HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.58 of 2005 Jai Bharat Singh ……Appellant Versus State ……Respondent With Criminal Appeal No.1934 of 2001 Ranvir Singh & another …..Appellant Versus State ….Respondent Mrs. Pushpa Joshi, Advocate with Mr. Amit Kapri, Advocate for the appellant-Jai Bharat Singh. Mr. R.S. Sammal, Advocate with Mr. Prem Kaushal, Advocate for the appellants- Ranvir Singh and Rajeshwar Singh. Mr. Amit Bhatt, Addl. G.A. with Mr. B. S. Parihar, Brief Holder for the State. Hon’ble J. C. S. Rawat, J. Since there is a common question of law and fact involved in these two criminal appeals, hence, both these criminal appeals have been heard together and are being disposed of by this common judgment. 2. Criminal Appeal No. 58/2005 has been filed against the judgment and order dated 22-2-2005 passed by Sri V.B. Rai, the then Sessions Judge, Almora in S.T. No.4/1998, whereby the Sessions Judge has convicted the appellant Jai Bharat Singh and sentenced him to undergo RI for ten years and to pay a fine of Rs.5,000/- under section 392 I.P.C. Appellant Jai Bharat Singh was also convicted and sentenced to undergo for a period of one year each under Sections 435/34 and 504 of I.P.C. In default of payment of fine, the appellant would undergo R.I. for further two years under Section 392 I.P.C. 2 3. Criminal Appeal No. 1934/2001 has been filed against the judgment and order dated 9-10-1998 passed by Sri Ashok Kumar, the then Sessions Judge, Almora in S.T. No.18/1991, whereby the Sessions Judge has convicted the appellants Ranvir Singh and Rajeshwar Singh and sentenced them to undergo RI for one year under section 323/34 of I.P.C., four years RI under Section 435/34 of I.P.C., and one year RI under Section 504 of I.P.C. Both the sentences shall run concurrently. 4. The facts in nutshell of this case are that appellant-Jai Bharat Singh was a constable in the Police who had been dismissed from the service before the date of the incident. There are two other co-accused out of that one Rajeshwar Singh was Constable posted at the Police Lines, Almora and the another Ranvir Singh was posted as Constable in Bareilly, previously he was posted at Almora but on the date of the incident he had been at Almora. On 10-1-1991 in between 7-8 p.m. all three accused-appellants, namely Rajeshwar Singh, Ranvir Singh and Jai Bharat Singh went to the Soni Hotel situated at ‘Mall Road’, Almora. When they took their meal Sri Satpal Singh – owner of Soni Restaurant placed before them a bill of Rs.36/- for their meal. On this, all three accused-appellants started hurling abuses and threatening him with dire consequences. When the informant Satpal Singh insisted them for the payment of meal, appellant Jai Bharat Singh caught hold of his color, due to which the turban of the informant fell on the ground. The accused appellants said that if he wanted to run the hotel he would have to pay a sum of Rs.5,000/- per month as 3 ransom. Thereafter, the appellant-accused Jai Bharat Singh took out a revolver from inside of his pocket and pointed it towards the informant and his sons with an intention to kill them. Meanwhile, appellant Jai Bharat Singh opened the drawer of cash box and tried to snatch a bundle of currency notes of Rs.4,000/-, which was in the denomination of 80 currency notes of Rs.50/- each. When the informant resisted them not to do the inkpot kept on the cash counter fell on the bundle of currency notes. The accused-appellant Jai Bharat Singh had kept the money inside his pocket of jacket. During this course of incident, the other persons who were taking meal in the hotel were terrorized and they hide themselves under the table or they ran away from the hotel. After taking a bundle of currency notes, all three accused appellants came outside the hotel where a Bajaj Chetak Scooter No. UAL-967 of the son of informant, was parked. The accused appellants dashed the said scooter due to which the petrol of said scooter came out. Appellant Jai Bharat set fire to the scooter and thereafter they fled away from there. Due to the panic created by the accused-appellants the shopkeepers of nearby hotel put down their shutters and close their shops. Due to the fear of the appellants they were not chased by the informant and his sons. Thereafter, the informant got scribed the report Ex. Ka.1 from his son PW2 Jasvinder Singh and it was lodged in the police station Almora. The whole incident was witnessed by the informant and his two sons, namely PW1 Harvinder Singh and PW2 Jasvinder Singh. Thereafter, the police started the investigation of the case. During the course of investigation it was revealed that at the Police Line, Almora Head Constable Laxman 4 Singh sent a report to the Reserve Inspector Police Line, Almora that appellant Rajeshwar Singh was found missing on the evening of the date of incident as he was searched for being sent to Bageshwar in Mela duty. Later on the announcement was made by R.I. at the roll call and a thorough search was made in his quarter but he was not found there. His absence was recorded in the General Diary. He was got searched in the new Police Line by another constable but he was not found and the higher authorities were informed accordingly and he was marked absent. Immediately after receiving the information about the said incident the police party reached at the place of incident and a thorough search was made for the accused-appellants. When the Investigating Officer alongwith the police party reached near the Regal Cinema, the accused-appellants tried to hide themselves in the evening at about 22.15 hours. On Seeing the police personnel they tried to run away from there but the police apprehended them at the spot. During the course of personal search of accused- appellant Jai Bharat Singh a 32 bore revolver and three cartridges of the same bore were recovered. The ink stained currency notes of Rs.4,000/- was also recovered from the possession of accused appellant Jai Bharat Singh. The search of other two accused- appellants Rajeshwar Singh and Ranvir Singh was also taken but nothing incriminating was recovered from their possession. The accused-appellants were taken into custody. Thereafter, the investigation was conducted and the chargesheet was submitted. 5. During the trial the accused Jai Bharat Singh absconded and remained absent since 1992. Many 5 efforts were made to procure his attendance upto year 1998 but he did not appear and the case of accused Jai Bharat Singh was separated on 23-1-1998. Therefore, S.T. No. 4/1998 State Vs. Jai Bharat was registered separately. The case of Rajeshwar Singh and Ranvir Singh was preceded as S.T. No. 18/1991. Later on i.e. 16.12.2004 appellant Jai Bharat Singh surrendered before the court and his trial No.4/1998 proceeded further. 6. The charges were framed by the trial court against the appellants. The appellants denied the charges and claimed the trial. 7. In order to prove its case, the prosecution examined as many as seven witnesses in S.T. No. 4/1998. Harvinder Singh PW1 and Jasvinder Singh PW2, who are eye witnesses of the said incident, are sons of the informant Satpal Singh. Jasvinder Singh PW2 is the scribe of the FIR. Senior Constable Laxmi Dutt Bhatt PW3 (PW4 in S.T. No. 18/1991) has proved the chik FIR Ex. Ka-3 and entry in G.D. Ex. Ka-4. Constable Mohan Chandra Bhatt PW4 (PW3 in S.T. No. 18/1991) was posted at Police Line and he proved the G.D. by which the absence of Rajeshwar Singh was noted. S.I Sushil Kumar PW5, who was one of the recovering officer and member of raiding police party, has proved that one revolver and three cartridges were recovered from the possession of appellant Jai Bharat Singh. However, the evidence of S.I. – Sushil Kumar has not been adduced in S.T. No.18/1998. The investigation was conducted by S.I. – K.G. Sharma and he died during the trial so S.I. – J.C. Thapaliyal (PW5 in 6 S.T. No.18/1991) was produced as second evidence of the Investigating Officer. Constable Vishvajeet Singh PW7, who is the member of raiding police party, has proved that one revolver alongwith three live cartridges was recovered from the possession of Jai Bharat Singh. The evidence of Constable Vishvajeet Singh was not adduced in S.T. No.18/1998. Informant Satpal Singh died during the trial and his evidence could not be recorded. The defence has not produced any oral or documentary evidence in support of their case. 8. In the statements recorded u/s 313 Cr.P.C. the accused appellants denied the prosecution case and stated that they have been falsely implicated in this case. 9. The learned trial court on the basis of their appreciation of the evidence found the appellants guilty and convicted and sentenced them as mentioned above. 10. I have heard the learned counsel for the parties. I have also gone through the entire evidence and material on record. 11. At the outset, it needs to be mentioned here that after committal of the case to the Sessions accused Rajeshwar Singh and Ranvir Singh continued to attend the court of Sessions for trial. After cross examination of PW1 Harvinder Singh, accused Jai Bharat Singh was discharged and before conclusion of the cross examination of PW2 Jasvinder Singh the accused Jai Bharat Singh absconded. Thereafter, his case was 7 separated on 23-1-1998 and he appeared before the court on 16-12-2004 after about 12 years of his absence from the trial. So his trial proceeded further, the trial of appellant Rajeshwar Singh and Ranvir Singh bearing S.T. No. 18/1991 proceeded separately. 12. Now, it has to be decided as to whether the accused-appellants participated in the commission of offence or not. The prosecution in support of its case has produced the eye-witnesses of the incident i.e. PW1 Harvinder Singh and PW2 Jasvinder Singh who are sons of informant Satpal Singh - the owner of hotel. PW1 Harvinder Singh has stated in his evidence that when on 10.01.1991 his father Satpal Singh and his brother Jasvinder Singh PW2 were present in the hotel’s reception the accused-appellants came in the hotel and took their dinner in between 7:00-8:00 P.M. When a bill of Rs.36/- for the meals was raised before them, the appellants became annoyed and came to the cash counter. Appellants said to his father Satpal Singh how he dared to ask about the payment of bill. The informant Satpal Singh insisted them for the payment of meal, thereupon Jai Bharat Singh-appellant caught hold of his father’s collar and slapped him, due to which the turban of his father fell on the ground. It was further stated that when he and his brother PW2 Jasvinder Singh intervened in the melee the appellant- accused Jai Bharat Singh took out a revolver from his pocket and aimed towards them with an intention to kill. Thereafter, appellant Jai Bharat Singh opened the drawer of cash box and tried to snatch a bundle of currency notes of Rs.4,000/-. While resisting them from snatching the cash an inkpot, which was kept 8 nearby the cash counter, fell down and the stains of ink were came on the bundle of currency notes. Thereafter, the accused-appellant Jai Bharat Singh put the money inside his pocket and all appellants-accused came outside the hotel where a scooter of PW2 Jasvinder Singh was parked. The appellants set fire the scooter. However, PW1 Harvinder Singh alongwith his brother extinguished the fire. Thereafter, the appellants fled away from the place of occurrence. PW1 Harvinder Singh has also stated in his evidence that at the time of melee a number of persons were taking their meal in the hotel and due to the fear some of them hide themselves under the table and some of them left the restaurant. During the course of melee, the appellants also hurled abuses to the informant and his sons i.e. PW1 Harvinder Singh and PW2 Jasvinder Singh. During the course of this melee the accused-appellants stated to the informant that if he had to run the restaurant and carry out the business he would have to pay Rs.5000/- per month to them as ransom. The prosecution has also produced the evidence of PW2 Jasvinder – the brother of PW1 Harvinder Singh and owner of Bajaj Chetak scooter. He has corroborated the evidence of PW1 Harvinder Singh. PW2 Jasvinder Singh, who is the scribe of the FIR, has further stated in his evidence that immediately after the incident the nearby shopkeepers put down their shutters and closed their shops due to the panic created by the appellants. PW5 S.I. Sushil Kumar was produced by the prosecution who has stated that the police party alongwith the Investigating Officer and PW6 S.I - J.C. Thapaliyal were in search of accused-appellants. When the police party reached near Regal Cinema under 9 construction of Renuka Hotel they saw the accused- appellants, who were trying to hide themselves at about 10-15 p.m. After chasing them, the appellants- accused were apprehended at the spot and the search of the accused-appellants was made by the police. From personal search of accused-appellant Jai Bharat Singh one revolver of 32 bore and three cartridges of same bore were recovered. From the pocket of accused-appellant Jai Bharat Singh currency notes of Rs.4,000/- which was 80 in numbers of Rs.50/- were also recovered and on the front side of the notes blue ink stains was there. From the personal search of other two accused-appellants Ranvir Singh and Rajeshwar Singh, nothing incriminating was found. 13. Learned counsel for the appellants contended that the prosecution has not produced the independent witnesses to corroborate the fact of incident. It was further contended that it has come in the evidence that there were several other shops in the adjoining place of incident; the incident occurred in the heart of city at 7- 8pm; several customers were present in the hotel who saw the incident, but they were not produced before the court. It was further contended that PW1 Harvinder Singh and PW2 Jasvinder Singh, who are eye witnesses of the incident and are real sons of the informant Satpal Singh, are interested witnesses as they are related to the informant. It was contended on behalf of the appellants that the prosecution should have adduced the evidence of independent witnesses who were also present at the time of incident. Learned Addl. G.A. refuted the contention. On due consideration of the submissions of learned counsel for the parties, I 10 am of the view that although, it is true that PW1 Harvinder Singh and PW2 Jasvinder Singh are real brothers and they are the sons of informant, but the evidence of these eye-witnesses cannot be discarded on this ground alone. There is no rule of law or prudence, which requires that the evidence of a close relation must be discarded for the simple reason i.e. they are related to each other. Just because the witnesses are related to the informant would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the facts and circumstances of the present case, they are but natural witnesses of the incident. I have no reason to disbelieve their testimony on this score alone. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished. In the case of State of Punjab Vs. Karnail Singh reported in 2004 SCC (Cri) p/135 the Hon’ble Apex Court has held as under:- “8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab reported in AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p. 366:- 25. We are unable to agree with the learned Judges of the High Court 11 that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in — Rameshwar v. State of Rajasthan reported in AIR 1952 SC 54 (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 9 . Again in Masalti v. State of U.P. AIR 1965 SC 202 this Court observed:- “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 14. So far as the contention that no independent witness was produced is concerned, it has come in the evidence of PW2 Jasvinder Singh that the shopkeepers of nearby area shut down their shops due to the panic created at the spot. It is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is the quality of the evidence and not the quantity, 12 which is required. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy then increase in the number of witnesses cannot be the requirement of the case. Moreover, it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed lot. They are being threatened, intimidated and at the top of all they are subjected to unnecessary lengthy cross-examination. So, the witnesses avoid to come to the court. In the case in hand, the incident occurred in the month of January, 1991; some part of the evidence was recorded in the year 1998 and rest part of the evidence was recorded in the year 2004. Thus, this case was dragged for about 13 years. It is also evident from the evidence that the shopkeepers shut their doors due to the panic created at the spot. The shopkeeper even did not come to rescue them due to fear of the appellants- accused. Therefore, I do not find any force in the contentions advanced by the learned counsel for the appellants. 15. Mr. R. S. Sammal, Advocate for the appellants- Rajeshwar Singh and Ranvir Singh contended that there are contradictions and exaggerations in the testimony of the prosecution witnesses. It was contended on behalf of the appellants that PW2 Jasvinder Singh during the cross examination has categorically stated that appellants-accused, namely Rajeshwar Singh and Ranvir Singh did not do anything and none of them fired upon the informant and the 13 witnesses; PW2 Jasvinder Singh has further stated in his evidence that Rajeshwar Singh and Ranvir Singh only threatened them; the appellant-Jai Bharat Singh took out a revolver from his pocket and fired upon the informant; it has come in the evidence that accused Jai Bharat Singh snatched the money and the same currency notes were recovered from his pocket; the revolver was also recovered from the possession of appellant Jai Bharat Singh; snatching money from the cash box and taking out the revolver were an individual act of appellant Jai Bharat Singh; and as such the appellants Rajeshwar Singh and Ranvir Singh are liable to be acquitted from the charge. Learned Addl. G.A. for the State refuted the contention. From perusal of the evidence of eye witnesses it is revealed that the accused-appellants entered into the Soni Hotel together and took their meal together between 7:00-8:00 p.m. When the bill was placed before them for the payment of meals, a quarrel took place between the informant and the appellants. Thereafter, the appellants came to the cash counter of the Hotel and they said how he dared to demand the money from them and further threatened him that if he had to run the restaurant he would pay a sum of Rs.5,000/- per month for running the restaurant. When the informant insisted them for the payment of the bill, appellant Jai Bharat Singh caught hold of informant’s collar. Appellant Jai Bharat Singh slapped him due to which the turban of informant Satpal Singh fell on the ground. Thereafter, the accused-appellant Jai Bharat Singh took out a revolver from inside his pocket and pointed it towards the informant and fired upon him. Immediately thereafter, the accused-appellant Jai Bharat Singh pulled the 14 drawer of cash-box and took away a bundle of currency notes of Rs.4000/-, which was tide up with the rubber band. While taking the money an inkpot kept nearby fell down and the stains of blue ink was made on the currency notes. Thereafter, the accused-appellants left the spot. It is pertinent to mention here that PW6 Mr. J.C. Thapaliyal, who has stated that the accused persons were arrested by the police and a bundle of ink stained currency notes was recovered from the possession of accused-appellant Jai Bharat Singh who is said to have been kept the said money in his pocket. It is also proved by the prosecution witnesses that the said notes also contained the ink stains on it which was snatched from the cash counter. I am fortified with the view taken by the Hon’ble Apex Court in the case of Limbaji & others Vs. State of Maharashtra reported in 2002 SCC (Cri) 1044 in which it has been held that it is obligatory on the part of an accused, from whose possession the stolen articles was recovered, to give a plausible explanation for the possession of stolen articles. In case of no satisfactory explanation for the possession of stolen articles is given, it will be presumed that the person from whose possession the stolen article was recovered has committed the theft of the article and a presumption would be drawn under Section 114(3)(a) of the Evidence Act. While taking the presumption of Section 114(3)(a) of the Indian Evidence Act it is to be kept in mind that the said presumption is a rebuttable presumption and that presumption may be rebutted if the accused gives an explanation for the same and if an article is recovered from his possession. It is in his special knowledge how he acquired it. It is obligatory 15 on the part of appellant Jai Bharat Singh to explain the possession of said money. Thus, in the case in hand the recovery of Rs.4000/- (exactly of same denomination of currency notes which was looted from the cash-counter) was made from the possession of accused Jai Bharat Singh immediately after the incident. Spots of ink on the recovered currency notes also shows that these are the same notes which were looted from the cash counter by accused Jai Bharat Singh. Accused Jai Bharat Singh had not put any explanation about the possession of same currency notes which