Himachal Pradesh High Court
State Of Himachal Pradesh vs Rakesh Kumar on 29 September, 2023
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 251 of 2010
Reserved on: 27.07.2023
Decided on: 29th September, 2023
.
State of Himachal Pradesh .......Appellant
Versus
Rakesh Kumar ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the appellant: Mr. Mohinder Zharaick, Addl.
A.G with Mr. H.S. Rawat, Addl.
A.G., Mr. Tejasvi Sharma, Addl.
r A.G., Ms. Avni Kochhar Mehta
and Ms. Leena Guleria, Dy.
A.Gs
For the respondent: Ms. Shashi Kiran, Advocate.
Virender Singh, Judge.
The State of Himachal Pradesh has filed the
present appeal under Section 378 of the Code of Criminal
Procedure (hereinafter referred to as the 'Cr.P.C') against the
judgment dated 01.02.2010, passed by learned Additional
Sessions Judge, FTC, Kullu, H.P. (hereinafter referred to as
the 'learned First Appellate Court'), in Criminal Appeal No.
4/2009-RBT 24/2009, titled as Rakesh Kumar vs. State of
H.P.
2. Vide judgment dated 01.02.2010, the learned First
Appellate Court has allowed the appeal filed by respondent
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
Rakesh Kumar against the judgment of conviction and order
of sentence dated 25.11.2008 passed by the learned Judicial
Magistrate First Class, Manali, District Kullu, H.P.
.
(hereinafter referred to as the 'learned trial Court') in Criminal
Case No. 184-1/08/56-II/08 titled as State vs. Hana Paven
and another.
3. Vide judgment of conviction and order of sentence,
the learned trial Court has convicted accused Hana Paven for
the commission of offences, punishable under Sections 420
and 380 of the Indian Penal Code (hereinafter referred to as
the 'IPC'), whereas, accused Rakesh Kumar has been
convicted for the offence punishable under Section 411 IPC
and both of them have been sentenced as under:-
"Accused Hana Paven has been sentenced to undergo
simple imprisonment for a period of six months and to
pay a fine of Rs. 2,000/- and in default of payment of
fine to undergo simple imprisonment for a period of one
month under Section 420 of the Indian Penal Code.
In addition to this, accused Hana Paven is also
sentenced to undergo simple imprisonment for a period of
six months and to pay a fine of Rs. 3,000/- and in
default of payment of fine to undergo simple
imprisonment for a period of one month under Section
380 of the Indian Penal Code. The sentences shall run
concurrently.
Accused Rakesh Kumar has been sentenced to undergo
simple imprisonment for a period of 6 months and to pay
a fine of Rs. 3,000/- and in default of payment of fine/to
undergo simple imprisonment for a period of one month
under Section 411 IPC."
.
4. For the sake of convenience, the parties to the
present lis are hereinafter referred to, in the same manner, as
were, referred to, by the learned trial Court.
5. Brief facts leadings to the filing of the present
appeal may be summed up as under:-
5.1. The Police of Police Station, Manali has filed a
report under Section 173(2) Cr.P.C against accused Hana
Paven for the commission of offences, punishable under
Sections 420 and 380 IPC and against accused Rakesh
Kumar, for the commission of offences punishable under
Section 411 IPC on the ground, that on 17.06.2008, the I.O.
along-with other police officials was on patrolling duty and
was present at Vashisth Chowk, where, complainant Nisar
Ahmad has got recorded his statement, under Section 154
Cr.P.C., disclosing therein, that for the last six years, he has
taken a shop on rent from Ses Ram and running the business
of handicraft there. On 17.06.2008, when, complainant and
Abdul Hameed were present at the shop, at about 10.00 a.m.,
one girl came to the shop and disclosed her name as Hana
Paven, resident of Arunachal Pradesh. The said girl disclosed
that she is staying in Hotel Johnson Café along-with her
parents. She has requested the complainant that she is
interested to purchase bristle gold, ring gold chain with cross
gold, bristle ring silver and assured him to pay the amount
.
through credit card.
5.2. Upon this, she has purchased the articles for a
sum of Rs. 33,200/-. Thereafter, accused Hana Paven had
requested the complainant to provide tea to her, upon which,
complainant had gone to adjoining restaurant for bringing tea
for her. His neighbour Abdul Hameed has also gone to his
shop. After taking tea, accused Hana Paven had gone to take
her meal, but she did not return back.
5.3. On 17.06.2008, complainant has searched for her
in Manali, but, she was not found. When, in the evening he
came back, gold ornaments i.e. four gold rings, in which,
valuable stones i.e. Topaz, Diamond and Ruby were fixed,
value of which has been stated to be Rs.34,000/-, were found
stolen. He has expressed his suspicion that said articles were
stolen by Hana Paven.
5.4. On the basis of above facts, he has prayed that
action be taken against accused Hana Paven.
5.5. On the basis of above facts, the police has
registered a case under Sections 420 and 380 IPC and
criminal machinery swung into motion.
5.6. During investigation, the spot map was prepared.
Accused Hana Paven was arrested. During police remand,
she has disclosed, in her statement under Section 27 of the
.
Evidence Act that she has sold the stolen articles to a
Goldsmith at Kullu market. She has identified the shop
namely, 'Mahima Jewellers' owned by accused Rakesh
Kumar. Those articles were recovered from the shop.
5.7. It is the case of the police that accused Rakesh
knowingly had purchased the gold, worth of Rs.52,000/-, for
a meager amount of Rs. 13,000/-. After completion of
investigation, the police filed the report, under Section 173(2)
Cr.P.C., as referred to above, against the accused persons.
6. On the basis of report under Section 173(2)
Cr.P.C, the learned trial Court found a prima-facie case
against the accused persons, for the commission of offences,
punishable under Sections 420, 380 and 411 IPC.
7. When the charges, so framed, were put to the
accused persons, they had not pleaded guilty and claimed to
be tried.
8. Since, the accused persons have not pleaded
guilty, as such, prosecution has been directed to adduce
evidence, to substantiate the charges framed against them.
9. Consequently, the prosecution has examined as
many as 6 witnesses. After closure of the evidence, the entire
incriminating evidence, appearing against the accused
.
persons, was put to them, in their statements recorded under
Section 313 Cr.P.C. The accused persons have denied the
entire prosecution case and took the simplictor defence of
false implication. However, no defence evidence has been led
by them.
10. The learned trial Court, after hearing the learned
APP and learned counsel appearing for the accused persons,
has convicted and sentenced them, as mentioned above, vide
judgment of conviction and order of sentence, dated
25.11.2008.
11. Aggrieved from the judgment of conviction,
accused Rakesh Kumar has preferred the appeal before the
learned First Appellate Court. His appeal was allowed by the
learned First Appellate Court vide judgment dated 01.02.2010
and the accused has been acquitted from the offence
punishable under Section 411 IPC.
12. Feeling aggrieved from the said judgment of
acquittal, the present appeal has been preferred by the State
of Himachal Pradesh, challenging the judgment of acquittal
mainly on the ground that the learned First Appellate Court
has not rightly appreciated the testimonies of PW-2, PW-3
and PW-6, as all these three witnesses have proved the case
of the prosecution beyond shadow of doubt.
.
13. According to the appellant-State, the learned First
Appellate Court has not considered the fact that the stolen
articles were recovered from the shop of accused Rakesh
Kumar and this fact, from the disclosure statement made by
accused Hana Paven, has fully been established on record.
14. On the basis of above facts, a prayer has been
made to allow the appeal, by setting aside the judgment of
acquittal passed by the learned First Appellate Court, by
restoring the judgment of conviction and order of sentence, as
passed by the learned trial Court.
15. In order to decide the controversy involved in the
present appeal, it would be just and appropriate for this
Court, to discuss the evidence so adduced by the prosecution
before the learned trial Court, upon which, the learned trial
Court has convicted the accused persons, as referred to
above.
16. After framing of charge, prosecution has examined
PW-1 Kaisar. According to him, he is running a shop at
Vashisth for the last six years. According to him, on
20.06.2008, he and driver Param Dev were associated in the
investigation of the case. Accused has made a statement in
the police custody, disclosing therein, that on 17.06.2008,
she had stolen the gold from the handicraft emporium.
.
According to him, she had gone there under the guise of a
tourist. The said accused has also disclosed that she had
sold those gold articles to a Goldsmith at Kullu. She has
identified the said shop by stating that she had sold five rings
and one gold bracelet for a sum of Rs.13,000/-. According to
him, the police had taken into possession five golden rings
and bracelet, but, those were not shown to this witness and
were put in a cloth parcel. He has further deposed that he
did not identify the said owner, from where, those articles
were taken into possession, as, he was not present at the
shop. However, he has proved the statement of accused Hana
Paven made under Section 27 of the Evidence Act as Ext. PW-
1/A. Memo Ext. PW-1/B also bears his signature. The spot
identification memo Ext. PW-1/A also bears his signature.
Since, this witness has not supported the case of the
prosecution, as such, on the request of learned APP, he has
been declared hostile and the learned APP has been permitted
to cross-examine this witness. When, this witness was
confronted with the statement made under Section 161
Cr.P.C, he has stated that he had made the said statement to
the police. The golden bracelet and rings were presented by
the person, who was present in the shop. He has further
deposed that he does not remember the face of the said
.
person. According to him, he is unable to identify the person
due to this fact, he cannot say whether said person is present
in the Court or not. He has identified the golden rings Ext.P-
1 to Ext.P-5 and bracelet Ext.P-6.
17. In cross-examination by learned counsel for
accused Rakesh, this witness has deposed that total seven
persons, including the driver, had gone to Kullu and the
vehicle was parked in front of the shop. The recovery memo
was prepared in the shop itself. The IO took 2½ hours to
complete the proceedings.
18. PW-2 Ram Singh is a Driver by profession. He
used to drive vehicle No.HP0K-1124. On 17.06.2008, he was
present at the bus-stand. In the meanwhile, one van being
driven by its driver came there. Accused Hana Paven was
sitting in it and she had agreed to pay Rs.600/- to him, as
fare of the vehicle, in order to go to Kullu. When, the driver o
the said van requested accused Hana Paven to fill fuel in the
vehicle, she has disclosed that she was not having money.
Thereafter, this witness has agreed to take her to Kullu. She
had gone to the shop of Goldsmith in Akhara Bazar, Kullu,
whereas, this witness remained in the vehicle. The accused,
thereafter, was dropped in old Manali at about 9.30 p.m.
Lastly, he has deposed that accused Hana Paven has
.
disclosed to him that she had to sell her jewellery and
thereafter, she has brought the money.
19. In cross-examination, this witness has admitted
that no money was transacted in his presence.
20. PW-3 Chaman Lal was Pradhan of Gram
Panchayat, Vashisth. On 18.06.2008, complainant disclosed
to this witness that one girl had stolen gold, silver rings and a
chain, upon which, he has advised the complainant to report
the matter to the police. When the said lady was found, her
search was conducted through Lady Constable. From her
personal search, a golden chain and golden ring were found,
which were identified by the shopkeeper. The said articles
were taken into possession vide memo Ext. PW-3/A. During
search, golden chain was found from her possession and she
had disclosed that she had sold the remaining articles at
Kullu.
21. In cross-examination, this witness has deposed
that memo Ext. PW-3/A was prepared in the shop of
complainant and during personal search of accused Hana
Paven by the Lady Constable, one chain was found in her
possession and she had sold remaining gold articles at Kullu.
22. PW-4 ASI Daya Ram has deposed that on
.
17.06.2008 he, along-with other police officials was on
patrolling duty. At about 3.10 p.m. when, he was present at
the place known as Vashisth, complainant Nasir Mohammad
has got recorded his statement Ext. PW-4/A. The said
statement was forwarded to the Police Station, upon which,
FIR Ext. PW-4/B was registered.
23. On 18.06.2008, he has visited the spot and
prepared the spot map Ext. PW-4/D. The personal search of
accused Hana Paven was conducted and from her personal
search by Lady Constable Veena Kumari, one golden cross
chain was recovered, which was identified by the
complainant. The said golden chain was put in a parcel Ext.
P-7 and was taken into possession vide memo Ext. PW-3/A.
24. On 20.06.2008, during police custody, accused
Hana Paven has made a statement, under Section 27 of the
Evidence Act Ext.PW-1/A, which was signed by her, as well
as, the witnesses. On 20.06.2008, accused Hana Paven, in
the presence of witnesses, has identified the shop known as
'Mahima Jewellers' Akhara Bazar, Kullu. There, accused
Rakesh Kumar has produced gold bracelet, which has been
melted and five golden rings, which were taken into
possession by putting the same in a parcel, which was sealed
with seal 'D'. He has identified the golden rings Ext. P-1 to
.
Ext. P-5 and the melted bracelet Ext. P-6. He has also
deposed about the other investigation conducted by him, in
this case.
25. In the cross-examination, he has denied that the
signatures over memo Ex. PW-1/A were obtained after
threatening accused Hana Paven. In the presence of witness
Chaman Lal, only golden cross chain was recovered. He has
denied that Hana Paven does not understand Hindi language.
26. In the cross-examination by learned counsel for
accused Rakesh Kumar, this witness has deposed that he
along-with witness Param Dev, Kaisar, accused Hana Paven
and Lady Constable had gone to Kullu in a private vehicle.
Although, the vehicle was hired through taxi union, but, no
rent was paid. He has admitted that there are 5-7 Goldsmith
shops at Akhara Bazar, Kullu. Accused Rakesh Kumar is
dealing with the work of Goldsmith. The proceedings, at the
shop, were conducted within 40 minutes. Near Mahima
Jewellers, there are 4-5 shops, however, no-one had come
during those proceedings. Efforts were made to associate
local residents as witnesses, but, no-one was ready to be so.
No action has been taken by this witness against the said
persons.
27. PW-5 Inder Singh has proved the copy of rapat
.
No.24 as Ext. PW-5/A.
28. PW-6 Nasir Ahmed has deposed that he is running
a handicraft shop at Vashisth Kullu. On 17.06.2008, he and
Abdul Hameed were present in their shop. At about 10.00
a.m., one girl came to the shop and disclosed her name as
Hana Paven. The said girl disclosed that she is staying in
Johnson Café. She has requested this witness that she is
interested to purchase bristle gold ring, gold ring and cross
bristle etc. and assured him to pay the amount through credit
card. Thereafter, accused Hana Paven had requested this
witness to provide tea to her, upon which, he had gone to
adjoining restaurant for bringing tea for her. Accused Hana
Paven had purchased the articles worth of Rs.33,200/-. When
this witness came back, Hana Paven was not there. She was
searched in the locality, but, was not found. In the evening,
when he came back to the shop, he checked the articles and
found that one golden chain, one bracelet, one cross along-
with golden chain were missing. According to him, Hana
Paven had stolen those articles. He has given the value of
those articles as Rs.34,000/-. On the next day, i.e.
18.06.2008, he has informed Pradhan and he has directed
him to report the matter to the police. At about 3.00 p.m.
when he was present at Vashisth Chowk, police met them,
.
where, he has made the statement Ext. PW-4/A. Accused
Hana Paven was met on the Vashisth chowk. She was
searched by one Lady Constable and from her personal
search, one golden chain along-with cross chain was found.
The said cross chain was the stolen property. Accused Hana
Paven had admitted that she had stolen the said articles. On
20.06.2008, accused Hana Paven disclosed to the police that
she had sold the remaining jewellery to Mahima Jewellers at
Akhara Bazar and, then, after recording this statement, the
police took her to Akhara Bazar, Kullu, where, in the shop
known as Mahima Jewellers, accused Rakesh was found.
Accused Rakesh had shown five golden rings, which were
duly identified by him. One melted bracelet was also
produced, which was taken into possession.
29. In the cross-examination, this witness has
deposed that he had not made the statement to the police
that accused Hana Paven had requested this witness to
provide tea. PW Kaisar is his friend. Pradhan was informed
about the theft in the noon. Vashisth is a tourist place. This
witness has kept golden ornaments worth of Rs.1,50,000/- in
his shop.
30. In the cross-examination by learned counsel for
.
accused Rakesh, this witness has deposed that they had gone
to Kullu in an Alto car. Three policemen and accused Hana
Paven were there in the vehicle. Kaisar had gone with this
witness in a qualis. He has denied that golden bracelet has
also been produced by him. Police had told accused Rakesh
that they will take into possession the golden ring along-with
bracelet. On 21.06.2008, when, police had gone to the shop,
accused was not present there. Rest, he has denied all the
suggestions which were put to him by learned counsel
appearing for accused Rakesh.
31. This is the entire evidence on record.
32. The learned First Appellate Court has acquitted
the accused, in this case, on the ground that the disclosure
statement allegedly made by accused Hana Paven has not
been proved, on record. The alleged disclosure statement is
on record as Ext. PW-1/A. As per contents of this much relied
documents, accused Hana Paven has disclosed that the
golden ornaments, bracelet, gold rings, which, she had stolen
on 17.06.2008, had been sold to a Goldsmith at Kullu Bazaar
for a sum of Rs.13,000/-. According to her, she can got
recovered the said ornaments. The alleged disclosure
statement Ext. PW-1/A has been witnessed by Kaisar and
Param Dev. Kaisar appeared in the witness box as PW-1. He
.
has simply stated that accused has made statement under
Section 27 of the Evidence Act Ext. PW-1/A, which was
signed by him and Param Dev. His deposition is silent qua
the fact that what has been deposed by accused Hana Paven
in her alleged disclosure statement.
33. As per case of the prosecution, accused Hana
Paven has alleged got recovered the stolen ornaments by
identifying the shop of jeweller vide memo Ext. PW-1/B. In
the statement under Section 27 of the Evidence Act, accused
Hana Paven has not disclosed about accused Rakesh or name
of his shop or the place, where his shop is situated. As per
his statement, the same is in Kullu market.
34. Kullu is the District headquarter and, as such, on
the basis of vague averment in Ext. PW-1/A, a futile attempt
of the prosecution to connect accused Rakesh with the
alleged crime has rightly been discarded by the learned First
Appellate Court.
35. PW-1 Kaisar has not identified accused Rakesh, as
the person, who had produced the gold ornaments, allegedly
sold to him, by accused Hana Paven. Hence, no reliance can
be placed on the document Ext. PW-1/A, documenting the
alleged factum of recovery of those gold ornaments. When
PW-1 has not supported the case of the prosecution, then, he
.
has been declared hostile. Despite best efforts made by
learned A.P.P., nothing material could be elicited from his
cross-examination.
36. Other material witness to this memo Ext. PW-1/A
is Param Dev. The said witness Param Dev has not been
examined by the learned A.P.P. and vide statement made on
11.09.2008, the said witness has been given up, on the
ground, that he has been won over by the accused.
37. Merely the witness has been given up on the
ground that he has been won over, is not sufficient to hold
that the document can be said to be signed by him. In such a
situation, only one inference could be drawn that had the
said witness been examined, he would have deposed against
the prosecution.
38. As such, by drawing an adverse inference, both
these documents have rightly been discarded by the learned
First Appellate Court. There is no evidence on record to show
that accused Rakesh was having the knowledge that the
property, being sold to him, was a stolen property. As such,
the ingredients of Section 411 IPC have not been proved.
39. No other point has been urged or argued.
40. Considering all these facts, there is no occasion
for this Court to differ with the findings of the learned
.
Appellate Court. As such, I find no merit in the present
appeal and the same is accordingly dismissed.
41. The bail bond and surety bond furnished by the
accused are discharged. He is directed to furnish the bail
bond in the sum of Rs.20,000/- with one surety of the like
amount under the provisions of Section 437-A Cr.P.C to the
satisfaction of learned Registrar (Judicial) of this Court within
a period of seven days, by giving an undertaking to appear
before the Hon'ble Apex Court, in case, this judgment is being
assailed before the Apex Court.
42. Record be sent back.
September 29, 2023 ( Virender Singh )
(naveen) Judge
