1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 385 of 1998 Decided on August 25, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Vinod Kumar and others …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Vikrant Thakur, Legal Aid Counsel. Justice R.B. Misra,J. ( Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 30.3.1998, passed by Learned Additional Sessions Judge, Mandi, H.P., in Sessions Trial No. 14 of 1994, under Sections 341, 323 and 395 of the Indian Penal Code, acquitting the alleged accused/respondents. 2. The prosecution case is that accused No.6 Jiya Lal, being an employee of M/s Himachal Motors, Boileauganj, has stated to have misappropriated and converted to his own use the funds of the M/s Himachal Motors, for which PW.3 Ashish Gupta made an inquiry. For that purpose, PW.3 Ashish Gupta, went to the residential quarter of Jiya Lal, where he came to 2 know that Jiya Lal has left for his village Majhkhetar. PW.3 Ashish Gupta, accompanied with PW.4 P.K. Bansal, PW.5 Manmohan Singh and one Ranjit went to the village of Jiya Lal, accused No.6, i.e., Majhkhetar, all of them reached there at about 6.30 P.M., on 31.1.1993. PW.3 alongwith PW.4 P.K. Bansal, PW.5 Manmohan Singh and Ranjit went to the house of accused No.6 Jiya Lal, where accused No.6 was not available. However, PW.3, PW.4 and PW.5 were assured by the family members of Jiya Lal, that they will take quick action in the matter. However, while PW.3, PW.4 and PW.5 were returning back in their Contessa car No. CH.01-TC-13F and hardly went at a distance of about 2 km from village Majhkheter, two Maruti Vans were found to have been chasing them and they overtook the Contessa car and 8-10 boys carrying sticks in their hands, jumped out of the Maruti Vans and stopped the Contessa car and started causing hurt to PW.3, PW.4 and PW.5. Out of whom accused No. 3 Rajinder Kumar and accused No.7 Dhirender Patti were identified by PW.3, PW.4 and PW.5, accompanying those boys. In the mean time, all the accused snatched Rs.3500/- from PW.4 P.K. Bansal and his driving licence. In the mean time, villagers were also rushed to the rescue of PW.3 and his companions. PW.3 Ashish Gupta reported the matter to the police vide statement Ex.PC. However, on complaint, police recovered currency notes of Rs.3500/- and wrist watch. After investigation, accused were charged for the aforesaid offences and the case was committed for Sessions Trial. 3. In order to prove its case, the prosecution has 3 examined as many as 12 prosecution witnesses. Whereas, the accused through their statement under Section 313 of Cr.P.C., have denied the prosecution case. 4. We have examined the prosecution witnesses and material on record, we find that PW.3 Ashish Gupta, PW.4 P.K. Bansal and PW.5 Manmohan Singh have supported the prosecution case. PW.6 Dr. Manjula Mahendru on 2.1.1993 at about 2.50 A.M., had medically examined PW.3, PW.4 and PW.5, who were found to have sustained simple injuries caused with blunt weapon. PW.7 MHC Gurdass had produced daily diary of police station dated 31.1.1993. PW.11 Gandhi Ram had telephonically informed the police about the incident on 31.1.1993. PW.8 Nagender Singh, owner of Maruti Van No. HP.02-2770 has stated that his another Van No. HP.02-2512 was stated to have used by the accused persons in waylaying the complainant party. He has further stated that the police has impounded both the vehicles. PW.9 Sunil Kumar witness of recovery of Vans by the police vide documents Ex.PW.9/A and Ex.PW.9/B. PW.10 ASI Pritam Chand, on receipt of statement Ex.PC of PW.3 duly endorsed by PW.12 had registered FIR Ex.PW.10/B. PW.12 C.L. Kaushik, the then Inspector SHO had recovered the currency notes of Rs. 3500/- and wrist watch vide recovery memo Ex.PF in presence of PW.11 Gandhi Ram and one Mansa Ram. PW.12 had also recovered one hockey stick and one stick at the instance of accused No.5. 5. On scrutiny of the prosecution witnesses, we also notice that Jiya Lal accused No.6 was not available at his home 4 and none of the prosecution witnesses have ever indicated in their statements that Jiya Lal accused No.6 was also accompanying boys assailants at the relevant time. Jiya Lal accused No.6 could not identify by the complainant (PW.3), as such, presence of Jiya Lal, is not found at the place of occurrence. In view of the statement of PW.3 Ashish Gupta Ex.PC, he has stated that 8-10 boys jumped out of the vans and had started taking care of the complainant party. In view of the testimony of PW.3 Ashish Gupta and PW.4 P.K. Bansal, they identified the assailants with the help of electric light available near the site of the crime. Some houses and shops were stated to have closed to the site, where the complainant party had been waylaid. It was also stated that the complainant party had identified the assailants with the help of moon light. However, in our considered view, the complainant party could not have identified any of the accused on account of it being dark at about 7.00 P.M., on 31.1.1993. The complainant party had been waylaid away from the village at a link road. In such circumstances, it would not have been possible for PW.3 Ashish Gupta or any of the other witnesses to pin point any of the accused persons. Neither PW.3 Ashish Gupta nor any of the other witnesses have indicated or attributed any act against any of the accused persons. Further, it has not been stated by any of the witnesses as to who was carrying sticks or any other weapon. PW.3 Ashish Gupta and his companions further have not indicated that who had inflicted injuries to them. 5 Neither PW.3 Ashish Gupta nor any of the other witnesses have ever stated that who robbed cash and wrist watch from their custody. It could not be believed that after robbing PW.4 of his purse containing cash and driving licence, accused No.7 would have kept concealed the cash and wrist watch near the site of recovery. 6. No witness could attribute any injury to any definite assailant and in view of testimonies of PW.3 Ashish Gupta, PW.4 P.K. Bansal and PW.5 Manmohan Singh about 50-60 persons from the village were assembled at the site of crime and PW.5 had himself admitted the complainant party having been treated at fault in the first instance by the public gathered there. In these circumstances, possibility of the public having taken care of the complainant party could not at all be ruled out. PW.3 has stated that the accused persons smashed his Contessa car and had caused loss of Rs. 20-25 thousand, whereas PW.4 P.K. Bansal has stated that loss of Rs.7-8 thousand was caused to the Contessa car. 7. On analysis of the prosecution witnesses and material on record, we do not find that the prosecution witnesses are inspiring confidence and in view of the contradictions and improbabilities being noticed, learned Additional Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present 6 criminal appeal, being devoid of any merit, is dismissed. 8. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge August 25, 2010 (V.K. Sharma) (Purohit) Judge