Bijender Etc. vs State Of Hy.

109


In the High Court of Punjab and Haryana, at Chandigarh

Criminal Appeal No. S-1110-SB of 2005 (O&M)
Date of Decision: 02.11.2026
Bijender and Others
... Appellant(s)
Versus
State of Haryana
... Respondent(s)
CORAM: Hon'ble Mr. Justice Surya Partap Singh.
Present: Mr. Ashit Malik, Senior Advocate
with Mr. Sagar Aggarwal, Advocate
for the appellant(s).
Mr. Ramender Singh Chauhan, Assistant Advocate General,
Haryana, for the respondent.
Surya Partap Singh, J.
1. This is appeal against conviction.
2. Four appellants, who were convicted by the court of learned
Additional Sessions Judge, Faridabad, hereinafter being referred to as ‘trial
Court’ only, have preferred this joint appeal.
3. The record shows that for the commission of offence
punishable under Sections 394 & 392 read with Section 397 of Indian Penal
Code,1860 (IPC), Section 25 of the ‘Arms Act, 1959’ (‘Arms Act’) and
Section 61 of the ‘Punjab Excise Act, 1914’ (‘Punjab Excise Act’), the FIR
No. 121 dated 06.03.2004 was lodged in Police Station Sadar Palwal. The
investigation was conducted and final report against four persons was filed,
who were sent to face trial before the court.
4. The above-said four persons faced trial which culminated by
DEEPAK KUMAR BHARDWAJ
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 2
virtue of judgment dated 13.05.2005, hereinafter being referred to as
‘impugned judgment’ only, into their conviction. Thus, by virtue of order on
quantum of sentence dated 17.05.2005, hereinafter being referred to as
‘impugned order’ only, following sentences were awarded to the appellants:-
Name of
Convict
Offence
under
Section
Sentence
Bijender, Jaffu
alias Jai Pal,
Gajender &
Harkesh
392 read
with Section
397 of IPC
Rigorous imprisonment for a
period of eight years and to
pay a fine of ₹500/- each. In
default thereof to further
undergo rigorous
imprisonment for a period of
six months each.
394 of IPC Rigorous imprisonment for a
period of six years and to pay
a fine of ₹500/- each. In
default thereof to further
undergo rigorous
imprisonment for a period of
six months each.
61 of Punjab
Excise Act
Rigorous imprisonment for a
period of two years and to
pay a fine of ₹500/- each. In
default thereof to further
undergo rigorous
imprisonment for a period of
three months each.
Bijender &
Jaipal alias
Jaffu
25 of Arms
Act
Rigorous imprisonment for a
period of two years and to
pay a fine of ₹500/- each. In
default thereof to further
undergo rigorous
imprisonment for a period of
three months each.
All the sentences were ordered to run concurrently.
5. In nut-shell the facts emerging from the record are that the
above-mentioned FIR came into being at the instance of ‘Kumar Pal’,
hereinafter being referred to as ‘complainant’ only. The pith and substance of
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the above-mentioned statement of complainant was that he along with ‘Aant

Criminal Appeal No. S-1110-SB of 2005 (O&M) 3
Ram’ was working as ‘Salesman’ on a liquor vend situated in village
‘Kalwaka’. According to complainant, in the night at about 01:00 A.M. four
persons came to the above-mentioned liquor vend and demanded two bottles
of liquor. As per complainant when he refused to sell them liquor, one of
them disclosed his name as ‘Bijender’ and said that he was a regular
customer of the liquor vend. The complainant further alleged that he
believed the above-mentioned statement of ‘Bijender’ and opened shutter of
the shop. It was fuirther stated by the complainant that on opening of shutter
all the above said visitors forcibly entered the shop but he resisted their
entry. According to complainant, thereafter one of them picked up a pistol,
placed the same on his temple (the complainant) and threatened that if he
raised voice he would be killed. The complainant further alleged that
thereafter all the above-mentioned four assailants thrashed him as well as his
colleague, namely ‘Aant Ram’ and forcibly took 15 bottles of liquor make
‘Mastana’ from the liquor vend.
6. It was a case of the prosecution that in view of above-
mentioned statement of the complainant, formal FIR of this case was lodged
and the investigation taken up.
7. As per prosecution during the course of investigation, the
Investigating Officer visited the spot, prepared rough site plan of the place of
occurrence and arrested the appellants. According to prosecution other
formalities of investigation were also completed by the Investigating Officer
and thereafter, the final report for the commission of above-mentioned
offences was filed in the court.
8. To discharge its burden of proving charges against the
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 4
appellants, the prosecution, in the instant case, had relied upon oral and
documentary evidence, both. The documents proved, and marked with
exhibits, by the prosecution, were:-
Ex.P1 - Statement of ‘Kumar Pal’, the complainant,
recorded by the police
Ex.P2 - Seizure memo of liquor recovered from the
possession of accused ‘Bijender’
Ex.P3 - Statement of ‘Aant Ram’, an eye-witness &
victim of the occurrence
Ex.P4 - Application moved by ‘Chandarpal’ for
Sapurdari of vehicle, bearing Reg No.HR-51-
B-5117
Ex.P5 - Scaled site plan of the place of occurrence
Ex.P6 - Application filed before the Medical Officer,
for medico-legal examination of injured –
‘Aant Ram’
Ex.P7 - Carbon copy of medico-legal report of injured
– ‘Aant Ram’
Ex.P8 - Application filed before the Medical Officer,
for medico-legal examination of
injured/complainant – ‘Kumar Pal’
Ex.P9 - Carbon copy of medico-legal report of
injured/complainant – ‘Kumar Pal’
Ex.P10 - Report of Forensic Science Laboratory,
Madhuban
Ex.P11 - Application filed before the Judicial Magistrate
st
1 Class, Gurgaon for Test Identification
Parade’ of accused.
Ex.P12 - Statement of accused ‘Jaipal’, recorded by the
st
Judicial Magistrate 1 Class, Gurgaon
Ex.P13 - Statement of accused ‘Harkesh’ recorded by
st
the Judicial Magistrate 1 Class, Gurgaon
st
Ex.P14 - Order passed by the Judicial Magistrate 1
Class, Gurgaon, on the application filed before
him for Test Identification Parade of accused.
Ex.P15 - Affidavit of ‘HC Rajender Singh’
Ex.P16 - Report of the Chemical Examiner
Ex.P17 - Sanction order dated 16.04.2004 for the
prosecution of accused, namely ‘Jaipal’ and
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‘Bijender’ under Section 25 of the Arms Act
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 5
Ex.P18 - Affidavit of ‘EHC Begh Raj’
Ex.P19 - Affidavit of ‘Constable Om Parkash
Ex.P20 - Disclosure statement of accused ‘Gajinder’
Ex.P21 - Disclosure statement of accused ‘Bijender’
Ex.P22 - Rough sketch of .12 bore country-made pistol
along with one empty cartridge and one live
cartridge, recovered from the possession of
accused ‘Bijender’
Ex.P23 - Seizure memo of .12 bore country-made pistol
along with one empty cartridge and one live
cartridge, recovered from the possession of
accused ‘Bijender’
Ex.P24 - Rough sketch of .315 bore country-made pistol
along with one empty cartridge and one live
cartridge, recovered from the possession of
accused ‘Jaipal’
Ex.P25 - Seizure memo of sample and bottles of liquor
recovered
Ex.P26 - .12 pistol country-made pistol, recovered from
the possession of accused ‘Bijender’
Ex.P27 - .315 pistol country-made pistol, recovered
from the possession of accused ‘Jaipal’
Ex.P28 - Endorsement recorded by the SHO of Police
Station Sadar, Palwal, on the statement of
complainant
Ex.P29 - Copy of First Information Receipt.
Ex.P30 - Endorsement recorded by ‘ASI Hoshiar Singh’
on the statement of complainant
Ex.P31 - Rough site plan of the place of occurrence
Ex.P32 - Rough site plan of the place of recovery of
country-made liquor, recovered from the
possession of accused ‘Bijender’
Ex.P33 - Rough site plan of the place of recovery of .12
bore country-made pistol, recovered from the
possession of accused ‘Bijender’
Ex.P34 - Rough site plan of the place of recovery of
Maruti Van bearing Registration No. HR-51-B-
5117, recovered from the possession of
accused ‘Jaipal’ and ‘Harkesh’
9. To provide support and corroboration to the above-mentioned
DEEPAK KUMAR BHARDWAJ documentary evidence, as many as 14 witnesses were examined by the
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 6
prosecution. They were:-
PW.1 - Kumar Pal, the complainant
PW.2 - Aant Ram, eye-witness of the occurrence
PW.3 - Nil
PW.4 - Anoj Kumar, Draftsman, PTC Madhuban
PW.5 - Dr. Rajesh Kumar, Medical Officer, General
Hospital, Palwal
st
PW.6 - ‘Smt.Raj Gupta, the then Judicial Magistrate 1
Class, Gurgaon
PW.7 - HC Rajender Singh
PW.8 - Mahesh Sharma, Reader to District Magistrate,
Faridabad
PW.9 - EHC Beg Raj
PW.10 - Constable Om Parkash
PW.11 - ASI Jai Kishan
PW.12 - ASI Kartar Singh
PW.13 - ASI Hoshiar Singh
PW.14 - Sub Inspector Amarjeet Singh, the Investigating
Officer
10. Once the prosecution evidence had been recorded, the learned
trial Court completed all the formalities, enshrined under Section 313
Cr.PC.. Thereafter, opportunity to lead defence evidence was afforded to the
appellants. However, the appellants did not opt to lead any evidence,
whatsoever, in their defence.
11. When the stage of recording the evidence was over, the learned
trial Court gave opportunity to the learned Public Prosecutor and the learned
counsel for the appellants, to address arguments. Thereafter, a judgment of
conviction was pronounced against the appellants. Accordingly, the
sentences, detailed hereinbefore, were awarded to the appellants.
12. Heard.
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 7
13. It has been contended by the learned senior counsel for the
appellants that instant case is a case of no evidence, whatsoever, against the
appellants, and that, merely, on the basis of whims and fancies, the learned
trial Court recorded the finding of conviction of appellants. According to
learned senior counsel for the appellants both the material witnesses
examined by the prosecution did not support the prosecution case with
regard to the plea of the prosecution, that the appellants were responsible for
the above-mentioned robbery on gun-point. As per learned senior counsel for
the appellants once the complainant and eye-witness did not support the
prosecution case with regard to involvement of the appellants in the
commission of offence, there could not have been a valid reason for holding
the appellants guilty for the commission of offence punishable under Section
392 read with Section 397 & 394 of IPC or Section 25 of the ‘Arms Act’.
14. According to learned senior counsel for the appellants an error
of judgment was committed by the learned trial Court when it failed to
appreciate the above-mentioned evidence adduced by the prosecution, which
was grossly inadequate and insufficient to bring home guilt of the appellants.
The learned senior counsel for the appellants has further contended that the
finding of conviction of the appellants was recorded by the learned trial
Court on the basis of assumptions and presumptions only, whereas the
standard prescribed under the law mandated that allegations against the
appellants should have been proved beyond the shadow of reasonable
doubts. In view of above, the learned senior counsel for the appellants has
contended that the ‘impugned judgment’, being perverse, needs indulgence
and interference of appellate jurisdiction vested in this court.
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 8
15. The learned counsel for the respondent/State has controverted
the above-mentioned arguments. While defending the ‘impugned judgment’
and ‘impugned order’, it has been contended by learned counsel for the
respondent/State that present case was a well proved case wherein a right
conclusion was drawn by the learned trial Court on proper appreciation of
fact as well as law. According to learned counsel for the respondent/State
since the stolen bags of liquor were recovered from the possession of
appellants, pursuant to disclosure statements suffered by them, unless proved
otherwise there was a valid ground to presume that the appellants were
responsible for the commission of offence punishable under Section 392
read with Section 397 & 394 of IPC and Section 25 of the ‘Arms Act’.
16. The learned counsel for the respondent/State has further
contended that no error of judgment, whatsoever, was committed by the
learned trial Court, and that simply because the complainant and eye-witness
of the occurrence did not support the prosecution case, this conclusion could
not have been drawn that charges against the appellants were not duly
proved. With regard to above, the learned counsel for the respondent/State
has contended that with the help of depositions of police officials it was duly
proved that the appellants had suffered their respective disclosure statements
voluntarily, and that pursuant to above-mentioned disclosure statement the
stolen property was recovered from their possession. As per learned counsel
for the respondent/State once the above-mentioned facts were duly proved
by the prosecution, the finding of conviction of appellants was a natural
outcome. In view of above, the learned counsel for the respondent/State has
contended that the present appeal is devoid of merits and deserves dismissal.
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 9
17. The record has been perused carefully.
18. As far as the facts of the present case are concerned, at the very
outset, it is pertinent to mention here that in the present case as many as 14
witnesses were examined by the prosecution. Amongst them PW-1 & PW-3
were the most material witnesses.
19. The star witness of the prosecution, i.e. PW-1, namely ‘Kumar
Pal’, was the complainant in this case. The PW-1, in his examination-in-
chief, partially supported the prosecution case with regard to the allegations
th th
that in the intervening night of 5 /6 March, 2004 when he was sleeping
along with his co-salesman ‘Aant Ram’ in the liquor shop, four persons
came there and on gun-point committed robbery of liquor bottles. However,
the PW-1 had specifically deposed that the accused present in the court were
not responsible for the above-mentioned act. In view of above-mentioned
deposition, the PW-1 was declared hostile by the learned Public Prosecutor
and he was cross-examined with the permission of the court. However, in
his cross-examination also, the PW-1 remained affirm on the same stand.
20. The next witness examined as PW-2 was ‘Aant Ram’, an eye-
witness of the occurrence. The PW-2 had not supported the prosecution case
at all. In fact event qua the incident of robbery, the PW-2 had not supported
the prosecution case, and deposed that he was no aware of the facts of this
case. However, as per PW-2 some unknown persons had caused injuries on
his person as well as on the person of ‘Kumar Pal’. Like PW-1, the PW-2,
too, was declared hostile by the learned Public Prosecution and subjected to
cross-examination, but to no avail.
21. Amongst the remaining witnesses PW-4 was a formal witness,
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 10
who had deposed that on the instructions of Investigating Officer of this case
he had visited the spot and prepared site plan of the place of occurrence,
with marginal notes. The abovesaid site plan was proved by the PW-4, as
Ex.P5.
22. The PW-5 was the Medical Officer, who had proved the
medico-legal reports of ‘Aant Ram’ as Ex.P7 and of the complainant as
Ex.P9, respectively.
23. The next witness PW-6 was the Judicial Magistrate, in whose
presence ‘Test Identification Parade’ of the accused ‘Harkesh’ and ‘Jaipal
alias ‘Jaffu’ was conducted. According to PW-6 both of them had refused to
participate in the ‘Test Identification Parade’.
24. The next witness PW-7 ‘HC Rajender Singh’, too, was a
formal witness, who, by virtue of his affidavit Ex.P15 had deposed that he
was posted as MHC of the police station, and that the case property had been
deposited in the malkhana of police station.
25. PW-8 ‘Mahesh Sharma’ was an official in the office of District
Magistrate, Faridabad. The PW-8 had proved the sanction order for the
prosecution of the appellants, namely ‘Jai Pal’ and ‘Bijender’ for an offence
under Section 25 of the ‘Arms Act’.
26. PW-9 ‘EHC Begh Raj’, with the help of his affidavit Ex.P18,
had proved that on 17.03.2004 he (PW-9) being MHC of the police station,
‘HC Rajender Singh’ deposited samples of liquor with him in the storeroom
(Malkhana), and that he handed over the same to the Chemical Examiner in
B.K.Hospital, Faridabad.
27. The PW-10, too, was a formal witness, who, by virtue of his
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 11
affidavit Ex.P19 deposed that on 22.03.2004 he was deputed for delivery of
country-made pistol to Forensic Science Laboratory, Madhuban. According
to PW-10 he had performed the above-mentioned duty assigned to him.
28. The remaining three witnesses were police officials. The PW-11
‘ASI Jai Kishan’ had deposed that he was joined in the investigation of this
case, and that in his presence the appellant ‘Gajender’ was interrogated by
the Investigating Officer. As per PW-11, during the course of interrogation
the above-named appellant had suffered a disclosure statement pursuant to
which country-made liquor, stolen from the liquor vend, was recovered.
29. In similar fashion, the PW-12 ‘ASI Kartar Singh’ had deposed
that in his presence the Investigating Officer of the case had interrogated the
accused ‘Amarjeet Singh’, who, too, had suffered disclosure statement,
Ex.P21. According to PW-12, pursuant to above-mentioned disclosure
statement two cartons containing 48 bottles (total) of liquor were recovered.
30. The next witness examined by the prosecution was PW-13 ‘ASI
Hoshiar Singh’ who had deposed that in his presence three accused, namely
‘Bijender’, ‘Jaipal’ and ‘Harkesh’ were interrogated by the Investigating
Officer. As per PW-13 from the possession of accused ‘Bijender’ a .12 bore
country-made pistol along with empty cartridge, from the possession of
accused ‘Jaipal’ a .315 bore pistol with one empty cover and one live
cartridge were recovered. The PW-13 further testified that from the joint
possession of ‘Harkesh’ and ‘Jaipal’ a Maruti Van, bearing registration No.
HR-51-B-5117 was recovered.
31. The last witness examined by the prosecution was PW-14, the
Investigating Officer of this case. He was ‘SI Amarjeet Singh’. The PW-14
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 12
had supported the prosecution case by proving various steps taken by him
during the course of investigation.
32. As far as the above-mentioned evidence adduced by the
prosecution was concerned, a careful perusal of the same would to to show
that the entire prosecution case with regard to involvement of the appellants
in the commission of offence was founded upon the plea that complainant
‘Kumar Pal’ and his colleague ‘Aant Ram’ were subjected to severe
beatings, and that on gun-point liquor bottles were taken away, forcibly,
from their liquor vend. To prove above-mentioned set of facts the best
course available to the prosecution was to prove the above-mentioned fact
with the help of complainant ‘Kumar Pal’ and his colleague ‘Aant Ram’, the
eyewitness. Both of them were examined as PW-1 & PW-2, respectively.
However, both the above-named witnesses did not support the prosecution
case at all with regard to identity of the appellants as assailants. So much so
the PW-1 had specifically deposed that the appellants were not involved in
the above-mentioned incident and the PW-2 answered this suggestion in
negative that the appellants were involved in the commission of above-
mentioned offence. Thus, in my considered opinion, in the light of
depositions of PW-1 & PW-2, respectively, the very foundation of the
prosecution case stood demolished, qua the fact that the appellants were
involved in the incident of robbery.
33. Although in the present case with the help of official witnesses
particularly the depositions of PW-11 to PW-14 respectively, the prosecution
had tried to set-up a case that the appellants had suffered disclosure
statements pursuant to which recovery of liquor had taken place. But, in my
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 13
considered opinion, firstly , the above-mentioned disclosure statements were
doubtful in view of the fact that as per disclosure statements the appellants
were involved in the commission of offence of robbery and this fact was
proved to be false. Secondly , because, at the time of recording of disclosure
statements or recovery any independent witness was not joined, despite the
fact that the Investigating Officer was having ample opportunity for the
same.
34. In addition to above, it was also relevant to note here that there
was nothing on record to show that the liquor which was allegedly recovered
from the possession of appellants was the same liquor which was taken away
from the liquor vend of the complainant. For the above said purpose, the
brand name, batch number etc. of the stolen liquor should have been
disclosed in the report under Section 173 of the ‘Code of Criminal
Procedure, 1973’ and the above-mentioned particulars of stolen liquor
should have matched with the recovered liquor. But in the present case such
exercise was not conducted by the Investigating Agency. Thus, the link
between the stolen liquor and the recovered liquor was not adequately
established.
35. Taking into consideration the cumulative effect of all the above-
mentioned factors, in my considered opinion, the evidence adduced by the
prosecution was grossly inadequate and insufficient to bring home guilt of
the appellants, and the above-mentioned evidence was not sufficient to bring
home guilt of the appellants for the commission of offence for which they
were charged. Thus, it is hereby observed that the learned trial Court
committed an error of judgment when without reliable evidence it recorded
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Criminal Appeal No. S-1110-SB of 2005 (O&M) 14
the finding of conviction of the appellants.
36. As a sequel to above-mentioned observations, it is hereby held
that the finding of conviction recorded by the learned trial Court is not
sustainable and deserves to be set-aside. Thus, finding merits in the present
appeal, the same is hereby allowed . The ‘impugned judgment’ and
‘impugned order’ are hereby set-aside and the appellants are acquitted of the
charges framed against them.
37. The pending miscellaneous application(s), if any, shall stand
disposed of.
(Surya Partap Singh)
Judge
November 02, 2026
“DK”
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
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