IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1342 of 2005 Date of decision: November 17, 2010 Mahipal @ Kuku .. Petitioner Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.K. Gupta, Advocate for the petitioner. Mr. J.S. Rattu, DAG, Haryana for the respondent A.N. Jindal, J Mahipal @ Kuku accused- petitioner (herein referred as, 'the accused') along with five others was prosecuted for having in his possession the stolen blue coloured maruti car bearing registration No.DL-4CD-1327. On trial, all the accused were convicted and sentenced accordingly. However, vide judgment dated 21.7.2005 passed by the learned Additional Sessions Judge, Jhajjar, appeal of all other accused was accepted, whereas, the appeal preferred by Mahipal @ Kuku was dismissed. In short, the facts are that on 16.4.1999, HC Raj Singh along with other police officials was present at Kulsi Chowk, Kanonda, where he received a secret information to the effect that the accused would pass from the side of Bahadurgarh with the aforesaid stolen car. At this, ruqa was sent to the police station on the basis of which FIR Ex.P17 was registered. In the meantime, the accused Mahipal @ Kuku while driving the car bearing registration No.DL-4CD-1327 came from the side of Bahadurgarh and other persons were sitting in the car. On being signalled he stopped the car. On interrogation all the occupants disclosed their names. All of them were apprehended. Their confessional statements were recorded. The car was taken into possession. The completion of the investigation was followed by a report under Section 173 Cr.P.C. All the accused were charged under Section 411 IPC, to which they pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined HC Raj Singh (PW1), ASI Krishan Kumar (PW2), HC Rajbir Singh (PW3), Criminal Revision No. 1342 of 2005 -2- *** HC Satbir Singh (PW4), Om Parkash (PW5), Gopal Krishan Aggarwal (PW6) and Girwar Parshad (PW7). When examined under Section 313 Cr.P.C. the accused persons denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. The trial resulted into conviction, whereas, in appeal, the Appellate Court while dismissing the appeal filed by Mahipal @ Kuku accepted the appeal preferred by the other accused. Arguments heard. Record perused. In order to prove the recovery of the car, the prosecution has examined HC Raj Singh (PW1) and HC Satbir Singh (PW4). Both are the witnesses to the recovery. They have reiterated the circumstances leading to the recovery of the car. They have consistently stated that the accused Mahipal @ Kuku when arrested, produced the driving licence which was taken into possession vide memo Ex.P2. The Appellate Court on appreciation of the evidence rightly acquitted all the accused except Mahipal on the ground that there was no evidence against them except that they were the occupants of the car and the confessional statements recorded by the police cannot be used against them for the reason that the same are hit by Section 25 of the Evidence Act. Any way, HC Raj Singh (PW1) has duly proved the recovery memo relating to the car in question while deposing that the car was taken into possession from Mahipal and he was driving the same at that time. The registration certificate was also taken into possession vide memo Ex.P11. The site plan of the place of recovery Ex.P12 has also been proved on the record. As regards the argument that the recovery memo is not attested by any independent witness, it may be observed that it has come in the testimony of HC Satbir Singh (PW4) that they had requested many persons to witness the proceedings but none of them came forward to do so. It is a matter of common experience that in this part of the country, the witnesses do not relish to appear in order to serve the cause of the State. However, two witnesses namely HC Raj Singh (PW1) and HC Satbir Singh (PW4) having withstood the test of cross examination and having no enmity at their end against the accused cannot be disbelieved for their official status as Criminal Revision No. 1342 of 2005 -3- *** such. The other much stressed point is that the prosecution has failed to prove if the car so recovered from the accused was a stolen vehicle. In this regard, HC Rajbir Singh (PW3) has proved the copy of the FIR No.168 of 15.4.1999 Ex.P19. The FIR was recorded at the instance of Madan Lal in the Police Station Anand Parwat, Delhi in respect of the theft of the car on the intervening night of 13/14.4.1999. Om Parkash (PW5) while appearing in the witness box has stated that his friend Madan Lal had parked the car in front of his house and had gone to Haridwar. On the morning of 14.4.1999, he noticed that the car was missing and thereafter his friend lodged the FIR at Police Station Anand Parwat, Delhi. Thus, no iota of doubt remains in my mind to hold that it was a stolen car which was recovered from the accused. Since the accused was the driver of the car and there is no evidence against the other accused that they were in actual control of the car, therefore, the Appellate Court has taken the right view qua those accused, but the complicity of Mahipal @ Kuku is established in this case beyond doubt. Resultantly, finding no merit in the revision petition, the same is dismissed. November 17, 2010 (A.N. Jindal) deepak Judge