IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 30 of 2009 with Criminal Appeals No. 42 of 2009 and 173 of 2009. Judgment reserved on : 30.10.2009. Date of decision: 23.11. 2009. 1. Cr.Appeal No. 30 of 2009 Ashok Kumar .…Appellant. Vs State of Himachal Pradesh ....Respondent. 2. Cr.Appeal No. 42 of 2009 Sunil Kumar …Appellant. Vs. State of Himachal Pradesh …Respondent. 3. Cr.Appeal No. 173 of 2009 Atul Sood ..Appellant Vs. State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant(s) : Mr. N.S.Chandel, Advocate in Cr.Appeal No. 30 of 2009. Mr. T.S.Chauhan, Advocate in Cr.Appeal No. 42 of 2009. Mr. Ashok Sharma, Advocate in Cr.Appeal No. 173 of 2009. For the Respondent(s) : Mr. A.K.Bansal, Addl. A.G. with Mr. R.P.Singh, Asstt. A.G. (in all appeals). ___________________________________________________________ Kuldip Singh, Judge This judgment shall dispose of Criminal Appeals No. 30 of 2009, 42 of 2009 and 173 of 2009 all having arisen out of judgment dated 15.1.2009 passed by the learned Additional Sessions Judge ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes Ghumarwin, District Bilaspur in Sessions Trial No. 1/7 of 2007 convicting and sentencing the appellants for offence punishable under Section 392 / 34 read with Section 397 / 34 IPC. 2. The prosecution case, in brief, is that PW-8 Rajinder Kumar on 7.8.2006 at about 5.05 p.m. lodged FIR Ex.PW-8/A at Police Station, Ghumarwin alleging that he was working as driver on Maruti Van No. HP-01D-0590. On that day he was present at Dharamshala hospital when three persons approached him and asked fare for going to Ghumarwin, which he disclosed Rs. 1800/-. One of them was weeping and two persons accompanying him told the complainant that the father of the person who was weeping had died and they wanted to reach home soon. They said that they had only Rs.400/-, they would pay the remaining amount at Ghumarwin and they engaged the complainant to take them to Ghumarwin. The complainant took Rs. 400/- from them, added Rs.100/- from his own pocket and filled petrol worth Rs. 500/- in the taxi and proceeded to Ghumarwin at 8.30 a.m. alongwith those persons and reached Ghumarwin at 4.00 p.m., took the vehicle inside the hospital on the asking of those persons. One of them who was being addressed by others Shoki Bhai got down from the van and went to Sethi Medical Store, shook hand with a person at the counter and came back in the vehicle. He directed the complainant to turn the vehicle towards their house which was at a distance of 5 – 6 kilometers. 3. The complainant drove the vehicle as directed and read the sign board of Morsinghi village. At about 4.20 p.m. at a lonely place the complainant was asked to stop the vehicle, the complainant stopped the vehicle. Shoki opened the driver side window and dragged the complainant out and all of them gave beatings to the complainant with fist and kick blows. Shoki snatched the key of the vehicle, started it and all the three went away snatching the vehicle from the complainant. Thereafter, the complainant came to Police Station and lodged the report. 4. PW-20 ASI Bhoop Singh conducted the investigation, recovered Maruti Van vide seizure memo Ex.PW-6/A. It has been alleged that at the time of recovery of van accused Ashok Kumar was sitting in the van which was recovered in the presence of witnesses Jagar Nath and PW-6 Parkash Chand. The disclosure statement Ex.PW-4/A of accused Sunil Kumar was recorded by PW-20 in presence of PW-13 Dalip Kumar and PW-4 Jai Ram stating that he had kept the key of the maruti van under the seat of Shelja bus. It is also the case of the prosecution that disclosure statement Ex.PW-4/B of accused Sunil Kumar and Atul Sood was recorded indicating their knowledge of the spot from where they had snatched the key and van from the complainant. The key Ex.P-2 alongwith key ring was recovered from PW Vinod Kumar vide seizure memo Ex.PW8/B. The spot identification memo Ex.PW-12/A was also prepared at the instance of accused Atul Sood and Sunil Kumar. The site plan Ex.PW-20/A of spot from where van was recovered was also prepared, another site plan Ex.PW-20/E from where the van was snatched was also prepared. PW-16 Dr. D. Bhangal after examining X-ray films had given opinion Ex.PW-16/A. PW-18 Dr. N.K.Bhardwaj after examining the complainant issued MLC Ex.PW-18/A in which injury No.1 has been shown grievous. It has been alleged that accused Sunil Kumar and Atul Sood had refused to participate in identification parade vide statements Ex.PW-20/C and Ex.PW-20/D recorded before learned Judicial Magistrate, Bilaspur on 11.8.2006. On completion of investigation, challan was presented in the court. The accused were charged for offence punishable under Section 397 / 34 IPC which was amended and thereafter charge under Section 392/34 read with Section 397/34 IPC was framed. The accused pleaded not guilty, they claimed trial. The prosecution has examined 20 witnesses in support of its case. The accused in their statements denied the prosecution case, but led no evidence in defence. The learned Additional Sessions Judge convicted the accused as noticed above, therefore, accused have filed three separate appeals against their conviction and sentence. 5. I have heard Mr. N.S.Chandel, Mr. Ashok Sharma and Mr. T.S.Chauhan, Advocates appearing for appellants in the above appeals and Mr. A.K.Bansal, Additional Advocate General with Mr. R.P.Singh, Assistant Advocate General for the respondent. The learned counsel for the appellants have submitted that the learned Additional Sessions Judge has not properly appreciated the evidence on record. The complainant has not identified the accused, the recovery of key of the van is highly suspicious. There are material contradictions in the prosecution story which go to the root of the case. There is no evidence that there was no petrol in the van when it was allegedly snatched or when it was allegedly recovered. The van took unreasonably longer time from Dharamshala to Ghumarwin keeping in view the distance between two places. It is not the case of the prosecution that van was stopped at any place for unreasonably long time while coming from Dharamshala to Ghumarwin. The prosecution has collected no evidence from Dharamshala to Ghumarwin so as to establish that accused in fact travelled from Dharamshala to Ghumarwin in the van. It has been submitted that accused Ashok Kumar never refused to participate in test identification parade. On behalf of the accused Sunil Kumar and Atul Sood, it has been submitted that they had already shown their hesitation to participate in the identification parade for the reasons given in their statements. In brief, it has been submitted on behalf of the appellants that prosecution has miserably failed to prove the case against the appellants, the learned Additional Sessions Judge has mis-construed, mis-interpreted and has drawn impermissible inferences from the material on record. It has been lastly submitted that the learned Additional Sessions Judge has erred in convicting and sentencing the accused. The learned counsel for appellants have submitted for setting aside impugned judgment and acquittal of all accused. On behalf of the respondent, it has been submitted that the prosecution has proved the case against all the accused beyond reasonable doubt. The learned Additional Sessions Judge has properly appreciated the material on record and no fault can be found with the impugned judgment when learned Additional Sessions Judge has come to the conclusion that the accused have committed offence for which they were charged and ultimately convicted and sentenced. A prayer has been made on behalf of the respondent for dismissing the appeals. 6. In order to appreciate the rival contentions of the learned counsel for the parties, it is necessary to refer to the evidence which has come on record. PW-1 Jai Ram is the owner of taxi bearing No. HP-01D-0590. He has stated that the taxi was being driven by Rajinder Kumar. Taxi was brought to Ghumarwin by Rajinder Kumar driver on 7.8.2006. In cross-examination, he has stated that the vehicle which is plied as a taxi may have log book in some cases and may not have it in other cases. The driver Rajinder Singh had not maintained the log book. He was not familiar with the case. 7. PW-2 Manoj Kumar is the owner of bus Shelja HP-68- 0455 which plies from Ghumarwin to Jahu to Sarkaghat. He and his partner used to perform the job of the conductor in the bus. On 8.8.2006 he was sweeping the bus and found key of a light motor vehicle with a key ring. The said key was kept by him for two days thinking that it might have been misplaced by some passenger. Thereafter, he handed over the key at the taxi stand to driver Subhash telling him to hand over the key in case someone asks for the key. He identified the key with key ring Ex.P-2. In cross- examination, he has stated that he had cleaned the bus at Jahu. 8. PW-3 Mandeep Singh is a shopkeeper at Palasi. He has stated that in August, 2006 Ashok Kumar had come to his shop to take chicken. He was alone. He was asked by Ashok Kumar to prepare chicken but he went away from the shop and did not return. The witness did not support the prosecution and he was declared hostile and was cross-examined by the prosecution. 9. PW-4 Jai Ram has stated that Sunil Kumar told police that keys were in the bus. The police recorded the statement Ex.PW-4/A of Sunil Kumar which was signed by him and one Dalip. The witness did not support the prosecution. He was declared hostile and was cross-examined.In cross-examination conducted by the prosecution, the witness admitted his signatures on memo Ex. Ex.PW-4/B. PW-5 Yog Raj is the photographer, who has proved photographs Ex.P-2 to P-4 (key and key ring has also been exhibited as Ex.P-2) and negatives Ex.P-5 to Ex.P-7. In cross-examination, he has stated that the vehicle was already parked there. He had not seen the vehicle in the morning or evening on that day. PW-6 Parkash Chand has stated that on 7.8.2006 a white coloured van was standing on the road named Ukhlabars and a police man was also standing there. Ashok Kumar was sitting in the vehicle. After some time police came there along with driver of the vehicle. On the asking of the police the person sitting in the vehicle told that he was not having the key. A memo Ex.PW-6/A was prepared which bears his signatures. Jagar Nath had also signed the memo as a witness. In the cross- examination, he has stated that he reached the spot at about 5.00 – 6.00 p.m. There was already a police man when he reached there. The police told him name of Ashok Kumar. He was not familiar with accused Ashok Kumar earlier. He had not checked the petrol tank. The accused was sitting on the back seat of the vehicle. He could not tell who had driven the van to the spot. 10. PW-7 Parveen Kumar has stated that he was running a readymade cloth shop at Palasi. On 7.8.2006 accused Ashok Kumar had come to his shop at 4.00 – 5.00 p.m. Ashok Kumar demanded Rs. 500/- for filling petrol in his vehicle. He did not give any money to Ashok Kumar. Two friends of Ashok Kumar accompanied Ashok Kumar when he visited his shop. In cross-examination, he has stated that he had told the police in his statement under Section 161 Cr.P.C. that Ashok Kumar had come to his shop alone. 11. PW-8 Rajinder Kumar complainant has stated that on 7.8.2006 he was driver on the maruti van No.HP-01D-0590 of Jai Ram. On that day at about 8.30 a.m., three persons came to him and he told them the fare to Ghumarwin as Rs. 1800/-. Those three - four persons are not there in the accused present in the Court. The witness did not support the prosecution, he was declared hostile and cross-examined. In cross-examination conducted by the prosecutor, the witness has stated that they reached Ghumarwin at 4.00 p.m. He has also stated that at about 4.20 p.m. those persons asked him to stop the vehicle at which he stopped. He has also stated that Shoki snatched the key from him and after snatching the vehicle all the three persons fled away from the spot along with van. The witness admitted having lodged report Ex.PW-8/A. He has stated that police seized the van vide memo Ex.PW-6/A in presence of witnesses Jagar Nath and Parkash Chand which he signed as identifier. He has also stated that on 20.8.2006 accused Sunil Kumar and Atul Sood identified the spot where those three accused had given him beatings and had fled away with the vehicle after snatching the keys from him. He has denied that lateron he came to know the names of those persons Ashok Kumar alias Shoki, Sunil alias Neelu and Atul Sood. He has denied that he had identified those three persons before the police. On 20.8.2006 Vinod Kumar had presented the key of maruti van with ring of Satluj Motors Mandi. In the cross- examination conducted on behalf of the accused, he has stated that he had not seen the person Shoki in the court today. He was medically examined at about 7.00 – 7.30 p.m. He gave the details (Hulia) at the instance of police. He has stated that papers of the vehicle, key and the ring of the vehicle and his driving licence were taken into possession by the police at Police Station. 12. PW-9 Chuni Lal has stated that on 7.8.2006 at 5.00 p.m. a person approached him and told that he had to go a little distance where a vehicle is stationed. The vehicle was to be seen as it had no fuel or was out of order. He took that person in his tempo to that vehicle travelling 1 – 1 ½ K.M. The police took him, that person and the villagers to the vehicle. He identified that person in the Court by pointing towards accused Ashok Kumar. In cross-examination, he has stated that he had seen Ashok Kumar today in the court, self stated that slightly he was able to identify and not fully. PW-10 Krishan Chand has stated that on 20.8.2006 Vinod Kumar produced a key to police which was taken into possession vide seizure memo Ex.PW-8/B which bears his signatures. He identified the key and key ring Ex.P-2 which was produced by Vinod Kumar to police. PW-11 Vinod Kumar has stated that on 20.8.2006 police had come to him at Kainchi – Mor and enquired about the key and there upon he handed over the key along with key ring which was taken into possession vide seizure memo Ex.PW-8/B which bears his signatures. At that time, Krishan Chand witness, police and many others were present on the spot. He identified key and key ring Ex. P-2. In cross-examination, he has stated that Subhash had given him that key two days back at Jahu bus stand. The seal given to him by the police was not brought by him in the Court as that was lost. 13. PW-12 Piare Lal has stated that on a date which he does not remember, two persons accompanying the police pointed the place from where they took away the vehicle. The spot identification memo Ex.PW-12/A was prepared which was signed by him. The persons accompanying the police were identified by him in the Court by pointing towards Atul Sood and Sunil Kumar. PW-13 Dalip Kumar has stated that he had been Panchayat Pradhan of Gram Panchayat, Dhabla for the last two years. On 20.8.2006, he had gone to Police Station, Ghumarwin. The police was investigating about the key of the vehicle from accused Sunil Kumar and Atul Sood. Sunil Kumar disclosed that the key had been placed below the seat in Shelja bus vide statement Ex.PW-4/A which bears his signatures as well as signatures of Sunil. The witness did not support the prosecution, he was declared hostile and was cross- examined by the prosecutor. In cross-examination conducted by the prosecutor, the witness admitted his signatures on memo Ex.PW-4/B. 14. PW-14 Subhash Chand has stated that on 10.8.2006 Vinod Kumar had given key to him saying that if anyone asked for it he should give the said key to that person. Thereafter, Vinod Kumar demanded the key from him and he gave that key to Vinod Kumar. He identified the key Ex.P-2. PW-15 Surinder Pal has stated that he has medical store in the campus of Ghumarwin hospital. No accused present in the Court had come to him in August, 2006. The witness was declared hostile and was cross-examined by the prosecutor. In the cross-examination conducted by the Prosecutor, the witness has stated that he knew Ashok Kumar accused but he denied that on 7.8.2006 Ashok Kumar had come to his shop and asked for money from him. He has also denied that Ashok Kumar had come to his shop in Maruti Van accompanying by two other persons who were sitting in the van. 15. PW-16 Dr. D. Bhangal has stated that he had examined X-ray films pertaining to Rajinder Kumar and gave his opinion Ex. PW-16/A. As per opinion there was evidence of fresh fracture of Nasal bone. In cross-examination, he has stated that he cannot comment as to how the fracture mentioned above could be caused. PW-17 Bhag Singh, Radiographer has proved X-ray films Ex.P-3 and Ex. P-4 of Rajinder. PW-18 Dr. N.K.Bhardwaj has stated that he had examined Rajinder Kumar on 7.8.2006 and issued MLC Ex. PW-18/A. In cross-examination he has stated that injuries mentioned in MLC Ex.PW-18/A can be caused by fall on hard surface. PW-19 Vinod Kumar has stated that he had been working as Clerk in the Taxi Union, Dharamshala. On 7.8.2006 three persons came and enquired about the fare to Ghumarwin. They were told the fare of Ghumarwin was Rs. 1800/-. They had talk with Rajinder Kumar taxi driver of taxi HP-01-D-0590. He identified the three persons present in the court, who had brought the taxi towards Ghumarwin. In crosss-examination, he has stated that police had recorded his statement after 1 – 1 ½ month in October. Rajinder Kumar proceeded to Ghumarwin at 8.30 a.m. 16. PW-20 ASI Bhoop Singh has stated that on 7.8.2006 he was working as SHO, Police Station, Ghumarwin. At about 5.05 p.m. complainant Rajinder Kumar came to the Police Station and lodged FIR Ex.PW-8/A. It had come in the investigation that accused had snatched van HP-01D-0590 near Masour turn. The accused after snatching the van had proceeded towards Kuthera. He proceeded to Kuthera along with complainant. He found that van had proceeded towards Palasi. It came during investigation that Ashok Kumar along with his two associates had come to that place a short while ago and Chuni Lal had taken accused Ashok Kumar in his tempo to upper side. Chuni Lal told them that he had left Ashok Kumar at Jol-baras. He located van HP-01D-0590 at Jol-baras and Ashok Kumar was sitting in the van on the back seat. He took photographs Ex.P-2 to Ex.P-4 and conducted further investigation. Sunil Kumar and Atul Sood refused to participate in test identification parade before JMIC, Bilaspur vide their statements Ex.PW-20/C and Ex. PW-20/D. Sunil Kumar and Atul Sood made disclosure statements Ex.PW-4/A and Ex.PW-4/B. The key Ex.P-2 was recovered from Vinod Kumar vide seizure memo Ex.PW-8/B. Sunil Kumar and Atul Sood identified the spot vide memo Ex.PW-12/A and the site plan of spot is Ex.PW-20/E. In cross-examination he has admitted that it has come during investigation that key Ex.P-2 was used to drive a jeep for 3 – 4 days thereafter. Subhash Chand witness had driven his jeep for 3 – 4 days. He has also stated that Shelja bus does not ply on the road from where the van was recovered. Rajinder Kumar was medically examined at about 10.50 P.M. 17. All the accused in their statements recorded under Section 313 Cr.P.C. have denied the prosecution case. Ex.PW-8/A is the FIR which was registered at 5.05 p.m. on 7.8.2006 at Police Station, Ghumarwin. In the FIR, it has been stated that the complainant started from Dharamshala at 8.30 a.m. and he was stopped at a place little ahead of Morsinghi at about 4.20 p.m. where he was given beatings and his vehicle was snatched. Ex.PW-8/B is the seizure memo of key with key ring Ex.P-2 from Vinod Kumar. Ex.PW-12/A is the memo of identification of place near Masour Mor by Sunil Kumar and Atul Sood where beatings were given to complainant and the vehicle was snatched by the accused. Ex.PW-4/A is the disclosure statement of Sunil Kumar accused stating therein that when he came from Palasi to Ghumarwin, he concealed the key of the van below the driver’s seat of Shelja bus and he could identify the place where he concealed the key. Ex.PW-4/B is the disclosure statement of Sunil Kumar and Atul Sood identifying the place from where maruti van No. HP-01D-0590 near Masour Mor was snatched from complainant along with key after giving beatings to complainant. Ex.PW-6/B is the seizure memo of maruti van No. HP-01D-0590 from the place where it was standing in the middle of the road and Shoki was sitting on the rear seat of the van. Ex.P-2 to Ex.P-4 are the photographs. Ex.P-18/A is the MLC of complainant showing fracture of Nasal bone. Ex.PW-20/A is the site plan of the place from where the van was recovered. Ex.PW-20/E is the site plan showing the place from where van HP-01D-0590 was snatched. Ex.PW-20/C is the statement of accused Sunil Kumar refusing to participate in the identification parade and Ex.PW-20/D is the statement of accused Atul Sood declining to join the identification parade before JMIC, Bilaspur. 18. According to prosecution, PW-8 Rajinder Kumar complainant started from Dharamshala at 8.30 a.m. in van HP -01D- 0590 along with all accused, they reached Ghumarwin and went to Ghumarwin Hospital where accused Ashok Kumar alias Shoki met PW-15 Surinder Pal. It is also the case of the prosecution that thereafter at place Masour Mor all accused gave beatings to the complainant, took away key of the van from him and snatched the van from the complainant but van could not cover much distance as there was no fuel in the van and ultimately van had stopped after covering some distance and when van was traced by the police at that time accused Ashok Kumar was sitting on the rear seat of the van. It is the case of the prosecution that attempt was made by the accused persons to borrow some money for fueling the van but they could not succeed. It is also the case of the prosecution that key of the van was recovered. The prosecution has relied on the disclosure statements of some of the accused, the prosecution has also relied on the refusal of accused Sunil Kumar and Atul Sood to participate in the identification parade. It is the case of the prosecution that in one of the photograph accused Ashok Kumar is found sitting in the van. The injuries sustained by the complainant according to prosecution have been proved by MLC Ex.PW-18/A and other medical evidence of the complainant along with the statement of complainant. 19. The van started from Dharamshala at 8.30 a.m. on 7.8.2006. PW-8 Rajinder Kumar complainant driver of the van has not supported the case of the prosecution in so far as identification of the accused are concerned. The complainant has not identified any accused in the Court. PW-19 Vinod Kumar, who was working as Clerk in the Taxi Union, Dharamshala has been examined by the prosecution in order to show that the accused engaged complainant on 7.8.2006 for carrying them from Dharamshala to Ghumarwin in taxi. In cross-examination,