singh and Chunchu @ Bhagwan
    Singh were arrested. One 12 bore gun, one worship platter, 4
    silver glasses, one Katori and Rs.2,000/- in cash were
H   recovered from Chunchu @ Bhagwan. On the information
  GHURELAL AND ORS. v. STATE OF RAJASTHAN 1067
            [DR. B.S. CHAUHAN, J.]

furnished by accused Samay Singh, one 32 bore revolver, two           A
empty cartridges, 4 live cartridges, 5 glasses, one Katori, one
silver spoon and two coin of silver along with Rs.8,900/- in cash
and two notes of Nepal currency were recovered. On the
information of appellant Rajpal, one 32 bore Katta, one empty
cartridge, 5 live cartridges, two golden bangles (Kangan), 3          B
silver button, one Ka tori of silver, one silver glass and Rs.1000/
- in cash were recovered. Some recoveries were also made
at the instance of co-accused Kuniya and Talevar (acquitted by
the High Court). Appellants Samay Singh, Chunchu and Rajpal
were also put to the identification parade.                           c
     D. After completing the investigation, the police filed·
challan for offences punishable under Sections 395, 396, 397,
1208 and 412 IPC, and under Sections 3/25 and 3/27 of the
Arms Act, 1950. The charges were framed against the
accused appellants. The accused denied the charges and D
claimed to be tried. Prosecution produced as many as 34
witnesses and exhibited 80 documents (Ex.P-1 to Ex.P-80) in
support of its case. The accused appellants were examined
under Section 313 of the Code of Criminal Procedure, 1973.
They denied the correctness of the statements made against E
them and pleaded that they have been falsely implicated.

     E. The trial court convicted all the accused under the
provisions of Section 396 IPC and awarded them punishment
to undergo life imprisonment and a fine of Rs. 1,000/-, and in        F
default of payment of fine, to further undergo six months rigorous
imprisonment. All of them were also convicted for the offence
punishable under Section 397 IPC, and a sentence to undergo
rigorous imprisonment for seven years and a fine of Rs.500/-
a nd in default of payment of fine, three months rigorous             G
imprisonment was awarded. They were further convicted under
Section 395 IPC, awarded life imprisonment and fine of Rs.
1,000/- and in default of payment of fine, to further undergo six
mo.nths rigorous imprisonment. Accused Ghurelal, Chunchu @
Bhagwan Singh, Kallu, Rajpal and Samay Singh were further             H
    1068    SUPREME COURT REPORTS                 [2011) 6 S.C.R.


A convicted under Sections 3/25 and 3/27 of the Arms Act and
  to each, a sentence was awarded to undergo three years
  rigorous imprisonment and a fine of Rs. 500/- and in default of
  payment of fine, to further undergo three months rigorous
  imprisonment.
B
       F. Being aggrieved by the said decision, all the accused
  preferred Criminal Appeal No. 1579 of 2002 which has been
  decided by the High Court vide judgment and order dated
  27.10.2004 acquitting the accused Talevar and Kuniya, though
C maintaining the conviction and sentence in respect of the other
  accused. Hence, this appeal.

        3. Shri Altaf Hussain, learned counsel appearing for the
  appellants has submitted that the appellants had not been kept
  baparda. Therefore, the identification was not proper: He further
D submitted that there had been most material discrepancies in
  the deposition of witnesses whic'1 go to the root of this case,
  and therefore, the conviction and sentence of the appellants is
  liable to be set aside.

E      4. On the other hand, Shri Manish Singhvi, learned
  Additional Advocate General, appearing for the State of
  Rajasthan, has opposed the appeal contending that it is a case
  wherein two persons had been killed and one seriously injured,
  valuable moveable properties have been looted, appellants-
  accused have been identified by all the witnesses in jail as well
F as in court, and recoveries on their disclosure had been made
  and proved. Therefore, no interference is required, the appeal
  lacks merit and is liable to be dismissed.
       5. We have cqnsidered the rival submissions made by
G learned counsel for the parties and perused the record.
       6. In the instant case, 9 persons were put to trial. One
  accused, namely, Ram Krishan died during the course of trial.
  Two persons, namely, Talevar and Kuniya stood acquitted by
H the High Court by the same impugned judgment and order. The
     GHURELAL AND ORS. v. STATE OF RAJASTHAN 1069
               [DR. B.S. CHAUHAN, J.]

    appeal against their acquittal i.e. Criminal Appeal No. 937 of   A
    2005 is being dealt with separately. Therefore, we are
    concerned only with the remaining six appellants.

          7. There are concurrent findings of fact so far as the
    involvement and participation of all the six accused-appellants 8
    are concerned. They had been properly identified in the Test
    Identification Parades as well as in the Court by the witnesses.
    More so, the looted property, particularly, ornaments, jewellery,
    silver glasses have been recovered and identified correctly. In
    respect of this, the findings recorded by the Trial Court as well C
    as by the High Court are based on the evidence of Shri G.L.
    Sharma (PW.26), Judicial Magistrate, who conducted the Test
    Identification Parade and by the statements of Narendra Singh
    Kulhari (PW.20), the Tahsildar who conducted the proceedings
    of identification of stolen articles. According to Narendra Singh
    Kulhari (PW.20), Smt. Shashi Devi (PW.12) and Santosh · D
    Jagwayan (PW.13) accurately identified the stolen articles as
     15 silver glasses, 5-7 katories, silver spoons, silver plates,
    tagri, golden ear rings and 21 coins of silver as well as packet
    of notes. Similarly, Shri G.L. Sharma, (PW.26), Judicial
     Magistrate, has deposed that on December 23, 1996, he had E
    conducted the identification parade of accused Raghuveer,
     Kallu and Ghurelal. He further deposed that Santosh Jagwayan
     (PW.13), Smt. Shashi Devi (PW.12) and Kripa Dayal Yadav
     (PW.2) were summoned for identifying the accused. Santosh
    Jagwayan (PW.13) and Smt. Shashi Devi (PW.12) have also F
1
     identified the accused Raghuveer, Kallu and Ghurelal.
    Thereafter, Kripa Dayal Yadav was summoned and he
    identified accused Raghuveer, Kallu and Ghurelal. All the three
    identified the aforesaid accused correctly. He further deposed
    that on January 6, 1997, on the order of the Chief Judicial G
     Magistrate, Alwar, he also conducted the identification parade
    of the accused. Witnesses Santosh Jagwayan (PW.13), Smt.
    Shashi (PW.12) and Kripa Dayal Yadav (PW.2) appeared for
    identifying the accused. First of all, Santosh Jagwayan (PW.13)
    was called to identify the accused. He identified the accused H
    1070    SUPREME COURT REPORTS                [2011] 6 S.CR.

A Samay Singh and Bhagwan Singh, but in place of accused
  Rajpal, he identified another accused Suraj. Smt. Shashi Devi
  (PW.12) identified accused Samay Singh, Bhagwan Singh and
  Rajpal accurately. He also prepared memos Ex.P-3 and Ex.P-
  4 of the identification parade. These two witnesses have been
B cross-examined. However, nothing could be elicited by the
  defence to discredit their testimonies.

       8. So far as the recovery is concerned, it stood proved by
  Laxman Gaur (PW.34), the Investigating Officer that on the
  disclosure statements made by the accused under Section 27
C of the Indian Evidence Act, 1872 and at their instances, he had
  recovered the stolen articles, alleged gun, revolver, pellets,
  scooter and an ambassador car used by the appellants at the
  time of committing dacoity. He also faced grilled cross-
  examination at length, but nothing came out from his statement
D which may enable us to draw an adverse inference against the
  prosecution.

       9. The post-mortem report of Smt. Anita Yadav and Gopal
  Nepali stood proved by Dr. Jitendra Bunde! (PW.21) who
E deposed that he had conducted the autopsy on the body of Smt.
  Anita Yadav and she had gun shot injuries, lot of pellets in her
  body, and that she died of excessive bleeding because of gun
  shot injuries. Similarly, he deposed that Gopal Nepali also died
  because of gun shot injuries. He also deposed that he had
F examined Kripa Dayal Yadav (PW.2) on 17.12.1996 and had
  found 7 simple injuries on his body which had been caused by
  a blunt weapon. The said injury had been caused within 12
  hours of examination. Thus, he corroborated the injuries as well
  as the manner and the weapon with which such injuries were
G caused.
        10. The recoveries made at the instances of the appellants
  stood proved by examining the panel witnesses, except in case
  of recovery made on disclosure statement of Ghurelal in
  respect of one gun of 12 bore live cartridges, one golden ear
H ring, one necklace of gold, one lliayachi Dani made of silver,
   GHURELAL AND ORS. v. STATE OF RAJASTHAN 1071
             [DR. B.S. CHAUHAN, J.]

  one silver spoon and one silver bowl, as the two panch            A
  witnesses, namely, Sher Singh (PW.30) and Udaibir Singh
  (PW.31) turned hostile. Both the courts below have held that
. the recovery from Ghurelal, one of the accused, cannot be dis-
  believed merely because the panch witnesses turned hostile.
 We do not find any cogent reason to take a view contrary to        B
 the view taken by the two courts below.

      11. Shri Altaf Hussain, learned counsel appearing for the
appellants, had taken us through the entire evidence. He could
not point out any material discrepancy in the statements of the     C
witnesses which goes to the root of the case. Nor could he
satisfy us how the judgment impugned requires any
interference. We do not find any cogent reason to interfere with
the concurrent findings of fact, recorded by the courts below.
The appeal lacks merit and is accordingly dismissed.
                                                                    D
     12. It is evident from the record, particularly, the order
dated 28.4.2006 that all the six appellants had already served
9 years of actual imprisonment and, thus, had been enlarged
on bail by this Court. Thus, their bail bonds are cancelled and
they are directed to surrender within a period of two weeks from    E
today, failing which, the Chief Judicial Magistrate, Laxmangarh,
Alwar, will take them into custody and send them to jail to serve
out the remaining part of the sentence. A copy of the judgment
and order be sent to the learned Chief Judicial Magistrate,
Alwar, for compliance.                                              F

R.P.                                        Appeal dis"'lissed.
                                                         '