IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal Nos. 284, 317, 318 of 2005 and 390 and 391 of 2009 Decided on : 15TH October, 2009 Cr. A. No. 284 of 2005 Parmjit Vs. State Cr. A. No. 317 of 2005 Gurpreet Singh Vs. State Cr. A. No.318 of 2005 Surjeet Singh Vs. State Cr. A. No.390 of 2009 Jaswant Singh Vs. State Cr. A. No. 391 of 2009 Deepak Kumar @ Deepa Vs. State Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Anup Chitkara, Advocate with Ms. Nidhi Chawla, Advocates, in Cr. A. No.284 of 2005 Mr. Ajay Dhiman and Mr. Arun Kumar, Advocates in Cr. A. Nos. 317 and 318 of 2009, and 390 and 391 of 2009. For the Respondents : Mr. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (Oral) These five appeals, particulars whereof are given in the title of this judgment, are being disposed of by a common judgment, because all of them arise out of the same judgment, i.e. judgment dated 19.5.2005 of learned Additional Sessions Judge, Fast Track Court, Una, whereby the appellants have been convicted of offences, under Sections Whether reporters of the local papers may be allowed to see the judgment? …2… 395 and 397 IPC, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.20,000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of two years each, in respect of offence, under Section 395 IPC, and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year each, in respect of offence, under Section 397 IPC. 2. Case of the prosecution, as per evidence on record, is like this. PW-1 Pawan Singh and PW-3 Paramjit Singh were employed as salesmen at a petrol pump at Gagret, in the year 2003. They were on duty on the night intervening 28th and 29th May, 2003. Around 12.45 a.m. (midnight) when PW-1 Pawan Singh was outside the roofed structure of petrol pump, attending to customers and PW-3 Paramjit Singh was inside the structure, an Indica car, black coloured, bearing registration No.PB-08-5785 came there. There were 6-7 persons in that car. They asked for petrol. When PW-1 Pawan Singh was filling the petrol, all the occupants of the car came out and two of them held Pawan Singh by his arm, while one of them gagged him by forcing a handkerchief in his mouth. Others went to the roofed structure, where PW-3 Paramjit Singh was present. They took him to the store room and tied him to a chair and bolted that room from outside. PW-1 Pawan Singh was asked to produce the key of cash almirah. He told that he was not aware as to where the key had been …3… kept by the owner. He was beaten up and shut in a bath room. A sum of Rs.15,000-16000/-, which was with PW-1 Pawan Singh in the cash bag, was taken away by the occupants of the car. They removed the key of the scooter from the pocket of the pants, which he was wearing and also disconnected the telephone and carried with them the telephone instrument. Thereafter, they fled from the scene alongwith their car. PW-1 Pawan Singh somehow managed to get out of the bath room. He unbolted the store, in which PW-3 Paramjit Singh had been tied to a chair and untied him. The two then went to a nearby Police Post and informed Constable Kamal Krishan, present at the post, who, in turn, rang up the SHO, Police Station, Gagret, namely PW-19 Inspector Kailash Walia. Police party headed by PW-19 Inspector Kailash Walia reached the spot. PW-1 Pawan Singh made a statement Ext. PW1/A, which was recorded, under Section 154 Cr. PC. It was sent to Police Station for formal registration of the case. 3. As per statement Ext. PW1/A, the dacoits demanded the key of cash almirah and when PW-1 did not give it to them, they hit him with a rod and one of the attackers hit him with a knife and another took out a pistol and threatened that in case he did not give the key, he will be shot dead. According to this report Ext. PW1/A, PW-1 Pawan Singh was then shut in a latrine. The assailants then went to the office, where cash almirah was kept and decamped with Rs.15,000-16,000/- from that almirah. …4… 4. During the course of investigation, police came to know that car bearing registration No. PB-08-5785 had crossed toll tax barrier at Gagret, twice. Initially it crossed the barrier at 12.45 a.m, when it appeared from Hoshiarpur side and it again crossed the barrier on way back to Hoshiarpur side 20-25 minutes later, without paying the tax. On 14.6.2003, PW-20 S.I. Angrej Singh, Incharge CIA Staff, Jalandhar, on a tip off that appellants Gurpreet, Surjit, Paramjit, Raju and Deepak were planning to commit robbery and dacoity, laid a Nakka on Kapurthala road at a place called Bariana and apprehended appellants Paramjit, Gurpreet and Surjit on the spot, while two others managed to escape. Appellant Gurpreet was carrying .315 bore pistol, appellant Surjit was carrying handle of hand-pump and appellant Paramjit was carrying an iron rod. They were interrogated. Appellant Paramjit Singh disclosed that out of the booty of dacoity committed at petrol pump in Himachal Pradesh, he had received Rs.10,500/- and gave details where he had spent/kept that money. Similarly, appellant Gurpreet also gave details of an amount of Rs.10,500/- of his alleged share of booty from petrol pump in Himachal Pradesh. Appellant Surjit Singh got recovered Rs.8500/- in cash and stated that Rs.2000/- had been spent by him. Thus, the three appellants accounted for Rs.31,500/- to PW-20 SI Angrej Singh. 5. Custody of the appellants was taken over by Gagret police. During interrogation, appellant Jaswant Singh gave details of Rs.10,500/-, which fell to his share out of the …5… alleged booty of loot from petrol pump in Himachal Pradesh. Appellant Paramjit Singh made a disclosure statement leading to discovery of telephone instrument, which was removed from the petrol pump and which he stated to have thrown near a temple, while fleeing in Indica car, after committing dacoity. Appellants Gurpreet and Surjit Singh made disclosure statements leading to discovery of a Barchha and an iron rod, which they stated they had thrown opposite a temple, while fleeing after committing dacoity, in question. Appellant Jaswant Singh got recovered a sickle. Appellant Deepak alias Deepa got recovered a grip. 6. We have heard the learned counsel for the appellants as also the learned Deputy Advocate General and gone through the record. 7. Though the learned counsel for the appellants, representing them in the trial Court, did not conduct the case properly, inasmuch as he did not confront PW-1 Jaswant Singh with statement Ext. PW1/A, under Section 154 Cr. P.C., which totally contradictory to the testimony made by him in the trial Court, yet we cannot lose sight of the fact that Ext. PW1/A had been proved by PW-1 Pawan Singh himself, to seek corroboration to his testimony and this statement instead of corroborating him completely, contradicts the version given by him to the trial Court, while appearing as PW-1. In Ext. PW1/A, the witness got recorded that amount of Rs.15,000-16,000/- had been looted from an almirah. However, while in the witness box, he did not make even a …6… whisper of any amount of money having been taken away from any almirah, but stated that an amount of Rs.15,000- 16,000/-, which was with him in the cash bag, on account of sale proceeds of fuel, had been taken away by the appellants. PW-2 Balbir Singh, owner of the petrol pump, however, stated that cash to the tune of Rs.11,000/- and odds was found short in the almirah, meaning thereby that some cash had been taken away from the almirah. Neither PW-1 Pawan Singh nor PW-3 Paramjit, the second man, who was present at the petrol pump as an employee of PW-2 Balbir Singh, stated that any money had been stolen/removed from the cash almirah. Almirah was found intact by PW-19 Inspector Kailash Walia. This contradiction alone creates a very serious doubt about the correctness of the prosecution version. 8. Even if the aforesaid contradiction be ignored, the total amount of money, which had allegedly been looted, was Rs.15,000/- 16,000/-, but the evidence adduced by the prosecution, in the form of testimony of PW-20 S.I. Angrej Singh, CIA Staff, Jalandhar, and PW-24 SI Gian Chand, four appellants accounted for an amount of Rs.10,500/- each, being their share of booty of dacoity at a petrol pump in Himachal Pradesh. Now when the total looted amount was only Rs.15,000-16,000/-, how could have each of the participants, numbering 6-7, received Rs.10,500/- as his share of the booty. 9. Dacoits had allegedly come by Car No.PB-08-5785, but the car which the police recovered during investigation of …7… the case, bore registration No.PB-08AK-5786. This is another circumstance, which renders the prosecution story doubtful. 10. PW-1 Pawan Singh was not medically examined. That suggests that he did not have any injury on his person. While in the witness box also, he did not say that he sustained any injury, in the process of commission of offence of dacoity. That means, reference in his statement Ext. PW1/A, under Section 154 Cr. P.C, that he was hit with a knife, which resulted in a bleeding injury and was also given a few blows with an iron rod, is not correct. 11. In view of the above stated position, we are of the firm view that the case of the prosecution does not stand established. Rather, it appears that the entire story of committing dacoity at petrol pump is concocted. Consequently, all the appeals are allowed and all the appellants, as also convict Sardari alias Kala, who has not filed any appeal, are acquitted. Their conviction and sentence, as ordered by the trial Court, are set aside. They being in jail, serving out the sentence awarded by the trial Court, are ordered to be set at liberty, forthwith, in case their detention is not required in any other case. (Surjit Singh), J October 15, 2009(ss) (Surinder Singh), J.