IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.56 of 1995 Decided on : August 25, 2009 State of H.P. …Appellant. Versus Inder Jit @ Beti and others …Respondents. 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 Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Dushyant Dadwal, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 2nd April, 1994, of learned Additional Sessions Judge, whereby respondents Inder Jit @ Beti son of Shankar, Inder Jit @ Khusa @ Rajan son of Krishan Lal, Raj Kumar @ Raju and Balbir @ Bitu, who were tried for offences, under Sections 392, 394 and 307, read with Section 34 of the Indian Penal Code, and Section 25 of the Arms Act, have been acquitted. 2. Prosecution case, as per evidence on record, is like this. On 28th August, 1992, Karam Chand (PW-4) and Suresh Kumar (PW-5), boarded a train at Railway Station, Paprola, for going to Jogindernagar. On the way, train Whether reporters of the local papers may be allowed to see the judgment? …2… stopped at Railway Station Aiju, for a few minutes. All the four respondents boarded that train at Railway Station Aiju. They entered the same compartment by which PW-4 Karam Chand and PW-5 Suresh Kumar were travelling. The train had hardly covered a distance of about 1 km, when one of the respondents, namely Inder Jit son of Shankar, took PW-5 Suresh Kumar to one side of the compartment, near the window meant for boarding/deboarding the train, and robbed him of his belongings at pistol (country made) point. Then he pushed him down the train and other respondents joined hands with him. Thereafter, PW-4 Karam Chand was robbed of his belongings and thrown out of the running train by the respondents. Both, PW-4 Karam Chand and PW-5 Suresh Kumar, walked along the railway line and went to Railway Station Aiju, where PW-3 Ramakant was on duty as Assistant Station Master. A written complaint was made to him by PW-4 Karam Chand. PW-3 Ramakant, in turn, informed the Station Master of Railway Station Jogindernagar and arranged to send the abovenamed two robbed persons to Jogindernagar. Call made by PW-3 Ramakant, Assistant Station Master of Aiju Railway Station, was attended by PW-14 Kuldip Chand Sood. He promptly informed the police. Four Constables (none of whom has been examined as witness) were deputed from the Police Station, Jogindernagar, to Railway Station Jogindernagar. …3… Train reached Railway Station Jogindernagar at 10.40 p.m. By that time, four Constables, deployed from the Police Station, had already reached there. They surrounded the train and caught hold of the respondents. Police authorities, at the Police Station, were informed, telephonically, by one of those Constables about the apprehension of the four respondents. After some time, PW-17 ASI Om Chand reached the Railway Station. A little thereafter PW-4 Karam Chand and PW-5 Suresh Kumar also reached the Railway Station. They were shown the four respondents. They identified them to be the persons, who had robbed them in the railway compartment. 3. Personal search of all the four respondents was conducted. On search of the person of respondent Inder Jit son of Shankar, a country made revolver Ex. P-8, with two cartridges Ex. P-9 & Ex. P-10, loaded in it, was recovered. One HMT watch Ex. P-6, a currency note of the denomination of Rs.100/- Ex. P-7 and an Identity Card Ex. P-27, were also recovered from the respondents, alongwith several other articles, like blanket Ex. P-4. The articles were identified by PW-4 Karam Chand and PW-5 Suresh Kumar to be theirs, which the respondents had forcibly taken away from them. PW-5 Suresh Kumar was seriously injured. He was sent to the Hospital at Jogindernagar, where he remained admitted for quite some time. …4… 4. Test identification parades of the respondents, as also the stolen articles recovered from them, were conducted by PW-13 Shri J.S. Mahantan, Judicial Magistrate. PW-5 Suresh Kumar identified all the four respondents, during test identification parade. Stolen articles, recovered from the respondents, were also identified by the two victims. Respondent Inder Jit son of Shankar made a disclosure statement, record of which is Ex. PM, and got discovered a gunny bag containing a mattress, four shirts, two pants, a pullover, a bed-sheet and a bag. The aforesaid articles were taken into possession, vide Memo Ex. PN. 5. Trial Court came to the conclusion that evidence adduced by the prosecution was of doubtful nature and not sufficient to hold the respondents guilty. Learned trial Court has observed that identification parade was a farce, inasmuch as the respondents had been shown to the identifying witnesses much before the identification, recovery of revolver and allegedly stolen articles from the respondents was doubtful, there was delay in recording the FIR and report made, in writing, by PW-4 Karam Chand to Assistant Station Master, Aiju, namely PW-3 Ramakant, had been withheld. 6. We have heard the learned Assistant Advocate General as also the learned counsel for the respondents and …5… gone through the evidence. We see no reason to disagree with the aforesaid observations of the learned trial Court. 7. PW-14 Kuldip Chand Sood very categorically stated that all the four respondents had been identified to be the same persons, who had committed the crime of robbery, by PW-4 Karam Chand and PW-5 Suresh Kumar, on the very night of occurrence, when the respondents were at the Railway Station. That means, the respondents had already been shown to PW-5 Suresh Kumar, who identified them, at the test identification parade conducted by PW-13 Shri J.S. Mahantan, in his Court room, on 8th September, 1992. 8. Evidence about the apprehension of respondents at the Railway Station and recovery of allegedly stolen articles and a revolver from them, soon after their arrest, is also doubtful. First of all, when the respondents had allegedly been arrested, around 10.45 p.m., on 28th August, 1992, and stolen articles and revolver had allegedly been recovered from them soon thereafter, there could not have been any justification for delaying the recording of FIR. We find that there is delay of more than 12 hours, even after the alleged personal search of the respondents and the recovery of the stolen articles and the revolver from them. Recovery was effected by PW-17 Om Chand. This very witness recorded the FIR, on the basis of report made by …6… PW-4 Karam Chand, on the next following day at 1.15 p.m. No explanation whatsoever has been offered by the prosecution for this delay in recording the FIR, even though the distance between the Police Station and the Railway Station is hardly half a kilometer. The delay makes the arrest and personal search of the respondents, on the night of 28th August, 1992, at Railway Station, Jogindernagar, highly doubtful. 9. Also, we find contradictions in the testimony of PW-14 Kuldip Chand Sood and PW-17 Om Chand, with regard to the time when the search was conducted and PW-17 Om Chand reached the Railway Station. Prosecution case is that initially four Constables were deployed to the Railway Station, when telephonic information was received that four persons, travelling by the train, which was about to reach Railway Station Jogindernagar, within a few minutes, had committed the offence of robbery against their co-passengers and had thrown the robbed passengers out of the train. According to PW-14 Kuldip Chand Sood, Assistant Station Master, Jogindernagar, four Constables were already there, when the train arrived, at 10.40 p.m. and that those four Constables nabbed the respondents and informed the Police Station, telephonically, and within 5-7 minutes, one ASI accompanied by a Head Constable and some Constables arrived and conducted personal search of …7… the respondents. PW-17 Om Chand, however, says that he reached the Railway Station at 12.40 a.m. and that soon thereafter the two victims of the offence of robbery also reached there and that thereafter he conducted the search and recovered the revolver and some of the stolen articles. Again, according to PW-14 Kuldip Chand Sood, search was conducted at the platform and that when the search was being conducted he went to his own office room to perform his urgent official duties. PW-17 Om Chand says that the search was conducted in a room at the Railway Station. 10. PW-4 Karam Chand stated that he made a written complaint to PW-3 Ramakant on reaching Railway Station Aiju. PW-3 Ramakant also says that a written complaint was made to him but that complaint has been withheld by the prosecution. So, an adverse inference is required to be drawn against the prosecution that in the said complaint version given out by PW-4 Karam Chand is different from that recorded in FIR Ex. PG and testified by him in the Court, during trial. 11. Strangely enough, the prosecution did not examine any of the four Constables, who were deployed to the Railway Station and who allegedly overpowered and nabbed the respondents and then informed the Police Station, telephonically, that the robbers had been arrested. …8… 12. Defence plea is that the respondents were taking tea on 29th August, 1992, around 9 a.m., at the stall of one Parshottam, when some police people came there and took them to the Police Station and falsely implicated them in this case. PW-4 Kuldip Chand Sood did not deny the suggestion put to him by the defence counsel that the respondents had been taken into custody from the tea-stall of one Parshottam, on the day next following the day of robbery. He expressed ignorance about this suggestion, meaning thereby that he did not deny it specifically. In view of the above discussion, we are of the considered view that the judgment of acquittal passed by the learned trial Court does not call for interference. Hence, the appeal is dismissed. ( Surjit Singh ), J August 25, 2009(sd) ( Surinder Singh ), J