Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.402 of 2010. with Cr. Appeal No.540 of 2010. Judgment reserved on: 4.7.2011. Date of Decision: July 19 , 2011. 1. Cr.Appeal No.402 of 2010. Prakash Chand and others … Appellants. Versus State of H.P. ... Respondent. 2. Cr. Appeal No.540 of 2010. Babu Ram ……… Appellant. Versus State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellants : Mr. M.S. Guleria, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. Advocate General. Surinder Singh, J : Both the above titled appeals have been filed by the convicts, hereinafter referred to as “the accused persons”, as having arisen from the same judgment of conviction and sentence, passed by the learned Sessions Judge Una in Sessions Trial No.2 of 2008, dated 30.8.2010, whereby the accused persons were convicted for the offences punishable under Sections 399 and 402 of the Indian Penal - 2 - Code and Section 25 of the Indian Arms Act and sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of `1,000/- each under each of the Sections, in default of payment fine, to undergo further simple imprisonment for a period of one month on each count by each of them. 2. Further, the substantive sentence of imprisonment was ordered to run concurrently. Pre and under trial detention of the accused persons was to be set- of against the substantive sentence, hence, the present appeals. (ii) The prosecution case as emerges from the evidence on record can be stated thus. One Shri Vijay Kumar (deceased) was running a tea-stall in the complex of Punjab National Bank, Una Branch. On 11.10.2004, at about 6 p.m., two strangers visited his tea-stall and asked him to prepare tea for them. When said Vijay Kumar was busy in preparing the tea, said customers, who appeared to be from the State of Uttar Pradesh, were conversing with each other. He over-heard them saying that the window of the bank could be easily uprooted without any difficulty. - 3 - Thereafter, they left the place in their Maruti Van bearing registration No.UP-22-1786. (iii) Vijay Kumar aforesaid immediately informed PW3 O.P. Chhabaria, the Manager of the Bank, who in turn contacted PW5 K.C. Chauhan, Senior Manager and the matter was also reported to the Superintendent of Police, Una. (iv) PW13 Sh.D.K.Yadav, the then Superintendent of Police, Una directed the Control Room of the Police to apprehend the occupants of Maruti-Van and detain the vehicle forthwith. (v) PW11 ASI Ram Ditta was assigned the job to chase the said Van, which had left towards Hamirpur. He alongwith other police personnel followed the same direction in the official vehicle, but could not locate them. On their return, around 10 p.m., they noticed Maruti-Van aforesaid parked in front of the Guest House owned by PW10 Inderjeet Singh near Bus-stand Una. On enquiry, he (PW11) came to know that they were in one room of the Guest-house. Police visited room and checked Maruti-Van in their presence and of PW1 Bal Ram, PW2 HHC Gurbax Singh and PW10 Inderjeet Singh and recovered two - 4 - rubber pipes Ext.P9, two Gas regulator Ext.P10, Gas Cutter Ext.P11, Key Ext.P12, four rubber gloves Ext.P13, three oxygen cylinder Ext.P14, one LPG Cylinder Ext.P15 and one jumper (Jhabbal) Ext.P16, which were taken into possession vide memo Ext.PW1/A. Police also checked radio speakers fitted in the Maruti Van and in one of the two speakers, they recovered two Country made Pistols Exts.P4 and P5, put in two surgical gloves Ext.P1 and P2 alongwith four live cartridges Exts.P6 and P7 and sealed with seal impression “A” and deposited in the Malkhana. Sketch maps of the country made Pistols Exts.PW1/B and C were prepared in the presence of the witnesses aforesaid and from one of the surgical gloves, police also recovered the currency notes of `9,000/-. Accused persons were arrested. The vehicle in question was also taken into possession and then removed to the Police Station. (vi) On 12.10.2004, PW4 HC Sandeep Kumar checked the rear window of the said vehicle and on taking out the flap of left rear window, he recovered two number plates Ext.P18 bearing No.UP-22B-2448 alongwith Insurance Certificate valid upto 13.6.2005 - 5 - Ext.PW4/C, photocopy of the Registration Certificate Ext.PW4/D, and copy of the driving licence Ext.PW4/E bearing the same number. (vii) On 26.10.2005, PW14 the then ASI Darshan Singh of Police Station Una, during the investigation of the case requested the MHC to deliver and produce the sealed parcels of the country made Pistols alongwith its cartridges, before PW8 Raj Dev Singh, S.D.M. Una. On opening the parcels of the aforesaid articles, PW7 HC Surinder Singh who is alleged to have undergone the training in EME Centre Bhopal for two years in ballistics examined the aforesaid articles and found it in working order, and issued a report Ext.PW7/A. Thereafter the case property was resealed in another packet with seal impression “P” and to this effect, SDM aforesaid issued a certificate Ext.PW8/A. (viii) During investigation, police also obtained the sanction order Ext.PW15/A from the District Magistrate, which was sought to be proved from PW15 Baldev Chand, Reader to the District Magistrate. - 6 - 3. After completing the investigation, police presented the challan against the accused persons. 4. Finding a prima-facie case against them, they were accordingly charge-sheeted for the offences aforesaid, to which they pleaded not guilty and claimed trial. 5. To prove its case prosecution examined its witnesses. Accused persons were also examined under Section 313 of the Code of Criminal Procedure. Their case was of denial simplicitor. They maintained their innocence. According to them, they were on the way to “Mata Chintpurni temple” to pay obeisance. Since it had become dark, they checked in the Guest House near Bus- Stand Una. As soon as they entered the room with their bag and baggage, police called them out and took them to the Police Station alongwith the vehicle and they were framed in a false case. 6. Learned trial Court called upon to enter into their defence, but no evidence in defence was led. 7. At the end of trial, learned trial Court rejected their defence and while relying upon the recoveries aforesaid, convicted and sentenced the accused persons as aforesaid, which is under challenged in these appeals. - 7 - 8. Shri M.S. Guleria, learned counsel for the accused persons forcefully argued that the prosecution case hinges only upon the recoveries which are not proved as the statements of the official witnesses of the recovery are contradictory to each other and the independent witness has turned hostile. It is also ventilated that no case for the attempted dacoity is also made out. The learned counsel led me through the evidence on record and argued that all the alleged recoveries are false and the learned trial Court conveniently ignored all these facts and wrongly applied law in the present case, which caused material prejudice to the accused persons resulting into their conviction. 9. Shri A.K. Bansal, learned Additional Advocate General countered the above arguments on the ground that the very possession of the weapons and gas cutters alongwith oxygen and gas cylinder, coupled with the recovery of cash from the rubber surgical gloves clearly suggests that the accused persons had some illegal designs in their mind to commit the robbery in the bank. He also ventilated that they failed to count for the possession of different number plates alongwith documents recovered from the vehicle. Further the evidence of the - 8 - prosecution is worth inspiring confidence, therefore, their conviction and sentence cannot be faulted with. 10. I have thoughtfully considered the rival contentions of the parties and carefully scanned the evidence on record. 11. At the very outset, I would like to say that said Vijay Kumar, Caterer, who was running a tea-stall in the Punjab National Bank complex, Una Branch and was a source of alleged material information could not be examined by the prosecution as he had died, but the other witnesses of the sequence need to be closely scrutinized. 12. PW5 K.S. Chauhan, was Senior Manager of Punjab National Bank, Una Branch and PW3 O.P. Chhabaria, was Manager under him. Sh. K.S. Chauhan stated that prior to the said incident, i.e. on 9.10.2004 at about 1 p.m., there was an anonymous call from a STD booth on his Mobile-Phone informing him about the bank dacoity. Immediately, he informed local police and also alerted his staff. On 11.10.2004, around 6 p.m., he was informed by the Caterer Vijay Kumar, who was running a tea-stall outside their bank that two persons were measuring window of their bank and overheard them - 9 - conversing that uprooting of this window was their two minutes job. Immediately, he informed the police and police informed him to keep watch on them. Whereas, PW3 O.P. Chhabaria, Manager stated that it was he who received the call from Vijay Kumar that two persons, who were occupants of the Maruti Van UP-22-1786 were measuring the window of the bank and he informed PW5 K.S. Chauhan, Senior Manager on his Mobile. He did not say that prior to the said incident, if there was any information recorded by PW5 aforesaid about the threat. If the examination-in-chief of both the persons are critically examined, it raises a doubt about receiving the information by PW5 K.S. Chauhan on 9.10.2004 about the attempted dacoity in the bank and having been informed by Vijay Kumar on 11.10.2004. Both these persons have stated independently that Vijay Kumar contacted them telephonically and in turn, they informed each other which contradicts the version of each other. It is also surprising that when on 9.10.2004, PW5 K.S. Chauhan Senior Manager had received information and passed it to the police, then how is that PW3 O.P. Chhabaria stated that he did not know where from PW5 K.S. Chauhan had received the information on 9.10.2004. In cross- - 10 - examination, with respect to the threats received by him on 9.10.2004, he (PW5) is alleged to have informed the Superintendent of Police, Una (PW13) around 6 p.m. from village Tahliwal as he was on field duty and returned to the bank after about half an hour and then closed the bank and left for his residence. He further stated that PW13 Shri D.K.Yadav (S.P.) informed him that the threatening call was traced during the same night around 8 p.m. and visited Police Station. It is surprising to note that he stated having informed by the police that the suspect, who had given threatening call to him had been traced and rounded up, but he expressed his ignorance where those persons were kept nor he asked about them from the police. 13. Further PW3 O.P. Chhabaria in his cross- examination stated that when he was informed by Vijay Kumar (deceased) about the measurement being carried out by the unknown persons in the bank premises, he did not report to his Senior Manager PW5 K.S. Chauhan, in writing, rather he stated that on receiving message, he reached the Punjab National Bank premises near HRTC Work-shop within 10-15 minutes. When confronted with his statement under Section 161 of the Code of Criminal - 11 - Procedure, about message received by him, he stated that he did not get recorded that the thieves stated about uprooting the window of the Bank, but he only mentioned that they had stated that it was work of two minutes only. He further stated Vijay Kumar did not give full particulars of the said persons, but was informed that there were 4-5 persons. When confronted with his statement under Section 161 Cr.P.C., he stated that he only informed that only two persons were carrying out the measurement of the window and also that Vijay Kumar informed that there were only two persons not five persons. 14. Statement of PW5 K.S. Chauhan, Senior Manager of the Bank stands contradicted by PW13 D.K. Yadav, the then Superintendent of Police with respect to the information given to him about the threatened robbery prior to 11.10.2004. Neither PW14 ASI Darshan Singh nor PW11 ASI Ram Ditta stated to have received such an information even on 9.10.2004 in the Police Station. For that matter, no Police Officer examined by the prosecution has stated that any of the bank officials have informed them about such a threat on 9.10.2004. However, PW13 D.K. Yadav stated that on receipt of information on 11.10.2004, he directed the Control Room of the Police to apprehend - 12 - the occupants of the Maruti-Van aforesaid and later on he was informed that police were able to trace out the accused and a crime stood registered against them in terms of FIR No.706/2004 in Police Station, Una, but he could not exactly tell at what time he had received such information about tracing of the Van and occupants thereof, but stated that it must be around 9.30 or 10 p.m. 15. As already stated above, PW11 ASI Ram Ditta was assigned the job to trace out the accused persons alongwith their vehicle. He chased Maruti-van, which was alleged to have gone towards Hamirpur, but could not locate ultimately he could find it parked on night at 10 p.m. in front of the Guest-House of PW10 Inderjeet Singh near Bus-stand Una. He also interrogated Inderjeet Singh aforesaid to find out the where-about of the occupants of the Maruti-Van. PW10 aforesaid informed that they had checked in the Guest House and were sitting in room No.2 in the upper floor. He rushed to the said room and found the accused persons sitting there. He asked their identity and interrogated them. Thereafter, he directed them to get their vehicle checked. Accused Babu Ram was the driver of the vehicle. During checking, he found a black coloured bag on the rear seat of the Van containing two - 13 - rubber pipes applied to one nozzle for affixation with gas cylinders. Apart from rubber pipes, there were two regulators, one key of gas cylinder, four pairs of surgical gloves in the bag. He also stated that there were three oxygen gas cylinders below the rear seat of the van and apart from three cylinders, one LPG cylinder, one jumper (Jhabbal) were recovered from the Van and on checking of the speakers, two rubber gloves in the speakers, one was containing country made Pistols with ammunition and another was also containing one more country made Pistol and the currency notes of `9,000/-. As they failed to produce the licence to keep the fire arms and ammunition, as such took into possession vide recovery memo Ext.PW1/A in the presence of Inderjeet Singh, Balram and Gurbax Singh. The vehicle was impounded and taken to the Police Station and checking of the Maruti Van was carried out by him on the next day and on opening one side plate of rear window on 12.10.2004 in the presence of Sanjay Kumar and Dilbag Singh police officials, he recovered two number plates bearing No.UP- 22-2448 and the documents as stated above were taken into possession vide memo Ext.PW4/B. - 14 - 16. In his cross-examination he categorically denied that he reached the Guest House of Inderjeet Singh at 5.30 p.m. on 11.10.2004. He also denied that he had already detained the vehicle of the accused persons in the Police Station and no checking of the vehicle was conducted in front of the Guest House as alleged. He stated that proprietor of the Guest House had not carried out the entry of the stay of the visitors in the Visitors book of the hotel, though they were staying in room No.2 of the Guest House. He admitted that in case a hotel owner allows a person without entry in his record the same would constitute an offence, but despite that he did not take any action against the owner of the Guest House. He denied that he did not do so with a motive that Inderjeet Singh could be fielded as a prosecution witness. He admitted that the Maruti Van was in the custody of the police, but according to him he did not carry out its checking. He particularly stated that he himself had opened the plate of the rear window after applying the screw-driver to the nut, whereas, PW4 HC Sandeep Kumar contradicts him. According to him it was he who had checked the left rear window of the Van on 12.10.2004 with the help of the screw-driver by taking out the plate and recovered - 15 - number plates alongwith documents, making its own case doubtful. 17. Further PW10 Inderjeet Singh has sharply contradicted PW11 ASI Ram Ditta on material particulars. He stated that the accused persons visited his Guest House on 11.10.2004 at 6.30 p.m. immediately followed by the police and at that time, accused persons were inspecting the room allotted to them for their stay. He also stated that when the police reached, one of the accused persons was present near the Maruti Van to whom he could not identify, whereas PW-11 ASI Ram Ditta stated that all the five persons were in the room. He was also confronted with his statement recorded under Section 161 of the Code of Criminal Procedure on 27.10.2005 Ext.DXX, wherein this fact was not found recorded. PW10 aforesaid also did not know as to who was the driver of the Maruti-Van. He specifically denied that he made a statement to the police that the accused persons had visited Guest House at 10 p.m. According to him the accused persons had entered the room alongwith their baggage. He stood contradicted with respect to the fact that Babu Ram accused was the driver of the Maruti-Van, whereas this fact was found mentioned in his statement recorded by - 16 - the police. He admitted that since the police reached in his Hotel, they took the accused persons alongwith the vehicle to the Police Station and did not prepare the recovery memo inside his hotel, whereas the case of the prosecution is that al the articles aforesaid were recovered on the spot and documents were also prepared on the spot. 18. Further PW1 Balram was also cited a witness of the alleged recovery from the Maruti Van parked near the Guest House of PW10 Inderjeet Singh. He did not support the prosecution case as such he was declared hostile. He stated that he saw Maruti-Van in question outside the Police Station only and no search was effected in his presence by the police. Even he denied the presence of PW-10 Inderjeet Singh at that time. He admitted that when he was called by the police to the Police Station, the accused persons were also in their custody and were being interrogated by the police. He further stated that Police informed that the aforesaid items were recovered from the dickey of the Maruti-Van. He denied the recovery of the gloves, arms and ammunition alongwith the currency notes of `9,000/- from the Van in his presence, though admitted having signed the sketches of country - 17 - made Pistols and also having sealed the aforesaid items which was taken into possession vide memo Ext.PW1/A, but according to him this was done in the Police Station. He completely disowned his statement Mark-X recorded under Section 161 of the Code of Criminal Procedure. 19. PW2 HHC Gurbax Singh, Police Officer is another witness to the recovery alleged to have been made from the Maruti-Van vide memo Ext.PW1/A. In cross- examination, he categorically stated that he alongwith Shakti Chand, Pawan Kumar and ASI Ram Ditta (PW11) reached near the hotel and checked the vehicle on 11.10.2004 at 6.15 p.m. and none of the accused persons were near the vehicle. Inderjeet Singh was interrogated by PW11 ASI Ram Ditta. Thus, he materially contradicted the version given by PW11 ASI Ram Ditta regarding time and also that they remained on the site of recovery for 2-3 hours. He frankly admitted that he did not know any of the accused prior to the incident and according to him he could only name and identify two out of the accused persons. He denied that the recovery of `9,000/- was effected from the personal search of the accused persons. 20. Ext.PW4/A is the Rapat No.23 recorded in the daily diary dated 11.10.2004 at 6.15 p.m. with respect to - 18 - information received on telephone by SI Sher Singh to chase the said Maruti-Van wherein two occupants had sped away towards Hamirpur. Thereafter ASI Ram Ditta alongwith him and other constables went in their search in the official vehicle. 21. It is noticed on the scrutiny of the above statements that after recovery, PW11 ASI Ram Ditta is alleged to have sent Ruqa Ext.PW11/A to the Police Station at 11.p.m. As already stated above, he is stated to have visited the Guest House of PW10 Inderjeet Singh at 10 p.m. and thereafter made the recovery and sent the Ruqa aforesaid, whereas, PW2 HHC Gurbax Singh stated that police effected the recovery at 6.15 p.m. and PW10 Inderjeet Singh stated that police reached the Guest House at 6.30 p.m. As already stated above, the independent witness did not support the prosecution case and the official witnesses have sharply contradicted each other on material particulars rendering the recovery doubtful. 22. On the critical examination of the evidence aforesaid, recoveries alleged to have effected vide memo Ext.PW1/A which include arms and ammunition and also the other articles alongwith cash amount do not inspire - 19 - confidence. Insofar as the search of the vehicle on 12.10.2004 in the Police Station is concerned regarding that statements of the witnesses i.e. PW7 HC Surinder Singh and PW11 ASI Ram Ditta are also contradictory as discussed above. 23. Section 399 makes the preparation to commit dacoity punishable and Section 402 of the Indian Penal Code makes an assembly for the purpose of committing dacoity punishable. There is manifestly a distinction between both the offences. The offence under Section 402 is complete as soon as five or more persons had assembled together for the purpose for committing a dacoity. Preparation for committing dacoity may take place or after the dacoits assemble together. Preparation consists in devising or arranging the means necessary for the commission of an offence. Though the offence falling under Section 402 and the offence falling under Section 399 of the Indian Penal Code would probably involve almost similar ingredients, but the only difference is that under Section 402 mere assembly without other preparation is enough, whereas Section 399 is attracted if some additional step is taken in the course of preparation for committing dacoity. Thus, the prosecution to prove - 20 - preparation, must show that there were persons, who had conceived the design to committing dacoity. Once the existence of such conspiracy is established then any step taken with the intention and for the purpose of forwarding that designs will amount to preparation. 24. In the instant case for proving the preparation the prosecution could not prove that there were persons who had conceived design for committing dacoity. Thus, the case of the prosecution stands not proved. The person i.e. Vijay Kumar who is alleged to have informed PW5 K.S. Chauhan, Senior Manager or for that matter PW3 O.P. Chhabaria with respect to the fact that two persons were observing and measuring the window of the bank when he was preparing the tea had died and could not be examined. Further prosecution failed to prove as to who were those two persons engaged in the said work. Even the prosecution failed to establish that any of the accused persons had gone to take tea in the tea-stall of Vijay Kumar and also there is no evidence that prior to 11.10.2004, there was any anonymous threat as stated by the Bank Managers aforesaid