IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 203 of 1998. Decided on: 21.4.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Suresh Kumar and others … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajinder Dogra, Addl. Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. For Respondents No.1&3: Mr. Bhuvnesh Sharma, Advocate. For Respondent No.2 : Mr. Ashok Chaudhary, Advocate. ___________________________________________________________ V.K. Sharma, Judge.(Oral) Whereas, respondents No. 1 & 2 herein, namely, Suresh Kumar @ Bitu (in short Suresh Kumar) and Joginder Singh along with proclaimed offender Gurdip Singh @ Diya @ Ram Saran @ Jagan Nath @ Pandit, who shall hereinafter be referred to by his proper name i.e. Gurdip Singh, were accused of commission of offences under Sections 392, 364, 302 and 201 read with Section 34, IPC, respondent No.4, Hem Raj was proceeded against under Section 411, IPC. The trial against the respondents conducted by the learned Additional Sessions Judge (1), Kangra at Dharamshala culminated in acquittal vide the impugned judgment dated 3.1.1998, which is under challenge at the instance of the appellant- State in the present appeal under Section 378 (3) of the Code of Criminal Procedure, 1973 (the Code). 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. Facts of the prosecution case are that in the month of February, 1996, respondents No. 1 & 2, Suresh Kumar and Joginder Singh along with co-accused Gurdip Singh in furtherance of their common intention committed robbery in relation to truck bearing registration No. PAT-1418 laden with 130 rice bags. The truck at the relevant time was being driven by Chaman Masiha (deceased) and Shiva (deceased) was the Cleaner. They were also alleged to have murdered both the Driver and the Cleaner and disposed of their dead bodies in a canal at Sundernagar, District Mandi, H.P. The gravamen of charge against respondent No.3, Hem Raj was that on 23.2.1996 at village Ganoh, he dishonestly received and retained the aforesaid 130 rice bags being the stolen property. 3. The genesis of the occurrence is that one Shri Ranjan Kumar Bohra (PW-1) was running a rice mill at Dhariwal under the name and style ‘Hans Rice Mills, Dhariwal’. On 24.2.1996, he loaded 130 rice bags in the aforesaid truck belonging to him vide GR No. 108. The consignment was to be delivered to M/s Avinash Trading Company, Baijnath, District Kangra, H.P. However, the truck did not return after delivering the consignment at Baijnath. On inquiry, he was informed by the aforesaid M/s Avinash Trading Company, Baijnath that the truck had not reached its destination. It was in such circumstances that PW-1, Ranjan Kumar Bohra left for Baijnath in his own vehicle and on the way enquired from the police of every Police Station/Police Post regarding the movement of the aforesaid truck and its occupants, the Driver and Cleaner (deceased), but without any result. Consequently, on 2.3.1996, he 3 lodged report at Police Station, Dhariwal about missing of the truck along with the Driver, Cleaner and the consignment. 4. On 3.3.1996, one Satta, Mechanic, who was working as such with Truck Union, Dhariwal, happened to visit Baba Bharbhag Singh, informed Ranjan Kumar Bohra that he had seen his truck parked at a place known as Nangal Bhoor on Jallandhar road and that an attempt had been made to tamper with its registration number. On receipt of this information, Ranjan Kumar Bohra rushed to the said place and on reaching there found that though the truck was parked at that place, it was empty and the rice bags were missing and Driver and Cleaner were also not found there. The rice bags were weighing 130 quintals of the value of Rs. 71,000/-. The factum of passing of the truck through Kandwal Barrier on 24.2.1996 while on way from Dhariwal to Baijnath was entered in the records of the said barrier. 5. Against the above backdrop, an FIR was recorded at Police Station, Nurpur under Sections 392/364 IPC and is Ext. PW-1/A. The investigation commenced. On 2.3.1996, the proclaimed offender Gurdip Singh was arrested by the police in connection with the investigation of case No. 9/1996 under Section 25 of the Arms Act and Section 171 of the IPC. 6. Further narrative with regard to progress of investigation, as noticed by the learned Additional Sessions Judge, vide the impugned judgment dated 3.1.1998 at pages 4 to 6, is to the following effect: “On 7.3.1996 during the interrogation of the said case, Gurdip Singh accused disclosed about the 4 commission of the present case by him in furtherance of common intention with accused Suresh Kumar and Joginder Singh. He also disclosed that when he committed the aforesaid offence, he was wearing an uniform of Delhi Police and accused Suresh Kumar was wearing the uniform of a Constable. It was found by the Investigating Officer that on 25.2.1996 accused Gurdip Singh and Suresh Kumar, who were wearing Delhi Police uniforms, were the occupants of Maruti Van bearing registration No. DL-4CE/2169 and had stopped truck PAT-1418 at a distance of 4/5 k.m. behind from a place named Gaggal at about 9.30 a.m. After stopping the said truck, the accused Gurdip Singh checked the documents of the said truck. Thereafter, he provided Parshad to the driver and Cleaner of the truck in the shape of sweets. Some intoxicant was found to have been mixed with the sweets. After taking the sweets, the driver Chaman Masiha and Cleaner Shiva became unconscious. The accused Gurdip Singh and Suresh Kumar lifted both the driver and Cleaner out of the truck and put them in the said Van. Joginder Singh accused posed/impersonated himself as driver of the truck and Suresh Kumar accused as Cleaner at the instance of Gurdip Singh accused. Gurdip Singh himself drove the said Van in which Chaman Masiha and Shiva were put in by the accused persons. Joginder Singh accused along with Suresh Kumar took the truck to Nurpur and stopped the same at Defence Road near Nurpur. The accused persons on the same very night took Chaman Masiha and Shiva in the said Van to Sunder Nagar. The van was being driven by accused Joginder Singh. On the following day, at about 5 a.m. accused Gurdip Singh and Suresh 5 Kumar threw both Chaman Masiha and Shiva in Sunder Nagar Canal and all the accused went back in the same van to Nurpur. The accused persons sold 130 rice bags to accused Hem Raj and after unloading the rice bags, they drove the truck towards the side of Nangal Bhoor road. The said disclosure statement of Gurdip Singh was recorded by the Police on 7.3.96. The custody of Gurdip Singh was transferred by the order of Judicial Magistrate Ist Class, Nurpur under the present case on 8.3.96. At the instance of accused Gurdip Singh 110 bags of rice were recovered from a store at village Ganoh. The store was allegedly belonging to accused Hem Raj. The Investigating Officer also recovered 10 bags of rice from the shop of one Sh . Mohan Lal and another 10 bags of rice were recovered from the shop of Sh. Ramesh Chand shopkeeper at Jassoor. The said 20 bags of rice were allegedly sold by Hem Raj accused to Mohan Lal and Ramesh Chand. The recovered rice bags were taken into possession vide different seizure memos and were given on sapurdari to Ranjan Kumar Bohra PW1. The accused Suresh Kumar, Joginder Singh and Hem Raj were arrested by the Investigating Officer on 9.3.96. The truck bearing registration No. PAT 1418 was taken into possession. The dead bodies of Chaman Masiha and Shiva were recovered from B.B.M.B. Canal Sunder Nagar in District Mandi. The Maruti Van stated above was taken into possession. The dead bodies of Chaman Masiha and Shiva were sent for post mortem reports in Govt. Hospital Sunder Nagar. The post mortem reports were obtained. The dead bodies were handed over to their relatives. The viscere of Chaman Masih and Shiva was preserved and was got examined from 6 Chemical Examiner. Biscuits and sweets allegedly containing some intoxicants had been taken into possession. Those were also got examined from Chemical Examiner, FSL Bhrari (Simla). After the completion of the investigation, a report under section 173 of the Code of Criminal Procedure was prepared and submitted in the committal Court.” 7. At the time of submission of final report under Section 173 of the Code, the proclaimed offender, Gurdip Singh was stated to be lodged in Tehar Jail in Delhi in connection with some other case. However, during the committal proceedings, it was found that he had absconded from custody and accordingly, proceedings under Section 82 of the Code were initiated against him and he was declared as a proclaimed offender. 8. In order to establish its case, the prosecution examined as many as 31 witnesses. On close of the prosecution evidence, the respondents were examined under Section 313 of the Code. The defence set up by them was that of denial simplicitor. However, they did not lead any evidence in their defence. 9. We have heard the learned Additional Advocate General for the appellant-State and the learned counsel for the respondents and perused the record. 10. There being no direct eye witness account about the occurrence, this case is solely based on circumstantial evidence. Though on the basis of the alleged offences, there are two sets of accused, firstly; accused Gurdip Singh and respondents Suresh Kumar and Joginder Singh and secondly; respondent Hem Raj. However, in essence the accused fall within three categories, firstly 7 proclaimed offender Gurdip Singh on the basis of whose disclosure statement and consequent recoveries respondents Suresh Kumar and Joginder Singh, who fall within the second category, have been implicated for the main offences under Sections 392, 364, 302 and 201 IPC and the Investigating Agency has proceeded further in the matter and lastly; respondent Hem Raj, who was charged under Section 411 IPC. 11. In so far as Gurdip Singh is concerned, as already noticed, he had absconded and was consequently declared proclaimed offender. It being so, the case against him stood separated from other accused. 12. Now, while adverting to the second set of accused, namely, respondents Suresh Kumar and Joginder Singh, it would be seen that there is virtually no evidence on record against them as has also been concluded by the learned Additional Sessions Judge. As already noticed, the prosecution examined as many as 31 witnesses. However, out of them only 7 witnesses are material. They are PW-1, Shri Ranjan Kumar Bohra owner of the truck in question and the consignment of rice bags being transported therein. PW-2, Shri Madan Lal is a marginal witness to disclosure statement Ext. PW-31/A said to have been made by the proclaimed offender, Gurdip Singh, who had also allegedly implicated respondents Suresh Kumar and Joginder Singh in the commission of crime alongwith him. However, since hi did not support the prosecution case, he was declared hostile. PW-3, Biru Ram and PW-4, Raghubir Singh, both labourers, were examined to prove delivery of 10 bags each out of the stolen rice bags numbering 130 to PW-5 Ramesh Kumar and PW-6 Mohan Lal shopkeepers at the 8 behest of respondent No.4, Hem Raj. However, their testimonies as also that of PW-5 Ramesh Kumar and PW-6 Mohan Lal have not been found to be sufficient in content, convincing and up to the mark by the learned trial Court for lack of evidence to connect the aforesaid 20 bags of rice with the consignment of stolen rice bags numbering 130. PW-5, Shri Gomti Prasad has been examined to prove recovery of the aforesaid 20 bags vide seizure memo Ext. PW5/A and PW6/A. However, he has denied that the recovered rice bags numbering 20 were entrusted in his Spurdari vide memo Ext. PW-7/A. According to him, police had told that the rice bags would be sent to him and by believing the police officials, he had signed the sapurdari memo Ext. PW-7/A. It is further stated by him that thereafter, when he asked the police officials that they had not sent the rice bags to him, he was told that he had ceased to be the sapurdar of the rice bags. PW-8, Shri Bishamber Singh was examined by the prosecution to fasten guilt against respondent, Hem Raj. He is said to be a witness to recovery memo Ext. PW- 8/A vide which the remaining 110 rice bags were allegedly got recovered by the proclaimed offender Gurdip Singh while in custody of the police from the shop belonging to respondent, Hem Raj situate at Ganoh after getting the lock of the shop opened. However, the fact remains that a bare perusal of recovery memo Ext. PW-8/A would go to show that PW-8 Shri Bishamber Singh has been introduced as a marginal witness to the said memo lateron. This inference is deducible from the fact that whereas the body of the memo and the names and addresses of two other marginal witnesses, namely; Mohinder Pal and Kuldip Singh are in Hindi and in one and the same handwriting, the name and address 9 of PW-8, Shri Bishamber Singh is in English and apparently in another handwriting. It is explicit that the act of introduction of PW- 8, Shri Bishamber Singh as a marginal witness to memo Ext. PW- 8/A is a clear case of fabrication/interpolation. 13. In view of the above, the inference derived by the learned trial Court that the prosecution has miserably failed to connect respondents, Joginder Singh and Suresh Kumar with commission of the alleged crime is borne out of the evidence on record. The further inference that the prosecution has also failed to connect respondent, Hem Raj with the alleged stolen property is also based on correct appraisal of evidence. Since the witnesses for the prosecution have stated that the store from which the aforesaid 110 bags were recovered belongs to one ‘Fauji’, it can be safely inferred that the prosecution has also failed to establish possession of respondent, Hem Raj in relation to the said store. 14. In view of what has been said hereinabove, we are satisfied that the impugned judgment of acquittal dated 3.1.1998 does not require any interference by this Court. Accordingly, the appeal is dismissed being without merit. (Surjit Singh) Judge. (V.K. Sharma) Judge. April 21, 2010. (cr)