1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 375 of 2007, along with Cr. Appeal No. 309 of 2007. Cr. Appeal No. 445 of 2007. Cr. Appeal No. 475 of 2007. Reserved on : 14.10.2008. Date of Decision: November 5, 2008. ____________________________________________________________ Parmod Kumar and others. Appellants Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellants: : Sh. Varinder Thakur Advocate. For respondent : Shri J.S. Guleria, Law Officer. _________________________________________________________ Surinder Singh, J. The appellants have challenged their conviction and sentence passed by the learned trial Court in Sessions Trial No. 4 of 2006, under Section 450, 395 and 342 of the Indian Penal Code and appellant Parmod Kumar additionally under Section 25 and 27 of the Indian Arms Act. The sentence imposed on each of the appellant by the learned trial Court is as follows :- Sl. No. Sections Period 1. U/s 395 I.P.C. Rigorous Imprisonment for five years and to pay fine of Rs.5000/- each and in default, to further Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 undergo simple imprisonment for one year. 2. U/s 450 I.P.C. Rigorous Imprisonment for three years and to pay fine of Rs.2000/- each and in default, to further undergo simple imprisonment for six months. 3. U/s 342 I.P.C. Simple Imprisonment for six months, each. 4. U/s 25/27 of the Indian Arms Act. Accused Parmod @ Prem Chand is further sentenced to undergo Rigorous Imprisonment for a period of one year to pay fine of Rs.1000/- and in default to further undergo Simple imprisonment for six months. Surinder Mehto appellant, filed two appeals one Cri. Appeal No. 475 of 2007 through Jail and another Cri. appeal No. 445 of 2007 directly through his Advocate on the similar grounds. Now, all appeals titled above have been taken up together for its decision to avoid any conflicting judgment. The synoptical resume of the facts as alleged by the prosecution is that villages Baro and Det-Sungra are the remotest villages of Tehsil Nichar, District Kinnaur, in Himachal Pradesh. PW14 Smt. Gulabi Devi is a resident of village Det Sungra and PW1 Gita Devi is resident of village Barot. During the intervening night 13/14.9.2005, at about 2.00 a.m, Smt. Gulabi Devi informed telephonically Police Post Nichar falling under the jurisdiction of Police Station Bhawanagar that a theft had taken place in the house of PW1 Gita Devi in village Baro. This information was recorded in the Daily Diary Exhibit PW6/A and the wireless message was flashed at 2.05 a.m. on its W.T sets. Report to this effect is Exhibit PW6/B. Head Constable Ashok Kumar was sent to the spot. PW17 3 A.S.I. Ashok Kumar along with police party proceeded towards Check Post Chaura for nakabandi. At about 6.30 a.m, they stopped Sungra- Mandi HRTC Bus at the said check post/Barrier. There were about 10/12 passengers therein. During the checking of the Bus, a revolver fell down from one of the person and he tried to conceal it. The police got suspicious and nabbed him. He was de-boarded along with two of his companions for interrogation. That person revealed that they were five persons in all and two of them named Sham Kumar alias Satish and Kishnu Mehto had alighted from the bus at Nugalseri. The Police constituted two parties. One was sent to Nugalseri and the other to old National-Highway. The party which went along National Highway enquired from the persons who met them if they had noticed any stranger. They followed the clues. Sham Kumar and Kishnu Mehto both were apprehended by them in the forest on the side of old National Highway and were brought to Chaura-Barrier. PW1 Gita Devi along with Lafan Sukh reached Police Post in the morning and lodged FIR Exhibit PW1/A to the effect that at 10.35 P.M. and stated that on 13.9.2005, she was alone in the house along with her children. Some body asked her, while passing through the path besides her house as to which place the said path was leading. She asked about the identity of the persons. On this, the said persons came to the house of her verandah, pushed the door which was having temporary ‘kundi’. It got opened easily and four of them entered into the room and one of those persons had muffled his face and fifth remained standing outside. Out of the five persons, 4 one person was having red check shirt. He had shown some pistol like object and another brandished knife (Chhura) and threatened her that she along with her children would be killed if she would not hand over the valuables to them. She took her children to the corner of the room in the bed and all the aforesaid persons started searching the suite-case and dressing table. From the dressing table, they took out gold Trimoni worth rupees 5000/-, one gold Chak valuing rupees 3000/-, gold ear rings worth rupees 4000/-, Yashika camera valuing rupees 800/-, two bundles of currency notes of 10,000/- each. Rs. 2900/- were separately kept and there were some currency notes of rupees 5/- totaling about rupees 200/-. Further, rupees 43,000/- kept in the suite-case were also taken out along with rupees 1200/- which were kept therein separately. While leaving the place along with the loot, also snatched the gold ear-rings from her ears and a gold nose-pin. All of them threatened her with dire consequences if the matter is reported to the Police. Thereafter, they broke open the room of her mother-in-law Smt. Dharamzin and went away. Around 1.00 A.M. during the night, Gulabi Devi also came from the house of her sister. When she returned to her house, she noticed that all the five persons had also committed robbery in her house and took away one pair of golden Trimoni valuing rupees 8000/- and currency notes of rupees 4000/- along with golden nose pin worth rupees 300/-. Thereafter, the appellants went to the house of Narkuma. They snatched her gold ear rings from her ears and looted rupees 1000/- from her. The appellants were also alleged to have committed robbery in the house of PW7 Shila Devi from where silver ornaments worth rupees 8000/- were removed. Further, 5 according to her, she could not identify any of them but, however, by appearance they looked like Biharis and one person out of them was like a like local person. Further, according to her, she could identify them if caught and shown to her. The Police conducted the search of the appellants and recovered a pistol from Parmod Kumar appellant along with currency notes worth rupees 21,000/- along with gold ornaments such as Trimoni, Chak, nose pin, ear rings and silver set in five pieces. Rs. 44000/- were recovered from the person of appellant Kishnu Mehto along with one knife and a pair of gold ring. On the search of appellant Dhaneshwar Mehto, watch, mobile, ring and tickets were recovered. From appellant Shyam Kumar, one mobile set, one handkerchief (black coloured) and keys of the scooter were recovered. On conducting the personal search of appellant Surender Mehto, purse and tickets were recovered. Lists of such recoveries were prepared in the presence of PW2 Ganesh Negi and Pritam. Currency notes and ornaments were identified by the complainant PW1 Gita Devi on the spot of recovery at the barrier, which were taken into possession vide memo Exhibit PW1/B. Thereafter all these articles were sealed. During the interrogation of Parmod Kumar appellant, he made disclosure statement Exhibit PW3/A under Section 27 of the Evidence Act to the effect that some ornaments were thrown out of the bus by him while de-boarding and he could get them recovered from that place. Pursuant to that, he got recovered used gold ear- 6 rings which were in three pieces belonging to Narkuma and were sealed on the spot and taken into possession vide memo Exhibit PW10/A. On 23.9.2005, appellant Shyam Kumar made the disclosure statement that he had thrown the torch taken from the house of PW1which was used in the dacoity near the tower in the bushes which could be got recovered by him. Pursuant to this statement, the Police got recovered the torch which was identified and taken into possession vide memo Exhibit PW12/A. According to the prosecution story, there was a total theft of ornaments and currency of rupees 1,03, 700/- and the Police could only recover currency notes and ornaments of rupees 98, 459/- and one pair of gold ring of the value of rupees 4000/-, nose pin of the value of rupees 300/- and currency notes of rupees 941/- and 5241/- could not be recovered. The Police had prepared the site plan of the place of the alleged incident and the recoveries. The Police interrogation revealed that the appellant had cooked up a plan at Rampur Bushahar before committing the robbery. They stayed for the night at Bhawanagar in a hotel and finding an opportunity during the night, in connivance with Shyam Kumar appellant who was residing there with his maternal uncle selected the houses where ladies were residing alone and their modus-operandi was that while committing the robbery from these houses, they used to bolt the door from outside, thereafter entered into the house of another lady and committed the robbery in seriatim in the vicinity. 7 The accused were identified and the theft articles were recovered from them and got identified. During investigation, the Police recorded the statements of the witnesses, on completion of the investigation, prepared the challan under Sections 342, 450 and 395 of the Indian Penal Code read with Section 25 and 27 of the Indian Arms Act. Appropriate sanction for their prosecution under the Arms Act was obtained from the District Magistrate concerned. The case was presented in the Court for the trial of the appellants under the aforesaid Sections. The learned trial Court found a prima facie case against appellants for the offences aforesaid, accordingly they were charge- sheeted. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the appellants were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found attendant upon them and their case was denial simplicitor. None of them claimed any of the theft articles or the currency notes as their own. The appellants were also called upon to enter their defense but they did not lead any evidence in defense. At the end of the trial, each of the appellants were convicted and sentenced as aforesaid which has been assailed in this appeal. Shri Virender Thakur, learned counsel for the appellant has vehemently argued that the appellants were not identified by any of the witnesses. The evidence of the prosecution is contradictory and there was no iota of evidence to connect them with the offences 8 charged against each of them. The ld. Counsel led me through the evidence on record and prayed for their acquittal. Shri J.S. Guleria, learned law officer has supported the impugned judgment of conviction and sentence passed against the appellants and further submitted that the appellants had committed the offence in the dead hours of the night when the ladies were alone in their respective houses. Shyam Kumar appellant was conversant with the topography and the location of the houses which they ransacked and looted. Recovery of the stolen articles was affected from them. To commit the offence, they used the deadly weapons, i.e. the knife and pistol and each of the appellants were identified by the prosecution witnesses. They could not explain the possession of the ornaments and the currency notes which were recovered from them and were also identified to be the property of the complainant and her close relatives. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. The brief resume of the evidence led by the prosecution against the appellant is as follows :- PW1 Gita Devi stated that her husband had gone with the apple crop to Chandigarh. In the month of September 2005, her mother-in-law Dharamzin had gone to village Sungra. On 13.9.2005 at about 10.30 p.m, five persons came near to her house and asked about the passage. Then they came to the verandah of her house, pushed the door and entered into her room and four persons got inside the room whereas one person remained outside near the door. Out of all the five persons, one had muffled his face. She further 9 stated that Parmod Kumar appellant was having a pistol in his hand. Kishnu appellant was brandishing knife. Both were identified by her in the Court. Further, according to her, the appellants had asked her to hand over the valuable articles to them lest she would be killed. Light of the room was on and the appellant started searching her room. They took out gold ornaments viz, Trimoni golden, Gold Chak golden, nose pin golden from her dressing table which were valuing about rupees 12000/-. Thereafter they also took out currency notes of rupees 20,000/-, Rs. 2900/- and Rs. 200/- from her dressing table and further took out rupees 43000/- from a suite-case along with rupees 1200/- which were lying separately. A camera and a torch were also taken by them. She was wearing the gold ear-rings and a nose pin. Those were also snatched. Thereafter, they entered into the room of her mother-in-law Dharamzin which was adjoining her room. From there, they took gold Trimoni worth rupees 8000/-, cash of rupees 4000/- golden nose ring valuing rupees 300/- and while leaving the place, the bolted the door from out side. Next morning, she came to know that the appellants had also committed the theft in the house of Narkuma and Sheela Devi and they also snatched the ear rings of Narkuma and took away silver jewellery from the house of Sheela Devi. During the night at about 1.00 a.m, she had proceeded to Sungra and reached at about 1.45 a.m in the house of her sister-in-law. From there, she made a telephonic call to Police Station, Bhawanagar and informed them about the dacoity. Thereafter, she went to Police Station Bhawanagar and reached there at about 8.00 a.m. and lodged the report Exhibit PW1/A. She further stated that Shyam Lal alias Satish appellant had muffled his 10 face with the handkerchief. He used to stay with his maternal uncle in her village. When she informed Bhawanagar Police, they informed that the appellants were apprehended at Check-Post Chaura. She visited the said check post and found that the appellants Surinder Mehto, Dhaneshwar Mehto and Parmod Kumar were present there. The Police had also taken into possession one pistol and currency notes of rupees 22000/- on the search of Parmod Kumar and two sets of gold Trimoni golden, Chak golden, silver ornaments, nose pin golden, tickets of bus along with one camera. The police had also taken into possession one kara, one purse and two tickets from appellant Surinder Mehto along with few money and from appellant Dhaneshwar Mehto, mobile set, one ring and some papers were recovered. Further, she stated that on the information of Parmod Kumar, appellants Shyam Kumar and Kishnu Mehto were also arrested and the police recovered currency notes of rupees 44000/- from Kishnu Mehto along with one knife and from appellant Shyam Kumar, one mobile set, keys of the scooter and one handkerchief was recovered. During the trial of the case, she identified the pistol Exhibit P1 and one cartridge Exhibit P2 allegedly recovered from Parmod Kumar. She further stated that Parmod Kumar was having pistol Exhibit P1 at the time of committing the crime. She also identified Trimoni golden Exhibit P3 alleged to have been recovered at the instance of Parmod Kumar which was belonging to her mother-in-law, Chak golden Ext. P4, Camera Exhibit P5, nose pin golden Exhibit P6, silver ornaments Ext. P7 belonging to Smt. Sheela, and currency notes of rupees 22000/- from him. She also stated that Police had also recovered currency notes of rupees 67,359/- (Exhibit 11 P8) from the appellants. Police also recovered one pair of gold ring from Kishnu Mehto. She further identified knife Exhibit P10 having been recovered from Kishnu Mehto which he was having at the time of committing the theft in her house. She further identified Exhibit P12 handkerchief with which Shyam Lal alias Satish Kumar appellant had muffled his face while committing the theft in her house. She also identified the torch Exhibit P13 having been taken by appellant Shyam Kumar from her house at the time of the occurrence. She further identified the ear rings Exhibit P14 belonging to Narkuma recovered at the instance of appellant Parmod Kumar. According to her, the Police had arrested the accused persons at 6.30 a.m. and all the articles were taken from their possession. Since she had also identified these articles, therefore, she appended her signatures on Exhibit PW1/B. At that time, Pritam Chand and Ganesh Negi were also present and they also appended their signatures thereon. In cross-examination, she has admitted that Rasal Singh, uncle of appellant Shyam Kumar runs a shop in their village and Shyam Kumar used to look after the aforesaid shop. She testified that she knew Shyam Kumar appellant for the last about 7/8 years. She was fully acquainted with him and even could recognize him by his voice and gait. However, she could not identify him at the time of occurrence as he did not uttered a single word at that time but from appearance, she thought that he was a local person because of his appearance. In her cross-examination a fatal suggestion was put to her which was denied that the appellants remained outside her room in the verandah, which means that the appellant admits their presence at the relevant time. She also stated that appellants 12 Surinder, Parmod and Dhaneshwar were present in the Check-Post when she reached there and other two appellants were brought there around 9.00 or 10.00 a.m. According to her, she had stated to the Police that one of the person had muffled his face with black cloth Exhibit PW1/A but when confronted with her statement, only the word ‘black’ was not mentioned therein. She further stated that torch Exhibit P13 was recovered from the Jungle. She also stated that the houses of Narkuma and Sheela were situated near to her house. She did not raise any hue and cry nor heard any cries from the houses of other ladies. Further, according to her, the appellants had removed the hinges from the wooden almirah of her mother-in- law which was shown to the Police. She also stated that no telephones were available in the vicinity of her house. According to her, the Police got accused Shyam Kumar identified in Police Station Bhawanagar on the next day. He was interrogated and beaten up by the Police but no statement was recorded in her presence. She testified that she had identified accused Shyam Kumar from his clothes and handkerchief Exhibit P12 which was recovered from his possession and at the time of committing the crime, he was bearing red check shirt and this fact was stated by her to the Police while describing the clothes. However, this fact did not find mentioned in her statement Exhibit PW1/A. She further stated that the recovered articles were sealed at Police Station Bhawanagar which were carried through Ganesh Negi. When the appellants went away from her house, she came out side by removing roof ceiling of her house. She also stated that no money was recovered from Shyam Kumar but she denied that he was falsely implicated in the case. She further stated 13 that she is a matriculate and she gave the size of her room and of her mother-in-law. She stated that Ganesh Negi and Inder Sain are ward members from their Panchayat. The house of Ganesh Negi is at a distance of one km from her house. He was having a telephone connection. She denied that she had seen the three of the appellants for the first time at Chaura Check-Post. She admitted that before her arrival at Bhawanagar, Station House officer (SHO) along with four policemen had already arrived at Check Post Chaura but denied that before her arrival, the articles from their possession were already recovered. Another suggestion was given to her that she had identified the appellants from the ornaments recovered from each of them to which she denied which means that the appellants are also admitting the recoveries from their possession. PW2 Ganesh Negi Ward Member though turned hostile to the prosecution but stated that on 13.9.2005 at about 12.30 a.m, Pritam Chand came to his house and informed about the theft committed in the house of Pyare Lal, i.e. the husband of PW1. Thereafter, they went to Police Station Bhawanagar and then they went to Check-Post Chaura where the Police had checked the bus coming from Kinnaur side. The Police apprehended appellants Kishnu Mehto, Surinder and Dhaneshwar to whom he identified in the Court and according to him, the Police recovered Exhibits P1 to P21 from them. He also identified pistol Exhibit P1 having been recovered from appellant Kishnu Mehto admitted that the recovery memo Exhibit PW1/B was prepared on the spot which bears his signatures. Further, according to him, aforesaid three appellants had disclosed that two other co-accused were also with them. The Police made a 14 search for them. He along with Pritam accompanied the Police to the Jungle and Police arrested appellants Shyam Kumar and Parmod. In the cross-examination by the learned Public Prosecutor, after he was declared hostile, he admitted that the Police had apprehended the accused persons Parmod, Mehto, Surinder Mehto and Dhaneshwar Mehto at the Chaura Check Post and further admitted the recovery of Exhibit P1 to P7 and currency notes from the possession of Parmod Mehto which were identified by PW1 Geeta Devi and also admitted the recovery of one kara and tickets of the bus from Surinder Mehto. He further admitted the recovery of mobile set Ext.P15, one silver ring and purse from appellant Dhaneshwar Mehto and recovery of mobile set Exhibit P16, key of scooter Exhibit P20, handkerchief Ext. P12 from Shyam Kumar. He also admitted recovery of rupees 44000/-, one knife Exhibit P10 and ear rings Exhibit P14 from appellant Kishan Mehto which were identified by Geeta Devi. In cross-examination, he has stated that after making the recoveries from three of the appellants, the recovered articles were kept at Police Post Chaura. After about half an hour, they left in search of two other accused towards the Jungle. He did not know Shyam Kumar earlier. Out of the passengers, there was no one belonging to Bihar. Three appellants were occupying different seats. He did not know whether one of the accused had tried to throw out the articles from the bus. He denied that handkerchief Exhibit P12 was not recovered from appellant Shyam Kumar. He further stated that Geeta Devi had disclosed that appellant Shyam Kumar had muffled his face with a cloth which was hanging outside her house. He further stated that Geeta Devi had disclosed that she recognized 15 appellants from their dresses. However, according to him, no stolen article was recovered from the possession of appellant Shyam Kumar. He reached the Police Station on 14.9.2005 at 4.30 a.m. He did not specifically remember which article was recovered from which of the accused. PW3 Yoginder Singh Constable in Home Guard has proved the recovery of the aforesaid articles at the instance of appellant Parmod Kumar which were alleged to have been thrown out of the bus. He proved the disclosure statement Exhibit PW3/A. Although he admitted in the cross-examination that the Police had beaten the said accused before writing down his statement. PW4 Pyare Lal had given the information to