REPORTABLE  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1636 of 2005

Ghure and Ors.                                …Appellants

Versus

State of Rajasthan                                        …Respondent

J U D G M E N T

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. 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  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:  

A. Santosh Jagwayan (PW.13) lodged an FIR on 17.12.1996 at  

8.30  A.M.  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, 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 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 (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 and silver wares etc.  

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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  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  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 offence under Section  

120B, 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 Ilaychidani, 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  

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glasses,  one  Katori  and  Rs.2,000/-  in  cash  were  recovered  from  

Chunchu @ Bhagwan.  On the  information  furnished  by  accused  

Samay Singh, one 32 bore revolver, two 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 silver button, one Katori 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.

D. After completing the investigation, the police filed challan for  

offences punishable under Sections 395, 396, 397, 120B 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 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  

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denied  the  correctness  of  the  statements  made  against  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 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/- and in default of payment of fine,  

three  months  rigorous  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  months  rigorous  imprisonment.  

Accused Ghurelal, Chunchu @ Bhagwan Singh, Kallu, Rajpal and  

Samay Singh were further 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.  

F. Being  aggrieved  by  the  said  decision,  all  the  accused  

preferred  Criminal  Appeal  No.  1579  of  2002  which  has  been  

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decided  by  the  High  Court  vide  judgment  and  order  dated  

27.10.2004  acquitting  the  accused  Talevar  and  Kuniya,  though  

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  

submitted  that  there had been most  material  discrepancies  in the  

deposition  of  witnesses  which  go  to  the  root  of  this  case,  and  

therefore, the conviction and sentence of the appellants is liable to  

be set aside.  

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  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.  

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5. We have considered the rival submissions made by 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 the High Court by  

the same impugned judgment and order.  The appeal against their  

acquittal i.e. Criminal Appeal No. 937 of 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 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  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  

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Tahsildar who conducted the proceedings of identification of stolen  

articles.  According  to  Narendra  Singh  Kulhari  (PW.20),  Smt.  

Shashi  Devi  (PW.12)  and Santosh  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  

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  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  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  Samay  

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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  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 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 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 Bundel (PW.21) who 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  

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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 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 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 ring, one necklace of gold,  

one Iliayachi Dani made of silver, one silver spoon and one silver  

bowl, as the two panch 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 the view  

taken by the two courts below.  

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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  

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.   

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 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.      

                                                     …………

….....................J.                                       (Dr. B.S. CHAUHAN)

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                                                               ………............................J.          (SWATANTER KUMAR)  New Delhi,               June 17, 2011

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