Between vs Balwinder Singh
2021 Latest Caselaw 4049 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 23rd DAY OF AUGUST, 2021

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BEFORE HON'BLE MR. JUSTICE ANOOP CHITKARA

CRIMINAL APPEAL No. 228 of 2010 Between:-

STATE OF HIMACHAL PRADESH

....APPELLANT (BY MR. NAND LAL THAKUR, ADDITIONAL ADVOCATE GENERAL WITH MR. KUNAL

THAKUR, DEPUTY ADVOCATE GENERAL, MR.

RAM LAL THAKUR & MR. SUNNY DHATWALIA, ASSISTANT ADVOCATES GENERAL)

AND

1. BALWINDER SINGH S/O SHRI RAM SINGH,

AGED 40 YEARS, R/O JAHANKHELAN,

TEHSIL AND DISTRICT HOSHIARPUR, PUNJAB.

2. DILAWAR SINGH S/O SHRI ANOOP SINGH, AGED 40 YEARS, R/O MEHLA WALI, HOSHIARPUR, DISTRICT HOSHIARPUR, PUNJAB ...RESPONDENTS.

(MR. MANOHAR LAL SHARMA, ADVOCATE FOR R-1.

MR. N.K.THAKUR SENIOR ADVOCATE WITH MR.

.

     DIVYA RAJ SINGH, ADVOCATE FOR R-2.)





     RESERVED ON :        20th AUGUST, 2021
     DECIDED ON :         23rd AUGUST, 2021.

This appeal coming on for final hearing this day, the Court

passed the following:

r JUDGMENT

FIR NUMBER 72/03, dated 24.06.2003, Police Station

Dehra, District Kangra under Sections 398 and 506 IPC read with Section 25/27 of Arms Act.

TRIAL COURT RBT Sc No. 30-G/VII/05/04 (ST No. CASE NO. 15/09), decided on 09.10.2009, by learned Additional Sessions Judge (Fast Tract

Court), Kangra at Dharamshala.

CHARGES & TRIAL COURT'S VERDICT

Accused Sections 398 accused acquitted.

    Balwinder Singh & 506 IPC
    & Dilawar Singh read     with
                    Section 25/27
                    of Arms Act

Challenging the acquittal of both the accused for attempt to commit robbery, armed with deadly weapon and criminal intimidation, the State has come up before this Court.

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2. Based upon the statement of the investigator PW-13, SI Dalip Singh, the case of the prosecution unfolds as under:-

a) On 23rd June 2003, at about 8.30 pm, PW-8 Surender Kumar gave a telephonic information to

Police Station, Dehra, District Kangra and informed them about the occurrence. He stated that at 7.45

p.m., he was driving his Maruti car and faring

passengers from Jwalaji to Dehra and when he reached Nahehar Khad on uphill, then the passengers, made him to stop the car. One of such

passengers was wearing 'Kurta Pajama' of white

colour. He alighted from the car and came towards the driver side and asked him to come out.

However, he refused to do so. After that he caught

hold him from his arm and dragged him from the car. In the meantime, he had taken out the keys of the car. After that they started scuffling with him and subsequently, took out something which looks like revolver and put it on his shoulder. They asked him to run away from there, however, in the

meantime, another car came from the side of Dehra. On seeing this, he started crying to save himself by shouting 'maar diya maar diya'. Taking shelter of

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the said car he ran towards khad. In the meantime, that person fired on him, but he escaped. Thereafter,

he had taken shelter in a shop at Nahehar Khad and his car was lying on the road at the spot of incident. This information was reduced into writing by a lady

b) r to constable Asha Devi and proved in evidence as Ex.PW-3/A On receipt of this information PW-13, SI Dalip

Singh, who was posted as SHO Police Station, Dehra started investigation. He registered FIR

Ex.PW-8/A as captioned above. Subsequently, he reached the spot and searched for the accused in

Rashu Forest. During the search in the forest, the

investigator was able to trace Shyam Lal, A-1, Dilawar A-3. The complainant identified both the

accused persons, who were travelling in the car. The investigator conducted search of the bag of Shyam Lal and recovered a country revolver Ex.P-5, two live cartridges Ex.P-7 and P-8, one live cartridge Ex.P-9 and one empty cartridge Ex.P-10. The

investigator sealed the recovered case property, in accordance with law, and conducted further investigation at the spot. Subsequently, the

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investigator arrested the accused on 24.6.2003.

c) The investigator conducted further

investigation and sought prosecution sanction under Arms Act, which was granted vide Ex.PW-6/A by the concerned District Magistrate. The investigator

also sent a special report to the concerned Superintendent of Police. The investigator sent the

country revolver for examination and got inspection

report Ex.PW-5/B. However, the investigator could not arrest the third accused Balwinder A-2 and as

such file police report under Section 173(2) against accused A-1 Shyam Lal and A-3 Dilawar.

3. The investigator came to know that accused Dilawar A-2 was lodged in Hoshiarpur. After that his production warrants

were obtained and he was also arrested in that case. Order dated 16.6.2004, reveals that accused Sham Lal was on bail, however, he was present on the said date. As per order dated 22.6.2005, accused Sham Lal continued to appear in the Court, however as revealed from order dated 4.10.2005, the accused were not

present. Subsequently, the Court issued non-bailable warramts. Vide order dated 12.9.2006, the proclamation was issued against the accused persons under Section 82 Cr.P.C. Vide order dated

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10.10.2007, the trial Court declared the accused as proclaimed offenders. After that the trial Court proceeded to record the

statements of witnesses under Section 299 Cr.P.C. and vide judgment dated 20.12.2007, the file qua A-1 Shyam Lal and A-3 Dilawar Singh was consigned to the record room under Section 299 Cr.P.C.

4.

r to Order dated 22nd March, 2009, the police was able to detained accused Dilawar Singh. Subsequently, the trial against

him was reopened and the witnesses were re-summoned.

5. As revealed from order dated 27.5.2009, the trial Court

appointed a legal aid counsel to defend accused Dilawar Singh and proceeded with the trial. As revealed from order dated

9.6.2009, another accused Balwinder was also arrested and the

case was reopened qua him.

6. The trial was concluded only qua (A-2) Balwinder Singh

and (A-3) Dilawar Singh, whereas accused Shyam Lal (A-1) continued to remain as proclaimed offender. Thus, learned trial Court was hearing the trial against A-2 Balwinder Singh and A-3 Dilawar Singh and vide judgment captioned above, learned trial Court dismissed the prosecution and acquitted Balwinder A-2

and Dilawar Singh A-3 of all offences. Challenging the said judgment, the State has come up before this Court.

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7. Mr. Ram Lal Thakur, learned Assistant Advocate

General argued that the judgment is contrary to the evidence and it deserves reversal.

8. To the contrary, Mr. Manohar Lal Sharma, Advocate appearing on behalf of respondent No.1 and Mr. N.K. Thakur,

learned Senior Advocate assisted by Mr. Divya Raj Singh, appearing on behalf of respondent No.2 argued that the judgment is well reasoned and calls for no interference. Learned

counsel further argued that the case was fabricated against all the accused.

REASONING

9. Complainant Surender Kumar testified as PW-8. During

his statement on oath he reiterated his statement based on which the police registered the FIR captioned above. He testified that

he drove a taxi. On 23.6.2003, at 7.15 p.m. three passengers

boarded his taxi at Jawalaji. When they reached at Nakhed Khad, then such passengers asked him that they have to attend call of nature. He stopped the taxi and the passengers came there after ten minutes. The stand taken by the complainant on oath is materially different from the statement he had made earlier. In the earlier statement, the complainant had specifically

stated that all of a sudden the passengers of the car asked him to stop the car and immediately one of them came towards his side and asked him to come out, when he refused to do so, then they

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drag him by holding his hand. However, in the meantime they had taken out the keys of the car. Thus the improvement, which

the complainant had made is that they had gone away for ten minutes to attend call of nature and then they returned after ten minutes. Why the complainant initially did not reveal this fact

to the investigator, is mysterious?

10. The complainant further stated that in the meantime a car

came from Dehra side and he boarded the same, which is in

contradiction to the earlier statement in which he has stated that by taking shelter of the car, he ran towards the forest and

subsequently hide himself in the shop. This is a material contradiction. In such a situation, it is not possible for a person

to forgot that whether he had run away in a car or he had walk

towards forest and from there to shop. In the earlier statement Ex.PW-3/A, the complainant has specifically stated that when he

saw a car coming, he took shelter of the said car and came towards the Bridge. However, when he was running, in the meantime, one person also fired upon him. He further stated that at that time he was at Nahehar Khad. PW-8 complainant Surender Kumar, who is only material witness in this case

further stated that the police had nabbed the accused on the next day from a rain shelter. This is in total contradiction to the statement of the investigator PW-13 Dalip Singh, who while

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testifying in the proceedings under Section 299 Cr.P.C., in which he was cited as PW-11, has specifically stated that he had

nabbed the accused from the Rashu forest. In the cross- examination PW-8 Surender Kumar stated that rain shelter from where the accused was intercepted was at a distance of 2-4

11.

r to kilometers from the place of occurrence. They were arrested on 24th June, 2003, i.e. the next date.

It is strange that in case the accused had fired at the

complainant, then why did they remain in the vicinity and that too at a distance of 2-4 kilometers. The incident pertains to

summers and at such time there is lot of traffic towards the temples in the vicinity including Jawala Devi Temple. The

accused could have got various means of transport to abscond

from that place. Thus, their being apprehended just at a distance of 2-4 kilometers that too on the next date creates a serious

doubt about the entire prosecution story. During cross- examination, PW-8 admitted that he had seen the accused Balwinder, for the first time, in April, 2009. The incident pertains to June 2003 and the accused had seen him, for the first time, in April, 2009, after around six years. Even at that time,

the investigator did not conduct any Test Identification Parade. Thus, the identification of Balwinder Singh is not credible. Complainant PW-8 has also admitted in his cross-examination

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that for the first time he had met with those persons on 23 rd June 2003 and not earlier to that.

12. The case of the prosecution revolves around the testimony of PW-8 Surender Kumar. As far as the recovery of weapon from the accused by investigator PW-13 Dalip Singh is

concerned, it is contradictory because as per the investigator he had nabbed the accused from the forest whereas as per the

complainant the accused were nabbed from the rest house on the

next morning. If the accused were nabbed from the rest house, there is no explanation that why independent witnesses have not

been associated. Thus, it is not possible to hold the accused guilty on such sketchy and contradictory evidence.

13. Strangely, as per the complainant own version, the

accused were armed with deadly weapon and nobody was there to stop them. Despite that the beatings administered by them

were not even enough to visit a doctor. This is improbable, given that they were three armed with a deadly weapon whereas he was all alone and he had nothing to protect himself.

14. In the entirety of facts and circumstances, more particularly when the complainant has contradicted from his

earliest version, coupled with that fact that the complainant has not gone to any doctor to get himself examined, makes his part of story as doubtful. As per the complainant, the accused were

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three persons and he was alone. In case they wanted to grab his car, then nobody could have stopped them from beating him and

snatching the keys of the car. As per the statement of the complainant that he was sitting in the car and accused were well in control of the situation. Thus, the stand of the complainant

that the accused gave him beatings and he did not even go to the doctor, makes his statement incredible. Thus, the evidence led

by the persecution is not cogent enough to arrive at a conclusion

of guilt. Consequently, the prosecution failed to prove its case beyond reasonable doubt.

15. I have gone through the impugned judgment, which is well reasoned and calls for no interference.

16. In the facts and circumstances peculiar to this case, the

appeal filed by the State is dismissed being devoid of merit. Bail bonds are discharged.

                                          (Anoop Chitkara)
August 23, 2021(ps)                            Judge