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Himachal Pradesh High Court · body

2013 DIGILAW 456 (HP)

Raj Kumar Bharmoria v. State of H. P.

2013-05-22

DEV DARSHAN SUD

body2013
JUDGMENT Dev Darshan Sud,J. The appellant challenges his conviction for offences under Section 394 of the Indian Penal Code (hereinafter referred to as ‘IPC’ ) . He has been sentenced to undergo rigorous imprisonment for a period of six years and a fine of Rs.one lac. 2. The prosecution case in brief is that on 10.11.2006 at 1.20 A.M. complainant PW-1 Devender Kumar went to Police Station, Sadar, Mandi, and lodged a report stating that he was working as a taxi driver at Manali of vehicle No.HP-01K-0624 owned by PW-2 Manoj Kumar. On 9.11.2006 at around 7.30 P.M. in the evening three persons, who had hired the taxi, boarded it in Manali. Out of them, one was limping and was known as Bharmoria. The second one was of moderate built and was wearing a black jacket and the third was a lean and thin person. All of them had hired his taxi from Manali to travel to Dharamshala. When they boarded the taxi they were conversing in ‘Kangri’ dialect. When at about 10.45/11.00 P.M. this taxi reached at Mehar near Drang, all of them asked the complainant to stop the taxi on the pretext that they wanted to urinate. When they returned, two of them occupied the rear seat and the third one stood near the front window of the taxi. When the complainant sat on the driving seat, the persons who were sitting on the rear seat clamped his neck with an iron wire and tried to pull him back with the intent of throttling him. When the complainant resisted the third person, who was standing outside the taxi, struck him with a stone injuring the complainant. During this period, a scooter was spotted by the complainant proceeding towards the spot where the taxi was parked. The accused became puzzled/frightened and during this period, the complainant jumped from the taxi to save his life whereupon the accused fled with the taxi towards Jogindernagar. 3.The complainant stated that on the day the taxi was hired, two of these persons had come on a motorcycle and had parked it in front of Victoria Palace Hotel, Manali. First Information Report, dated 10.11.2006, Ex.PW-1/A, was recorded on the statement made by the complainant PW-1. 4.To prove its case, the prosecution examined 14 witnesses. 3.The complainant stated that on the day the taxi was hired, two of these persons had come on a motorcycle and had parked it in front of Victoria Palace Hotel, Manali. First Information Report, dated 10.11.2006, Ex.PW-1/A, was recorded on the statement made by the complainant PW-1. 4.To prove its case, the prosecution examined 14 witnesses. On the evidence recorded, the learned trial Court convicted the accused while acquitting two others on the ground that the names of the other accused Naveen Kumar and Sanjeev Kumar have not been mentioned in the FIR nor any test identification parade has been conducted. The learned Court then holds that there was no occasion for the prosecution witnesses to recollect their identity, as Manali, according to learned Judge, is a tourist place where number of persons visit regularly. The testimony of the complainant Devender Kumar so far as it relates to these two accused was discarded by the learned Court holding that it does not inspire confidence as he has made a number of improvements while appearing as a witness which improvements are inconsistent with the statement made by this witness and an afterthought. 5.Adverting to the second witness PW-3 Khub Ram, the learned Court holds that his identification of accused Naveen cannot be accepted as he did not utter a single word against him and so far as the identification of Raj Kumar is concerned, the same reason, which applied for discarding the testimony of complainant, was applicable to this witness also. 6.I now advert to the evidence led by the prosecution consisting of (a) eye witnesses, (b) recoveries, (c) finger prints lifted from the stolen taxi. 7.The evidence of the complainant PW-1 Devender Kumar would be important to establish the identity of the accused and the occurrence. He states that he was a driver and in the year 2006 he was employed to drive taxi No.HP-01K-0624 which was owned by PW-2 Manoj Kumar. On 9.11.2006 at around 7.00/7.30 P.M. three persons hired his taxi to travel to Dharamshala. He then says that the accused are present in the Court. He started from Manali to Dharamshala at around 7.30 P.M. and at around 10.45/11.00 P.M. when he reached Mehar near Drang, the accused asked him to stop the taxi as they wanted to answer the call of nature; he also alighted from the taxi for the same purpose. He then says that the accused are present in the Court. He started from Manali to Dharamshala at around 7.30 P.M. and at around 10.45/11.00 P.M. when he reached Mehar near Drang, the accused asked him to stop the taxi as they wanted to answer the call of nature; he also alighted from the taxi for the same purpose. When he returned and sat on the driver’s seat, accused Naveen and Sanjeev put a wire around his neck with the intention of chocking and killing him. He resisted and in the meantime a scooterist passed by, this seems to have startled the accused. When he tried to get out of the taxi, the third accused Raj Kumar, who was standing near the drivers seat, lifted a stone and struck him on his head; he struggled and freed himself from the clutches of the accused and ran down the hill to save his life. It was pitch dark at that time. He saved himself by concealing himself amongst the bushes. After sometime he came back to the road and took a lift in a Himachal Road Transport Corporation bus which was traveling towards Mandi; he immediately ran to the police station, Sadar, Mandi where FIR Ex.PW-1/A was recorded on the facts as narrated by him. According to him, the accused had taken the taxi towards Dharamshala. 8. At that time when they hired the taxi at Manali, they directed him to bring it to Preet Hotel where accused Naveen was standing on the road. He told him to drive to Victoria Palace Hotel and parked the taxi there. Accused Naveen had accompanied him in this taxi. At Hotel Victoria Palace two accused Sanjeev and Raj Kumar came there on a motorcycle, they parked the motorcycle infront of the Hotel and boarded the taxi. He states that he was taken for Medico Legal Examination. The clutch wire with which an attempt was made to strangle him as well as the stone was taken into possession by the police vide Ex.PW 1/B.In cross-examination he says that the place of incident that is Mehar is approximately 14-15 Kilometers from Mandi and that there are number of small villages in between Mandi and the place of incident. He states that only one scooter had passed by when the incident took place. He was confronted with his statement Ex.PW-1/A, wherein this fact was not recorded. He states that only one scooter had passed by when the incident took place. He was confronted with his statement Ex.PW-1/A, wherein this fact was not recorded. His taxi was a part of the Taxi Union pool and he was given a slip stating that taxi had been engaged for a particular purpose. 9.The second witness PW-3 Khub Ram, states that he is also a taxi driver by profession and is well acquainted with PW-1 complainant Devender Kumar. On the day of the incident i.e. 9.11.2006 he had gone to Mahadev Hotel to drop some tourists/passengers. When he reached near Victoria Palace Hotel, he noticed accused Bharmoria and Naveen on a “bike”. They parked their motorcycle near Victoria Palace Hotel and then boarded a taxi. He states that he has noticed one person sitting inside the taxi. At this juncture, I note on the question of identification that the evidence of the complainant Devender Kumar and PW-3 Khub Ram is not corroborating each other. The complainant is categoric in his statement when he says that accused Naveen was standing by the road side and traveled with him, and Sanjeev and Raj Kumar had come to Victoria Palace Hotel on a bike, whereas Khub Ram does not corroborate this and says that Naveen and Bharmoria were traveling on a bike. This is a material contradiction and would be considered infra. 10.I now advert to the evidence of the seizure of the vehicle and the finger prints. PW-2 owner of the taxi states that the complainant Devender was employed by him as a driver. On 10.11.2006 he received a telephonic call from the complainant informing him that the taxi had been stolen. Thereafter, he alongwith Shyam Kumar and Devender Kumar, rushed to Mehar, the alleged place of incident. At the spot the police took into possession the blood stained stone and two wires lying there. He says that the complainant PW-1 Devender informed him that the accused had taken the taxi towards Joginder Nagar, whereafter all of them proceeded there in search of the stolen vehicle. It was found parked near Panchrukhi near Bayare. The keys were not found, but the papers were in the taxi. He says that the complainant PW-1 Devender informed him that the accused had taken the taxi towards Joginder Nagar, whereafter all of them proceeded there in search of the stolen vehicle. It was found parked near Panchrukhi near Bayare. The keys were not found, but the papers were in the taxi. The photographs were taken on the spot and the vehicle was taken into possession vide memo Ex.PW-2/A. He then says that the jacket of the complainant Ex.P-1, stone Ex.P-4 and clutch wires Ex.P-2 and Ex.P-3 were found in the vehicle near Panchrukhi and were taken into possession. He was declared hostile. He denies that memo Ex.PW-1/A (sic Ex.PW-2/A) was prepared by the police at the spot. In cross-examination by learned counsel for the accused he states that nobody informed him about the vehicle being parked at Panchrukhi and that the stone and jacket were not taken into possession. 11.PW-4 Dev Raj denies that ‘Yamaha’ motorcycle was taken into possession by the police and that the memo was sent by him. He was declared hostile. Nothing material was being extracted in his cross- examination. PW-5 Dr.K.R. Sharma, Medical Officer, Zonal Hospital, Mandi, proved Ex.PW-5/A, which is a Medico Legal Certificate. He had examined the complainant Devender Kumar on 9.1.2006 at around 8.30 P.M. (sic 1.45 A.M. on 10.11.2006 as recorded in the Medico Legal Certificate). He found the following injuries on the complainant:- “(1) I also found lacerated wound over the right parietal region 1cm long x 1 cm wide under long bones exposed, margins were irregular, (2) Lacerated wound over the occipital region, 5 cm long x 1 cm wide, fres bleeding margins were irregular, (3) Lacerated would over the left frontal region of scalp, 3 cm long z 1 cm wide, blood oozing out. (4) An impression of some object encircled the neck just above the rood of neck, 2 reddish impression print showing (0- 25 cm) in size.” 12.PW-8 Kiran Dev states that on 9.11.2006, he saw the accused boarding the taxi; one of them at Preet Hotel and second at a place adjacent to Victoria Palace Hotel. (4) An impression of some object encircled the neck just above the rood of neck, 2 reddish impression print showing (0- 25 cm) in size.” 12.PW-8 Kiran Dev states that on 9.11.2006, he saw the accused boarding the taxi; one of them at Preet Hotel and second at a place adjacent to Victoria Palace Hotel. PW-9 Dina Nath is a witness to the motor cycle recovery memo Ex.PW-9/A. The evidence of PW-10 Sunil Kumar, who is a booking clerk in the Himachal Taxi Operator Union, Manali, has some significance as he proved on record Ex.PW-10/A which is a slip issued for hiring the stolen taxi. 13.Now I come to the evidence of identification of the appellant Bharmoria on the basis of the finger prints. These were compared by PW-11 Ms.Harbhajan Kaur, Finger Print Bureau, Phillaur, District Jalandhar. The finger prints were lifted on 11.11.2006 vide Ex.PW-11/D in the presence of two witnesses Shyam Kumar and HHC Gian Chand who have not been examined in evidence. The comparison report Ex.PW-11/A notes that some impressions are smudged, but then holds that there exists sufficient number of points (8 in number) to match them with the purported finger prints of Bharmoria. The finger prints for comparison were taken by PW-14 SI Santokh Singh vide Ex.PW-11/C. It is these finger prints which are now sought to be used an important corroborative piece of evidence to link the accused with the recovery, coupled with the recovery of the slip Ex.PW-10/A from the accused and his identification by the other witnesses. 14.Adverting to the comparison of the finger prints, learned counsel for the appellant relies upon the decision of the Supreme Court in Mohd.Aman and Another vs. State of Rajasthan, (1997)10 SCC 44 , holding:- “8. ... ... ... ... ... ...Even though the specimen finger-prints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger-prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. It is true that under Section 4 thereof police is competent to take finger-prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial - for reasons best known to the prosecution and unknown to the Court. For the foregoing discussion we are unable to sustain the convictions of Mohd. Aman.” 9. ... ... ... ... ... ... So far as the foot-prints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample foot­prints were not taken before a Magistrate. This apart the science of identification of foot-prints is not a fully developed science and, therefore, if in a given case - unlike the present one - evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence. ... ... ... ... “ (pp.49-50) (emphasis supplied) 15. I also note at this juncture that the vehicle had been lying in the open and that the purported finger prints were sent for examination to the Finger Print Bureau at Phillaur, District Jalandhar (Punjab) on 29.1.2007, whereas the purported sample was taken by the Investigating Officer PW-14 Santokh Singh on 18.11.2006. What has been submitted by learned counsel is that the finger prints cannot be used in the circumstance to convict the appellant for the reasons that it is not in accordance with Section 5 of the Identification of Prisoners Act. Even lifting of the finger prints from the stolen taxi is doubtful as two of witnesses, namely; Shyam Kumar and HHC Gian Chand, who witnessed the lifting of the samples and were present at the spot when this procedure was carried out (vide Ex.PW-11/D), have not been produced in evidence. 16.Learned counsel submits that there is unexplained delay in sending the finger prints for Forensic examination. 16.Learned counsel submits that there is unexplained delay in sending the finger prints for Forensic examination. Eight days elapsed between taking of the finger prints and the date of incident. During this period the taxi was lying in the open accessible to all, and that there is delay of more than 21/2 months in sending these samples for forensic examination. He relies upon the decision of the Supreme Court in Santa Singh vs. State of Punjab, AIR 1956 SC 526 . The majority holds:- “12. ... ... ... ... ... ... ...Naturally this inordinate delay raises much suspicion and has given to the suggestion on the part of the accused made in the course of the cross-examination of the Sub-Inspector that the empty cartridge case ultimately sent to the expert relates to a cartridge that was fired by them at the Police Station and is not the one recovered at the spot. ... ... ... .... 14. Thus, in the face of the medical evidence the testimony of the eye­witnesses cannot be safely accepted, the suspicious delays that have occurred as regards important steps in the course of the investigation render it unsafe to hold that the case of the prosecution has been established beyond reasonable doubt. 16. The judgment of some of our learned brethren just delivered reversing the conviction of the appellant by the Sessions Judge which was confirmed by the High Court is based on three grounds. 1. The testimony of eye-witnesses is in conflict with the medical evidence and cannot be safely accepted. 2. There was inordinate delay in sending the sealed parcels of (a) the empty cartridge case recovered from the scene of occurrence and (b) the rifle recovered from the house of the appellant, for the opinion of the ballistic expert, Dr. Goyle. 3. The accused, though actually arrested on the 14th September, 1954 and brought to the police Station on the 21st September, 1954, was not interrogated by the Sub-Inspector till the 26th September, 1954. The above suspicious features 2 and 3 throw doubt on the bona fides of the investigation.” (p.529)The dissenting judgment by Justice Jagannadhadas and Justice Sinha concurs with the grounds 2 and 3 as extracted above. 17.My attention has also been invited by the learned Additional Advocate General to the decision of the Supreme Court in Shankaria vs. State of Rajasthan, AIR 1978 SC 1248 . 17.My attention has also been invited by the learned Additional Advocate General to the decision of the Supreme Court in Shankaria vs. State of Rajasthan, AIR 1978 SC 1248 . According to the learned Additional Advocate General, it is not necessary that the finger prints should and ought to have been taken in the presence of the Magistrate. He submits that the Investigating Officer was competent to take these finger prints. The Supreme Court holds:- “79. Mr. Gambhir next contends that in view of S. 5 of the Identification of Prisoners Act, it was incumbent on the police to obtain the specimen thumb impression of the appellant before a Magistrate, and since this was not done the opinion rendered by the Finger-Print Expert, Mr. Tankha, by using those illegally obtained specimen finger impressions, must be ruled out of evidence. 80. The contentionappears to be misconceived because in the State of Rajasthan, the Police were competent under S. 4 of the Identification of Prisoners Act, to take the specimen fingerprints of the accused, and this they did. In the instant case, before the Superintendent of Police, Shri K. P. Srivastava. It was not necessary for them to obtain an order from the Magistrate for obtaining such specimen finger-prints.”(p.1262) 18.I do not find that this judgment advances the case of the prosecution for the reasons (a) that this very aspect was considered by the Supreme Court in a subsequent judgment of Mohd.Aman’s case; (b) there is nothing to suggest that the samples were taken in the presence of the Superintendent of Police. To sums up, (a) lifting of the finger prints from stolen taxi has not been proved; (b) the witnesses in whose presence the finger prints were lifted from the taxi have not been examined; (c) there is unexplained inordinate delay in sending these prints for analysis; (d) they have not been taken in presence of the Magistrate as held in Mohd.Aman case supra and in any event even using the precedent in Shankaria’s case there is no evidence as in whose presence the finger prints of the accused were taken. 19.On the identity of the accused, as noted supra, complainant states that Naveen had occupied the front seat in the taxi with him and traveled up to Victoria Palace Hotel, whereas PW-3 Khub Ram says that he had seen Naveen riding on a motorcycle. 19.On the identity of the accused, as noted supra, complainant states that Naveen had occupied the front seat in the taxi with him and traveled up to Victoria Palace Hotel, whereas PW-3 Khub Ram says that he had seen Naveen riding on a motorcycle. Evidence of PW-8 Kiran Dev would not be of any assistance to the prosecution since in his cross-examination he says that he has heard about the incident but no evidence has been produced to prove this. His testimony is only relevant to show that he has seen some people boarding the taxi. The motorcycle seized has not been connected with anybody.I also note that Ex.PW-10/A is a carbon copy of the original receipt which has been purported to have been recovered from the accused. But this has not been connected with him. There is no evidence as to where the original is. The carbon copy would remain in the Taxi Union and even the recovery, if any, would be that of the original which has not been proved on the record. Ex.PW-14/O is the memo of recovery of the articles from the accused which only mentions “booking slip”. According to the evidence of PW-10 Sunil Kumar Ex.PW-10/A was handed over to the driver Devender Kumar which he was stated in no uncertain terms. He states that “is bara maine ek slip jari ki thi jo us gadi ke chalak ko de di thi. Slip Ex.PW-10/A hai. Us samay Devender Kumar us gadi ka chalak tha”. “At that time I had issued one slip which I had given to the driver of the vehicle. Slip is Ex.PW-10/A. At that time Devender Kumar was the driver of the vehicle”. It is nowhere in the evidence of Devender Kumar that this slip has been taken away from him. The slip nowhere links the accused with the taxi as it has been issued to the driver. 20.Learned trial Court also does not accept the argument of the defence that Ex.PW-5/A does not mention the names of any of the accused. The Court placing reliance on the decision of the Supreme Court in Lal Singh and Others vs. State of Uttar Pradesh, AIR 2004 SC 299 , holds, as such, omission is not fatal of the case of the prosecution. It has been repeatedly held that the First Information Report is not a bible of the facts of the offence committed. The Court placing reliance on the decision of the Supreme Court in Lal Singh and Others vs. State of Uttar Pradesh, AIR 2004 SC 299 , holds, as such, omission is not fatal of the case of the prosecution. It has been repeatedly held that the First Information Report is not a bible of the facts of the offence committed. 21.Naming of the accused in First Information Report would only be one fact which has to be considered, but what I find from the appreciation of the evidence is that it accepts identification of only one accused without there being any Test Identification Parade, though it was stated by the complainant that he recognizes these people, while the identification of the other two accused has not been accepted on the same evidence. Learned trial Court has also remiss in assessing the evidence countered to the principle of assessing evidence as consistently held by the Supreme Court in Paramjeet Singh alias Pamma vs. State of Uttarakhand, (2010)10 SCC 439 and C.Magesh and others vs. State of Karnataka (2010)5 SCC 645 . 22.Surely, the Court was alive to the situation that the offence was not the sole act of the appellant but in concert with the other two accused who were named in the First Information Report and who had used the clutch wires. 23.In these circumstances, I find that neither the finger prints Ex.PW-11/C, booking slip Ex.PW-10/A, the blood stained stone (which has not been sent for forensic examination), the manner in which the recoveries were effected and denied by PW-2 Manoj Kumar owner of the taxi, the identity of the motorcycle not having been established as belonging to the accused, on the evidence of identification of both PW-1 Devender Kumar and PW-3 Khub Ram being at variance, the prosecution has not been able to prove its case beyond reasonable doubt. This appeal is, therefore, allowed. The judgment of the learned trial Court is quashed and set aside. The appellant shall be released from jail forthwith in case not wanted in any other offence. Fine imposed shall be refunded. Bail bonds are discharged.