HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 145 of 2008 Reserved on: 31.12.2009 Decided on: 3.3.2010 Shankar ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rakesh Jaswal Advocate. For the respondent: Ms.Shubh Mahajan, Deputy Advocate General & Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: This is an appeal filed by the appellant against the judgment of the court of the learned Additional Sessions Judge (Fast Track Court), Shimla, dated 28.3.2006, vide which the appellant was held guilty alongwith one Dhani Prasad and were sentenced under Sections 392/34 IPC for imprisonment of 5 years and to pay a fine of Rs.5,000/-. In default of payment of fine, they were to further suffer imprisonment for six months. They were also convicted under Sections 341/34 IPC for a period of one year. They were also convicted under Section 27 of the Arms Act for three years and to pay a fine of Rs.2,000/-. In default of payment of fine, they were to suffer further imprisonment for six months. All the sentences were to run concurrently. Briefly stated the facts of the case are that on 5.10.2004, at about 2.30 during night time, a telephonic ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - message was received at Police Station, Dhalli that three Gorkhas had gone to the house of Mohan and Chet Ram and had attacked them with Khukhri. Mohan Lal was injured with Khukhri, while they have snatched money from Chet Ram. On this report, S.I. Paul Chand PW-8 proceeded to the spot alongwith other police officials. He recorded the statement of the complainant Chet Ram under Section 154 of the Cr.P.C. In the said statement, the complainant had alleged that at about 10.00 p.m., he came back to his residence after closing his shop and it was informed by his children that three Nepalis with muffled faces were roaming on their lintel and had also threatened them. On this, he proceeded to the nearby place to inform the people. In the meanwhile, three Nepalis met him, stopped him, caught hold of him and kept Khukhri on his neck. One person snatched Rs.5805/- from his pocket and also gave him a threat. He also alleged that prior to this, they had also given beatings to his brother Mohan Lal. He was taken to his house by them and when they saw other persons, they ran away. On this report, a case was registered. Meanwhile, the police received an information that Gorkhas have been apprehended going towards Dhalli on foot by H.C. Prem Lal and others, who were taken in custody and after investigation, the challan was filed before the learned Judicial Magistrate Ist Class, Court No.II, Shimla, who committed the case to the learned Sessions Judge, who assigned the case to the learned trial Court for trial. The appellant alongwith two other accused persons, namely Dhani Parsad and Dhan Singh were tried by the learned trial Court leading to the conviction of two of the appellant and Dhani - 3 - Prasad, as detailed above, and the third accused Dhan Singh was acquitted by the learned trial Court. I have heard the learned counsel for the parties and have gone through the record of the case. The main submissions made by Mr.Rakesh Jaswal, learned counsel for the appellant, were that the identity of the appellant was not established beyond any reasonable doubt. It was submitted that the appellant was never identified by the complainant PW-2 Chet Ram as to the same person and since after few hours the police apprehended the appellant and two other accused from Dhalli going with muffled faces, who were also the Nepalis, the case was falsely fastened upon the appellant and the alleged recovery of Khukhri and cash was shown from him. It was submitted that the complainant had never given any details qua features of the three Gorkhas, who snatched money from him except giving their height. But since the faces were muffled, he had no occasion to identify them, who were also not known to him prior to the occurrence. Thus, it was submitted that the learned trial Court had wrongly presumed that the identity of the appellant was established, which findings were given in view of the alleged recovery of the amount in question from one of the accused and the recovery of Khukhri from their possession. It was also submitted that the evidence as against all the three accused persons was common, but the learned trial Court acquitted one of the accused and the remaining two were convicted which approach of the learned trial Court cannot be said to be correct. - 4 - The main point which arises for consideration, as per the submissions made during the course of arguments, is in regard to the identity of the accused persons. The identity cannot be presumed but it has to be established beyond any reasonable doubt before it is held that it was the appellant who also committed this offence and none else. For that, the evidence led by the prosecution has to be appreciated with more care and caution. Coming to the evidence, the complainant in this case has stepped into the witness box as PW-2, who has stated that he came back from his shop at about 9.30 p.m., was informed about the presence of 2-3 persons and he came out and was attacked by three persons at about 10.00 p.m. He has specifically stated that they were all with muffled faces who threatened him by pointing Khukhri at his neck. They snatched Rs.5805/- from his pocket and then ran away. He further stated that two of the persons were having height of 5 feet and the third one was more than 5 feet. He clearly stated that he could not specifically identify them at that time. He admitted that he was also a resident of Nepal and residing at Kufri for the last 20-25 years. He nowhere stated that these persons were known to him or he identified them when they stopped him or gave any other distinguished features except the height, as mentioned above. He clearly stated in cross examination that it was pitch dark on that night. He only identified the accused persons from the clothes and their physique and cannot say definitely who were the persons on the spot since they had muffled their faces. He stated that they reached Dhalli Chowk at 4.00 a.m. where - 5 - the three persons were apprehended and he stated that one person had a Khukhri when searched in his presence but he cannot say who was that person amongst the accused persons. However, the police took into possession three Khukhris Ext.P-1 to Ext.P-3, which were shown to him at the Police Station and not at the time when these were recovered. This is a major contradiction since the complainant has stated that one of the accused persons was having a Khukhri when searched in his presence but three Khukhris were shown to him at the Police Station, which were later shown to have been recovered from the accused persons. The brother of the complainant, namely, Mohan Lal has been examined as PW-3, who has stated that he went to the lintel and one person hit him with Khukhri at his back. He fell down and he alighted from the lintel. He clearly stated that the person had muffled his face and he had seen him partly. He stated that he was Shankar who is present in the court, but how he has stated he did not state. He stated that in his presence when search was conducted, three Khukhris were recovered. He further stated that accused Shankar produced the Khukhri from the socks. The prosecution had also examined Vipin Sood as PW-5 and other witnesses but none of them had seen the accused persons snatching money from the complainant PW-2 Chet Ram. Thus, the case of the prosecution rests upon the solitary statement of PW-2 Chet Ram whose statement clearly shows that the alleged accused persons had muffled their faces and he had not identified them at the spot. The simple fact that they were nabbed by the police after about 6 hours - 6 - at a quite distant place at Dhalli and since they were Gorkhas and had also muffled their faces, they were taken in custody by the police. However, the statement of the complainant PW-2 Chet Ram does not establish this fact that it was the accused persons who had committed this offence. It looks surprising that the accused persons will snatch money from the possession of the complainant at about 10.00 p.m. and will be roaming in the area with muffled faces at Dhalli, as in case they were roaming in the area with the muffled faces, that will certainly attract the attention of the passers-by or even of the police. It also looks surprising that the accused persons will keep their faces muffled for 7 hours even after they committed the offence. The conclusion qua the identity drawn by the learned trial Court seems to be based upon the fact that a sum of Rs.5805/- was recovered from the possession of one of the accused, namely, appellant Shankar, as stated by the complainant and PW-8 S.I. Paul Chand. The learned trial Court presumed that it proves the identity of the accused persons. There was no identification mark on the notes and it was not such a recovery which could specify that these were the same notes. The mere recovery of the amount which tallied with the one given by the complainant in his complaint is not sufficient to hold that it was the accused persons who had committed this offence. The money could have been planted upon the accused persons also. There is also contradiction in regard to the recovery of Khukhri, as mentioned above, and I am not inclined to hold, on the basis of this weak evidence, that it was the appellant who had committed this offence with others - 7 - or that his identity was established beyond any reasonable doubt. Apart from the above, PW-8 SI Paul Chand is specific that the FIR was not registered immediately on the receipt of the information Ext.PW-6/A. The FIR in question has been proved as Ext.PW-6/B, which was on the basis of the statement Ext.PW-6/A recorded on 5.10.2004 at 3.15 a.m. A perusal of this FIR Ext.PW-6/B shows that it was registered at 3.45 a.m. and the recoveries in question were also effected around this time by 4.00 a.m. or 3.30 a.m. as has come up in evidence. The possibility that this information was sent to the Police Station after the recovery cannot be ruled out. The FIR had been received by the Judicial Magistrate at 2.00 p.m. on the next day, though it could have been sent immediately in the morning. From the above discussion of evidence, it is clear that according to PW-2 Chet Ram, complainant, who is the only witness to the snatching of money from him, all the three accused persons met him, threatened him by pointing Khukhri on his neck and snatched Rs.5805/- from his pocket and ran away. He has not attributed any specific act to any specific accused. PW-9 H.C. Prem Lal, the Investigating Officer, stopped three Gorkhas and conducted search of the persons. From the search of the appellant, a sum of Rs.5805/- was recovered and the same was identified by PW-2 Chet Ram. According to him, the recovery of cash was made from the search of Shankar i.e. the present appellant, which tallied with the amount allegedly snatched from PW-2 Chet Ram. Thus, it is clear that the evidence was there as per - 8 - the statement of the complainant about snatching of money by all the three accused persons by showing Khukhri and the recovery was effected from one of the accused, namely, Shankar. However, the learned trial Court, on the basis of this evidence, convicted two accused persons and acquitted the third accused, namely, Dhan Singh on the basis of the same evidence which was there as against the appellant. No appeal has been preferred by the State against the acquittal of Dhan Singh, which has become final. It follows from the above discussion that when the evidence was common as against all the three accused persons, including the present appellant, and the third accused namely Dhan Singh has been acquitted by the learned trial Court, which findings have become final, the other two accused cannot be treated differently and held guilty on the same evidence, which was there as against the third accused also. This is another reason which leads me to the conclusion that the prosecution had not been able to prove their case beyond any reasonable doubt. Apart from the above, a perusal of Section 2(c)of the Arms Act, 1959 shows as to what is the definition of arms. The definition of fire arms is under Section 2(e) and the prohibitory arms are defined under clause (i) of Section 2(e) of the said Act. Khukhri is not specifically mentioned in any of these definitions. According to Section 27 of the Arms Act, there is punishment for using arms in contravention of Section 5 or 7. Section 5 prescribes for licence for manufacture, sale etc. of arms and ammunition while Section 7 prescribes for prohibition of acquisition or - 9 - possession or of manufacture or sale of prohibited arms or prohibited ammunition. It follows from the above discussion that the mere possession of Khukhri cannot be said to be an offence until and unless the same is used for commission of an offence. The ingredients of Section 392 IPC cannot be said to have been proved from the solitary statement of the complainant that the Khukhri was put by all the accused persons on his neck and there is nothing to show that he was put in fear of hurt and as such the ingredients of the offence under Section 392 IPC cannot be said to have been proved beyond any reasonable doubt from the solitary statement of the complainant that the Khukhri was also used in the commission of the offence. In view of the above discussion, I accordingly hold that the findings of the learned trial Court holding the appellant guilty and convicting and sentencing him are not sustainable in the eye of law on the basis of the evidence produced by the prosecution for the reasons given above and as such, the appeal filed by the appellant is accepted. The appellant shall be released forthwith and the fine, if deposited by the appellant, be also refunded back to the appellant. The appeal filed by the appellant through jail is allowed accordingly. Jail warrant be issued accordingly for the release of the appellant, if still in custody. March 3, 2010. (V.K. Ahuja), (TILAK) Judge