State Of H.P vs Rajesh Kumar
2023 Latest Caselaw 16961 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                           Cr. Appeal No. 250 of 2019 with
                                                           Cr. Appeal No. 85 of 2017




                                                                                          .

                                                            Date of decision: 20.10.2023





    1.       Cr. Appeal No. 250 of 2019

    State of H.P.                                                                         ...Appellant.

                                                  Versus

    Rajesh Kumar.

    2.       Cr. Appeal No. 85 of 2017
                                 r                  to                                   ...Respondent.

    State of H.P.                                                                       ...Appellant.

                                                  Versus

    Baldev Sharma.                                                                      ...Respondent.



    Coram




    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.





    Whether approved for reporting?1
    For the Appellant(s):                    Mr.Manoj           Chauhan,           Additional        Advocate





                                             General.

    For the Respondents:                     Mr.Janesh     Mahajan,     Advocate,      for
                                             respondent in Cr. Appeal No. 250 of 2019.

                                             Mr.Neel Kamal Sharma, Advocate, for
                                             respondent in Cr. Appeal No. 85 of 2017.


                        Vivek Singh Thakur, Judge (Oral)

These appeals have been filed against common

judgment, arising out of the same FIR No. 15 of 2011 dated 6.3.2011

registered in Police Station Bharari, District Bilaspur, H.P., for

involvement of appreciation of common facts and evidence on record,

are being decided together by this common judgment.

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

connected matter

2. These appeals have been preferred by State against

common judgment dated 21.11.2015, passed by learned Additional

Sessions Judge, Ghumarwin, District Bilaspur, H.P., in Criminal Appeal

.

No. 61/10 of 2013, titled Baldev Sharma Vs. State of H.P. and Criminal

Appeal No. 67/10 of 2013, titled Rajesh Kumar Vs. State of H.P.,

whereby learned Additional Sessions Judge (herein after referred to as

the 'first Appellate Court'), reversed the judgment dated 20.9.2013

passed by learned Judicial Magistrate, First Class, Court No. 3,

Ghumarwin, District Bilaspur, H.P. (herein after referred to as the 'Trial

Court') in RBT case No. 7/2 of 2012, titled as State of Himachal

Pradesh Vs. Baldev Sharma and Another, in case FIR No. 15 of 2011,

dated 6.3.2011, registered under Section 380, 120 B read with Section

34 IPC in Police Station Bharari, District Bilaspur, H.P.

3. Respondents being accused in the case, after conclusion

of trial, were convicted by the Trial Court, under Section 380 and 120 B

IPC and sentenced to undergo rigorous imprisonment for a period of

three years each and fine of 5,000/- each, and in default in payment

of fine to further undergo rigorous imprisonment for one month, under

Section 380 IPC; and to undergo rigorous imprisonment for a period of

three years each and fine of 5,000/- each, and in default in payment

of fine to further undergo rigorous imprisonment for one month, under

Section 120B IPC.

4. Being aggrieved by their conviction and sentence, the

respondents preferred two separate appeals, i.e. Criminal Appeal No.

61/10 of 2013, titled Baldev Sharma V. State of Himachal Pradesh and

Criminal Appeal No. 67/10 of 2013, titled Rajesh Kumar Vs. State of

Himachal Pradesh, which have been allowed and the accused-

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respondents have been acquitted of the charges framed against them

by the Additional Sessions Judge, Ghumarwin, District Bilaspur,

Himachal Pradesh (hereinafter referred to as First Appellate Court)

.

vide impugned common judgment dated 21.11.2015.

5. Being aggrieved by judgment of acquittal passed by

learned Additional Sessions Judge, the State has preferred these

appeals.

6. Investigating Agency was set in motion at the instance of

PW-2 Brij Lal. As per complaint, on 6.3.2011 at about 7:00 A.M., PW-2

Brij Lal opened his shop and at about 8-8:15 A.M., Rajesh alias Nandu

S/o Dhani Ram, R/o Village Domehar, Police Station Bharari, District

Bilaspur, H.P. came to his shop and asked for a boundle of bidi. After

payment for boundle of bidi, the said Rajesh asked the complainant to

show sllippers whereupon complainant turned around to take out

slippers, but by the time complainant turned towards Rajesh, the said

Rajesh Kumar had already left the shop. After some time, complainant

noticed that the bag, containing about 1,50,000/- kept near the cash

box, was not there, therefore, he went in search of the boy (Rajesh)

towards the road where at a some distance he found that Rajesh

Kumar and Baldev S/o late Sh. Ram Lal R/o Village Barota, Police

Station Bharari, District Bilaspur, H.P. were talking with each other.

The moment complainant raised alarm to hold Rajesh Kumar, both of

them ran away. Suspecting theft by these two persons, in conspiracy

with each other, complainant informed the Police and in furtherance

thereto Police Party went on spot where written complaint/application

was submitted by the complainant to the Police at 8:30 P.M,

whereupon ASI made endorsement and sent the same to the Police

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Station Bharari at 8:30 P.M. from Barota on 6.3.2011, on the basis of

which FIR No. 15 of 2011 was registered in the Police Station and

endorsement to that effect was made on the said application Ex. PW-

.

2/A.

7. It is further case of prosecution that during investigation

Baldev was arrested on 7.3.2011 and during his custody, at his

instance, one bag, in which stolen money was kept by the complainant,

was recovered vide recovery memo Ex. PW-2/B, from cremation

ground, in presence of witnesses PW-3 Jitender and one Bishan Dass

as well as complainant Brij Lal. It is further case of the prosecution

that on the basis of disclosure statement made by Baldev, an amount

of 54,400/- was recovered from the flowerbed located between two

buildings of the house of Ramesh in village Bhaderwan, vide recovery

memo Ex. PW-2/C, in presence of witnesses PW-3 Jitender Kumar

and Bishan Dass as well as complainant Brij Lal. Disclosure statement

in this regard is Ex. PW-3/A, which was witnessed by PW-3 Jitender

Kumar and Bishan Dass.

8. PW-1 Amar Nath, in his statement, has stated that Rajesh

had come to his shop and had stated that Satu alias Baldev would

come to his shop, but Baldev did not come and Rajesh had stated that

he would stay in his shop and would not go to home whereafter he

(Amarnath) provided meal to Rajesh and stayed in the shop with

Rajesh and in the morning Rajesh left the shop. Further that on the

same date he came to know about theft in the shop of Brij Lal

complainant. In cross-examination, he has admitted that Baldev was

driver of truck whereas Rajesh Kumar was conductor with him and on

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5th-6th March, 2011 Baldev was not at home, but was with the truck.

The deposition of this witness is corroborative in nature.

9. The key witnesses to prove the prosecution case are

.

PW-2 Brij Lal and PW-3 Jitender, who witnessed the disclosure

statement as well as recovery in furtherance thereto made at the

instance of Baldev Kumar. Witness to the recovery, namely, Bishan

has not been examined by the prosecution. Deposition of witnesses

PW-4 Ramesh Chand, PW-5 Gian Chand, PW-6 Prem Singh, and

PW-7 Prem Lal are corroborative in nature and their depositions will be

relevant in case depositions of PW-2 Brij Lal and PW-3 Jitender Kumar

inspire confidence.

10. PW-8 Balbir Singh, PW-9 H.C. Naresh Kumar, PW-10

HHC Dhani Ram and PW-11 ASI Raj Kumar are Police Officials and

they have been examined to prove Rapat No. 21 Ex. PW-8/A, arrest

memo Ex. PW-9/A, arrest of Rajesh from Baddi, rukka Ex. PW-2/A,

FIR Ex. PW-10/A, memo of spot identification by accused Rakesh Ex.

PW-11/A and 11/B, Spot map Ex. PW-11/C, statement of Brij Lal Ex.

PW-11/D, supplementary statement of Brij Lal Ex. PW-11/E, and

statement of Amarnath Ex. PW-11/F, Naresh Kumar Ex. PW-11/G,

Ramesh Chand Ex. PW-11/K and Prem Lal Ex. PW-11/L recorded

under Section 161 of Cr.P.C. by Investigating Officer as well as

preparation of challan by SHO and presentation thereof in the Court.

11. ASI Ramesh Chand who had investigated the matter,

expired prior to recording evidence in the Trial Court and, therefore,

PW-10 Dhani Ram was examined to prove the investigation carried on

and documents prepared by ASI Ramesh Chand.

connected matter

12. PW-4 Ramesh Chand did not support the prosecution

case and was declared hostile. In cross-examination he stated that

police disclosed him about flowerbed in the courtyard and recovery of

.

money, but stated that in his presence money was not recovered.

13. PW-5 Gian Chand is a hearsay witness about the incident

of theft in the shop of Brij Lal. He has stated that he came to the shop

of Brij Lal on 6.3.2011 for collecting his money whereupon, Brij Lal

started search of bag in which money was kept, but the bag was not

found and thereafter Brij Lal started to go towards Nallah. This

witness also started to follow Brij Lal and both of them went in search

of Rajesh and Baldev. In cross-examination, he has admitted that he

is relative of Brij Lal. According to him, he was sitting in the shop of

Brij Lal at 9:10 A.M.

14. PW-6 Prem Singh has been examined to corroborate that

on 6.3.2011 at about 8:45 A.M. Rajesh and Baldev had met him on the

way, when Baldev told him that he was ill and thereafter they left the

place. According to him, after that PW-5 Gian Chand, PW-2 Brij Lal

and some other person met him at Barota where Brij Lal was inquiring

about Rajesh S/o Dhani Ram, whereupon he disclosed that Rajesh

and Baldev met him going towards Ghandalwin.

15. PW-7 Prem Lal has proved that Baldev was driver in his

truck and Rajesh was cleaner. His statement is not of much relevance

to the prosecution case.

16. PW-2 Brij Lal in his complaint Ex. PW-2/A has mentioned

complete details of Rajesh Kumar and Baldev alongwith their

parentage and their villages and has suspected theft by Rajesh Kumar.

According to him, he had submitted the application in the Police

connected matter

Station, whereas endorsement made on Ex. PW-2/A indicates that it

was handed over to ASI at Barota at 8.30 P.M. on 6.3.2011, wherefrom

it was sent to Police Station as Rukka for registration of FIR.

.

According to endorsement of Police officer, this application was

received on 6.3.2011 on the spot, whereas PW-2 has stated that

Police came on the spot on 7.3.2011. In daily station diary report,

Ex.PW-8/A, it has been recorded that ASI Ramesh Chand alongwith

HHC Dhani Ram left for village Barota for inquiry with respect to

complaint submitted by Brij Lal at 12.40 P.M. on 6.3.2011, which is

contrary to the claim of complainant that Police visited the spot on

7.3.2011. In his deposition, PW-2 Brij Lal has stated that Police came

to the spot alongwith Baldev, and Baldev, at that time, was in custody

of Police. As per record Baldev was arrested at 3:00 P.M. at Ladraur

on 7.3.2011.

17. According to PW-3 Jitender Kumar, at about 11:00 A.M.

on 7.3.2011, Baldev was in Police Station and there were large

number of persons inquiring and requesting Baldev to disclose about

the money so as to save Brij Lal from ruining. According to this

witness, at that time, Baldev had disclosed that entire money is not

with him and the money retained by him was kept by him in flower bed

between two houses and thereafter recovery of money was made at

the instance of Baldev.

18. It is stand of the complainant that on 6.3.2011 or thereafter

till Rajesh was arrested, he was not knowing name and other details of

accused Rajesh Kumar. However, in Ex. PW-2/A, the complaint filed

at the first instance by PW-2 Brij Lal, he has mentioned not only name

of Rajesh Kumar, but his parentage and address also. According to

connected matter

prosecution Baldev was arrested at 3:00 P.M. and thereafter he made

disclosure statement, whereas witness to the said disclosure, PW-3

Jitender has stated that at about 11:00 A.M. on 7.3.2011 Baldev had

.

made disclosure statement and recovery was effected on the basis of

such disclosure statement. According to Ex.PW-8/A, Police Party went

to the spot on 6.3.2011 itself, whereas claim of complainant Brij Lal is

that Police Party went to the spot for the first time on 7.3.2011.

According to record, names of Rajesh Kumar and Baldev alongwith

complete details of their addresses including caste are given in the

complaint, whereas according to complainant he came to know about

the details of Baldev after his arrest and further that he was not aware

that on what basis and from where Baldev was arrested by the Police.

The owner of the house, adjacent to which flowerbed was located, has

also not supported the prosecution case. No recovery has been

effected at the instance of Rajesh Kumar, who was arrested from

Baddi at later stage.

19. There are material contradictions in the contents of

complaint submitted by Brij Lal and his deposition in the Court and his

specific stand in the Court as well as in the complaint was that he has

suspected that Rajesh Kumar had stolen the money. He was not

definite about it. No recovery has been effected at the instance of

Rajesh Kumar. Whereas, recovery of amount, as claimed by the

prosecution at the instance of Baldev, has not been proved on record

in accordance with law. Otherwise also as per PW-3 Jitender,

disclosure statement was made at 11:00 A.M. whereas according to

Police, Baldev was arrested at 3:00 P.M. Therefore, necessary

ingredients and circumstances to rely upon the disclosure statement of

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Baldev are missing. It is apparent from the deposition of PW-3

Jitender that in the Police Station Baldev was pressurized by the

persons to tell about the money. Baldev is resident of village Barota,

.

whereas alleged recovery at his instance was made from another

village Bhaderwan, that too from the flower bed located between two

houses but not belonging to Baldev. How and under what

circumstances and for what reason the money was kept by Baldev in

different village, that too under open sky in flowerbed of stranger. The

owner of adjacent house has denied the recovery in his presence,

rather stated that Police had informed that amount had been recovered

from the flowerbed adjacent to his house.

20. The deposition of prosecution's prime witnesses is not

leading to a cogent reliable story, but creating doubt about entire

episode and investigation carried out in furtherance to the complaint

lodged by PW-2 Brij Lal. It is settled law that suspicion howsoever

strong can not take place of conclusive proof and benefit of suspicion

or doubt is always to be extended to the accused. It is cardinal

principle of criminal jurisprudence that a person cannot be convicted

on the basis of suspicion.

21. From the aforesaid discussion, it is apparent that veracity

of prosecution case including the deposition of prime witnesses,

especially complainant Brij Lal, is not inspiring confidence, rather not

only creating confusion and doubt about the prosecution story, but also

demolishing the case of the prosecution. Therefore, prosecution has

failed to prove its case beyond reasonable doubt by leading cogent,

reliable and confidence inspiring evidence.

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22. In view of above, I am of the considered view that there is

no illegality, irregularity or perversity in the conclusion arrived at by the

first Appellate Court in the impugned judgment so as to warrant

.

interference by this Court.

Accordingly, appeals are dismissed being devoid of any

merit. Records be sent back immediately. Bail bonds furnished by

the respondents are discharged.

th 20 October, 2023.

             (Keshav)
                              r          to           (Vivek Singh Thakur),
                                                             Judge.