IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No. 52,53,54,55,56 and 57 of 2010. Judgment reserved on 11th October, 2011. Date of Decision: 28th October, 2011. _______________________________________________________ 1. Cr. Appeal No. 52 of 2010. Bahadur Singh ….Appellant. Versus State of Himachal Pradesh ..Respondent. 2. Cr. Appeal No. 53 of 2010. Gurpinder Singh .. Appellant. Versus State of Himachal Pradesh .. Respondent. 3. Cr. Appeal No.54/2010 Devinder Bir Singh .. Appellant. Versus State of Himachal Pradesh .. Respondent. 4. Cr. Appeal No. 55 of 2010. Gurpreet Singh .. Appellant. Versus State of Himachal Pradesh .. Respondent. 5. Cr. Appeal No.56 of 2010 Karamjeet Singh .. Appellant. Versus State of Himachal Pradesh .. Respondent. - 2 - 6. Cr. Appeal No.57 of 2010. Sukhwinder Singh .. Appellant. Versus State of Himachal Pradesh .. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1? yes For the appellant(S) : Mr. Anup Chitkara, Advocate. For the respondent: Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J. The above titled appeals are arising out of the judgment of the learned Sessions Judge passed in Sessions case No. 4 of 2009 dated 6.1.2010 whereby the appellants herein were convicted under Section 395 Indian Penal Code and sentenced to undergo imprisonment for a period of 7 years and to pay a fine of Rs.5000/- each. In default of payment of fine, to further undergo imprisonment for 1 year. Their pre-trial and under trial detention was ordered to be set-off against the sentence passed. Hence the present appeal by the appellants hereinafter referred to as “the accused”. 2. The background of the case in brief, as emerges from the evidence on record, can be stated Whether reporters of the Local papers are allowed to see the judgment? - 3 - thus. M/s Prem Steel Man of Mandi Govindgarh (Pb.) was owned by PW27 Prem Kumar who was being assisted by his sons Pankaj Aggarwal and Neeraj. Shri Pritpal Singh PW28 was working as clerk for the last about a decade with him whose work was to get supply orders and collect payments of the material supplied to the various dealers. The aforesaid concern was also having its Branch under the Head and Style “M/s Prem Steel” at Parwanoo H.P. from where they use to supply steel material in the area of Hamirpur and Bilaspur in the State of H.P. PW28 Pritpal Singh aforesaid had been obtaining supply orders and collecting money even from the area of H.P. (ii) The Indica Car bearing Registration No. PB-23- D-9303 was owned by the son of PW27 Prem Kumar wherein they had employed accused Gurpreet Singh as driver. (iii) On 10.12.2008 PW27 Prem Kumar sent PW28 Pritpal Singh in the aforesaid car along with Gurpreet Singh its driver in the area of H.P. to collect payments and to get the supply orders. On that day, they visited the place known as “Beri”, in District Bilaspur and to Barthin. PW28 collected Rs. 4,33,000/- from M/s Ganga Ram and sons and Rs. 3.15,000/- from Lachhi Hardwsare Stores. Accordingly he had issued receipt Ext. PW9/B - 4 - and Ext. PW10/B to both the firms who also gave fresh supply orders Ext. PW9/A and Ext. PW10/A respectively. (iv) Thereafter they went to Sehtalai. There he (PW28) received the payment of Rs. 3,45,000/- from M/s Rakesh and Company and issued receipt Ext. PW7/A and also received the supply orders from the said firm Ext. PW7/B. Shri Pritpal Singh aforesaid prepared the packets of the cash received by him and affixed slips on each of the packets and put in a black polythene envelop and kept the amount in the car boot in which he was traveling. In the evening around 7.30.p.m. when their vehicle reached between Barasr and Lathiani, a white Maruti car 800 overtook and blocked their vehicle to proceed ahead. This car had been seen by him following their Indica car right from Kirtpur Sahib (PB.) which had a thin number plate. From the Maruti Car, four clean shaved persons and a sikh gentleman got down. (v) The sikh gentleman was wearing a cap instead of turban. Accused Gurpreet Singh, driver of the Indica car of PW27 Prem Kumar alighted from it leaving the car engine on. All the five persons, who were in Maruti car, started giving fist blows to PW27 Prem Kumar and pushed him on the kacha portion of the road. They also shouted up Gurpreet Singh accused. Thereafter - 5 - they drove off their vehicle. Maruti car was abandoned by the assailants at some distance and escaped in the Indica Car of Prem Kumar aforesaid along with the cash, two watches, one photo of God Ganesh, the documents of the vehicle which were in the car-boot. PW28 Pritpal Singh informed PW27 on his mobile about the incident, Thereafter to M/s Rakesh and company at Shahtalai and both of them, i.e., Pritpal (PW28) and Gurpreet Singh accused driver went on foot towards village Lathiani. (vi) PW29 ASI Manoj Kumar was on duty in police Station Bangana. He along with ASI Hans Raj and constable Sanjeev Kumar left towards Lathiani side in the private vehicle. To this effect, he recorded report Ext. PW29/A in the daily-diary. In the meantime, PW31 S.I. K.C. Sharma of police Station Bangana, who had received the telephonic information from one Krishan Pal that some persons had robbed, Indica car from the driver and its occupant between Barsar and Lathiani, and robbers had managed to escape towards Una. He deputed PW29 ASI Manoj Kumar to the place of alleged incident along with H.C. Vipin Kumar, Constables Ravikant, Surinder and Sodhi Ram and he himself left to the place of the alleged incident in his official vehicle. They laid naka at Dumkhar bridge, within 15 minutes they - 6 - spotted Indica car-vehicle in question and switched on the head lights and search lights to apprehend the accused persons. The Indica car was stopped, five young persons stepped out of it and tried to escape. They jumped from a wall, fell on the sand in the nullah and sustained some injuries. Police chased them. But they could only apprehend two accused persons Sukhvinder Singh and Bahadur Singh. Remaining three accused persons had run towards forest in the Dam area. (vii) PW31 S.I. K.C. Sharma at a distance of about 6 km from Barsar towards Lathiani met PW28 Pritpal Singh complainant and his driver Gurpreet Singh accused near ‘Dumkhar bridge’ where there was traffic jam because of Naka and recorded his statement Ext. PW28/A under Section 154 of the Code of Criminal Procedure, which was routed by him to the police station for registration of the case through constable Sanjeev Kumar. S.I. Shri K.C. Sharma prepared site plan Ext. PW30/B of the site of Dumkhar bridge where two accused persons named above were apprehended by the police. The said Indica car was searched which contained, documents, VIP brief case, one photograph of “God Ganesh” and two wall clocks from the boot of the car. These items were taken into possession vide memo Ext. PW2/A in the - 7 - presence of PW2 Surinder Kumar PW3 Vijay Kumar and Pritpal Singh PW28 who also signed the memo of recovery but the cash was missing. (viii) Maruti car bearing registration No. PB10-AC- 2395 which was used by the accused was taken into possession by S.I. K. C. Sharma around 9.30 p.m. from the spot in the presence of Mehar Singh PW4 and PW28 Pritpal Singh. He noted down its Chasis and engine numbers, and also the car number inscribed on the window mirrors, vide memo Ext. PW2/B. There was no number plate on the back side as the rear bumper was found missing. The site map Ext. PW31/C of the recovery of the vehicle was prepared. Thereafter said police officer went back to the area of ‘Dumkhar bridge’ where police party along with local persons were searching for of the absconded accused persons. (ix) During the intervening night of 10/11.12.2008 around 1.15 a.m. police could first apprehend accused Devinder Bir Singh and thereafter Karamjeet Singh. Both were having injuries on their person and were limping. PW28 Complainant Pritpal Singh who was with the police identified both of them having committed the crime. Karamjeet Singh and Devinder Bir Singh were taken to police Station and were interrogated with respect to the fate of booty. They informed that their 5th - 8 - companion Gurpinder Singh @ Rikki had escaped and disclosed about his address. On this, police Inspector aforesaid sent police party towards ‘Dumkhar bridge’ to make a hunt for him in the nearby area but of no avail. (x) PW28 Pritpal Singh was got medically examined, his MLC is Ext. PW15/A. Shri KC. Sharma Inspector/SHO informed about the progress of the case to the Superintendent of Police concerned. He constituted two parties to nab Gurpinder Singh, the escaped accused. One party was headed by S.I. D.C. Verma, and other by ASI Kaur Chand. (xi) S.I. K.C. Sharma, arrested Bahadur Singh, Devinder Singh, Sukhbinder Singh and karmjeet Singh. Said Shri D.C. Verma, Inspector left for Amritsar in official vehicle along with police party in search of accused Gurpinder Singh @ Rikki. But he was not found at the given address and thereafter police went to Mandi Govindgarh to his permanent place of residence where they met ASI Kaur Chand along with police officials who had located Gurpinder Singh in the town of Mandi Govindgarh, in the presence of PW28 Pritpal Singh and Pankaj Aggarwal. They noticed Gurpinder Singh entering his house from a side lane. PW28 Pritpal Singh identified him. Thereafter PW13 S.I. D.C. Verma, with the help of police party apprehended him. He was found carrying a - 9 - bag with him. His left arm was plastered. On checking the bag in the presence of the aforesaid witnesses it contained Rs.10, 81,000/-, the looted amount. On being asked about the balance amount, he informed that he had spent the rest of the amount on the treatment of his fractured arm. The aforesaid amount was taken into possession by the police vide recovery memo Ext. PW11/A. Rough spot map Ext. PW13/A of the recovery was also prepared. Statements of the witnesses were recorded under Section 161 of the Code of Criminal procedure. Said accused was arrested. Recovered cash amount was handed over to ASI Kaur Chand contained in the bag Ext. P2. (xii) At the time of arrest on the personal search of Devinder Bir Singh accused police recovered road map Ext. PW6/B vide recovery memo Ext. PW6/A which Indicated the entire way plan to Hamirpur and Bilaspur which was allegedly prepared at the behest of accused Gurpreet Singh driver of the Indica car. PW27 Prem Kumar and PW28 Pritpal had been treating Gurpreet their driver as suspect. PW31 SI K.C. Sharma also expressed his suspicion on him as an accomplice of other accused. During interrogation, he broke down and allegedly admitted having conspired with his co- accused to commit dacoity. Accused No. 2 to 6 were - 10 - got medically examined as aforesaid. There were injuries on their person corresponding to the time of incident, Indicating complicity in the crime. (xiii) As per case of the prosecution, all the accused persons had hatched conspiracy to commit dacoity as aforesaid and accused Gurpreet Singh driver of the Indica car had been aware of the collection of the amounts by Pritpal Singh aforesaid and was in touch with his co-accused supplying information to them. (xiv) During the investigation of the case, it came to the notice of police that on 4.12.2008 accused persons had committed the theft of Maruti Car bearing registration No. HR-51-E-8272 from ‘Golden Temple complex’ Amritsar owned by PW13 Dr. Surinder Pal resident of Pehowa (Haryana), regarding which a complaint Ext. PW13/A was lodged with the police under Section 379 Indian Penal Code which was registered as FIR No. 108/2008 in police Station Kotwali, Amritsar. It is also the case of the prosecution that accused persons Gurpinder Singh and Devinder Bir Singh on 3.12.2008 contacted PW17 Jasbir Singh to prepare a number plate PB10-AC2395 and paid Rs.100/- and also committed theft of the car, and this plate was used on Maruti car aforesaid in view of its original registration No. HR51-E- 8272. Even they removed the rear bumper of the Maruti - 11 - car. On the day of incident it was being driven by accused Devinder Bir Singh. (xvi) Accused Devinder Bir Singh had made disclosure statement Ext. PW8/A in the presence of PW8 Mohinder Singh, PW28 Pritpal Singh and PW29 Manoj Kumar and got rear bumper Ext. P1 of the car recovered vide recovery memo Ext. PW8/B. (xvii) PW26 HHC Saroop lal was requisitioned by the police to examine the vehicle. On examination he found that rear bumper stood removed from the Maruti car. (xviii) Police also recorded the statements of PW5 Karam Chand, PW7 Rakesh Kumar, PW9 Vas Dev, PW10 Chuni Lal and PW28 Pritpal Singh. Maruti car was released to its original owner PW13 Surinder Pal by the order of Judicial Magistrate Una. The Indica car was released to PW11 Pankaj Aggarwal its registered owner. Cash amount of Rs.10,81,000/- was released to PW27 Prem Kumar. 3. After completion of the investigation, challan was presented in the court for the trial of the accused persons. 4. Finding a prima facie case under Section 395 Indian Penal Code, all the accused persons were charge sheeted to which they pleaded not guilty and clamed trial. - 12 - 5. To prove its case, prosecution examined its witnesses and each of the accused were also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon each of them were put to which they denied. However, Gurpreet Singh admitted that he was driver in the Indica car employed by PW27 Prem Kumar, and he along with his son were dealing in Steel iron bars supplying steel to various dealers in H.P. He also admitted that aforesaid amount was collected from various persons by PW28 Pritpal Singh and he also issued receipt to each of them. He further admitted that four packets of amount collected were made by said Shri Pritpal and were kept in the Indica car. He also admitted that Maruti car was following them all along in the area of Himachal Pradesh, some times ahead and some times behind. He also stated that the said Maruti car blocked their way at the place aforesaid and decamped and PW28 Pritpal Singh identified the assailants on their arrest by the police. 6. The stand of the other accused persons during the trial was denial simplicitor. According to them they were falsely implicated in the case. 7. When called upon to enter into their defence no evidence in defence was led. - 13 - 8. At the end of the trial accused persons were convicted and sentenced as aforesaid. 9. Shri Anup Chitkara, learned counsel for the accused vehemently argued that accused Gurpreet Singh @ Babloo, driver of the Indica car was implicated in the case only on the basis of suspicion. In so far as other accused persons are concerned he took pains to point out contradictions in the statements of the witnesses to prove that prosecution case is false. He further argued that the recovery of the alleged map Ext. PW6/A from the person of Devinder Bir Singh allegedly having prepared at the behest of accused Gurpreet Singh is also wrong and incorrect and that map Ext. PW6/B was not sent to the document expert to fix the authorship of accused Devinder Bir Singh. Therefore, his complicity in the crime and also that of Gurpreet Singh both are quite doubtful. In so far as other accused persons are concerned he ventilated that nothing was recovered from them and because of the darkness, assailants could not be identified and no recovery was effected from them and they were also apprehended by the police on the basis of suspicion and no identification parade was conducted before the Magistrate. Therefore, the conviction and sentence passed by the learned trial Court is wrong and illegal. - 14 - 10. On the other hand, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. 11. To appreciate the rival contentions of the parties, I have thoughtfully and carefully re-appraised the evidence on record. 12. It stands established on record from the statements of PW27 Prem Kumar that PW28 Pritpal Singh was deputed to collect the supply orders and recovery of the amount from various dealers in the area of Bilaspur and Hamirpur in the State of H.P. Pritpal aforesaid had traveled in the aforesaid Indica car for the said purpose of the aforesaid firm to which accused Gurpreet Singh @ Bablu was the driver. Pritpal had collected the amount from various persons and this fact has been proved by PW5 Karam Chand. He testified that he made advance payment of Rs. 3,45,000/- for the supply of iron bars to the aforesaid firm. PW7 Rakesh Kumar, the another shop-keeper of the same place testified having handed over the advance payment of Rs.3,45,000/- to Pritpal for the purchase of steel-bars and issued receipt Ext. PW7/A of the amount aforesaid. He also proved the supply order Ext. PW7/B. PW9 Vas Dev was running a Hardware shop at Barthin, District Bilaspur. He proved the receipt Ext. PW9/B issued by PW28 Pritpal - 15 - Singh with respect to amount of Rs.4,30,000/- which was paid by him along with computerized copy of the ledger Ext. PW9/E. PW10 Chuni Lal also proved the payment of Rs.3,15,000/- to Pritpal Singh vide receipt Ext. PW10/B. Thus, in total the amount of Rs.10,90,000/- was received by Pritpal on behalf of M/s Prem Steel on 10.12.2008. The aforesaid amount was kept in the boot space of car by making four bundles which is alleged to have been looted by the accused persons in connivance with accused Gurpreet Singh driver of the Indica car. Significantly, in the search operation, accused Karmjeet Singh, Sukhvinder Singh , Bahadur Singh, and Devinder Bir Singh were apprehended during the intervening night of 10-11-12-2008 itself but the money could not be recovered except a road map Ext. PW6/B from the possession of Devinder Bir Singh accused. The said accused persons are the residents of Mandi Govindgarh and they were apprehended in the area of District Hamirpur, H.P., that too, in the search combing operation. Accused Gurpinder Singh aforesaid had separated from the co-accused and escaped with looted amount. After knowing about his whereabouts from the co-accused, as stated by PW30 S.I. D.C. Verma and PW29 Manoj Kumar, Police party was sent to the various places to nab him. They laid seize to the house - 16 - of the accused at Mandi Govindgarh, complainant Pritpal PW28, PW11Pankaj Aggarwal and PW27 Prem Kumar were with the police party. They noticed Gurpinder Singh entering his house from the side lane. He was identified by Pritpal Singh. PW30 S.I. D.C. Verma apprehended him. Said accused was carrying a bag Ext. P2 which contained Rs.10,81,000/ and remaining 9000/- was allegedly spent by him for his treatment of the fractured arm. 13. In the cross-examination of PW29 Pritpal he disclosed about the description of the house of the accused and the width of the street from where the accused was coming to his house. The currency notes which were allegedly recovered from his possession were counted in the presence of Pritpal Singh and Pankaj Aggarwal aforesaid. The recovery aforesaid stands substantiated by PW11 Pankaj Aggarwal, PW27 Prem Kumar and PW30 S.I. D.C. Verma to which the said accused had no explanation except that a cursory suggestion that it was planted one at the instance of PW28 Pritpal Singh to save his own skin, which is not at all acceptable. 14. Further, the perusal of the record shows that Maruti 800 car allegedly used was owned by PW13 Surinder Pal Singh and an Ayurvedic Medical Practitioner - 17 - of District kaithal. He also testified that the said car was found missing on the said day from the Golden Temple Complex Amritsar and he lodged the FIR with the police at Amritsar to this effect. He also produced the documents of the vehicle and stated that he applied for its release. 15. PW32 ASI Sukhdev Singh, who was posted at Police Station at Golden Temple Complex proved the complaint Ext. PW13/A of Shri Surinder Pal Singh with respect to theft of his car. His endorsement is Ext. PW32/A thereupon. 16. PW17 Jasbir Singh was running a shop at Mandi Govindgarh. According to him Devinder Bir Singh and Gurpinder Singh had contacted him to prepare the number plate Ext. P1 on 3.12.2008 which pertained to District Ludhiana and he charged Rs.100/ which was got identified by him on 17.12.2008 when produced before him by Himachal Pradesh Police. In cross examination, he specifically stated that accused persons were known to him, therefore, he prepared the number plate. Maruti car used in the alleged crime was taken into possession and was got mechanically examined through PW26 HHC Saroop Lal Police Motor Mechanic. As per his report Ext. PW26/A the number of the vehicle was found engraved on the mirror of the vehicle. He also - 18 - stated about the chasis number corresponding to registration certificate of its original owner whereas its front bumper Ext. P1 had different number plant bearing number PH-10-AC 2395. During the interrogation of Devinder Bir Singh, he made disclosure statement Ext. PW8/A in the presence of Mohinder Singh and Pritpal Singh that he could get recovered bumper which was separated from the Maruti Car and thrown on the way near the place known as “Ojhal” vide memo Ext. PW8/A. On the same, i.e. on 16.12.2008 the said bumper along with number plate PB-10-AC-2395 was recovered. It was also got examined from PW26 HHC Saroop Lal Police mechanic. He stated that rear bumper of the vehicle appeared to be separated from the vehicle. According to the official witnesses, said Maruti car was found at the spot at the place of alleged incident. 17. PW29 stated that said Maruti car had been chasing them right from Kirtpur (Pb.) in the area of Himachal Pradesh, ultimately their Indica car was stopped between Barsar and Lathiani out of which accused persons except Gurpreet Singh who was already driving his Indica car alighted and committed the crime. Out of which Karamjeet Singh (a-2), Devinder Singh (a-3) were apprehended and from the possession of Devinder Bir Singh, route map Ext. PW16/B was - 19 - recovered, showing the entire route where the complainant had to visit. PW31 Inspector K.C. Sharma also arrested Bahadur Singh and Sukhbinder Singh. All the accused persons are the neighbor villagers in District Phatepur (Pb.). They did not explain anything about their presence in the area of District Hamirpur, (HP). All these persons were identified by PW28 Pritpal Singh as the assailants and having committed robbery. They were found having traveled in the Maruti car aforesaid, which stopped the Indica car of PW28 Pritpal Singh of which Gurpreet Singh was the driver. 18. The learned trial Court rightly came to the conclusion that the accused aforesaid (except Gurpreet Singh) were the persons who had committed dacoity and further that the complainant and his employer would not have parted with the big amount of Rs.10,81,000/- with a view to rope the accused persons in a false case, that too, without any malice. There is no plausibility in the statements of the witnesses having any animus with either of them and rightly so the hyper technicalities or figment of imagination was not allowed to divest by the learned trial court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a - 20 - particular circumstance(s) keeping in view the peculiar facts of this case. 19. Though initially PW28 Pritpal