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2014 DIGILAW 1230 (HP)

State of Himachal Pradesh v. Sukhvinder Singh

2014-09-10

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur, J. 1. The instant appeal is directed by the State against the judgment of the learned Additional Sessions Judge, Fast Track Court, Solan camp at Nalagarh, District Solan, rendered in Sessions trial No. 11 FTN/7 of 2005, whereby, the learned trial Court acquitted the accused of theirs having allegedly committed the offences punishable under Sections 302, 392, 120-B of the Indian Penal Code and Section 25 of the Arms Act. 2. Brief facts of the case are that in year 2004, Smt. Sarojbala was working as Cashier, Dhiyan Singh as Assistant and Bahadur Singh as peon in Sub Post Office, Nalagarh. On 14.7.2004 at about 2.50 P.M., Smt. Sarojbala along with Dhiyan Singh and Bahadur Singh was proceeding on foot towards State Bank of Patiala for depositing cash of Post Office, amounting to Rs. 5,90,000/-. The cash was in a black coloured attache which was put in a white coloured bag. Bahadur Singh was carrying the attaché containing cash. At about 12.55 P.M. when they reached at Nalagarh chowk near Central Bank, two persons aged between 30-35 years, allegedly came on a scooter from back side. The said scooter firstly crossed them and then it was turned towards them and the riders of the scooter fired two shots at Bahadur Singh and snatched the attache containing cash from him and thereafter fled away from the spot on the scooter towards Kalka road. When Sarojbala and Dhiyan Singh tried to follow them they allegedly opened fire in air. Bahadur Singh was taken to hospital where he was declared dead by the Medical Officer. On a statement made by complainant Sarojbala under Section 154, Cr. P.C. to the police, FIR was registered in Police Station, Nalagarh. The police conducted the investigation in the case and during the course of investigation, arrested the accused persons and the accused persons had made disclosure statements and in pursuance to the disclosure statements made by the accused persons, the police effected the recovery of various items. The police also took into possession the scooter, a point 32 bore revolver and also got recovered the attache and bag. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. The police also took into possession the scooter, a point 32 bore revolver and also got recovered the attache and bag. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. Accused ware charged for theirs having committed the offences punishable under Sections 302, 392, 120-B of the IPC and Section 24 of the Arms Act, by the learned trial Court to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined twenty nine witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and no evidence was led by him in defence. 6. On appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused. 7. The State is aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Assistant Advocate General has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of acquittal recorded by the learned trial Court be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction. 8. On the other hand, the learned counsel appearing for the accused has with considerable force and vigour, contended that the findings of acquittal recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 10. The eye witnesses to the occurrence, namely, PW-1 Sarojbala and PW-2 Dhiyan Singh have not supported the prosecution case. They unequivocally in their respective depositions have voiced therein the factum of theirs having not been able to identify the persons, who had committed the alleged offences. 10. The eye witnesses to the occurrence, namely, PW-1 Sarojbala and PW-2 Dhiyan Singh have not supported the prosecution case. They unequivocally in their respective depositions have voiced therein the factum of theirs having not been able to identify the persons, who had committed the alleged offences. Consequently, the omission of the eye witness to the occurrence to forthrightly depose qua theirs having at the apposite stage been able to identify the accused, renders the identity of the accused to be the persons, who committed the offences alleged to be vulnerable to the skepticism. In face thereof, at the initial stage it has to be concluded that the benefit flowing from the inability of the eye witnesses to the occurrence to convincingly depose qua the accused being the persons who committed the offences alleged, ought to be accorded or afforded to the accused. Moreover, PW-3 Dharam Chand and PW-4 Ashok Kumar have also not supported the prosecution case. For reiteration, with the depositions of the purported eye witnesses to the occurrence having not lent corroboration to the prosecution version, obviously, it does not carry any grain of truth, more so, when the prosecution case is anvilled upon eye witness accounts and theirs having turned hostile or theirs having not supported the prosecution version, has significance, inasmuch as, as referred to hereinabove renders the prosecution case to be untruthful in its entirety. PW-13 Shamsher Singh too has not supported the prosecution case. Even though PW-14 has proved disclosure statement Ex.PW14/A purportedly made by accused Sukhvinder Singh yet the factum of his proving disclosure statement Ex.PW14/A carries no probative worth or value, inasmuch as when he deposes that he could not identify the man, who had made this statement. Consequently, when it has upsurged in his unequivocal deposition emanating during the course of his examination-in-chief, of his being unable to identify the person, who had made disclosure statement Ex.PW14/A in pursuance whereof stickers were recovered, constrains this Court to conclude that disclosure statement attributed to Accused Sukhvinder Singh comprised in Ex.PW14/A, cannot conclusively be said to have been made by the aforesaid. More so, the above inference gets aggravation in the face of PW-14 being unable to identify accused Sukhvinder Singh in Court. In sequel a vital link in the chain of circumstances gets dismembered. More so, the above inference gets aggravation in the face of PW-14 being unable to identify accused Sukhvinder Singh in Court. In sequel a vital link in the chain of circumstances gets dismembered. Likewise is the deposition of PW-15 Bhag Singh, another witness to disclosure statement Ex.PW14/A. He has proved Ex. PW14/A yet the factum of his proving disclosure statement Ex.PW14/A carries no probative worth or value, inasmuch as when he deposes that he could not identify the man, who had made this statement, inasmuch as, his being unable to identify the person, who had made the disclosure statement Ex.PW14/A in pursuance whereof stickers were recovered, constrains this Court to conclude that the disclosure statement attributed to Accused Sukhvinder Singh comprised in Ex.PW14/A, cannot also be conclusively said to have been made by the aforesaid. In sequel another vital link in the chain of circumstances gets severed and disjointed. PW-19 Ghunghar Pal is the witness to the recovery memo Ex.PW19/A vide which boru and bag were recovered in pursuance to the disclosure statement purportedly made by the accused, yet his deposition too carries no probative worth or value in the face of his being unable to identify the person at whose instance the bag and boru were recovered. Moreover, the another eye witness to the occurrence PW-21 Banti having not supported the prosecution case, inasmuch as his omitting to depose so as to lend veracity to the prosecution version of his as previously stated by him of his having identified the accused to be the person, who were occupying the scooter and had opened fire, deals a severe blow to the prosecution version qua the genesis of the occurrence. 11. However, it is contended by the learned Assistant Advocate General that the disclosure statements Ex.PW25/C to Ex.PW25/G in pursuance whereof various items were recovered at the instance of the accused do portray the guilt of the accused or connect them in the commission of the offence alleged. However, the efficacy of the aforesaid disclosure statements in pursuant whereto recoveries of the various items were effected, too gets shred apart and carries no probative worth, inasmuch as, all, PW2 Dhiyan Singh, PW-22 Banti and PW-3 Dharam Singh have not supported the prosecution case. However, the efficacy of the aforesaid disclosure statements in pursuant whereto recoveries of the various items were effected, too gets shred apart and carries no probative worth, inasmuch as, all, PW2 Dhiyan Singh, PW-22 Banti and PW-3 Dharam Singh have not supported the prosecution case. The effect of the factum of the attaché and bag having been recovered in pursuance to the disclosure statements purportedly made by the accused Malkiyat Singh and Mameet Singh comprised in Ex.PW25/F and Ex.PW25/G, too gets waned and whittled down in the face of PW-2 Dhiyan Singh and PW-3 Dharam Singh, witnesses to the disclosure statements, having not supported the prosecution case. With the disclosure statements attributed to the accused, comprised in Ex.PW25/F and Ex.PW25/G, hence, being rendered inefficacious, consequently, a vital link in the chain of circumstances gets severed and broken. Benefit of doubt, obviously, as given to the accused by the learned trial Court too and ought to be accorded by this Court. 12. What magnifies the weaknesses in the prosecution case as well as the loop holes in which the prosecution case is seeped, is the factum of the gun allegedly used by the accused in the commission of the offences alleged, having not been recovered nor, hence, the currency notes allegedly snatched by the accused from the deceased Bahadur Singh having been recovered. Iin the absence of recovery of the aforesaid material, a conclusion can be formed that there is no cogent and overwhelming evidence on record to connect the accused with the commission of the offences alleged. In the face of the eye witness to the occurrence having omitted to identify the accused or support the prosecution of the accused having committed the offences alleged against them, renders nugatory the factum of the test identification parade comprised in Ex.PW25/T. As such, the impugned judgment does not suffer from any vice, absurdity or perversity of mis-appreciation or non appreciation of evidence. Consequently, reinforcingly, it can be formidably concluded that the findings of the learned trial Court are based on a mature and balanced appreciation of evidence on record and do not merit interference. 13. In view of the above discussion, we find no merit in this appeal which is accordingly dismissed and the judgment of the learned trial Court is affirmed and maintained. Record of the learned trial Court be sent back forthwith.