IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.273 of 2010. Cr.Appeal No. 274 of 2010. Cr.Appeal No. 406 of 2010. Cr.Appeal No. 407 of 2010. Reserved on: 18.11.2010 Date of Decision: 22nd December,2010. _______________________________________________ 1.Cr.A. No. 273 of 2010. Swantantar Kumar ….Appellant. Versus. State of H.P. ….Respondent. 2.Cr.A. No. 274 of 2010. Sudhir Kumar ….Appellant. Versus. State of H.P. ….Respondent. 3..Cr.A. No. 406 of 2010. Rahul Bhardwaj ….Appellant. Versus. State of H.P. ….Respondent. 4.Cr.A. No. 407 of 2010. Anand Rathore ….Appellant. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the appellants :Mr.Deepak Kaushal, Advocate. For Respondent. :Mr.P.K.Sharma, Addl. Advocate General. Dev Darshan Sud, J. All these appeals are being disposed of by a common judgment as they arise out of the same judgment. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 All the accused were held guilty for offences under Section 397 I.P.C. and except Anand Rathore were acquitted for offences punishable under Section 25 of the Indian Arms Act. They were sentenced to various terms of imprisonment. Sentence of seven years rigorous imprisonment was imposed upon them and appellant-Anand Rathore was sentenced simple imprisonment for one year and fine sum of Rs.2,000/- and in default to undergo simple imprisonment for two months. 2. The prosecution case in brief is that Ashwani Kumar (PW1) informed Police Station, Renukaji at night on 4.3.2010 that some un-known persons were cutting his Chandan tree (Sandal wood ) which was standing on his land at village Kheri Changan. On receiving this information, Sub Inspector Sh.Narayan Singh along with ASI Sh.Bihari Lal reached village Mohron in a vehicle being driven by Head Constable Satya Dev where a statement (Ext.PW1/A) of PW1 Ashwani Saini under Section 154 Cr.P.C. was recorded. He stated that he owned about 75 bighas of land in village Kheri Changan in which there were number of Mango trees, Chandan (Sandal wood) and Khair etc. The Sandal wood (mother tree) was planted by his father about 50 Years ago and had grown to a considerable size. From the seeds of this tree which had fallen on the ground, a number of other trees had also sprouted. He had employed one Karan Bahadur to look after them. In the night of 4.3.2010, PW2 Madan Singh, Ex-Pradhan had informed him that the Chandan tree was 3 being cut by some un-known persons. He immediately informed PW2 Madan Singh that he should get the help of some villagers and tried to get hold of the offenders. In the meantime, he said that he would reach the spot in his own vehicle. He thereafter informed Police Station, Renukaji. He reached the place where the Chandan tree had been planted at around 3.45 p.m. and saw that some un-known persons had already cut the trees with a saw for more than half its total thickness and one trunk of the tree was removed and the branches were lying on the spot. He immediately asked PW2 Madan Singh, Karan Bahadur, Pradip Sharma and other persons to accompany him to track down the offenders. While they were going towards village Dhira through village Mohron, two shots were fired at them by somebody at which, the complainant and some other persons got scared and lay down on the ground for some time. Thereafter he informed PW3 Gopal Singh and Inder Singh that some thieves were bringing stolen Sandal wood towards village Dhira and they were armed. On receiving this information, Gopal Singh (PW3) came down on the roadside and found one Qualis bearing No. UP-78AF-3801 parked in village Dhira and on seeing Gopal Singh (PW3), the driver dashed towards village Jamta. This information was given by Gopal Singh (PW3) to Madan Singh (PW2). 3. On the statement made by the complainant, a rukka was sent to the Police Station where Ext.PW7/A First Information Report was lodged under Sections 397, 398 I.P.C. 4 read with Section 25 of the Indian Arms Act. During the investigation, the appellants in this case were apprehended with the help of the villagers and they disclosed their names to the police official. The Qualis vehicle was being driven by Rahul Bhardwaj who was arrested at Paonta Sahib barrier. During the personal search of accused Anand Rathore @ Kalu, seven live rounds 8 MM KF and one mobile phone (Ext.PW1/D), seven live cartridges (Ext.P4 to P-10) and small box (Ext. P-11) were recovered from him and these were taken in to possession by the police. In between the jungles of village Mohron and village Dhira, four pieces of Chandan wood were recovered by the police. They were taken into possession by the Panchayat. These were small branches of the tree which was purported were also recovered. Appellant Anand Rathore made a disclosure statement pursuant to which a ‘Desi Katta’ (country made pistol) was recovered vide Ext.PW1/L. This weapon is Ext.P-15 and according to the report of the Forensic Science Laboratory Ext.PW10/A, it was proved: “In this case, two sealed parcels were received in Physics and Ballistics Division on 5.5.09 for examination. The seals on the parcels were intact and tallied with specimen seal sent alongwith forwarding authority’s letter. The details of the parcels and the exhibits are as under: Parcel I: A cloth cover sealed with three seals of “T”. It contained exhibit E/1. Exhibit E/1: A fired cartridge case bearing head stamp of KF 8MM. Parcel II: A cloth cover sealed with three seals of “T”. It contained exhibit E/2. 5 Exhibit E/2: A country made pistol wrapped inside the cloth piece. RESULT The aforementioned exhibits were examined physically, chemically and compared using comparison microscopy. The results are as under: (1) The firearm exhibit E/2 (Country made pistol) is in working order in its present condition and has recently been fired. (2) The firearm exhibit E/2 is chambered for 8 MM cartridge. (3) The fired cartridge case marked as exhibit E/1 (8MM cartridge) has been fired from the exhibit E/2 (Country made pistol). Note: The exhibits after examination were sealed with the seals of PHYS/BALL DIVN FSL. Sd/- Sd/- (Dr.Rajesh Kumar). (Nasib Singh Patial) Scientific Officer Physics and Ballistics Division State Forensic Science Laboratory Junga-173216,Distt. Shimla (H.P)” 4. At the out set, before proceeding with the case, I may consider the applicability of the provisions of Section 397 I.P.C. as it would be fundamental to the decision of the entire appeal. It provides: “ 397 Robbery, or dacoity, with attempt to cause death or grievous hurt—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.” 5. What must be noticed is that Section 397 does not make any act on offence, it only provides for minimum punishment for some offence under a particular set of circumstances, namely, when a deadly weapon is used or 6 grievous hurt is caused or attempt to cause death or grievous hurt is made. {See: Jai Parkash Vs. State (Delhi Administration), 1981 Cr.L.J. 1340.} 6. In Phool Kumar Vs. Delhi Administration, AIR 1975 S.C.905, the court holds: “5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than 7 years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term 'offender' in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or some body else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of P. W. 16 "Phool Kumar had a knife in his hand.' He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender 7 within the ambit of Section 397 of the Penal Code.” (P.907) 7. Reiterating the same principle in Dilawar Singh Vs. State of Delhi, 2007 12 SCC 641, the Court hold: “19. The essential ingredients of Section 397 IPC are as follows: 1. The accused committed robbery. 2. While committing robbery or dacoity (i) the accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person. 3. “Offender” refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused. 20. As noted by this Court in Phool Kumar V. Delhi Admn. 1975 1 SCC 797. The term “offender” under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between “uses” as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon. 21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be.( See Ashfaq V. State (Govt. of NCT of Delhi, 2004 3 SCC 116.) 8 22. Therefore, the offence under Section 397 IPC has clearly not been established. In addition, the ingredients necessary for offence punishable under Sections 392 and 452 have not been established in view of the highly inconsistent version of the complainant, PW1.” (P 653) 8. In Ashfaq Vs. State (Govt. of NCT of Delhi) 2004 3 SCC 116, the Supreme Court holds: “7. So far as the contention urged as to the applicability of Section 397 IPC and the alleged lack of proof of the necessary ingredients therefor, is concerned it proceeds, in our view, upon a misconception that unless the deadly weapon has been actually used to inflict any injury in the commission of the offence as such, the essential ingredient to attract the said provision could not be held to have been proved and substantiated. We are of the view that the said claim on behalf of the appellants proceeds upon a too narrow construction of the provision and meaning of the words "Uses" found in Section 397 IPC. As a matter of fact, this Court had an occasion to deal with the question in the decision reported in Phool Kumar v. Delhi Administration, AIR 1975 SC 905………………………….” 8. Thus, what is essential to satisfy the word "Uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. 9. The further plea that one accused alone, was in any event in possession of the country-made pistol and the others could not have been vicariously held liable under Section 397 IPC with the assistance of Section 34 IPC over-looks the other vital facts on record found by the Courts below that the others were also armed with and used their knives and that knives is equally a deadly weapon, for purposes of Section 397 IPC. The decision of the Division Bench of the Bombay High Court relied upon turned on the peculiar facts found as to the nature 9 of the weapon held by the accused therein and the nature of injuries caused and the same does not support the stand taken on behalf of the appellants in this case. The provisions of Section 397, do not create any new substantive offence as such but merely serves as complementary to Section 392 and 395 by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of deadly weapon, or causing death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract Section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in Section 34 IPC. Consequently, the challenge made to the conviction under Section 397 even after excluding the applicability of Section 34 IPC does not merit countenance, for the reason that each one of the accused in this case were said to have been wielding a deadly weapon of their own, and thereby squarely fulfilled the ingredients of Section 397 IPC, dehors any reference to Section 34 IPC. ( PP 120 $ 121) 9. I have noticed these provisions and the law laid down because even if accepting the case of the prosecution as it is, there is no evidence on the record to show that accused used a deadly weapon for the purposes of carrying out their deadly intent of committing robbery. The weapon ‘Katta’ (which is country made pistol) was recovered from appellant Anand Rathore. The provisions of Section 397 I.P.C. are, therefore, not applicable/attracted to the facts of the case. 10. Adverting to the facts of the case, on the evidence on record what must be established is whether it has been proved that all the appellants had together conspired to 10 commit robbery/dacoity and had, in fact, manifested their intention by actually cutting the trees etc. and all had used a deadly weapon which in this case is a firearm to accomplish this crime. 11. The judgment of the Sessions Judge does not record as a fact that there is evidence that this firearm was used by each one of the appellants. 12. The other aspect of the case may now be considered as to whether the appellants had committed robbery by removing the Sandal wood tree or its branches etc. Here again, what I find from the evidence is that the findings are very tenuous. In order to arrive at the conclusion regarding the commission of crime, the learned Court below has relied upon the evidence of the complainant as also of the Investigating Agency. According to the prosecution case, the crime was committed in the middle of the night at a time when nobody saw any of the accused. 13. The evidence of PW15 Sh.N.S.Thakur, who was the Investigating Officer may be considered. In his cross- examination, he admitted that the Arries (Saw) Ext.P12 to Ext.P14 which were recovered as the instruments purportedly used by the accused could not be used for cutting the trees. In other words, the important evidence/link evidence to establish that the appellants had actually cut and remove the trees, are not established on the record. The arrests which have been made are of a random nature. This witness says that on the night intervening 3rd /4th March, 2009, Ashwani 11 Kumar Saini (PW1) complainant had intimated him telephonically that some unknown persons had cut Chandan (Sandal wood) trees from his land. He says that at around 3.15 a.m. when he reached Mohron jungle some villagers met him and told him that some unknown persons have cut these trees from the land of the complainant and when they tried to chase them, they were fired upon by the thieves. The identity of the person(s) who actually used the firearm has not been established by any of them since it was a dark night. At that time, Ashwani Kumar Saini (PW1) also reached there and he, along with the help of 15/16 villagers and police officials cordoned of the entire area. When he reached the spot, where the trees were standing he noticed that 80% of the trunk of the trees was cut with the help of some saws. One villager Gopal Singh had told him that he was coming towards the jungle when he saw one Qualis Van driving towards Jamta. He accordingly sent a message to the Police Station, Paonta Sahib for detaining this vehicle. Thereafter, other investigation followed. In fact, nobody has seen the occurrence. All that has happened is under the cover of darkness. When considered with the evidence of PW1 Ashwani Kumar Saini who states in cross-examination that the accused did not know the location of his land and admitted the involvement of some local persons who knew the location of the land and its situation cannot be ruled out in the commission of the said incident, it becomes very difficult to accept the fact that the appellants were, in fact, 12 guilty of dacoity. Merely their arrest is not sufficient to fasten criminal liability on them. 14. The entire case of the prosecution is based on circumstantial evidence. The law on the point is now well settled in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 S.C.1622. The Court holds: “150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. 151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091 (AIR 1952 S.C.343) . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, AIR 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (at pp. 345-46 of AIR) (supra) : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far 13 complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 7. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: (AIR 1973 S.C. 2622) where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, (1952) NZLR 111, thus : "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury 14 that upon no rational hypothesis other than murder can the facts be accounted for." 155. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain'.” (PP1655 & 1656) 15. Applying these principles, each of the circumstance against the appellants may be considered. 16. The first is that they had used Arries (Saws) for cutting the Sandal wood trees. This fact is negatived by PW15 Sh.N.S.Thakur, who admits that the saws are incapable of cutting these