HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.174 of 2002 1. Harjinder @ Chaini S/o Jarnail Singh R/o Khempur Thana Nanakmatta U.S. Nagar 2. Gurdeep Singh S/o Gurubachan Singh R/o Khamria Thana Nanakmatta U.S. Nagar 3. Makkhan Singh S/o Nihal Singh R/o Dhoomkhera P.S. Nanakmatta U. S. Nagar ……Appellants Versus State …… Respondent Dated :- 25th April, 2008 Mr. S. K. Mandal, Advocate for the appellants. Mr. Nandan Arya, Addl. G.A. for the State. Hon’ble J.C.S. Rawat, J. This is a criminal appeal against the judgment & order dated 04.07.2002 passed by Mr. R. D. Pandey, the then Additional Sessions Judge, U. S. Nagar in S.T. No.360 of 2000, whereby each of the appellants were convicted and sentenced to undergo R.I. for one year under section 412 IPC. However, the appellants were acquitted under section 395 IPC. 2. The facts, in nutshell, are that in the intervening night of 16/17th May, 2000 at about 2pm Virendra Kumar Mittal-complainant was sleeping in his house alongwith his wife and children. With a view to commit dacoity four miscreants armed with countrymade pistols and gun unauthorizedly entered into the house of the complainant. On the point of weapons, the miscreants committed the dacoity and took away their belongings, ornaments and other articles from the house of the complainant. While leaving the house of the complainant, the miscreants threatened him with dire consequences if any report is lodged. Immediately thereafter, when the complainant came outside his house he found two police constables of police station Nanakmatta patrolling on the way. The complainant orally informed them about the incident of dacoity. The complainant then lodged an FIR (Ex.ka.1) in the police station on 17.05.2000 at 6.5am. It was mentioned in the FIR that on the point of weapons the miscreants robbed the valuables viz., 20 Tola gold ornaments, 500 gram silver ornaments, wrist watch and two finger rings etc. Thereafter, the police visited the spot and prepared the site-plan. The matter was investigated by the police and after completion of the investigation the chargesheet was submitted before the court concerned. 3. After submission of chargesheet the appellants- accused were committed to the court of Sessions for trial and the trial court framed charges against the accused persons under section 395/412 IPC. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined four witnesses. Virendra Kumar Mittal PW1 is the informant/complainant in this case. He was present at the time of dacoity in his house committed by the accused persons. Kiran Mittal PW2 is the wife of the complainant and she was also present on the spot. However, both these witnesses were declared hostile by the prosecution. S.I.-Rakesh Chandra Thapliyal PW3 is the Investigating Officer in this case. He visited the spot and recovered a countrymade pistol 12 Bore which was left at the spot by the accused. The prosecution has also adduced the evidence of Constable Brij Kishore PW4. He arrested the accused appellants on 01.06.2000. On 01.06.2000 at about 21.30 hours on the information of a ‘Mukhbir’ he found that the accused persons were coming from village Barki Dodi. When the police party tried to stop them one of the accused persons fired upon the police. Thereafter, the accused persons were apprehended by the police after chasing them and the recovery of articles was made from their possession. 5. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case. 6. The accused-appellants in the trial eventually were convicted and sentenced by the trial court as mentioned above. 7. I have heard learned counsel for the parties and perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that in the intervening night of 16/17.05.2000 at about 2pm the dacoity was committed in the house of complainant Virendra Kumar Mittal PW1. The prosecution has adduced the evidence of Virendra Kumar Mittal PW1 and Kiran Mittal PW2, who have stated in their evidence that the miscreants came inside their house, gave threats to them and took away their belongings and ornaments after taking keys from them on the point of guns/countrymade pistols. It is also the prosecution evidence that the said miscreants could not be identified by the prosecution witnesses, though in the first information report and during the police investigation the witnesses have stated that they identified the miscreants, but during the trial the witnesses were declared hostile. It is pertinent to mention here that there is no dispute that a dacoity was committed in the house of the complainant and certain valuables as indicated above were robbed by some miscreants. 9. It is also in the prosecution evidence that at the behest of the informer the police apprehended these appellants on 01.06.2000 when they were coming from village Barki Dadi and a recovery of certain ornaments was made from their possession. The accused had stated the police that the said ornaments and articles were related to the dacoity committed on 16.05.2000 in the house of Virendra Kumar Mittal PW1. One of the arrested miscreants other than the appellants have also confessed the guilt before the trial court. It is a well settled position of law that if the articles of dacoity are recovered after a dacoity the accused from whose possession the said articles are recovered can only be punished for receiving or possession of the robbed articles. The dacoity was committed in the intervening night of 16/17.05.2000 and the recovery was made on 01.06.2000. Virendra Kumar Mittal PW1 has categorically stated in his evidence that certain belongings were taken away by the miscreants during the dacoity. Therefore, the trial court has rightly convicted the appellants under section 412 IPC. The articles which were recovered from the possession of the accused were also identified by the complainant before the Magistrate. 10. Learned counsel for the appellants has vehemently urged that both the witnesses of recovery examined by the prosecution are police personnel and in the absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellants. Learned A.G.A. for the respondent refuted the contention. In my opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. In the case in hand, the recovery memo itself reveals that the police tried to take the public witnesses but they could not take such witnesses due to the unavailability of the witnesses at the time of recovery of articles. The ground realities cannot be lost sight of that even in normal circumstances members of the public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of the accused. It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellants. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellants. Therefore, the contention raised by the learned counsel for the appellants that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel should not be relied upon, has hardly any substance and cannot be accepted. 11. Learned counsel for the appellants contended that the list of the articles was not given by the complainant to the police immediately after the dacoity. Learned A.G.A. for the respondent refuted the contention. The complainant has stated in his evidence that he orally informed the police constables about all the articles which the accused had taken away. S.I. Rakesh Chandra Thapliyal (PW3), Investigating Officer and Virendra Kumar Mittal PW1 were produced before the court. The defence has not made any cross examination of both witnesses that as to whether the details of articles were given orally or a list of the same was provided to the police. There is no cross examination on this point. The evidence of Virendra Kumar Mittal PW1 remains unrebuted, credible and cogent. He was cross-examined at length, but nothing could be elicited from his evidence to discard his evidence on this point. The identification memo further reveals that the complainant has rightly identified the recovered articles. Learned counsel for the appellants could not demonstrate before me that there is any difference between the memo of recovery, memo of identification and the statement about the description of the articles. The accused appellants have already been acquitted under section 395 IPC and they have only been convicted under section 412 IPC. Learned counsel for the appellants could not demonstrate before me that any other infirmity is committed by the trial court. 12. In view of the foregoing discussion, I am of the view that the trial court has rightly convicted and sentenced the appellants and there is no infirmity in the impugned judgment passed by the trial court. Hence, the appeal is dismissed and the conviction and sentence awarded by the trial court against the appellant is confirmed. 13. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within three months. Dated 25th April, 2008 (J.C.S. RAWAT, J.) LSR