1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 309 of 2008 & Cr. Appeal No.399 of 2008 Reserved on .29.12.2008 Date of Decision: January 6th , 2009 ____________________________________________________________ 1. Criminal Appeal No. 309 of 2008 Gurvinder Singh versus State 2. Criminal Appeal No. 399 of 2008 Sukhvinder Singh versus State . Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? yes For the appellant(s) : S/Shri M .S. Guleria and Naresh K.Thakur, Advocate. For respondent. : Shri J.S. Guleria, Law Officer. _________________________________________________________ Surinder Singh, J . Both the above appeals are arising from the judgment of conviction and sentence passed by the learned trial court (Fast Court) Shimla in Sessions Trial No. 22-S/7 of 2007 decided on 28.4.2008 against the appellant, under sections 379, 380, 328 and 342 read with section 34 of the Indian Penal Code. The facts which emerge from the evidence on record can be stated thus. Dalbir Singh (PW1) was a driver in Indica Car No. CH-03Y-4619 belonging to his brother-in-law Gurcharan Singh who was dealing the Whether reporters of the Local papers are allowed to see the judgment? yes 2 supply of X-ray films and was operating from his shop at Chandigarh. On 9.11.2006 when Dalbir Singh was getting the car repaired at Chandigarh, Shri Des Raj driver an old acquaintance of the complainant Dalbir Singh met him and told him to take two persons to Shimla in his car since he was going to Shimla. Thereafter, he received a telephonic call on his mobile from one of the person that they would board his car from near the Mosque Sector-45 Chandigarh. He went there, two persons boarded the car. All of them left Chandigarh at about 6 p.m. On the way to Shimla the said passengers told him that they were the ‘Life Insurance Agents’. One of their friends had met with an accident and was admitted in the Indira Gandhi Medical College (I.G.M.C.) Shimla. On this, PW1 Dalbir Singh revealed to them that he was also to visit I.G.M.C. hospital to supply some goods, therefore, he took them in his vehicle to the said hospital. Dalbir went to hand over the goods to a person. One person remained with him whereas another person went inside the hospital on the pretext to see the injured friend. After about 20-25 minutes the person who had gone to see the patient returned back and informed that his friend was not available there. It was around 11 p.m. Complainant was getting late to return to Chandigarh. The appellants told him that he should leave for Chandigarh after having dinner and dropping them in some hotel where they could stay for the night. 3 Since the hotels at Shimla were fully booked and closed, they came to know that food and room for stay would be available at Shoghi. Thus, they went to “Shoghi” which fall on the National Highway while going to Chandigarh. The appellants got booked a room in the hotel “Hotel Highway Inn”. After taking dinner with the complainant, both the persons went to their room No.206. They told the complainant to stay with them during the night, but he refused. Thereafter, they requested him to take either milk or tea before leaving for Chandigarh to which he agreed. One person, alleged to be Sukhvinder Singh left the room and came back with three glasses of milk. One of the glasses of milk was given to the complainant. On consuming half glass of milk, he became unconscious. Next day, around 12 O’clock some one knocked at the door. The complainant was not in complete senses but he got up and saw a waiter entering the room through the window and brought him outside. The door of the room was found locked. The complainant found his car missing and both the persons who had accompanied him, were not seen around. The owner of the hotel PW2 Prem Kumar took him to the police station. He filed complaint Ex.PW7/B on the basis of which a formal FIR Ex.PW6/A was registered. He was got medically examined by the Doctor Ravinder Mokta (PW4) On 11.11.2006, the complainant took the police to the hotel. He pointed out the room wherein he 4 was offered milk and also the place where the car was parked. The police took into possession the extract of the Register of the hotel vide memo Ex.PW7/F which was signed by him as a witness. Statements of Gurcharan Singh, the owner of the Indica Car, Manoj Rawat Waiter and Prem Kumar Sharma owner of the Hotel were recorded by the police. The complainant had also produced Des Raj to the police for the verification of the said passengers, who were said to be the appellant and thereafter house of the appellants were raided but they were not found there. On 1.12.2006 Punjab Police found an Indica car, abandoned behind the I.B.P.Petrol Pump in village Jandyali, falling under the Police Station, Sahnewal, District Ludhiana (Pb). It was not having any number plate but while taking into possession under section 102 Cr.P.C. (vide Ex.PF) its engine and chassis Nos. were noted and recorded in the rapat rojnamcha Ex.PW3/E. On 22.4.2007 appellant Gurvinder Singh was arrested, by CIA Staff Una in a case of theft of another car, in FIR No.7 of 2007 dated 5.1.2007 of Police Station Amb. His custody was got transferred by PW 7 SI Chaman Lal in this case by procuring a warrant. On 24.4.2007 he is alleged to have made a disclosure statement Ex.PW3/D regarding the pointing out the place of the alleged incident at Shoghi and the memo regarding its nishandehi Ex.PW2/B was also prepared in 5 the presence of the witnesses. Gurvinder accused was got identified from PW2 Hotel Owner Prem Kumar Sharma and also from the complainant. During the investigation of the case, Dalbir Singh produced the photo copy of the invoice (Ex.PW7/H) with respect to the Indica Car involved in this case in the name of Gurcharan Singh, which was taken into possession by the police vide memo Ex.PW7/I on 23.4.2007. Its engine and chassis Nos. matched with the car in question. In the month of August, 2007 an information was received from CIA staff Una that another accused Sukhvinder Singh appellant was also arrested by them in the same case (FIR No.7 of 2007 dated 5.1.2007 registered in Police station, Amb) in which his co- accused Gurvinder Singh was arrested earlier. On this, PW7 SI Chaman Lal sought his transfer and arrested him in this case this case. During the interrogation he is also alleged to have made the disclosure statement with respect to the place of incident and a nishandehi memo Ex.PW3/M was also prepared, he was also identified by Dalbir Singh and Prem Kumar aforesaid. During the interrogation, in FIR No.7 of 2007 in police station Amb, Gurvinder Singh appellant is alleged to have disclosed about the theft of Indica Car in question from Shoghi after administering some stupefying agent in the form of a capsule mixed in the milk to the complainant. 6 After completing the investigation of the case, it was presented in the court for trial of the appellants. The appellants were charge sheeted for the offences charged, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses. The appellants were also examined under section 313 of the Code of Criminal Procedure. Their case was denial simplicitor. They pleaded innocence and according to them a false case is foisted against them and further stated that the car in question was sold by Dalbir Singh in connivance with Mr. Sharma, owner of the Hotel, Highway Inn in order to save himself. Dalbir Singh had cooked up the story after joining hand with the police. Further according to them, none of them had accompanied Dalbir Singh to Shimla. The appellants denied the circumstances put to them. No evidence in defence was led. After appreciating the evidence on record, the learned trial court convicted and sentenced the appellants as under: Under section 328/34 IPC Rigorous imprisonment for a period of seven years each and fine of Rs.25,000/- each. In case of default in payment of fine, each one of them will further undergo rigorous imprisonment for a period of two years. Under section 380/34 IPC Rigorous imprisonment for a period of two years each and fine of Rs.5,000/- each. For want of payment 7 of fine, to undergo rigorous imprisonment for a period of six months more each. Under section 379/34 IPC Rigorous imprisonment for a period of two years each and fine of Rs.5,000/- each. For want of payment of fine, to undergo rigorous imprisonment for a period of six months more each. The appellants have assailed the judgment of conviction and sentence passed by the learned trail court in the present appeals. I have heard Mr. M. S. Guleria and Mr. Naresh K.Thakur, learned counsel for the appellants and Mr. J. S. Guleria, learned Law Officer, for the respondent-State. The submissions made by the learned counsel for the appellants can be summed up as under: a) that the appellants were not known to the prosecution witnesses as no identification parade was conducted. Waiter of the Hotel, who was on duty when the appellants were alleged to have taken the room on rent, could not identify the appellants. b) There was no connecting evidence implicating the appellants. Des Raj at whose instance, the 8 complainant brought the appellants to Shimla was not examined. c) The vehicle in question was also not recovered at the instance of the appellants. d) There was no link evidence and the learned trial court did not appreciate the facts in its right perspective. Contra, Shri J.S.Guleria, learned Law Officer, has supported the impugned judgment of conviction and sentence, passed by the learned trial court as legally and factually correct and ventilated that in the instant case the identification parade was not required to be conducted as the appellants remained in the company of the complainant sufficiently for a long time while travelling from Chandigarh to Shimla and took dinner together, therefore, the complainant had full opportunity to identify them. Therefore, non-holding of identification parade by the police is not fatal to the prosecution. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and re-appraised the evidence on record. At the very outset, I would like to say that the appellants were not known to the 9 complainant at hoteliers. As per the case of the prosecution they were given lift in the vehicle in question by the complainant at the behest of Des Raj, who was not examined by the prosecution. In the circumstances mentioned above, in my opinion Des Raj was a material witness, who could have thrown a light on the truthfulness of the prosecution case. His non-examination impels me to take an adverse inference against the prosecution. Further in the first version, made to the police by the complainant PW-11 Dalbir Singh did not name the appellants. His first version was that out of two persons, who were accompanying him from Chandigarh, one of them was named Gujjar and another belonged to Lohar caste and both were residents of Budail. Those persons had boarded his car from the ‘lights’ in Sector 45 Chandigarh around 5.30 p.m. and disclosed that they were the LIC agents. He further averred that when they reached Shoghi, they stayed in a Hotel Highway Home Tourist, Guest Room No.106 and not in room No.206, as stated by him when appeared in the court as PW11. he further mentioned that all the three persons went to said room after taking the dinner. Thereafter the person, who was accompanying Gujjar brought three glasses of milk and out of them one was offered to him. After consuming the milk, he went asleep. He got up 10 next day, neither he found the appellants in the room nor his vehicle. His purse and mobile phone were also found missing. Two persons brought him to the police station Boileauganj. He expressed his suspicion on the person named Gujjar who had administered some poisonous substance in the milk and fled away with his car, mobile phone and purse containing currency notes of Rs.200/- The complainant was examined as PW-11 he substantially improved his earlier version and deposed in the court that Des Raj had told him to take two persons to Shimla in his Indica Car. Thereafter, he sent to Sector 45 Chandigarh as directed by them on his cell phone. The said persons boarded his car and all of them left for Shimla at about 6 p.m. Since he was to go to the I.G.M.C. hospital, thus both of the said persons also accompanied him as one of their friends was admitted in the I.G.M.C. Hospital as stated by them. This part of the story is missing in his earlier version Ex.PW7/B. He did not point out which of the appellant is named Gujjar and which is lohar. Although PW-2 Prem Kumar Sharma, the owner of the Hotel Highway Home, Tourist Guest House, Shoghi has stated that three persons came in the Indica Car to his hotel around 1 a.m. during intervening night of 9th and 10th November, 2006. They parked the car outside the hotel and room No.206 was provided to them. After taking 11 the dinner in his dhaba, all of them went to the room allotted to them. He also stated that thereafter accused Sukhvinder came out of the room and went to the reception and ordered for three glasses of milk which was provided to him, thereafter, he after added some medicine in one of the glasses and took all the glasses with him to the room but he could not specifically say how he could identify these persons by name. Further the entry regarding their stay made into register, the extract of which is Ex.PW2/A, the name mentioned therein is different. He says it was false. There is nothing on record to show that the entry was under the assumed name. The police did not bother to get the signatures examined from the expert of questioned documents to establish its authorship nor Prem Kumar could spell out, about the appellants who had signed the said entry. Even the booking slip of the room Ex.PW7/E alleged to have been filled up by the appellants was not sent for expert opinion. It is also an admitted case that no identification parade was conducted by the police. PW1 Manoj Rawat was a waiter in the said hotel owned by PW2 and his duty started from 12 O’clock. He stated that he did not recognize the persons who had stayed in room No.206 in the hotel. This is the only evidence against the appellants examined to establish their identity. 12 In the given circumstances the identification of the appellants made by PW2 Prem Kumar in the custody of the police is absolutely not reliable thus of no avail. The booking slip of the room Ex.PW7/E which is alleged to have been filled up and signed by one of the accused could not be connected with any of them. Significantly, there is an entry of three persons, who stayed in room No.206, if the statement of the complainant is to be believed then he was not to stay in the hotel and he had to leave for Chandigarh. He only stayed for a while to take the milk or tea at the request of accused persons. If it was so, there should not have been the entry of three persons in the said register. Further the said persons remained with the complainant for about five hours and most of the time complainant remained busy in driving his vehicle. The complainant also did not depose about their physical characteristics and the clothes which they were wearing. The time gap of the alleged incident and the arrest of the appellants is more than 5 months. It cannot be even presumed that their short meeting with the complainant that too in the evening was enough to get them identified after such a long time-gap. 13 It is further important to note that the glasses in which the milk was taken were not chemically examined in order to substantiate the case of the complainant regarding the contents thereof. There is another important fact which required clarification but nothing was explained. The room was stated to have been locked when the accused persons had left the complainant in the room. There is no evidence as to who and how the lock was opened. The key of the lock was not recovered from the appellants. The complainant also alleged about the theft of his mobile and purse. These articles were also not found in the possession of the appellants to connect them with the offence charged. Further the identification of the appellants, in the above circumstances first time in the court does not inspire confidence, more particularly in absence of the link evidence. The scientific investigation in this case was not done, which could have been quite useful in reaching the truth, had it been resorted to by the police. The prosecution has relied upon the case diary Ex.PW3/B pertaining to FIR No.7 of 2007 of Police Station, Amb, which was taken into possession from the said police station to 14 connect them with offence. It contains the disclosure about the commission of the offence in this case made during the interrogation of appellant Sukhvinder Singh. The police officer, who interrogated him was not examined. The production of this document was rightly objected to during the evidence and no attempt was made to produce its original or examine its author. Further Sukhvinder Singh is alleged to have disclosed about the present case but his statement recorded under section 27 of the Indian Evidence Act Ex.PW3/L and nishandehi Ex.PW3/M made on 30.8.2007 is of no avail to the prosecution and also useless as the police already knew the about the facts so disclosed before hand. Further the memo of nishandehi Ex.PW2/B dated signed by Gurvinder Singh also suffers from the same vice and is hit by section 162 of the Code of Criminal Procedure Code. Thus inadmissible in evidence. There is another reason to disbelieve the aforesaid disclosure memos and memo of nishandehi as these were only exhibited in the statement of the witnesses without proving its contents. It is settled law that the marking of exhibits on the documents is of no consequence if the contents thereof are not proved. There is yet another reason to disbelieve the prosecution case, the memos 15 referred above are more or less in the form of confession. The confession made to the police officer by an accused is not admissible in evidence as per the provisions of Section 25 of the Evidence Act. The prosecution appears to have made a futile attempt to prove the case against the appellants by styling their above statements having been made under section 27 of the Evidence Act to bring out the exception of section 161(1) Cr.P.C. The learned trial court should have refused to admit such an evidence which is not inadmissible in accordance with law. Thus, on culling out the evidence, in my considered opinion the prosecution could not prove its case against the appellants beyond the reasonable doubt, thus their conviction and sentence passed by the learned trial court are legally and factually unsustainable which are accordingly set aside. Consequently, the appeals filed by both the appellants are allowed and the appellants are acquitted by giving them the benefit of reasonable doubt. The appellants who are presently lodging in jail be released forthwith, if not required in any other case. The Registry to take follow up action in accordance with law. January 6,2009 (Surinder Singh),J. (D) 16