JUDGMENT
P.K. Bhasin, J.
Page 2242
1. These six appeals arise out of the judgment dated 17th December, 2002 rendered by an Additional Sessions Judge, Shahdara, Delhi in Sessions Case No. 36/2000 arising out of FIR 373/96, PS Bhajanpura, Delhi whereby the appellants Rajinder @ Raju, Sunil Kumar, Raj Kumar @ Raju and Jai Kishan @ Jaickey were convicted for the offences punishable under Sections 376/302/201/397 read with Section 120B IPC and appellants Kamaljeet and Raj Rani were held guilty under Section 412 IPC. Since all the appeals have arise out of the same judgment of the trial Court and were heard together by us we are disposing them of by this common judgment.
2. The case of the prosecution as noticed by the trial Court in para nos. 1 – 12 of its judgment is as follows:
Suresh Sharma, the complainant, resides in a house situated at Bharampuri, Delhi. Fifteen days prior to his lodging the report with the police, on 6.7.96, his wife Radha and daughter Neeru aged seven years started living with Radha’s cousin (sister), Indira in house No. 3/276, Yamuna Vihar, Delhi as Indira was in the family way during those days. Suresh Sharma was also living with them. Suresh Sharma was an employee with M/s Rahul Garments, Bharampuri Delhi. He stayed in the factory and slept there for three days, due to too much cutting work.
On 6.7.96 at about 6 a.m. Suresh Sharma came to C 3/276, Yamuna Vihar and found that door was closed from inside. He rang up the bell, but it went unresponded. He went towards the rear door of the house, which was opened. Suresh Sharma went inside the house and found that a lot of blood was lying in front of the kitchen and bathroom. He also found that his wife Radha and sister in law Indira were lying dead. He went inside the room and found that his daughter Neeru and daughter of Indira, Meenu, aged about six years, were also lying dead. Indira’s another daughter Priyanka was standing there under shock. Suresh Sharma was also shocked, he came out of the house and raised alarm in the gali that his entire kunba had been rubbed out. The police swung into action and recorded his statement. Indira’s husband Virender @ Veeru was having a printing press. He was married to Indira for the last ten years. Suresh and his wife Radha used to visit Indira’s house for the last about 5-6 months. Indira was suffering from fits and Virender @ Veeru used to hurl vicious epithets at her, every now and then. Virender also used to taunt her that she used to remain sick all the time and that she is a curse for him and that he would bring Anita, who used to collect money from the Bank’s customers. Suresh had also seen Virender talking to Anita at Virender’s factory. Efforts were made to trace out Virender, but he could not be traced either in his house or in his factory. However, people of the mohalla had seen Virender in his house. Suresh Sharma suspected Virender @ Veeru, who, according to the complainant, while working in cahoots with other persons had killed the above said persons. The Page 2243 present case was registered, on the basis of his complaint, under Section 302 IPC.
Some pieces of wire, blood, bangle pieces, three condoms from bed, one pair of pants, one shirt etc. from bathroom were seized. During autopsy of Smt. Indira a blade of knife, which appeared to have been detached from its handle, was found completely inserted in her neck. The doctor got it photographed. The same was seized.
On 7.7.96, the spot was again searched. Dead body of Virender @ Veeru was also recovered from the box of the bed, kept on the first floor of the said house. The body of Virender was found in a highly decomposed state and was sent for post-mortem examination. One knife imbruded with blood was also recovered from the stab of the kitchen. Local enquiries were made. PW, Daryano Mal stated that on 6.7.96 at about 6.15/6.30 a.m. he had seen four boys coming out from the iron gate installed in the rear side of the gali and one of them was wearing yellow coloured shirt and another was wearing T-shirt. He explained that if produced before himhe would be able to identify all of them.
Statement of Smt.Krishna, mother of Virender, was recorded on 8.7.96. She stated that one VCR, writ-watch of Virender, camera, jewellery of deceased Indira were robbed from Virender’s house and she was in a position to identify the same if she was confronted with the same.
During investigation, it transpired that accused Rajinder @ Raju, who resides in Kharkhoda, a cousin (maternal brother) of deceased Virender had vanished into the thin air, since the day of the incident Along with one Sunil of the same locality. On 14.7.96, police apprehended accused Rajinder from bus stand Chauprali. Before the police he made a clean breast of this offence. He explained that he had committed the said offence while working cheek by jowl with accused Raj Kumar, and Jai Kishan. On the same day, Inspector Rajbir apprehended accused Raj Kumar @ Raju and Jai Kishan @ Jacky from Hapur Railway Station. They also confessed about their complicity in this crime. Inspector Rajbir Singh recovered one camera at this instance of Jai Kishan and one wrist watch at the instance of Raj Kumar @ Raju belonging to the deceased from their respective houses. Their disclosure statements also revealed that accused Sunil had committed rape with Neeru. Blood stained clothes were recovered at the instance of the accused persons.
On 15.7.96 accused Rajinder @ Raju, Rajkumar @ Raju, Sunil and Jai Kishan @ Jacky were got medically examined. Their blood samples were also obtained. All the accused were produced before Sh.Sanjay Sharma, MM who affixed TIP for 17.7.96 at Tihar Jail. On 17.7.96 witness Daryano Mal was summoned but the accused declined to join the TIP before Sh.Sanjay Sharma, MM.
On 18.7.96, all the accused were remanded to police custody for four days. As per disclosure statement made by accused Sunil, accused Kamaljeet @ Kamal was apprehended from bus stand Page 2244 Kharkhoda. Accused Kamaljeet led the police party to shop No. 1160, Meliora Electronics. At his instance one stolen VCR belonging to the deceased was recovered. It transpired that he had handed over the said VCR to the above said shop for repairs.
On 20.7.96, as per disclosure statement of accused Sunil, Raj Rani was apprehended from her house at village Masoori, District. Meerut and her instance some stolen jewellery was recovered from her house.
As per FSL report, the blood group of deceased Radha which was AB was found on the shirt of accused Raj Kumar @ Raju. Blood group “B” of Virender @ Veeru was also detected on the pants and shirt of accused Sunil.
All the recovered stolen articles were got identified by the witnesses – Ram Avatar and Krishna, brother and mother of deceased Virender before Sh.Sunil Kumar Aggarwal, MM.
As per disclosure statement made by Raj Rani her brother, Shashi Bhan, had taken away the handle of the knife, which Rajinder had brought after committing the crime. Search of Shashi Bhan was made because the blade of the said knife was recovered from the neck of deceased Indira at the time of her autopsy. Shashi Bhan absconded and therefore, his name was mentioned in coloum No. 2. Consequently, all the remaining accused were arrested and challenged for the offence punishable under Sections 302/392/376/201/120B IPC.
3. The learned trial court charged accused Kamaljeet and Raj Rani under Section 412 IPC while other four accused persons were charged under Section 120B IPC and also under Sections 376/302/201/397 read with Section 120B IPC. The prosecution had examined as many as 48 witnesses for establishing its case and the learned trial court after examining and analysing the evidence so adduced found the prosecution case established in entirety and consequently vide impugned judgment dated 17th December, 2002 convicted all the six accused persons for the commission of aforesaid offences for which they were charged and tried. Vide order dated 20th December, 2002 appellants Jai Kishan @ Jaicky, Raj Kumar @ Raju, Sunil Kumar and Rajinder @ Raju were awarded life imprisonment with a fine of Rs. 10,000/- each and in default of payment of fine they were further sentenced to undergo rigorous imprisonment for two years each under Section 302 IPC. They were also sentenced to undergo rigorous imprisonment for seven years on each count for their convictions under Sections 376/201/397 read with Section 120B IPC and also to pay a fine of Rs. 1000/- each, in default of payment of which they were to further undergo rigorous imprisonment for three months. Substantive sentences of imprisonment were ordered to run concurrently. Appellant Raj Rani was sentenced to undergo rigorous imprisonment for five years and also to pay a fine of Rs. 75,000/-, in default of payment of which she was further ordered to undergo rigorous imprisonment for five years and appellant Kamaljeet was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,50,000/-, in default of payment of which he was ordered to further undergo rigorous imprisonment for seven years. Benefit of Section 428 Cr.P.C. was extended to all the six accused persons.
Page 2245
4. Appellants in Crl. A. Nos. 183/2003, 194/2003, 206/2003, 241/2003 and 292/2003 were represented by one counsel Sh.Rajesh Mahajan who was entrusted with these appeals by the Delhi Legal Services Authority (DLSA) on the request of five appellants, while in Crl.A.90/2003 Ms. Ritu Gauba, Advocate was nominated by the DLSA to argue on behalf of appellant Raj Rani. On behalf of the State Sh.Ravinder Chadha, Additional Public Prosecutor argued. During the course of arguments we were taken through the evidence of relevant prosecution witnesses only.
5. The prosecution case is that there was an incident of robbery at House No. C-3/276, Yamuna Vihar, Delhi on the night of 5/6-7-96. In that house the complainant PW-10 Suresh Sharma’s brother-in-aw (wife’s sister’s husband) Varinder @ Veeru was living with his wife Indira and two small girls. Indira was pregnant those days. The complainant along with his wife Radha and their seven years old daughter Neeru had, some days prior to the day of this incident gone to their house to stay with them and on the day of the tragic incident they were still staying there. The complainant was employed in some factory and because of rush of work he had not gone to the house of his brother-in-aw for three days prior to the present incident and had stayed in his factory only during those three days. When he came to the house of his brother-in-aw in the morning of 6-7-96 at about 8 a.m. he found that his wife Radha and daughter Neeru, his wife’s cousin sister Indira and her daughter Meenu had been murdered and their dead bodies were lying at different places in the house. His brother-in-law Varinder @ Veeru was, however, not to be found in the house. However, on the next day even Varinder @ Veeru was found to have been murdered and his dead body was recovered from the box of a bed(diwan) in his house. As per the further prosecution case during the night of this incident one VCR, one camera, one wrist watch and some jewellery items had been stolen by the culprits and the culprits had also raped the complainant’s wife Radha and daughter Neeru before killing them. Learned Counsel for the appellants did not question the findings of the trial court holding that there was some incident in the house of the complainant Suresh Sharma’s brother-in-law during the night of 5/6-7-96 and during that incident five deaths took place in that house. It was also not disputed by the learned Counsel that the death of two ladies and two small girls was homicidal. Regarding the death of fifth person Virender @ Veeru, however, their stand is that in all probability he himself had committed suicide after killing his wife and daughter and also the complainant’s wife and daughter after committing rape upon them. As far as the factum of robbery, rape of Radha and her daughter Neeru and murders of Radha, Neeru, Indira and her daughter Meenu is concerned, the same is fully established from the evidence of the complainant PW-10 Suresh Sharma, PW-5 Smt. Krishna Devi, mother of the deceased Virender @ Veeru, autopsy surgeon PW-39 Dr. N.K. Aggarwal and the investigating officer PW-47 Inspector M.C. Katoch. PW-10 has deposed about his having seen the dead bodies of the four females lying in the house of his brother-in-aw Virender @ Veeru in the morning of 6-7-96 when he had gone there from his Page 2246 factory after doing night shift duty. PW-47 Inspector M.C.Katoch was the SHO of the area where this occurrence took place. He has also deposed that when he had reached the place of occurrence on getting information about the murders he had found the dead bodies of Radha and Indira lying in a bathroom. Radha appeared to have been strangulated and Indira had been stabbed on her neck. He also found dead bodies of Meenu and Neeru lying in a bedroom and they also appeared to have been strangulated. PW-39 Dr. N.K. Aggarwal, the autopsy surgeon, has deposed that the cause of death of the deceased Radha was asphyxia as a result of ligature strangulation and that there was evidence of sexual intercourse also with her. The cause of death of the deceased Smt. Indira was opined by him to be shock as a result of stab injuries to her neck. He had found as many as nine stab injuries on her body and three injuries noticed by him on the neck of the deceased were found to be sufficient to cause death in the ordinary course of nature. The cause of death of the girl child Neeru was found to be asphyxia as a result of ligature strangulation. PW-39 had also opined that possibility of sexual assault on Neeru also could not be ruled out. The cause of death of six years old Meenu was also opined to be asphyxia as a result of ligature strangulation. There was no cross-examination of the autopsy surgeon on behalf of any of the accused persons. So, whatever he deposed stood admitted by the accused persons. As far as the incident of robbery is concerned PW-5 Smt. Krishna Devi, mother of the deceased Varinder @ Veeru has deposed that she had found out after coming to know of the murders in the house of her son that one VCR, one watch, one camera and some silver jewellery lying in almirah had been looted by the assailants. In her cross-examination it was not challenged that these articles had not been stolen from the house of her son Varinder @ Veeru. We have, thus, no hesitation in accepting the prosecution case that on the night of 5/6-7-96 there was an incident of robbery-cum-murder-cum-rape at house No. C-3/276, Yamuna Vihar, Delhi of the deceased Varinder @ Veeru.
6. Learned Counsel for the appellants, however, vehemently argued that prosecution has miserably failed to establish that the appellants-accused Rajinder, Sunil Kumar, Raj Kumar and Jai Kishan were guilty of the offences of robbery, rape and murder for which offences they have been convicted by the trial Court by invoking Section 120B IPC. Learned Counsel contended that there were many infirmities in the prosecution case which had been totally ignored by the learned trial court and the accused have been convicted without there being any reliable evidence against anyone of them. It was contended on behalf of appellants-accused Rajender @ Raju, Sunil Kumar, Raj Kumar @ Raju, Jai Kishan @ Jaicky, all of whom have been convicted under Sections 376/302/397/201/120B IPC that from the various circumstances brought on record by the prosecution itself it becomes clear that in all probability it was the deceased Virender @ Veeru who had committed the offences of rape and murders of not only his sister-in- law Radha and her daughter Neeru but also committed murder of his own wife and daughter and then himself committed suicide. In support of this argument learned Counsel for these appellants drew our attention to the first information statement made by the complainant Suresh Sharma to Page 2247 the police wherein he had stated that the relations between deceased Virender @ Veeru and his wife Indira were strained because of the fact that Indira was not keeping good health and she used to get seizures and because of that Virender used to abuse her and tell her that she used to remain sick quite often and he had been ruined because of her. He also used to tell her that he would bring some other female by the name of Anita. In the complaint it had also been alleged by the complainant that he had seen Virender with that girl Anita on one or two occasions. The complainant in his statement Ex. PW-10/A had also expressed his suspicion that Virender @ Veeru with the help of some other persons had committed the murders. It was further contended that complainant had also claimed that his wife and his daughter had gone to the house of his sister-in-law Indira to stay in her house since she was pregnant those days and he himself was also staying there and on 3.7.96 he had gone to his factory and had remained in his factory for three days as there was lot of work in the factory and that he had come to the house of his sister-in-law only in the morning of 6.7.96. That, according to the counsel, shows that the deceased Virender had full opportunity to have sexual relationship with the wife and daughter of the complainant. Learned Counsel then pointed out that from the place of occurrence the police had seized three condoms vide memo PW-3/A which also clearly suggests that the deceased Virender only had used those condoms while committing rape as it was quite unlikely that outsiders would have brought condoms with them for having sexual intercourse with the female members in the house which they could have done even otherwise also. Learned Counsel also submitted that as per the prosecution case when the dead body of the deceased Virender was recovered on 7.7.96, he was having only underwear on his body and his pant and shirt were found in the bathroom on the ground floor where dead body of the deceased Radha was found. It was also contended that in the vaginal swabs of the deceased Radha semen of B group was detected which is also the group of the deceased Virender. Our attention was also drawn to one memo regarding seizure of a cassette of blue film and a bottle of liquor from the place of occurrence and learned Counsel submitted that this recovery also corroborates the defense plea that the deceased Virender while consuming liquor and watching the blue film must have become sex hungry and then raped his sister-in-law and her daughter and thereafter killed them. Learned Counsel contended that since Virender @ Veeru was fed up with his wife the possibility of his having killed her also cannot be ruled out and after having killed his own wife he might have thought of killing his daughter also so that he could start new life with some other woman and so killed his daughter also. In any case, counsel contended, this probability cannot be ruled out and in a criminal trial the accused is supposed to only probabalise a plea in defense and is not expected to establish the same beyond any shadow of doubt as is expected of the prosecution side when conviction of an accused is sought. Another submission of learned Counsel was that as far as the death of Virender is concerned, the possibility of his having committed suicide after committing the aforesaid beastly acts cannot be ruled out and also that there was also a possibility of the complainant Page 2248 killing Virender after entertaining a suspicion in his mind that Virender only could have committed these offences. Another submission made was that the conviction of these four accused for the offences of rape and murder with the aid of Section 120B IPC even otherwise cannot be sustained as there is no direct evidence to establish that and they have been convicted only on the basis of alleged recoveries of a watch, camera and VCR pursuant to their disclosure statements but evidence led to establish those statements and the recoveries is of highly doubtful nature and as far as appellant Rajinder is concerned admittedly he had not got recovered any incriminating article. Similarly, on behalf of appellants-accused Kamaljeet and Raj Rani it was argued that the evidence in respect of the recoveries of stolen articles at their instance was also highly doubtful and in any event their convictions under Section 412 IPC are not sustainable at all since the prosecution has not proved that it is a case of dacoity and trial Court has also not held that five or more persons had gone to the place of occurrence to commit robbery and so at the most these two accused could be convicted only under Section 411 IPC.
7. Learned Additional Public Prosecutor, on the other hand, while fully supporting the impugned judgment of the trial court contended that there were no infirmities in any of the findings and all the appellants having been rightly convicted, their appeals deserve to be dismissed by this Court.
8. We may at the outset reject the argument raised on behalf of the appellants that the deceased Varinder @ Veeru had committed suicide. As noticed already, the prosecution case is that his dead body was found lying in a box of a bed in his house on 7-7-96. This has been deposed to by PW-31 SI Surinder Kumar, PW-47 Inspector M.C.Katoch, PW-6 Ram Avtar, brother of the deceased Varinder, PW-4 Satish Kumar, a friend of the deceased Varinder, as well as by the complainant Suresh Sharma(PW-10). In their cross-examination it was not disputed that the dead body of Varinder was recovered from the box of a bed. The dead body of Varinder was subjected to post-mortem examination by PW-40 Dr. K.K.Banerjee. The autopsy surgeon had opined the cause of his death to be shock as a result of ante-mortem injuries to the internal organs and blood vessels likely to be produced by a sharp pointed weapon. On internal examination of the dead body the autopsy surgeon had found one stab wound in the lower part of front of right side of the neck and that injury was considered to be sufficient to cause death in the ordinary course of nature. In these circumstances the death of deceased Varinder @ Veeru being suicidal is totally ruled out.
9. We now proceed to examine the prosecution evidence to find out as to whether the appellants have been rightly convicted or not by the learned trial Court. In this case there is no eye witness of the incident and the prosecution had sought to establish its case on the basis of circumstantial evidence only. It appears from the evidence of the investigating officer PW-47 Inspector M.C.Katoch that during the investigation relatives of the deceased Varinder were also contacted and then it was found that one of the relatives of the deceased Varinder was accused Rajinder @ Raju and he was missing from his village Kharkoda along with one Sunil Kumar(who is also now one Page 2249 of the appellants before us) of the same village from the date of this incident. That aroused suspicion in the mind of the investigating officer regarding the involvement of accused Rajinder and Sunil Kumar and then their search started. A police team headed by PW-45 Inspector Ram Kishan was sent to UP in search of accused Rajinder @ Raju and Sunil Kumar. PW-45 Inspector Ram Kishan has deposed that accused Rajinder @ Raju and Sunil Kumar were arrested from the main road in Chhaproli and he recorded their disclosure statements. He also deposed that the clothes which these two accused were wearing at that time were seized by him vide separate seizure memos Ex. PW-45/A and Ex. PW-45/B. In cross-examination he stated that he had requested public persons to join the arrest proceedings but they did not agree for that. Evidence of this witness regarding making of disclosure statements by accused Rajinder @ Raju and Sunil Kumar was attacked by the counsel for these accused on the ground that no public witness had been associated even though the police team had gone to UP with a prior intimation about the availability of these two accused in Chhaproli. This witness, as has been just now noticed, had stated in cross-examination that he had requested public persons to join the arrest proceedings but they did not agree for that. We have no reason to disbelieve his statement to that effect. Therefore, it cannot be said that the arrest of these two accused and making of disclosure statements by them, as deposed to by PW-45, becomes doubtful for the reason that there is no public witness examined by the prosecution on this aspect of the matter.
10. In his disclosure statement accused Sunil Kumar had while admitting his involvement in the incident in question stated that one VCR stolen from the house of the deceased Varinder had been given by him to his brother Kamaljeet(appellant in Crl. A.No.292/2003) and some stolen jewellery articles to his sister Raj Rani(appellant in Crl. A. No. 90/2003) and he could get these things recovered. PW-45 Inspector Ram Kishan, who had apprehended accused Sunil Kumar, had also deposed that he had handed over the custody of accused Rajinder and Sunil Kumar to Inspector M.C. Katoch(PW-47). PW-47 Inspector M.C.Katoch has also deposed that both these accused were produced before him on 15-7-96 and on that day both of them along with their co-accused Raj Kumar and Jai Kishan(who had also been apprehended by that time) were got medically examined and thereafter they were produced in Court in muffled faces. Their TIP was fixed for 17-7-96 when the witness Daryau Mal, who was to identify them, was brought to the jail. However, all the four accused refused to participate in the test identification parade. It may be mentioned here that as per the prosecution case one Daryau Mal had seen four persons coming out from the house where this incident took place in the morning of 6-7-96. However, that Daryau Mal expired before he could be examined in Court. The trial Court has drawn adverse inference against these accused for their refusals to join the TIP. Inspector M.C.Katoch had further deposed that he had taken the police remand of accused Rajinder and Sunil on 18-7-96 and on 19-7-96 he had gone with his team and accused Rajinder and Sunil Kumar to village Kharkhoda in search of accused Kamaljeet who, as per the disclosure statement of accused Page 2250 Sunil Kumar, had been given one VCR. PW-47 then deposed that accused Kamaljeet was arrested from Kharkhoda bus stand and he also made a disclosure statement Ex. PW-19/C. Thereafter as per the disclosure statement of the accused they went to an electronics shop at P.L.Sharma Road in Meerut which was owned by Sunil(PW-22). He further deposed that from that shop at the instance of the accused one BPL Sanyo VCR, Ex. P-1, was recovered and the same was taken into possession vide memo Ex. PW-19/A after sealing it.
11. PW-31 Sub-Inspector Surinder Kumar has also corroborated the evidence of PW-47 in respect of the recovery of VCR from the shop of PW-22 at the instance of accused Kamaljeet. He has also deposed that accused Kamaljeet was apprehended on 19-7-96 from Kharkhoda village at the instance of accused Sunil and further that accused Kamaljeet had got recovered the VCR Ex.P-1 pursuant to his disclosure statement Ex. PW-19/C from the electronics shop of Sunil Purohit at P.L.Sharma Road in Meerut. The evidence of this witness has also remained unshattered in cross-examination. PW-22 Sunil Purohit has deposed that he was running a VCR repairing shop under the name and style of Maelora Electronics at shop No. 1160, P.L.Sharma Road, Lal Kurti, Meerut. In the year 1996, the month and date he did not remember, accused Kamaljeet Singh had come to his shop to get one BPL VCR repaired. He had found that transformer and motor of the VCR were not in working condition and he took 4/5 days in repairing the same. After about 5/7 days the police officials from Delhi and UP had come to his shop along with accused Kamaljeet and on the pointing out of this accused VCR Ex. P-1 was taken into possession by the police officials vide memo Ex. PW-19/A. In cross-examination this witness clarified that the police officials had come to his shop on 19-7-96(as has been deposed to by the investigating officer also). Nothing could be elicited in the cross-examination of this witness which could discredit him. He is totally an independent witness and so we have no hesitation in accepting his evidence.
12. PW-47 had also deposed that on 20-7-96 accused Sunil had taken the police to the house of his sister accused Raj Rani in village Mussorie as per his disclosure statement and that accused Raj Rani was arrested on the pointing out of accused Sunil and she also made a disclosure statement Ex. PW-35/A in the presence of lady constable Bimla(PW-35) and then articles were taken into possession vide memo Ex. PW-29/A. He had also deposed that he had joined village people in the investigation and that the articles were recovered in the presence of public witnesses Rajbir Singh and Rajender Singh(both of whom when examined in Court did not support the prosecution). PW-35 is lady constable Bimla and she was also with the police team which had gone to the house of Rajrani. She has deposed that accused Raj Rani had made a disclosure statement Ex. PW-35/A and in pursuance of that disclosure statement she had got recovered and produced jewellery articles kept in a box which was lying in her room which was locked and that lock was opened by Raj Rani with a key which was in her possession. The jewellery articles produced by Raj Rani were silver paijebs(Ex. P-4, 8 and 9), Mangal Sutra(Ex. P-5), one silver Page 2251 key bunch(Ex. P-6), bichhua(Ex. P-7), and one pair of gold ear rings(Ex. P-10). The prosecution had also examined the public witnesses who were joined by the investigating officer in the investigation at the time of the recovery of jewellery articles from the house of accused Raj Rani. PW-29 Rajender Singh and PW-32 Rajbir Singh are those public witnesses but, as noticed already, both of them did not support the prosecution.
13. PW-46 Inspector Rajbir Singh has deposed that on 14-7-96 SHO of Seelam Pur police station Inspector Ram Kishan(PW-45) had informed him while he(PW-46) was in Hapur that he(PW-45) had apprehended two accused involved in the present case, namely, Rajinder @ Raju and Sunil Kumar from Chhaproli and also that those two accused had disclosed about their other two associates in the commission of the crime and they were Raj Kumar @ Raju and Jai Kishan @ Jaicky from Hapur and further that these two boys were having the wrist watch and camera belonging to the deceased. PW-46 further deposed that then he along with secret informer went to Hapur railway station where as per the secret information received by him those two boys were sitting to catch some train and from the railway station accused Jai Kishan @ Jaicky and Raj Kumar @ Raju were arrested. Accused Raj Kumar made a disclosure statement Ex. PW-20/A and accused Jai Kishan made a disclosure statement Ex. PW-20/B. Both these accused also admitted their involvement in the incident in question. Raj Kumar had claimed that one wrist watch stolen from the place of occurrence was lying in his house and he could get it recovered. PW-46 further deposed that pursuant to the disclosure statement made by Jai Kishan he had led the police party to his house and got recovered one camera(make Skina) Ex. P-2 from there lying on a table and accused Raj Kumar also got recovered one HMT wrist watch Ex. P-3 from an almirah in his house pursuant to his disclosure statement. The camera was seized vide memo Ex. PW-20/C and the watch was seized vide memo Ex. PW-20/D. He also stated that he had seized the clothes of accused Raj Kumar vide memo Ex. PW-20/E and the clothes of accused Jai Kishan vide memo Ex. PW-20/F. PW-46 also stated that family members of accused Jai Kishan were present in his house at the time of recovery of camera but they were not made witnesses to the recovery. Witness also stated that brother of Jai Kishan had disclosed that the room belonged to him and Jai Kishan also was residing with him in that room. The witness denied the suggestion that he had not gone to Hapur and also that no recovery was got effected by any of the accused as claimed by him. PW-46 Inspector Rajbir Singh could not be discredited in cross-examination regarding his statement to the effect that accused Raj Kumar @ Raju and Jai Kishan @ Jaicky were apprehended by him from Hapur railway station and thereafter both of them had made disclosure statements pursuant to which they had got recovered a camera and one wrist watch. This police witness also had no axe to grind against these two accused persons and so we have no reason to disbelieve his testimony also.
14. Learned Counsel for the accused had submitted that evidence of the police witnesses being of interested witnesses should not be accepted in the absence of corroboration from any independent person who could have Page 2252 been easily associated at the time of alleged recoveries. We do not find any substance in this argument. PW-45 Inspector Ram Kishan and PW-46 Inspector Rajbir Singh had both stated in cross-examination that they had tried to join the public persons in the investigation but none had agreed. We have no reasons to disbelieve them. In this regard we may make a useful reference to the following observations made by the Hon’ble Supreme Court in Krishna Mochi v. State of Bihar regarding the reluctance of the public persons to associate themselves with the investigation of serious crimes:
It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by the courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.
15. We may refer to another judgment also of the Hon’ble Supreme Court reported as AIR 1994 2420 Suresh Chandra Bahri v. State of Bihar wherein also recovery of incriminating articles at the instance of the accused pursuant to his disclosure statement was attacked on the ground of it being not supported by the evidence of any public witness. The Hon’ble Supreme Court, however, did not reject the recovery evidence because of the said reason and held that evidence of the investigating officer about the recovery of the incriminating articles was free from any doubt or infirmity and so it could be relied upon even in the absence of any evidence of a public witness. In the present case the investigating officer Inspector Katoch(PW-47) had, of course, associated two public witnesses PW-29 Rajender Singh and PW-32 Rajbir Singh at the time of visit to the house of accused Raj Rani from where some of the stolen jewellery articles were recovered. PWs 29 and 32, however, did not support the prosecution when they were examined in Court although admitted their signatures on the seizure memo Ex. PW-29/A which records the proceedings of recovery at the house of accused Raj Rani in their presence. In the absence of any explanation by these witnesses as to how the said seizure memo came to be signed by them when they had not actually witnessed the recovery of jewellery articles from the house of accused Raj Rani it has to be inferred that they were either afraid of the accused persons or had been won over by them. We, therefore, reject the submission of the learned Counsel for the appellants that the evidence of PWs 31, 45, 46 and 47 should not be relied upon since they are police officials. The Page 2253 accused persons are residents of Uttar Pradesh and they were arrested also from there while these police witnesses are from Delhi and, therefore, for this reason also it cannot be accepted that they had falsely implicated the accused persons by going all the way to different villages in the State of Uttar Pradesh and picking up the accused persons from there for being falsely implicated in this case. From the evidence of all these witnesses it clearly stands established that pursuant to the disclosure statement of accused Sunil Kumar his brother accused Kamaljeet was arrested who, in turn, got recovered one VCR Ex. P-1 and Sunil’s disclosure had also led to the arrest of his sister Raj Rani who, in turn, had also got recovered some jewellery articles. The disclosure statement of accused Raj Kumar @ Raju had led to the recovery of one wrist watch Ex. P-3 and disclosure statement of accused Jai Kishan @ Jaickey had also led to the recovery of one camera Ex. P-2. Learned Counsel for the appellants had also contended that since the prosecution is claiming that the camera was recovered from the house of accused Jai Kishan @ Jaickey where his brother was also living it cannot be said that that house was in the exclusive possession of accused Jai Kishan @ Jaickey and, therefore, on the basis of that recovery this accused cannot be convicted for any offence. Similarly, learned Counsel argued on behalf of appellant – accused Raj Kumar @ Raju that prosecution had not established that the house from where he had allegedly got recovered a wrist watch was in his exclusive possession and, therefore, he could also not be convicted based on the evidence of that recovery. We, however, do not find this argument also to be of any merit. The prosecution case is that accused Raj Kumar @ Raju and Jai Kishan @ Jaickey had themselves taken the police party to their houses and had got recovered these stolen articles. The presence of those articles in their houses was within their exclusive knowledge and but for their disclosures regarding the availability of these articles in their houses the police could not have recovered them. If the police had gone to their houses on its own on some secret information and had then recovered stolen articles during the search of their houses then the question whether the accused were in exclusive possession or not of the places from where recoveries had been made could have arisen.
16. The accused persons at whose instance the aforesaid articles were recovered by the police have not claimed those articles to be belonging to them. They have, in fact, totally denied the recoveries at their instance but since we have found the evidence of the recovery witnesses to be reliable the bare denial of the accused persons is not sufficient to rebut the testimonies of the recovery witnesses and so in these circumstances it has to be held that the afore-said articles which accused Sunil Kumar, Raj Kumar @ Raju, Jai Kishan @ Jaickey, Kamaljeet and Raj Rani had got recovered were stolen articles. PW-5 Smt. Krishna Devi, the mother of the deceased Varinder and PW-6 Ram Avtar, the brother of the deceased Varinder @ Veeru had identified the afore-said VCR Ex. P-1, camera Ex. P-2 and the wrist watch Ex. P-3 which had been recovered at the instance of accused Kamaljeet, Jai Kishan and Raj Kumar, respectively during the test identification proceedings conducted by PW-36 Shri Sunil Aggarwal, Metropolitan Magistrate. PW-5 Smt. Krishna Devi had also identified during Page 2254 the test identification proceedings the jewellery articles recovered at the instance of accused Raj Rani from her house. The TIP proceedings were proved by PW-36 Shri Sunil Aggarwal as Ex. PW-36/A, Ex. PW-36/B and Ex. PW-36/C. The Magistrate was not cross-examined on behalf of any of the accused persons. A perusal of the TIP proceedings shows that the mother and brother of the deceased Varinder @ Veeru had correctly identified the VCR Ex. P-1, camera Ex. P-2 and wrist watch Ex. P-3 and had claimed these items to be belonging to the deceased Indira. PWs 5 and 6 have both deposed in the trial Court also that during the test identification proceedings they had identified VCR Ex. P-1, camera Ex. P-2 and the wrist watch Ex. P-3. PW-5 had also deposed that she had also identified the jewellery articles Ex.P-4 – P-10. In their cross-examination nothing could be elicited from which it could be inferred that they had falsely identified and claimed these articles during the test identification proceedings to be belonging to the deceased Indira. It was contended by the learned Counsel for the appellants from whose possession these articles were recovered that the identification of these articles by these two witnesses does not inspire confidence since they do not claim to have given any kind of description of the stolen articles or any list to the investigating officer and in the absence thereof the possibility of all these articles having been planted by the police and these two witnesses falsely claiming the same as belonging to the deceased Indira at the instance of the police cannot be ruled out. Another ground taken to challenge the validity of TIP proceedings was that there is no evidence to show that proper precautions were taken by the Magistrate to ensure that the identifying witnesses do not identify the articles as a result of tutoring by the investigating officer. We are, however, unable to accept this contention. As noticed already, PW-5 had categorically claimed in her chief-examination that these articles had been stolen by the assailants from the house of her son Varinder and in her cross-examination that statement of hers had remained unchallenged. It was for the accused persons to have elicited from PWs 5 and 6 as to whether they had given any description of the stolen articles to the investigating officer or any list of stolen articles and how they were in a position to identify the same if they had not given any description of the stolen articles to the police. However, there was no cross-examination to that effect and, therefore, it cannot now be argued on behalf of the accused persons that identification of the aforesaid articles by PWs 5 and 6 should be considered to be doubtful and rejected. Even the Magistrate who conducted the TIP was not cross-examined. No suggestion was put even to the investigating officer(PW-47) in his cross-examination that he had tutored PWs 5 & 6 to identify particular articles only during the TIP. We, therefore, accept the prosecution case that one VCR(Ex. P-1) recovered at the instance of accused Kamaljeet who was arrested at the instance of his brother and co-accused Sunil Kumar, camera(Ex. P-2) recovered at the instance of appellant – accused Jai Kishan @ Jaickey, the wrist watch(Ex. P-3) recovered at the instance of appellant – accused Raj Kumar @ Raju and jewellery articles Ex. P-4 – P-10 recovered from the house of accused Raj Rani where the police had been taken by accused Sunil Kumar were all stolen from the house of the deceased Page 2255 Varinder @ Veeru during the night of 5/6/-7-96 when five occupants of that house were killed also.
17. Regarding the recovery of the VCR from the shop of PW-22 and jewellery items recovered from the house of accused Raj Rani it was contended by the learned Counsel on behalf of appellant Sunil Kumar that the recovery of the VCR and jewellery items cannot be attributed to accused Sunil Kumar since he had not actually got it recovered and as per the prosecution case itself it was accused Kamaljeet who had got recovered the VCR and jewellery was got recovered by accused Raj Rani pursuant to her disclosure statement and that is why the trial Court has convicted accused Kamaljeet and Raj Rani and if those recoveries were to be attributed to accused Sunil Kumar alone then accused Kamaljeet and Raj Rani could not have been convicted. We, however, are unable to persuade ourselves to accept this argument raised on behalf of accused Sunil Kumar since it was pursuant to his information that accused Kamaljeet was arrested who , in turn, got recovered the stolen VCR from an electronics shop. Similarly, it was pursuant to his disclosure statement that accused Raj Rani was also arrested and her arrest, in turn, had led to the recovery of stolen jewellery articles. In these circumstances the recoveries of VCR and jewellery articles cannot be said to have been made only at the instance of accused Kamaljeet and Raj Rani. If accused Sunil had not given information about Kamaljeet, who is his real brother and Raj Rani, who is their real sister, the stolen VCR and jewellery articles would not have been recovered. Accused Sunil, therefore, cannot escape from the consequences of recovery of the VCR Ex. P-1 from the shop of pw-22 on the pointing out of his brother and co-accused Kamaljeet and jewellery articles Ex. P-4 to P-10 from the house of his sister Raj Rani.
18. As far as appellant – accused Rajinder @ Raju is concerned, nothing was recovered at his instance pursuant to the disclosure statement made by him and so the disclosure statement relied upon by the prosecution cannot be utilized against him since it does not fall within the purview of Section 27 of the Evidence Act. Learned prosecutor also did not contend before us that there was recovery of any incriminating article pursuant to the disclosure statement of this accused.
19. Now we come to the submission made on behalf of appellants Sunil Kumar, Raj Kumar @ Raju and Jai Kishan @ Jaicky that even if it is accepted that these accused persons had got recovered some of the stolen articles, as is the prosecution case, still they cannot be held guilty of any offence except the one punishable under Section 411 IPC. This submission is also, in our considered view, totally devoid of any force. It is now well settled by a catena of judgments of Hon’ble Supreme Court that in a case where robbery is committed by someone and at the time of commission of robbery anybody is murdered at the place of robbery and soon after that occurrence stolen articles are recovered from the possession of someone then that person would be presumed to be not only the robber but the murderer also. The earliest decision of the Hon’ble Supreme Court on this point is reported as 1954 Crl.L.J. 225, Tulsi Ram Kannu v. The State wherein the Hon’ble Supreme Court had Page 2256 while considering the applicability of illustration (a) under Section 114 of the Evidence Act observed as under in para No. 7 of its judgment:
(7) Apart from this confession, the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognized that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case, is unsound. The alleged murder took place on 26-5-1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appears to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under Section 114, illu. (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. This criticism applied equally to the reasoning of the High Court for its conclusion.
20. Same view was taken by the Hon’ble Supreme Court in a latter judgment which is reported as , Lachhman Ram etc. v. State of Orissa and then in another judgment also which is reported as 1997 SC 2622, Mukund v. State of Madhya Pradesh Hon’ble Supreme Court while dealing with the question of raising of presumption against an accused as contemplated under Section 114, illustration(a) of the Evidence Act reiterated that if in a given case it is established that soon after any incident of robbery-cum-murder stolen properties are recovered from someone then that person can be presumed to be not only the robber but also the murderer. The relevant observations to that effect made in para No. 9 of the judgment are as under:
9. …Mr. Jain next submitted that even if it was assumed that the articles stolen from the house of Dubeys were recovered from the appellants it could at best be said that they committed the offence under Section 411 IPC, but not the offences for which they stood convicted. We do not find any substance in this submission of Mr. Jain also, if in a given case – as the present one – the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a Court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he Page 2257 committed the murder. In drawing the above conclusion we have drawn sustenance from the judgment of this Court in Gulab Chand v. State of M.P. (1953) 3 SCC 574 : (1995) AIR SCW 2504….
21. Hon’ble Supreme Court in yet another case reported as 2002 (IV) Apex Decisions(SC) 648,Ezhil and Ors. v. State of Tamil Nadu has, in fact, invoked even the provisions of Section 106 of the Evidence Act in these kind of cases of robbery-cum-murder. In the said case the prosecution had sought to establish its case, which was of robbery and murder, purely on circumstantial evidence and the most vital circumstance relied upon by the prosecution was the recovery of the articles belonging to the deceased from the possession of the accused. It was observed in para No. 8 of the judgment while dealing with the provisions of Section 106 as well as 114, illustration (a) of the Evidence Act as under:
8. The case rests purely on circumstantial evidence and the most vital circumstance to prove the case of the prosecution is the recovery of the articles belonging to and in possession of the deceased as well as the blood stained articles from the car in the exclusive possession of the accused, about which there could be no reasonable or plausible explanation by any of the accused. Since the questions very much depend upon the drawl of presumptions engrafted in Section 106 and illustration (a) to Section 114 of the Evidence Act, over which only where has been serious contest by the learned Counsel for the appellant, it is appropriate to notice the principles governing the same, before undertaking any consideration of the justification to apply them to the facts of the case. the entire case law on the subject has been extensively reviewed by this Court in a decision reported in Sanjay Alias Kaka v. State (NCT of Delhi) authored by one of us (R.P. Sethi, J.) and it was held that courts can draw presumptions under Section 106 and illustration (a) to Section 114 of the Evidence Act, and to attract and apply illustration (a) to Section 114 of the nature of evidence adduced must be seen to find, among other things the ‘important time factor’. Though no standard time limits can be fixed to determine whether the possession is recent or otherwise, each case must be judged on its own facts and in a case where there is no plausible explanation by the accused for lawful possession of the articles belonging to the deceased, immediately after the murder, the courts cannot be held to be in error in considering that murder and robbery were integral parts of the same transaction giving rise to the presumption that the appellants not only committed the murder of the deceased but also committed robbery of articles found in the possession of the deceased. As observed by this Court in State of West Bengal v. Mir Mohammed Omar and Ors. , the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine, admitting no Page 2258 process of an intelligent reasoning even when the doctrine of presumption considered to be not a rule alien to the above has become statutorily recognized and engrafted in Section 114 and other provisions of the Evidence Act. Permitting a presumption of fact, otherwise doubtful, by a process of reasoning and inference from other proved facts having regard to the common course of natural events, human conduct etc., in relation to the facts of the case, was found necessary by the legislature to ensure a rational realistic and genuine approach while administering justice in criminal trial for arriving at the truth and there is no scope for adopting any hyper technical approach or extend undue latitudes in favor of the accused, which only tend to cause erosions in the maintenance of law and order in society otherwise essential in the larger interests of society and mankind.
Then, in para No. 13 it was concluded by the Hon’ble Supreme Court that:
13. …The accused have not been able to properly or reasonably explain as to the legitimacy or origin of their possession of the articles carried by the deceased when he arrived from abroad at the airport at Chennai. In such circumstances, since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act, to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The appellants in this case have miserably failed to explain their lawful possession of those articles with them that really belonged to and were in the possession of the deceased when he landed at the air port at Chennai. Consequently, it was legitimate for the courts below, on the facts and circumstances of this case, to draw the presumption not only of the fact that they were in possession of the stolen articles after committing robbery but also committed the murder of the deceased, keeping in view the proximity of time within which the act of murder was supposed to have been committed and body found and the articles recovered from the possession of the accused….
In the present case there can be no doubt that robbery, rape and murders took place at the same time and within a few days of the occurrence stolen articles were recovered at the instance of appellants – accused Sunil Kumar, Raj Kumar @ Raju and Jai Kishan @ Jaickey.
We have, thus, no hesitation in arriving at the conclusion that on the basis of the evidence of recoveries of various stolen articles at the instance of appellants – accused Sunil Kumar, Raj Kumar @ Raju and Jai Kishan @ Jaickey about which they have failed to offer any explanation they were rightly held guilty for the commission of the offences for which they were tried by the trial Court.
Page 2259
22. Learned additional public prosecutor had also submitted that the prosecution in any case is not relying upon only on the evidence of recoveries of stolen articles at the instance of these three accused persons and their involvement in the incident in question gets substantiated from other circumstantial evidence also. He submitted that the clothes of accused Rajinder @ Raju, Sunil Kumar, Raj Kumar @ Raju and Jai Kishan @ Jaickey which they were wearing at the time of their arrest were also seized by the police for detection of blood and when those clothes were examined at Forensic Science Laboratory human blood was detected on all the clothes about which none of the accused has offered any explanation. On the pant which accused Rajinder was wearing at the time of his arrest human blood of ‘A’ group was found while the group of human blood found on his shirt could not be found out as the blood gave no reaction. Learned prosecutor also submitted that one of the victims had blood of ‘A’ group as per the FSL report and since this accused has not explained the find of blood on his clothes it can be safely concluded that he was also one of the culprits involved in the incident in question and his clothes had got blood stained when the victims were being stabbed and based on this piece of evidence alone he could be convicted even if no recovery is found to have been effected pursuant to his disclosure statement. Similarly, learned prosecutor contended, on the clothes of accused Sunil Kumar human blood of ‘B’ group was found which was the blood group of one of the deceased and on the clothes of accused Raj Kumar blood of ‘A’ group was found and on the clothes of accused Jai Kishan blood of ‘AB’ group, which was also the blood group of one of the deceased, was detected. On this aspect, the submission of the learned Counsel for these four appellants was that it was highly improbable that blood could be detected on the clothes of the accused persons even after a week of the incident and none of the recovery witnesses has claimed that at the time of arrest of these accused their clothes were found to be blood stained. It was also contended that in any case it was also highly improbable that the accused would be wearing blood stained clothes after a week of the incident. Learned Counsel also submitted that in any event this circumstance, even if it is accepted to have been established, cannot be used against accused since during their statements under Section 313 Cr.P.C. it was not specifically put to them that their clothes were found to be blood stained when they were examined in the Forensic Science Laboratory and if that had been done they would have offered some explanation for that. Learned Counsel for accused Rajinder had also submitted that in fact the find of blood on his clothes stands explained even from the prosecution record. Learned Counsel drew our attention to that part of the FSL report which mentioned that blood group of this accused was also of ‘A’ group and his MLC prepared at the time of his medical examination got conducted after his arrest showed some injuries on his body which means that the accused was beaten by the police and then got injured due to which blood might have fallen on his clothes. It was also contended by the learned Counsel that this circumstance of find of human blood on the clothes of accused Rajinder cannot in any case by itself be made the basis for his conviction for any of the offences for which he has Page 2260 been found guilty even if this Court accepts the evidence to that effect to be satisfactory and the failure to put a specific question in that regard to him in his statement under Section 313 Cr.P.C. to be inconsequential. We have perused the trial Court’s judgment and find that there is no discussion on this circumstance relied upon by the prosecution. We also find that to none of these four accused it was put during their statements under Section 313 Cr.P.C. that their clothes which they were found to be wearing at the time of their arrest were found to be blood stained. So, agreeing with the submission of the learned Counsel for these appellants we hold that this circumstance cannot be pressed into service by the prosecution. However, even without this circumstantial piece of evidence the guilt of accused Raj Kumar, Sunil and Jai Kishan stands established from the evidence of recovery of stolen articles at their instance. Having satisfied ourselves on an independent analysis of the prosecution evidence about the involvement of these three appellants – accused we need not go into the conjectural submissions made on their behalf that there was also a probability of the deceased Varinder @ Veeru himself having murdered his own wife and daughter as also the wife and daughter of his brother-in-law Suresh Sharma, the complainant of this case. So, appeals of these three accused have to be dismissed. However, the appeal of appellant Rajinder @ Raju has to be allowed since pursuant to his disclosure statement there was no recovery of any incriminating article and there is no other incriminating circumstance against him.
23. As far as the appellants – accused Kamaljeet and Raj Rani are concerned the learned trial Court has held them guilty under Section 412 IPC relying upon the recovery of VCR at the instance of accused Kamaljeet and recovery of jewellery articles at the instance of accused Raj Rani. It had been argued on behalf of these two accused that their conviction under Section 412 IPC is not sustainable since the prosecution has failed to prove the involvement of five persons in the commission of robbery and even the trial Court has also not found the involvement of five or more persons in the robbery. In this regard a submission had been made even on behalf of appellants – accused Sunil Kumar, Raj Kumar @ Raju and Jai Kishan @ Jaickey that even though the charge framed against them was for the offence of dacoity but since only four accused had been charged and convicted also for the offence of dacoity and the trial Court has not held that besides the four accused who were charged for the offence of dacoity there were other persons also associated with them it is clear that the conviction of those four accused was, in fact, for the offence of robbery. It was, thus, argued that in these circumstances accused Kamaljeet and Raj Rani could be convicted at the most under Section 411 IPC only. We are in agreement with the submission of the learned Counsel for the appellants Kamaljeet and Raj Rani that they could not be convicted under Section 412 IPC since the prosecution had not established the involvement of five persons in the offence of robbery. Even in the charge framed against the other four accused persons the trial Court had not mentioned that there was any fifth person also associated with them for the commission of offence of robbery nor has it been held finally that there were five or more persons involved in the commission of robbery. For a crime to come within the ambit of ‘dacoity’ punishable under Page 2261 Section 395 IPC it has to be established by the prosecution that five or more persons had conjointly committed or attempted to commit robbery and if the number of persons involved is not shown to be five or more then the offence would fall under Section 392 IPC which provides punishment for the offence of robbery as defined under Section 390 IPC. Thus, we are also in agreement with the submission made on behalf of appellant – accused Sunil Kumar, Raj Kumar and Jai Kishan that even though it has not been specifically held by the learned trial Judge in his judgment that he was convicting these accused for the offence of robbery but since only four accused were found guilty it is obvious that their conviction was for the offence of robbery and it could not be for the offence of dacoity. It would have been better if the learned trial Judge had given a clear finding in this regard. Therefore, the appellants Kamaljeet and Raj Rani are entitled to succeed, but only partly, in their appeals and their convictions under Section 412 IPC need to be set aside and instead they have to be convicted under Section 411 IPC and sentenced accordingly.
24. As a result of our fore-going discussion and conclusions the appeals filed by appellant – accused Jai Kishan @ Jaickey(being Criminal Appeal No. 183 of 2003), appellant – accused Raj Kumar @ Raju (being Criminal Appeal No. 194 of 2003) and appellant – accused Sunil Kumar (being Criminal Appeal No. 206 of 2003) are dismissed. Appeal filed by appellant – accused Raj Rani (being Criminal Appeal No. 90 of 2003) and appellant – accused Kamaljeet @ Kamal (being Criminal Appeal No. 292 of 2003) are allowed partly and after setting aside their convictions under Section 412 IPC they would now stand convicted under Section 411 IPC. Both of them are sentenced to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs. 50,000/- each, in default to undergo rigorous imprisonment for a period of nine months. Since the sentence awarded to the appellant – accused Raj Rani was suspended by this Court during the pendency of the appeal she would be now taken into custody, in case she has not been in jail for a period of three years already to serve out the remaining period of sentence which has now been awarded to her. As far as appellant Kamaljeet is concerned his sentence was also suspended during the pendency of the appeal but since he had remained in jail for more than three years in connection with this case he need not surrender. He is granted one month’s time to deposit the fine imposed by us and if he fails to deposit the fine within the said period he shall then be taken into custody and sent to jail to serve the sentence of imprisonment awarded to him on account of non-payment of the fine. The trial Court shall ensure that. As far as appellant – accused Rajinder @ Raju is concerned his appeal (being Criminal Appeal No. 241 of 2003) stands allowed and he is acquitted of all the charges and is directed to be released from jail forthwith, unless required to be detained for any other case.