Neutral Citation No. ( 2024:HHC:9309 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 28 of 2012 Reserved on: 06.08.2024 .

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Hemant Vaid, Advocate.

For the Respondent/State : Mr. Lokender Kutlehria, Additional Advocate General.

Rakesh Kainthla, Judge The present revision is directed against the judgment passed by learned Sessions Judge, Shimla in Criminal Appeal No. 107-S/10 of 2009, vide which, the judgment passed by learned Judicial Magistrate, First Class, Court No. IV, Shimla (learned Trial Court) dated 07.05.2005 and order of sentence dated 09.11.2009 were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Neutral Citation No. ( 2024:HHC:9309 )

2. Briefly stated, the facts giving rise to the present revision are that the police filed a charge sheet before the learned Trial Court against the accused for the commission of offences .

punishable under Sections 457 and 414 of the Indian Penal Code (in short ' IPC '). It was asserted that Chander Dutt Sharma (PW4) made a statement (Ext. PW4/A) before Brijesh Sood (PW11) that he (the informant) was posted as a Chowkidar with the Baljees restaurant. He was on duty on the intervening night of 17/18.10.2004. He had bolted the shutters and the windows at about 11:00 pm. He was sitting in the hall at about 3:45 am. The lights of the sweet shop and counter were switched on. One person tried to get away from the sweet shop. The informant went to the sweet shop after hearing the noise. The person ran upwards. Chander Dutt followed him. Safai Karamchari was sleeping in one room and revealed that one person had gone towards the Fascination Hall. Chander Dutt (PW4) and Ram Singh (PW6) went to the Fascination Hall. They found Dhanpat (PW9) and Sanjay Kumar (PW1) sleeping in the hall. They found one person having concealed himself in the blanket. They disclosed these facts to HC-Baldev Singh and Constable-Brij Lal, who informed the police. The person revealed his name as ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 3 Neutral Citation No. ( 2024:HHC:9309 ) Jitender Sharma. He was searched. He was found in possession of two screwdrivers, plier and one mobile phone. The statement (Ext. PW4/A) was sent to the police station, where FIR (Ext.

PW8/A) was recorded. Brijesh Sood conducted the investigation.

He seized the screwdrivers (Ext. PA and PB), mobile phone (Ext.

PD), and plier (Ext. PC) vide memo (Ext. PW4/B). He prepared the site plan (Ext. PW11/A) and recorded the statements of witnesses as per their version. The accused made a disclosure statement that he had concealed jeans pants, jackets and other articles in his room which could be got recovered by him. The statement (Ext. PW3/A) was reduced into writing. The accused and the police went to the room of the accused at Rana Cottage Jakhu and recovered the articles. These were seized vide memo (Ext.

PW3/B). Deepak Mohan Sood (PW10) identified the articles to be the stolen ones. The site plan (Ext. PW11/B) was prepared. The articles were put in a carton and the carton was sealed with seal 'A'. The seal impression (Ext. PW11/C) was taken on a separate piece of cloth and the seal was handed over to Rajeev Sood (PW3) after use. The photographs of the spot (Exts. P1 to P6 whose negatives are Ext. P7 to P12) were taken. Chequebooks (Ext. P13 to P15), and a copy of the insurance policy (Ext. P16) were recovered ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 4 Neutral Citation No. ( 2024:HHC:9309 ) during the search of the room, which were seized vide memo (Ext. PW3/B). The statements of the witnesses were recorded as per their version and after the completion of the investigation, .

the challan was prepared and it was presented before the Court.

3. Learned Trial Court charged the accused with the commission of offences punishable under Sections 457 and 414 of IPC. The accused pleaded not guilty and claimed to be tried.

4. The prosecution examined 11 witnesses to prove its case. Sanjay Kumar (PW1), Chander Dutt Sharma (PW4), Het Ram (PW5), Ram Singh (PW6), and Dhanpat (PW9) were the employees of Baljeess restaurant who apprehended the accused.

HC Govind Ram (PW2) took photographs of the articles recovered from the room of the accused. Rajeev Sood (PW3) and Sunil Dutt (PW7) are the witnesses to the disclosure statement and the recovery of various articles. ASI Purshottam Chand (PW8) signed the FIR. Deepak Sood (PW10) identified the articles recovered from the shop as the stolen articles. Brijesh Sood (PW11) conducted the investigation.

5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. No defence was sought to be adduced by the accused.

Neutral Citation No. ( 2024:HHC:9309 )

6. The learned Trial Court held that the testimonies of the prosecution witnesses duly corroborated each other. The accused made a disclosure statement and got recovered various .

articles which were identified as stolen property. Therefore, the accused was convicted of the commission of offences punishable under Sections 457 and 414 of IPC. He was sentenced to undergo rigorous imprisonment for a period of three years each for the commission of offences punishable under Sections 457 and 414 of IPC.

7. Being aggrieved from the judgment and order passed by the learned Trial Court, an appeal was preferred, which was decided by learned Sessions Judge, Shimla (learned Appellate Court). Learned Appellate Court held that the learned Trial Court had not considered the question of granting the benefit of the Probation of Offenders Act or Section 360 of Cr.P.C. No reasons were assigned for not doing so; hence, the matter was remitted to the learned Trial Court with a direction to hear the parties on the question of sentence and pass appropriate orders.

8. The learned Trial Court held that the convict was not entitled to the benefit of the Probation of Offenders Act in view of the gravity of the offence. Hence, the learned Trial Court ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 6 Neutral Citation No. ( 2024:HHC:9309 ) sentenced the accused to undergo simple imprisonment for two years and to pay a fine of ₹ 2,000/- for the commission of an offence punishable under Section 457 of IPC and in default of .

payment of the fine to further undergo simple imprisonment for one year. The learned Trial Court also sentenced the accused to undergo simple imprisonment for one year and pay a fine of ₹ 1,000/- and in default of payment of the fine to further undergo simple imprisonment for 15 days for the commission of an offence punishable under Section 414 of IPC.

9. Being aggrieved from the Judgment and order passed by the learned Trial Court, the accused filed an appeal before the learned Sessions Judge (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the testimonies of the witnesses corroborated each other. The disclosure statement and the consequent recovery were also proved. The accused was found in possession of 4 mobile sets, 4 chargers, 7 SIM cards and 70 items. The non-examination of independent witnesses was not sufficient to doubt the prosecution case. The presence of the accused along with two screwdrivers and one plier was a strong circumstance against him. There was no infirmity in the ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 7 Neutral Citation No. ( 2024:HHC:9309 ) judgment and order passed by the learned Trial Court; hence, the appeal was dismissed.

10. Being aggrieved from the judgments and order passed .

by the learned Courts below, the accused has filed the present revision asserting that the learned Courts below failed to properly appreciate the material on record. It was wrongly held that the prosecution had proved its case beyond reasonable doubt for the commission of offences punishable under Sections 457 and 414 of IPC. The presence of the accused in the restaurant was improbable because the doors and shutters were bolted from inside and no person could have entered the restaurant unless the doors were opened by some person. The defence version was highly probable. No stolen property was recovered from the possession of the petitioner/accused. A thief or a criminal would not take the risk of entering the bed where the witnesses were sleeping. The prosecution had suppressed the genesis of the incident, which has affected the basic fabric of the prosecution case. Police had planted 15 cases against the accused out of which, the accused was acquitted in 12 cases. Once, he was acquitted of the charge of theft and criminal trespass, he could not have been convicted for the commission of the same ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 8 Neutral Citation No. ( 2024:HHC:9309 ) offences. The Courts disbelieved the memo of recovery and the disclosure statements. The learned Appellate Court had failed to exercise the jurisdiction vested in it. The circumstances proved .

against the petitioner/accused did not establish his guilt beyond a reasonable doubt; therefore, it was prayed that the present revision be allowed and the Judgment and order passed by learned Courts below be set aside.

r to I have heard Mr. Hemant Vaid, learned counsel for the petitioner/accused and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.

12. Mr Hemant Vaid, learned counsel for the petitioner/accused submitted that the accused had filed an application under Section 391 read with Section 311 of Cr. P.C. for leading the additional evidence. The learned Appellate Court had taken up the application along with the appeal and erred in dismissing the same. The evidence proposed to be led by the appellant/accused was highly material and learned Appellate Court erred in dismissing the application. Therefore, he prayed that the matter be remanded to the learned Appellate Court with a direction to decide the application as per the law. He submitted in the alternative that the prosecution version was inherently ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 9 Neutral Citation No. ( 2024:HHC:9309 ) improbable. As per the prosecution, the accused had concealed himself in the blanket of the employees of the hotel. No person would take the risk of being detected by concealing himself in the .

blanket with the occupants of the premises where he intended to commit the theft. The prosecution had not proved the theft in the present case. Separate charge sheets were filed for committing the theft but the accused was acquitted in those cases. He could not have been convicted in the present case. Therefore, he prayed that the present revision be allowed and the Judgment and order passed by the learned Courts below be set aside.

13. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State supported the judgments and order passed by learned Courts below and submitted that no interference is required with the same.

14. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

15. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204:

16. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was observed:

17. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.

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18. It was submitted that learned First Appellate Court erred in taking the application for hearing along with the main .

appeal and the application should have been taken up separately.

This submission cannot be accepted. It was laid down by the Karnataka High Court in Umesh Prabhu versus State , 2019 (0) Supreme (Kar) 157 that an application for additional evidence has separately.

r to to be disposed of along with the main appeal and cannot be taken "10. On close reading of the said paragraph, it has been observed that the provisions of Section 391 of Cr.P.C., are akin to Order 41 Rule 27 of CPC . If the same analysis is applied in the present case, the trial Court ought to have allowed to produce the said documents, thereafter instead of deciding the application separately, it could have been heard the appeal along with the said application and have looked into the relevancy of the documents which are produced and thereafter, the appeal as well as the application for production of documents under Section 391 of Cr.P.C., could have been disposed."

19. A similar view was taken in Dharmendra v. State of M.P. , 2006 SCC OnLine MP 26: (2006) 1 MP LJ 436: (2006) 4 CCR 350: 2006 Cri LR (MP) 216 wherein it was observed at page 438:

7. These opening words clearly suggest that the application moved under section 391 , Criminal Procedure Code should be considered by the Appellate Court while dealing with the criminal appeal and when it comes to the conclusion that this additional evidence is necessary, such application can only be dealt with after going through the entire record of the trial Court and after hearing both the parties. Therefore, the wording of section 391 , Criminal Procedure Code suggests that the application moved under this section should not be considered in isolation but should be considered after hearing the parties on merits. If after hearing parties on merits Court comes to the conclusion that the additional evidence is unnecessary then while deciding the appeal application moved under section 391 Code of Criminal Procedure can be dismissed. If such additional evidence appears necessary regarding decision of the matter and without which the appeal cannot be disposed of then such additional evidence may be taken on record either by the Appellate Judge himself or by the trial Court. The Appellate Judge may also remand back the matter to the trial Court for the purpose of recording additional evidence as provided under sub- section (2) of the said section 391 therefore, the whole scheme of section 391 suggests that like civil cases an application for taking additional evidence on record under section 391 of the Code of Criminal Procedure should also be considering and disposed of after hearing the criminal appeal on merits and such application should not be disposed of in isolation without hearing the appeal on merits because if such application is disposed of without ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 14 Neutral Citation No. ( 2024:HHC:9309 ) hearing the appeal on merits then there may be cases of failure of justice.

8. In the sixth edition of Sarkar on Criminal Procedure on page 1048 it has been observed that an Appellate Court cannot decide if additional evidence should be admitted .

unless it has heard the appeal on merits. This opinion of the learned author is based on the case of Varada Rajulu Vol. 42 ILR Madras page 885 and appears to be the correct view of the legal position.

20. This view was reiterated in Pramod Gupta v. State of M.P. , 2013 SCC OnLine MP 2239: ILR 2013 MP 984: (2013) 3 MP LJ

363. It was observed at page 987:

Therefore, the whole scheme of Section 391 of Cr.P.C.

Neutral Citation No. ( 2024:HHC:9309 ) suggests that like civil cases an application for taking additional evidence on record under Section 391 of Cr.P.C. should also be considered and disposed of after hearing the criminal appeal on merits and such application should not be disposed of in isolation without hearing the appeal .

on merits because if such applications are disposed of without hearing the appeal on merits, then there may be cases of failure of justice. (Dharmendra s/o Chandan Singh v. State of M.P. , (2006) 1 MP LJ 436 referred to).

21. Madras High Court also held in M. Nagarajan v. M. Navarajan , 2020 SCC OnLine Mad 6451 that the application for additional evidence has to be taken up with the main matter and cannot be disposed of separately. It was observed:

11. From the aforesaid decision, it is clear that the application filed under Section 391 of Cr.P.C., is akin to an application filed under Order 41 Rule 27 of CPC . With regard to the aforesaid position of law, there is no quarrel among the parties because the learned counsel for both parties relied upon the aforesaid decision.

Neutral Citation No. ( 2024:HHC:9309 )

12. In Premier Automobiles Limited, Bombay v. Kabirunissa, CDJ 1990 SC 518., during the pendency of the appeal before the Appellate Court, an application for admitting additional evidence under Order 41, Rule 27 of the Code of Civil Procedure was filed by the appellants, which .

remained undisposed of. Even while pronouncing its judgment disposing of the appeal finally, the Appellate Court did not advert to it. It was only after the case was disposed of that the application for additional evidence was rejected by a short order, observing that the appellants had sufficient opportunity to produce the documents in the trial Court, and it had failed to do so. Under the said circumstances, the Hon'ble Supreme Court has held that the Appellate Court will, in the first instance, hear and dispose of the application under Order 41, Rule 27, Civil Procedure Code and only thereafter take up the final hearing of the appeal.

13. In Eastern Equipments & Sales Limited v. ING . Yash Kumar Khanna Appeal (Civil) No. 3178 of 2008 dated 30.04.2008, the Hon'ble Supreme Court has held that in order to decide the pending appeal in which the application under Order 41 Rule 27 of CPC was filed ought to have been taken by the Appellate Court along with the application for acceptance of additional evidence under Order 41 Rule 27 of CPC .

14. A similar view was taken by the Hon'ble Supreme Court in the subsequent judgment in Muzaffar Ali v. Dasaram, Appeal (Civil) No. 85 of 2009 (Arising out of SLP(C) No. 6241 of 2008 dated 12.01.2009 wherein the Hon'ble Supreme Court has directed the High Court, it decide the Second Appeal along with the application under Order 41 Rule 27 of CPC on merits.

15. Though in Premier Automobiles Limited, Bombay v. Kabirunissa , (cited supra) the Hon'ble Supreme Court has directed the Appellate Court that in the first instance, hear and dispose of the application under Order 41, Rule 27 of CPC and only thereafter take up the final hearing of the appeal, in the subsequent decisions it has ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 17 Neutral Citation No. ( 2024:HHC:9309 ) held that the application which was filed under Order 41, Rule 27 of CPC shall be heard along with the main appeal.

16. In Brig. Sukhjeet Singh (Retd.) MVC v. The State of Uttar Pradesh, CDJ 2019 SC 078., the Hon'ble Supreme Court has .

not issued any guidelines as to whether the application under Section 391 Cr.P.C., is to be heard and disposed of independently or along with the main appeal. In that case, considering the facts and circumstances of the case, the Hon'ble Supreme Court has held that the Appellate Court failed to exercise the power under Section 391 of Cr.P.C., properly. So the said decision will not help this Court to decide the issue whether the application filed under Section 391 of Cr.P.C., has to be disposed of independently or not.

17. In K. Thakshinamoorthy v. The Inspector of Police, SPE/CBI/ACB, Chennai, MP.(MD). No. 1 of 2011 in Crl.A.(MD). No. 544 of 2007 dated 14.03.2012, (cited supra) also the question as to whether the application which is filed under Section 391 of Cr.P.C., has to be disposed of independently or not did not arise. Hence, the said decision also will not help the petitioner.

18. In Parasmal Jain v. M. Rajesh (Criminal Revision Case Nos. 224 to 226 of 2015) dated 31.07.2015, also the question as to whether the application filed under Section 391 of Cr.P.C., has to be disposed of separately or not did not arise.

19. In Ravichandran v. Paramasivam , 2013 SCC OnLine Mad 3828 : (2014) 3 CTC 421 this Court while dealing with the application filed under Order 41 Rule 27 of CPC has held that the said application shall be heard along with the main appeal and if the Court comes to the conclusion that the said application is liable to be dismissed, the Appellate Court can dismiss the said application at the time of pronouncement of the judgment in the appeal on merits. Further, it was held that in case, the Court comes to the conclusion that the application filed under Order 41 Rule 27 of CPC has to be allowed, then it has to pass a separate order and thereafter follow the procedure contemplated ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 18 Neutral Citation No. ( 2024:HHC:9309 ) under Order 41 Rule 28 of CPC for recording additional evidence. Since the application which was filed under Section 391 of Cr.P.C., is akin to the application filed under Order 41 Rule 27 of CPC , the procedure which has been prescribed by this Court .

in Ravichandran v. Paramasivam (cited supra) can be followed in this case also.

20. In Satishkumar v. Raj Kumar, (Criminal Revision No. 3714 of 2018 dated 14.02.2018) a similar question arose before the Punjab - Haryana High Court wherein the said High Court has observed as follows:--

21. The aforesaid decision will squarely apply to the facts of this case. Therefore, the discretion as has been exercised by the Appellate Court cannot be faulted with, merely because the petitioner apprehends that the application for leading additional evidence preferred by him under Section 391 Cr.P.C., would not be accepted. The approach of the Appellate Court appears to be fully justified keeping in view the fact that when the case is open for arguments, the Court would be aware of all the details and evidence led by the parties before it. Whether the application for additional evidence has to be considered and decided prior to the disposal of the appeal or along with the main appeal is purely the discretion of ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 20 Neutral Citation No. ( 2024:HHC:9309 ) the Appellate Court. In this case, the Appellate Court has exercised its discretion and decided to take up the said application along with the main appeal. This court does not find any infirmity in the said order."

22. Therefore, there is no infirmity in taking up the application along with the main appeal.

23. It was submitted that the evidence was essential and learned First Appellate Court erred in dismissing the application.

A perusal of the application filed under Section 391 read with Section 311 shows that the application was filed for bringing on record the statement made by Rajeev Sood and Sunil Dutt in other cases. It was stated that their statements made in the present case were contradictory to the statements recorded in other cases and the statements in other cases were required to be brought on record by way of additional evidence. It was not mentioned under which provision of law, a subsequent statement made by a person after the previous statement had been made, would be relevant or admissible. The only provision which allows the cross-examination regarding the statement made by a witness is Section 145 of the Indian Evidence Act, which enables the cross-examination regarding the previous statement made in writing. Since the statement was not previous ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 21 Neutral Citation No. ( 2024:HHC:9309 ) to the statement made in the present case and was subsequent thereto; therefore, the same cannot be brought on record by taking recourse to Section 145 of .

the Indian Evidence Act . Similarly, Section 155(3) of the Indian Evidence Act permits impeaching of the credit of the witness by the proof of the former statement inconsistent with any part of the statement, which is liable to be contradicted. Again, this Section speaks about the former statement and not the subsequent statement. Hence, the learned Appellate Court was right in refusing to admit the additional evidence and it cannot be said that the learned Appellate Court erred in any manner in dismissing the application.

24. Informant Chander Dutt (PW4) stated that he was posted as a Chowkidar in Baljees Restaurant in 1993. He was on duty on the intervening night of 17/18.10.2004. He bolted the shutters and the windows properly during the night. He was sitting on the sofa at about 3:30 and 3:45 am when he heard some noise. He saw a stranger. He looked for him and found Dhanpat and Sanjay Kumar sleeping in the hall. The stranger was found sleeping in their bed. He called the police officials. The stranger revealed his name as Jitender Sharma, who was present in the ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 22 Neutral Citation No. ( 2024:HHC:9309 ) Court. The police searched Jitender and found a screwdriver, a plier and two mobile phones. The police also recorded his statement (Ext. PW4/A) and seized the article found in .

possession of Jitender vide Memo (Ext. PW4/B). He identified the articles recovered during the search of the accused.

25. He stated in his cross-examination that 80-85 people were employed in Baljees Restaurant. 25-30 people were present during the night. 4 to 6 people are sleeping on every floor. He woke up Ram Singh, Dhanpat, Sanjay, and Het Ram. Paras Ram and Khub Chand also reached the spot subsequently. Usually, 20- 25 people sleep on the five floors of the building. He volunteered to say that one staff member was getting married and the other staff members had gone to attend his marriage. He was discharging the duties from 8:00 pm to 8:00 am. He admitted that the entrance of Baljees is located adjacent to Mall Road. He usually sits near the counter but takes rounds during the night.

He locks the main shutter after bolting it from inside. No person could enter the restaurant without his permission. A register is maintained regarding the attendance, which was seized by the police. He admitted that a plier, screwdrivers and mobile phones were commonly available. He denied that these articles were ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 23 Neutral Citation No. ( 2024:HHC:9309 ) available in the restaurant. There are rooms on the 4 th and 5th floor, which are occupied by the people but these rooms were vacant on the date of the incident. He is informed about the .

occupancy. He denied that some people had visited the restaurant to inquire about the room. He denied that a false case was made against the accused.

26. Sanjay Kumar (PW1) corroborated his version. He stated that he has been employed as a Masalchi in Baljees Restaurant since October 2002. He was sleeping on the intervening night of 17/18.10.2004. Somebody entered in the blanket at about 3:40 am. Chander Sharma called him and said that some person had concealed himself in the bedding. He woke up and apprehended the person. Chowkidar called the police. He identified the person who had concealed himself in the bed as the accused present in the Court. The police recovered a plier, screwdriver and mobile phone from the accused. The accused revealed his name as Jitender on inquiry.

27. He stated in his cross-examination that he could not know when the person entered inside his bed. The screwdrivers, plier and mobile phone were carried by the accused in his hand.

The accused was lying towards the feet. He came to know about ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 24 Neutral Citation No. ( 2024:HHC:9309 ) the presence of the person after Chander Dutt Sharma told him.

He could not tell the hand in which the plier etc. was held by the accused. The accused showed the mobile phone to the police and .

he saw the mobile phone at that time. The police reached the spot at 3:30 am. He denied that no person had entered inside the bed and a false case was made by the police against the accused.

28. Ram Singh (PW6) stated that he was sleeping on the night of 17/18th October 2004. Chowkidar woke him up at about 4:00 am and enquired whether someone had visited the hall in which he was sleeping. He replied that no one had entered the hall. They looked and saw Sanjay and Dhanpat were sleeping.

They were asked to wake up. A stranger had concealed himself between them. The police were called. The police searched the stranger and recovered screwdrivers, plier and mobile phone.

The accused revealed his name as Jitender Sharma.

29. He stated in his cross-examination that the chowkidar bolts all the doors and the windows. Nobody could enter the restaurant without the permission of the chowkidar.

There is only one door to enter the restaurant. Chowkidar usually sits on the door. He also takes a round of the premises. The building consists of three storeys and it has three rooms for the ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 25 Neutral Citation No. ( 2024:HHC:9309 ) stay of the visitors. 15-20 people on the staff were sleeping. He was sleeping in one hall and two persons were sleeping in the other hall. He was not aware whether the rooms were occupied or .

not. He admitted that pliers etc. were commonly available. He denied that the accused had visited the premises to get a room and he had a scuffle due to which he was falsely implicated.

30. The statements of these witnesses corroborate each other. The presence of the accused was not disputed in the cross-

examination of the witness; rather it was suggested that the accused had visited the premises to take a room on rent. All the witnesses denied this fact. A denied suggestion does not amount to any proof and no advantage can be derived from the same. No evidence was led to prove that the accused had visited the premises to take the room on rent. The accused had also not stated this fact in his statement recorded under Section 313 of Cr.P.C. Therefore, this fact was not proved and the version of the prosecution witnesses that the accused was found in the restaurant with the screwdrivers, plier and mobile phone has to be accepted as correct.

31. The testimonies of these witnesses are corroborated by Dhanpat (PW9). He stated that he had been working as a ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 26 Neutral Citation No. ( 2024:HHC:9309 ) Masalchi in Baljees Restaurant for five years. On the night of 17/18th October 2004, he and Sanjay were sleeping in the hall on the floor. Ram Singh was sleeping in another room. Chander .

Dutt-Chowkidar was sleeping in the lower hall then corrected to say that Chander Dutt was on duty. At about 3:30-3:45 am, Chander Dutt woke them up and told them that a thief had entered the premises. They found that someone was sleeping with them. Chowkidar revealed that one person went towards the cash counter and ran upstairs after seeing the Chowkidar.

Therefore, Chowkidar was searching for him. They called the police. They apprehended the stranger who revealed his name as Jitender Sharma. A search of the accused was conducted.

Screwdrivers, plier and mobile phone were recovered from the accused. He identified these articles in the Court.

32. He stated in his cross-examination that 20-25 people were sleeping in the restaurant during the night. He volunteered to say that they sleep on 4 floors. There is only one passage going upstairs. He admitted that no one could enter the restaurant after the main door was closed. He admitted that people stay in the upper three rooms. However, those rooms were unoccupied on the date of the incident. He admitted that Chowkidar discharges ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 27 Neutral Citation No. ( 2024:HHC:9309 ) his duty at the main gate. Many times, the people of staff visit the restaurant for a stay. He admitted that the articles recovered from the accused were commonly available and they did not bear .

any mark. He denied that the accused had an argument with the Chowkidar and a false case was made by Chowkidar with his connivance.

33. This witness has corroborated the statements of other witnesses regarding Chowkidar waking them up and the presence of the stranger in the bed. He also corroborated their version regarding the recovery of plier, screwdriver and mobile phone.

34. Brijesh Sood (PW11) stated that he was patrolling along with other employees when he was informed by HC Baldev that some person had entered Baljees Restaurant. He went to the restaurant and found the employees and the accused in the restaurant. He recorded the statement of Chander Dutt Sharma (Ext. PW4/A) as per his version and sent it to the police station where FIR (Ext. PW8/A) was registered. The search of the accused was conducted. Two screwdrivers, one plier and one mobile phone were recovered in the presence of Chander Dutt Sharma and Het Ram. These were seized vide memo (Ext. PW4/B). The ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 28 Neutral Citation No. ( 2024:HHC:9309 ) memo was signed by witnesses. He identified the recovered articles. He stated in his cross-examination that Baljees Restaurant does not have any room for a stay. He was not aware .

that 4-5 rooms were available on the top floor of the building.

15-20 people were employed in the restaurant. He had made an entry regarding his departure. He received information at about 4:00-4:15 am. He admitted that Baljees restaurant had one entrance and the people had to use that entrance. Once, the restaurant is closed, no one can enter without the permission of the staff. He denied that the accused had visited the restaurant to take the room on rent and he had an argument with Chowkidar and the Chowkidar lodged a false complaint against the accused.

35. The statement of this witness also corroborates the testimonies of other witnesses regarding the presence of the accused on the premises of Baljees restaurant. The accused has not denied his presence in his cross-examination as it was suggested that the accused had entered the premises to take the room on rent. It was laid down by the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra , 2023 SCC OnLine SC 355 that the suggestion put to the witness can be taken into ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 29 Neutral Citation No. ( 2024:HHC:9309 ) consideration while determining the innocence or guilt of the accused. It was observed: -

away from his village Sakrahi. The witness identified the appellant-Tarun Bora and stated that it was he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident.

16. In cross-examination the witness stated as under:

17. This part of the cross-examination is suggestive of the presence of accused Tarun Bora in the whole .

episode. This will clearly suggest the presence of the accused-Tarun Bora as admitted. The only denial is the accused did not participate in blind-folding the eyes of the witness nor assaulted him."

37. In Rakesh Kumar alias Babli v. State of Haryana reported in (1987) 2 SCC 34, this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the IPC. While re-appreciating the evidence on record, this Court noticed that in the cross- examination of PW 4, Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court taking into consideration the nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote the following observations made by this Court in paragraphs 8 and 9 as under:

38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross- examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.

39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition, we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-

examination does not deserve any value or utility if it incriminates the accused in any manner."

36. Het Ram (PW5) stated that the police searched the accused on the night of 17/18th October 2004 at about 3:30-3:45 pm and recovered two screwdrivers, one plier and one mobile phone, which were seized vide memo (Ext. PW4/B), which was signed by him and chowkidar. He identified the accused and the case property.

37. He stated in his cross-examination that he was sleeping alone in the corner of a hall. He admitted that both the restaurants had a common entrance and it was not posssible to enter the premises without the permission of Chowkidar. The building had three rooms but he was not aware how many rooms ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 32 Neutral Citation No. ( 2024:HHC:9309 ) were occupied on that day. He admitted that the people visit the premises during the night to take the rooms on rent. Memo was prepared in the restaurant. 8-10 people were sleeping in the .

room. He admitted that the articles are commonly available and are also kept in the restaurant for the repair of gas cylinders etc.

38. It was submitted that the police had associated the employees of the restaurant and no independent person was appreciated, therefore, an adverse inference has to be drawn against the prosecution. This submission cannot be accepted.

The incident had taken place inside the restaurant early in the morning when even the inmates of the restaurant were sleeping.

The inmates of the restaurant would have been the best witnesses to depose as to what transpired inside the restaurant.

It is the specific case of the prosecution that the doors and the windows were bolted, therefore, no other person could have been present inside the premises. It was suggested that there were rooms, which were occupied by the people but the witnesses categorically stated that rooms were vacant. Thus, no independent person was present inside the premises and the prosecution cannot be faulted for not associating any independent witness.

Neutral Citation No. ( 2024:HHC:9309 )

38. It was suggested that the mere recovery of the plier, screwdriver and mobile phone would not help the prosecution because these articles are commonly available. This submission .

cannot be accepted. It was suggested to Het Ram that the pliers and screwdrivers were kept in the restaurant for the work of gas cylinders etc. which means that the pliers and screwdrivers were available inside the restaurant. The accused has not given any explanation for the availability of the plier and the screwdrivers;

hence, the prosecution's version that these were stolen from the restaurant has to be accepted as correct.

39. It was submitted that the prosecution version is improbable because the accused is stated to have concealed himself inside the blanket, which is contrary to normal behaviour. This submission will not help the accused. The accused admitted his presence inside the restaurant by suggesting to the witnesses that he had entered the restaurant to enquire about the room. This fact was not proved. Hence, the prosecution case will not become doubtful because the accused is stated to have concealed in the blanket. Further, when the staff of the restaurant was searching for the accused, the blanket was the ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 34 Neutral Citation No. ( 2024:HHC:9309 ) best place where he could have been mistaken for a staff member and there is nothing improbable in it.

40. Brijesh Sood (PW11) stated that he interrogated the .

accused and the accused made a disclosure statement that he had concealed jeans pants, sweater, jackets, bags of Adidas, reebok, powder, shampoo, C.D. Player, small T.V., Tubelights, etc. in his room in Rana Cottage, Jhakhu which he could get recovered.

Memo (Ext. PW3/A) was prepared in the presence of Sunil Dutt and Rajeev Sood. The accused put his signatures and the witnesses also put their signatures. The accused led the police party and the independent witnesses to Rana Cottage. He took out the key kept on the window and opened the door. He recovered the articles, which were seized vide memo (Ext.

PW3/B). Deepak Mohan Sood identified the articles as stolen property. A memo and site plan were prepared and the articles were seized. The photographs of the spot were taken.

41. He stated in his cross-examination that the accused had rented the room. He did not know about the residence of the owner of the room. He had not associated the owner as a witness and he could not give any reason for the same. He had not mentioned in the statement recorded under Section 27 of the ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 35 Neutral Citation No. ( 2024:HHC:9309 ) Indian Evidence Act that the keys were taken from the window.

Deepak Mohan Sood had registered the FIR earlier to the incident. He admitted that no articles were found stolen in the .

present case.

42. Rajeev Sood (PW3) stated that he and Sunil Dutt remained associated with the police during the investigation. The accused made a disclosure statement in his presence, in which he said that he could get the stolen articles recovered from his house. The memo (Ext. PW3/A) was prepared, which was signed by him and Sunil Dutt. Sweaters, Bags, T. Shirts, jackets, cream, powder, shampoo, mobile phone, CD Player, tube light etc. were found in the room which were seized via memo (Ext. PW3/B).

Deepak Mohan and Dinesh Mohan came to the spot and identified the stolen articles. These were seized by the police. He identified the chequebook and an LIC policy.

43. He stated in his cross-examination that he was running a shop of books on Mall Road. Deepak Mohan was running a shop of readymade garments on Mall Road. He knew Deepak Mohan because he was a member of the shopkeeper association. He and Sunil Dutt were walking on Mall Road at ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 36 Neutral Citation No. ( 2024:HHC:9309 ) about 7:00 am. The police had apprehended the accused. He denied that no recovery was effected from the accused.

44. Sunil Dutt (PW7) is the other witness to the recovery.

He stated that on 18.01.204 at about 6:30-7:00 am, he and Rajesh were roaming on the mall road when they heard some noise.

They went towards the spot and found that one person was apprehended who was being beaten. He was taken to the police reporting room. The accused made a statement during his custody that he could recover the stolen articles. He took them to Rana Cottage. The accused took out the key after opening the window. The other articles were found inside the hall. He and Rajeev Sood signed the memo as witnesses. Deepak Mohan Sood signed it as an identifier. He gave the details of the recovered articles.

45. He stated in his cross-examination that his shop is opposite the reporting room. They went to Jakhu after 7 pm. There were 3-4 houses near Rana Cottage. No one was associated with the police. He was not aware whether the family members of the accused also resided with him. He admitted that the articles are commonly available in the market. He knew Deepak Mohan Sood who reached after 30 minutes of his arrival. He denied that ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 37 Neutral Citation No. ( 2024:HHC:9309 ) no recovery was effected and all the documents were prepared in the police station.

46. The statements of these witnesses corroborate each .

other regarding the making of the disclosure statement by the accused and the subsequent recovery of the articles in Rana Cottage. Nothing was suggested to them in their cross-

examination that they were deposing falsely or they had any motive to do so.

47. to Deepak Sood (PW10) stated that he was called by Rajeev Sood on 18/19.10.2004 to Rana Cottage. He went to Rana Cottage where Rajeev Sood, Sunil Dutt and police were present with the accused. He identified the stolen articles, which were seized by the police vide memo (Ext. PW3/B). The accused had kept the stolen articles in his room. He signed the memo as the identifier.

48. He stated in his cross-examination that the police had not demanded the bills from him. He has been running a shop for about 30 years. He did not remember the colours of the articles belonging to him. Some of the articles belonged to the other shopkeepers. Brother, sister-in-law, father of the accused and another person were present in the house. He did not know ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 38 Neutral Citation No. ( 2024:HHC:9309 ) since when they were residing with the accused. Rajeev Sood and Sunil Dutt were his neighbours. Rana Cottage has two or three storeys. He remained on the spot for about one hour. He denied .

that no articles were stolen and he was making a false statement.

49. The cross-examination of this witness does not show that he has any enmity with the accused or any motive to falsely implicate him. He identified the articles belonging to him out of many articles recovered from the room. Had he been lying, he would have identified all of the articles as stolen and the fact that he had not done so shows that he is a truthful witness.

50. It was suggested to the prosecution witnesses that the accused had gone to demand the room and he had an argument with the Chowkidar, who falsely implicated the accused. This suggestion is not believable. If the accused wanted a room , he was a customer and Chowkidar would not have gained anything by quarreling with the accused and thereafter, falsely implicating him. There was no reason for quarrel if he wanted a room for himself or any other person. Further, he was a resident of Rana Cottage and had no reason to book the room. Even if, he wanted to book the room, he would not have gone early in the morning to do so. It is difficult to believe that everyone including the staff ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 39 Neutral Citation No. ( 2024:HHC:9309 ) of the Baljees restaurant, shopkeepers and the police would have conspired with the Chowkidar to falsely implicate the accused simply because the Chowkidar quarrelled with the accused. This .

submission is too far-fetched and cannot be accepted.

51. It was submitted that a person could not enter the restaurant after the door and windows were bolted from the inside; hence, the prosecution case is inherently suspect. This submission cannot be accepted. The accused was seen and apprehended inside the restaurant. How the accused managed to enter inside the restaurant can only be explained by him and the prosecution case cannot be discarded because the prosecution has not explained the manner of entry of the accused.

52. It is not permissible for this Court to re-appreciate the evidence while exercising the revisional jurisdiction. Both the learned Courts below have concurrently found that the accused was found inside the restaurant with the plier, screwdrivers and mobile phones. They have also found that the accused had made a disclosure statement and led the police and independent persons to his room in Rana Cottage from where the recovery of articles was effected and some of the articles were identified as the stolen articles. There is no perversity in the appreciation of ::: Downloaded on - 30/09/2024 20:31:10 :::CIS 40 Neutral Citation No. ( 2024:HHC:9309 ) the evidence by learned Courts below and no interference is required with these findings in the exercise of the revisional jurisdiction.

53. Consequently, the present revision fails and the same is dismissed.

54. Records be sent back forthwith. Pending applications, if any, also stand disposed of.