IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 216 of 2003 Date of Decision : September 9 , 2011 State of Himachal Pradesh Appellant Versus Rajinder Singh and others Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Additional Advocate General for the appellant-State. For the respondents : Mr. Ramakant Sharma, Advocate, for the respondents. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 9.4.1999, accused were put to trial. In terms of judgment dated 28.12.2002 passed by the learned Additional Sessions Judge, Solan, H.P. in Sessions Trial No. 09-S/7 of 2000, titled as State of H.P. versus Rajinder Singh and others, accused stand acquitted of the charged offences. 2. As per the case of the prosecution, Sh. Hem Raj (PW-1) had gone to Chandigarh in gypsy No. HP-03-2783 to drop Sh. S. R. Suri, Accounts Officer and other members of the audit party which Whether reports of Local Papers may be allowed to see the judgment? 2 had visited Himachal Pradesh. He was the driver of the vehicle. On his way back, somewhere near Jabli (Parwanoo), at about 7.30 p.m. on 9.4.1999, a maruti car intercepted his vehicle and asked him to stop. He was alone at that time. Three persons alighted from the maruti car, one of whom was possessing a pistol. Out of the three, one of whom was a ‘Sardar’ tied his hands with a rope. He also blind-folded and gagged him with a cloth. He was taken to a nearby ‘naala’ and thrown there. The gypsy was taken away by them. He remained in the ‘naala’ for about two hours, somehow managed to untie himself and walk to the nearest police station to lodge the report. He also reported the matter to his higher authorities. F.I.R. No. 71/1999 (Ext. PW 1/A), dated 10.4.1999 was registered at Police Station, Dharampur and police commenced investigation. The accused were apprehended, their identity got verified and vehicle, rope, cloth recovered. With the completion of investigation, challan was presented in the Court for trial. 3. The accused were charged for having committed offences punishable under Sections 341/120-B/506/34/392 of the Indian Penal Code read with Section 25-54/59 of the Arms Act, 1959 to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined fourteen witnesses and statements of the accused under Section 313 Cr. P.C. were recorded in which they pleaded false implication. 5. The trial Court acquitted the accused of the charged offences for the reasons that testimony of the complainant (PW-1) 3 itself did not inspire confidence, independent witnesses examined in Court did not support the prosecution version and that prosecution failed to examine the remaining relevant independent witnesses. 6. Allegedly the incident took place on 9.4.1999 on the Kalka – Shimla National Highway. According to PW-1, he was posted as a driver on the gypsy in question and was alone at the time when he was returning from Chandigarh. His vehicle was intercepted by a maruti car in which all the three accused persons were travelling. Accused Sukhpreet Singh (Accused No. 3) was carrying a pistol with himself. ‘Sardar’ whom he identified as Gurpreet Singh tied his hands, blind-folded him and gagged his mouth. All the three accused persons then threw him in a ‘naala’ on the national highway where he remained for more than two hours. Later on he untied himself and came to the police station where he got F.I.R. (Ext. PW 1/A) recorded. 7. Prosecution case solely rests upon the testimony of this witness. Careful perusal of his testimony would reveal that he has contradicted himself, apart from the fact that the same does not inspire confidence. In his examination he states that he could recognize accused Malkiyat Singh during the test identification parade which was done at police station, Dharampur by voice and he could identify the other two accused i.e. Rajinder Singh and Sukhpreet as he had seen them at the spot. However in his cross examination he contradicts this version by stating that he had not identified Sukhpreet in the police station. Significantly he does not 4 remember as to whether the accused had spoken with each other at that time or not. Now if this were so then how could he identify even one of the accused persons by voice. It is not in dispute that test identification parade took place two months after the incident. This witness admits that he did not know names of the accused persons from before and most importantly he contradicts by stating that he did not see faces of the accused at the place of the incident due to darkness. He further admits it to be correct that identity of the accused persons by name and face was disclosed to him by the police. This witness was re-examined by the Public Prosecutor with the permission of the Court for the reason that he had given two contradictory versions. Even in re-examination he has deposed that he had not seen the face of any of the accused at the place of the incident. Now if this were true then how could police link the accused to the alleged crime and on what basis were they arrested and their test identification parade got conducted. PW-1 also admits that he could not translate the language spoken by the accused at the spot. He further states that he could not distinguish the voices of the accused. This witness also could not state the name of the police official in whose presence the test identification parade was got carried out. Most importantly this witness admits that before reporting the matter to the police he had narrated the incident to two independent witnesses. Police has neither tried to associate such persons during investigation nor examined them in Court. Their testimonies would have only corroborated the otherwise shaky 5 version of PW-1 in Court. Hence absence of the same has rendered the prosecution case to be extremely vulnerable. 8. Significantly independent witness Sh. Ashok Gupta (PW- 3), in whose presence test identification parade was carried out has not supported the prosecution at all. He is a Pradhan of the Gram Panchayat for ten years. In spite of extensive cross examination, prosecution could not elicit anything fruitful from his testimony. 9. There is nothing on record to show that PW-1 was actually deputed to travel to Chandigarh at the relevant time. Sh. S. R. Suri whom PW-1 allegedly dropped at Chandigarh has also not been examined in Court. Prosecution has failed to prove as to whether the vehicle in question, in fact was ordered to be driven on the national highway on the date of the alleged incident or not. 10. Record further shows that even other independent witnesses who were associated by the police during investigation have not supported the police. Sh. Krishan Dutt (PW-4), Sh. Ram Lal (PW-8), Sh. Mewa Singh (PW-9) and Sh. Raj Kumar (PW-13) are such witnesses. 11. The version of the Investigating Officer namely SI- Trilochan Sharma (PW-10), HC- Surinder Kumar (PW-11) and SI- Chain Ram (PW-14) does not inspire confidence for the reason that according to PW-11, very same accused persons had threatened him with a pistol near Parwanoo where he had checked the vehicle which was parked alongside the road. Separate F.I.R. bearing No. 102/1999 in that regard was registered. What is the outcome of the 6 same has not been proved on record by the prosecution. That apart, PW-10 and PW-14 admit that test identification parade was got carried out by them after a period of two months. Their investigation is not supported by independent prosecution witnesses. Their star witness has not supported them. 12. Having perused the testimonies of the prosecution witnesses on record we find that no case for interference is made out. It cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and trustworthy material on record. 13. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. September 9 , 2011 (PK)