Punjab-Haryana High Court
Manoj Kumar And Ors. vs State Of Haryana on 24 March, 2008
Equivalent citations: 2008CRILJ3128
Author: J.S. Khehar
Bench: J.S. Khehar
JUDGMENT Sham Sunder, J.
1. This judgment shall dispose of Criminal Appeals No. 889-DB of 2006 filed by Manoj Kumar and Raj Kumar @ Raju, 939-DB of 2006 filed by Karan Singh @ Kama. 3-DB of 2007 filed by Shree Bhagwan ® Dhollu and 29-DB of 2007 filed by Vinod, Accused/appellants, arising out of the judgment of conviction and the order of sentence dated 11-11-2006 rendered by the Additional Sessions Judge (I). Bhiwani vide which it convicted the accused/appellants and sentenced them as under:
(i) all the accused were sentenced under Section 396 of the Indian Penal Code to undergo imprisonment for life and to pay fine of Rs. 50,000/- each. In the event of the benefit of provisions of Section 433(a) Cr.P.C. being extended to any of these accused, for their release upon expiry of 14 years and on the failure on the part of any of the accused to pay the aforesaid amount of fine, each defaulter to undergo further R.I. for a period of 4 1/2 years.
(ii) all the accused were further sentenced under Section 395 of the Indian Penal Code to undergo imprisonment for 10 years and to pay fine of Rs. 10,000/- each. In the event of default, each defaulter to undergo further R.I. for a period of 2 1/2 years; and
(iii) all the accused were also sentenced under Section 398 of the Indian Penal Code to undergo imprisonment for 7 years and to pay fine of Rs. 3,000/- each. In the event of default, each defaulter to undergo further R. I. for a period of 1 1/2 years.
However, all the sentences were ordered to run concurrently. No separate conviction under Section 302 of the Indian Penal Code, was recorded by the trial Court, on the ground that the offence under Section 396 of the Indian Penal Code related to murder in dacoity. It was directed by the trial Court that 75% of the amount of fine, shall be paid, as compensation, to the legal representatives of Vinod Kumar, deceased, in equal shares.
2. The facts, in brief, are that on 12-10-1994, Vinod Kumar (since deceased), along with his driver, Avnish, and his employee, namely, Satish Kumar, had set out from Jind in Car No. HR-31C-4154, driven by Avnish for collecting payment from his various clients at Kosli, Narnaul, Kanina, Dadar, Bhiwani and Tosham, but while on their way back, from Tosham towards Jind, via Bawani Khera, they were chased by a Bolero Jeep at about 8.30 p. m. Avnish driver of the Car however, made an attempt to avoid being over taken by the aforesaid Bolero Jeep, but he could not succeed and had to stop the vehicle, in a narrow lane near a brick kiln, thus, necessitating the abandonment of the car, at which juncture, the occupants of Bolero Jeep, after alighting therefrom, fired a shot, at Vinod Kumar, as a result whereof, he died, whereas, his driver, Avnish, escaped, after having concealed himself, and Satish Kumar escaped, by pleading with the assailants, that he was merely an employee. Cash amount of Rs. 95,000/-, which was statedly, in the brief case, lying in the car, was taken by the assailants. During the course of investigation, the accused were arrested, for having participated, in the aforesaid occurrence.
3. The challan was initially presented against accused Shree Bhagwan, Raj Kumar alias Raju and Manoj Kumar on 8-1-2005. Thereafter, Karan Singh, accused, was arrested and supplementary challan was filed against him on 7-9-2005. Thereafter, another absconding accused, Vinod, was also arrested on 23-8-2005, and a supplementary challan against him was filed on 14-12-2005. However, the sixth accused remained absconding and could not be arrested.
4. On their appearance in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by way of commitment, charge under Sections 395, 396, 398 and 302 of the Indian Penal Code was framed, against the accused. It was read over and explained to them, to which, they pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Satish Kumar (PW1), who was accompanying Vinod Kumar (since deceased) in Car No. HR-31C-4154, on the date of occurrence. He, however, could not identify the accused, as the perpetrators of crime. Avnish (PW2), who was driver of the aforesaid car and was accompanying Vinod Kumar (since deceased), on the day of occurrence, also could not identify the accused as the perpetrators of crime. HC Mahabir Singh (PW3), was handed over two sealed parcels, one having bullet and the other having clothes of the deceased, after post mortem, which were taken into possession vide memo Ex. P6, attested by Hans Raj, Constable, Jitender Kumar (PW4) tendered his affidavit Ex. P11. S1 Bhagwan Dass (PW5), was posted as SHO. Police Station Tosham on 12-12-2004. He recorded the statements of MHC Rattan Singh and EHC Jitender Singh. On 14-12-2004 he recorded the report under Section 173 Cr.P.C. against accused Shree Bhagwan, Manoj Kumar and Raj Kumar alias Raju. ASI Gugan Singh (PW6) was posted in that capacity in Police Station Tosham on 13-10-2004. On receipt of the ruqa, Ex. P1, he recorded the formal F.I.R. Ex. P12. After registration of the case, he sent the special report to the Illaqa Magistrate, and other Senior Police Officers, through Constable Jitender Singh No. 973. S.I. Prahlad Singh (PW7) was posted as S.H.O., Police Station Baund Kalan, on 13-10-2004. He recorded the statement Ex. P1 of Satish Kumar complainant and sent ruqa, Ex. P13, through Constable Hans Raj, on the basis whereof FIR was recorded. Blood stained earth from the spot was lifted by him and converted into a parcel. He also lifted six foot moulds away from the dead-body, one pair of Chappals, and two pairs of shoes, which were converted into separate parcels. These parcels along with car (Indigo), bearing No. HR-31-C-4154 were taken into possession. He also prepared rough site plan, Ex. P14, of the place of occurrence. He recorded the statements of the prosecution witnesses. He prepared the inquest report Ex. P15 of the dead body of Vinod Kumar and sent the same for post mortem examination along with application, Ex. P16, to Civil Hospital through EHC Mahabir Singh. He was handed over one vial, containing bullet, and another sealed parcel, containing clothes of the deceased, bearing the seal of the doctor by EHC Mahabir Singh and Constable Hansraj and the same were taken into possession vide memo Ex. P6. He also conducted part investigation in this case. HC Tattan Singh (PW8) tendered into evidence his affidavit Ex. P21.
6. Sanjay Sandhir, Judicial Magistrate I Class, Bhiwani, stated that on 8-11-2004, accused, Raj Kumar, Manoj Kumar and Shree Bhagwan were produced before him, in the Court, along with application, Ex. P22, moved by the Police, for police remand. Another application for taking foot prints of accused Manoj Kumar, Raj Kumar and Shree Bhagwan was also moved by the police, which is at Ex. P23. He further stated that accused Manoj Kumar, Raj Kumar and Shree Bhagwan refused to give their foot prints and their statement Ex. P24, was recorded. The said application was disposed of by him, vide order Ex. P25. ASI Parkash Chand (PW10) was posted in Police Station Toshan on 4-11-2004. He associated with SI Pehlad Singh, in the investigation of this case. His statement shall be discussed, in the subsequent paragraphs. Inspector Ram Avtar (PW11), was posted as Inspector CIA Staff. Bhiwani on 26-4-2005. On that day, SI Bhagwan Dass, SHO, Police Station Bawani Khera and SI Jagat Singh, SHO, Police Station Tosham, had produced before him, accused Karan Singh, who was arrested by him, in case FIR No. 99 dated 12-4-2005, under Sections 392/402 IPC and 25 of the Arms Act, Police Station Sadar Bhiwani and he interrogated him. The accused according to him, made a disclosure statement before him. ASI Mukhtiar Singh (PW12), recorded the statement Ex. P1 of Satish Kumar, complainant on 13-10-2004, and thereafter, associated with SI Pehlad Singh in the investigation of this case, Sube Singh Patwari (PW 13) prepared the scaled site plan Ex. P30 of the place of occurrence. HC Joginder Singh (PW14), was present, with SI Bhagwan Dass when Manoj Kumar, Raj Kumar and Shree Bhagwan, accused, were interrogated, who made disclosure statements, Ex. P31, Ex. P32 and Ex. P33, respectively. Dr. N.K. Garg, Medical Officer, General Hospital, Bhiwani, was examined as PW15, who conducted the post mortem examination, on the dead body of Vinod Kumar son of Gopi Ram on 13-10-2004. The dead body was identified by Din Dayal son of Gopi Ram and Ved Parkash son of Manohar Lai. He found contusion over the right eye with bleeding from nose and right ear. Entry wound of the size 1 1/2 x 1 1/2 cm. 3 cm away from left can thus was found on the dead body. Tattooing was present around the wounds area of 5 cm. On dissection of skull injury to occipital area occipital protuberance, was found. A bullet was also found there. Lacerations of brain parenchyma, meninges and other structures were also found, on the track of bullet. Gross bullet traced on occipital region which was sealed. The cause of death in the opinion of the doctor, was shock and haemorrhage, as a result of injury, to vital organs (brain), which was sufficient to cause death, in the ordinary course of nature. The probable time, between the injury and death, was instantaneous and between death and post mortem was within 24 hours. Inspector Prahlad Singh (PW16) took charge as SHO. Police Station Toshan on 6-11-2004. He interrogated the accused, who made disclosure statements, and got effected recoveries. His statement, in detail, shall be discussed, in the subsequent paragraphs. ASI Suraj Bhan (PW17), who was posted in Police Station Toshan, also partly investigated this case. H.C. Jitender Singh (PW18), tendered in evidence his affidavit Ex. P46. ASI Ishwar Singh (PW19) in the presence of EHC Jitender Singh, Constables Kuldeep and Balwan Singh on 23-8-2005, interrogated accused, Vinod, who made a disclosure statement, Ex. P47. His statement, in detail, shall also be discussed in the subsequent paragraphs. Harish Kumar (PW20) took photographs, 13 in number, Ex. P49 to Ex. P61, of the place of occurrence, negatives where of are Ex. P62 to Ex. P66. H.C. Rattan Singh (PW21), tendered in evidence his affidavit Ex. P67. On that day, in his presence accused Vinod Kumar was interrogated by ASI Karan Singh, who made a disclosure statement Ex. P68. The Public Prosecutor for the State tendered into evidence reports of the F.S.L. dated 24-5-2005 and 23-6-2005. Ex. P68 and Ex. P69, respectively. Thereafter he closed the prosecution evidence.
7. The statements of the accused under Section 313 Cr.P.C. were recorded. They were put all the incriminating circum stances, appearing against them, in the prosecution evidence. They pleaded false implication. Shree Bhagwan accused, in his statement, under Section 313 Cr.P.C. stated that he had not committed any offence. He further stated that the police arrested him from his house on 30-10-2004, and kept him in illegal custody since 5-11-2004. Raj Kumar alias Raju, accused, in his statement, under Section 313 Cr.P.C. stated that he did not commit any offence, but was falsely implicated. Manoj Kumar Vinod and Karan Singh accused, in their statements, under Section 313 Cr.P.C. also took up the same plea, as was taken up by Raj Kumar alias Raju, accused. The accused, however, did not lead any evidence, in their defence.
8. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated hereinbefore.
9. Feeling aggrieved, the aforesaid four appeals, were filed by the appellants/accused.
10. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
11. Learned Counsel for the appellants, at the very outset, contended that the prosecution miserably failed to prove through cogent and convincing evidence, that the accused were the perpetrators of crime in which the murder of Vinod Kumar was committed, and a sum of Rs. 95000/- was looted. They further contended that both the alleged eye witnesses, namely, Satish Kumar, PW1 and Avnish PW2 could not identify the accused as the perpetrators of crime. It was further contended by them that the accused did not make any disclosure statements, nor got effected recoveries, in pursuance thereof, but the Police planted the recoveries, against them. It was further contended by the Counsel for the appellants that two ledgers, which were produced, in the Court, were completely new and blank, which were not connected with the commission of crime. It was further contended that even there was no mark of identification, on the currency notes, allegedly got recovered by some of the accused, in pursuance of their alleged disclosure statements, and the same did not stand connected with the crime. It was further contended that the suitcase, which was produced in the Court, to connect the accused, with the crime, was also procured, and the same neither bore any mark of identification, nor it was proved that it was the same, which was being carried by Vinod Kumar (now deceased). It was further contended that the story put up by the prosecution, regarding the refusal of the accused to give their foot moulds, was also fabricated. It was further contended that the accused were not, at all, connected with the alleged commission of crime and the trial Court, was wrong, in recording their conviction and awarding sentence to them.
12. On the contrary, the Counsel for the respondent, contended that the factum of recovery of articles, and cash from some of the accused, soon after the dacoity, at their instance was sufficient to bring home the guilt to the accused. He further contended that the testimony of the witnesses will not become doubtful, merely, on their failure, to identify the accused. It was further contended that, no doubt, the two eye witnesses failed to identify the accused, as the perpetrators of crime, yet the recoveries got effected by them, in pursuance of their disclosure statements, duly connected them, with the commission of crime. It was further contended that refusal, on the part of the accused, to give their foot moulds, before the Judicial Magistrate, concerned, clearly indicated their guilt, as an adverse inference could be drawn against them, that, had they given the sample foot moulds, the same would have matched with the foot moulds, already lifted from the spot. It was further contended that the recoveries were not planted. It was further contended that the suit-case was also not planted. It was further contended that the two account books (bahis) were also not planted, against the accused. It was further contended that sufficient evidence was produced, by the prosecution, to prove that the accused committed the crime. It was further contended that the trial Court was right in recording conviction and awarding sentence to the accused.
13. First coming to the identity of the accused/appellants, as the perpetrators of crime, it may be stated here that no worthwhile evidence was produced, by the prosecution, to prove the same. With a view to prove its case, it was incumbent upon the prosecution, to establish the identity of the accused, as the perpetrators of crime, by leading cogent and convincing evidence. In the instant case, Satish Kumar, PW1, who was accompanying Vinod Kumar (now deceased), in car No. HR 31-C-4154, at about 8.30 pm, on the relevant day, and Avnish, PW2, who was the driver of the said car, could be said to be the best witnesses, to identify the accused, as the perpetrators of crime. However, when both of them appeared in the Court as PW1 and PW2, respectively, they, in clear-cut terms, stated that they could not identify the accused, as the perpetrators of crime. With the permission of the Court, the Public Prosecutor for the State was permitted to put them such questions, as are put, during the course of cross examination. They were thoroughly cross-examined, by the Public Prosecutor for the State, but even, during the course of such cross-examination, they did not improve the case of the prosecution, with regard to the identification of the accused, as the perpetrators of crime. No other witness was examined by the prosecution, to prove the identity of the accused, as the perpetrators of crime. It was a fit case, in which the Investigating Officer, was required to hold a test identification parade, to pinpoint the identity of the accused, during the course of investigation. He, however, failed to do so for the reasons best known to him. The prosecution, thus, miserably failed to prove that the accused were the perpetrators of crime, in which, murder of Vinod Kumar was committed and a sum of Rs. 95,000/- was looted from him. The prosecution, thus miserably failed to connect the accused with the present case.
14. Now coming to the other evidence, produced by the prosecution, to connect the accused with the present case, it may be stated here, that the same was also not trust-worthy as would be discussed hereinafter. Manoj Kumar, accused, was arrested on 4-11-2004 by Prehlad Singh, SI, SHO. Police Station Tosham (PW7). He statedly made a disclosure statement, Ex. P17, that he had concealed Rs. 10.000/- and a pistol in a room, earlier occupied by him, on rent, near a Dhaba, near Jaipur, of which he only knew, and could get the same recovered by pointing out. However, in pursuance of the said disclosure statement, no recovery was got effected by him, as stated by Parkash Chand, ASI, PW10.
15. Manoj Kumar, accused, was also statedly interrogated on 6-11-2004, when he allegedly made a disclosure statement Ex. P29, that he had concealed a sum of Rs. 1500/- as well as a suitcase, in which the amount was kept, in the baithak (guest room) of their house, and could get the same recovered, by pointing out. In pursuance of the said disclosure statement, he allegedly got recovered a sealed parcel, containing suitcase, along with currency notes of Rs. 1500/-, which were taken into possession, vide memo Ex. P29/A.
16. Manoj Kumar, accused, was again interrogated on 8-11-2004 by Prehlad Singh, SHO Police Station Tosham and he statedly made a disclosure statement, Ex. P31, that he had concealed a pistol and the money, in a room, of which he only knew, and could get the same recovered. However, in pursuance of the said disclosure statement, no recovery was in effect.
17. Raj Kumar alias Raju allegedly made a disclosure statement, Ex. P19, on 5-11-2004 before Prahlad Singh, SI/SHO, Police Station Tosham to the effect that he had concealed a sum of Rs. 10,000/- in a rented room, situated near a Dhaba, near Jaipur, of which he only knew and could get the same recovered by pointing out, but no recovery was got effected by him, in pursuance of the said disclosure statement.
18. Raj Kumar alias Raju, accused, also allegedly made a disclosure statement on 6-11-2004, Ex. P27, that he had concealed a sum of Rs. 1200/- and two ledgers of the firm in a Chhappar (covering made from fodder substance) in his house, of which he only knew, and could get the same recovered. In pursuance of the said disclosure statement, he got recovered a sum of Rs. 1200/- and two ledgers, which were taken into possession, vide memo Ex. P27/A.
19. Raj Kumar alias Raju, accused, also statedly made a disclosure statement on 8-11 -2004, before SHO Police Station Tosham, Ex. P32, that he had concealed a pistol and money in a house taken on rent near Meerut Cantt. Area, of which he only knew, and could get the same recovered by pointing out. However, no recovery was got effected by him, in pursuance of the disclosure statement.
20. Shree Bhagwan alias Dhollu accused, was arrested on 5-11-2004. He allegedly made a disclosure statement. Ex. P20, that he had concealed a sum of Rs. 10,000/- in a room, located near a Dhaba near Jaipur, of which he only knew, and could get the same recovered, by pointing out. However, no recovery in pursuance of the said disclosure statement, was got effected by him.
21. He statedly made another disclosure on 6-11-2004, Ex. P28, that he had concealed a sum of Rs. 10,000/- and papers of the firm, of which he only knew, and could get the same recovered by pointing out. In pursuance of the said disclosure statement, he got recovered a sum of Rs. 1000/- and partnership deed between Vinod Kumar son of Gopi Ram, resident of Rohtak and Biharilal son of Telu Ram, resident of Jind, consisting of three papers, in all, besides sundry debtors summary relating to M/s. Vinod Enterprises from 1-4-2004 to 12-10-2004, which were taken into possession vide memo Ex. P28/A.
22. Shree Bhagwan alias Dhollu also statedly made a disclosure statement Ex. P33, on 8-11-2004, before S.H.O. Police Station Tosham that he had concealed money and country made pistol, of which he only knew, and could get the same recovered, by pointing out, but no recovery was got effected by him, in pursuance of the same.
23. Karan Singh alias Kama accused was arrested on 12-5-2004, in another case, under Sections 392/302 IPC. He statedly made a disclosure statement, Ex. P38 on 5-5-2005 that he had concealed a sword in a pit dug by him, near the crossing at Railway Station at Bawani Khera, of which he only knew, and could get the same recovered by pointing out. He got recovered the said sword, which was taken into possession vide memo Ex. P39.
24. Vinod accused statedly made a disclosure statement, Ex. P47, that he had concealed some amount, of which he only knew, and could get the same recovered, by pointing out, but in pursuance of the said disclosure statement, nothing was got recovered by him.
25. He also statedly made a disclosure statement, Ex. P38 on 22-8-2005 that he had concealed a sum of Rs. 80,000/- In a rented room In Jaipur and could get the same recovered, by pointing out, but no recovery was got effected by him, In pursuance thereof.
26. The recovery of currency notes, referred to above, allegedly got effected by some of the accused, did not stand connected with the instant case. The currency notes did not have any mark of identification. No slip of any bank, was affixed, on the same. No evidence was produced by the prosecution, to prove that the currency notes, allegedly got recovered, by some of the accused, in pursuance of the disclosure statements, made by them, were part of the amount of Rs. 95000/- allegedly looted from Vinod Kumar (now deceased), on the date of occurrence. Such small amounts of Rs. 1000/- or Rs. 1500/- shown to have been got recovered by some of the accused, could be easily planted against them. Even otherwise, it does not appeal to reason that the accused will keep the small amounts of Rs. 1000/- or Rs. 1500/- or even partnership deed of the firm, for such a long time with them, knowing fully well that the same being incriminating pieces of evidence, could be used against them, for proving the commission of crime. Such like currency notes, could be easily available, in the market. There is nothing in the statement of the complainant namely. Satish Kumar, recorded first in point of time, on the basis whereof the FIR was recorded, that the partnership deed was being carried by Vinod Kumar, at the relevant time. Partnership deed, even otherwise, could not be said to be of any significance, for the accused. Since it was an incriminating piece of evidence, had the accused allegedly looted the same from Vinod Kumar, they would have certainly destroyed the same immediately, after the alleged occurrence. Similarly the ledgers, which were allegedly got recovered, by Raj Kumar alias Raju accused, were new and did not contain any entry. The trial Court also disbelieved the evidence, with regard to the recovery of the ledgers, got effected by Raj Kumar alias Raju accused. Since Vinod Kumar had gone to various traders, to whom he was supplying the goods, for recovery of dues, in all probability, he was supposed to take with him the ledgers, which were written, showing the amounts due against them, and not the new ledgers, which were blank, These ledgers were, therefore, planted by the Investigating Officer, just with a view to connect the accused, with the instant case, The sword, which was allegedly got recovered, by Karan Singh alias Kama, accused did not stand connected with the instant case. In the instant case, a fire was shot from the pistol at Vinod Kumar, as a result whereof, he died. The recovery of sword, therefore, was of no significance to connect Kama accused with the present case.
27. Even the suitcase, which was allegedly got recovered by Manoj Kumar, accused, did not stand connected with the instant case. The trial Court, in our opinion, was wrong in coming to the conclusion that the same stood connected, with the instant case, on the ground that the said suitcase was having specific numbers, and the same was opened in the Court, by matching those numbers by a witness. The conclusion of the trial Court, in this regard, does not appear to be correct. Satish Kumar, PW1, did not identify the suitcase, as the one, which was being carried by Vinod Kumar at the relevant time. Avnish PW 2. who was driver of Vinod Kumar, and was driving the car, in which he along with others, was proceeding, towards a particular place, at the relevant time, in his cross examination stated that he could not identify the suitcase, produced in the Court. He, however, stated that he had no business with the briefcase or other property of the deceased. No doubt, Satish Kumar, PW1, opened the same, by bringing digits 754 in a line. However, Avnish PW2 stated, in his statement, that the name of V.K. Garg was not written or inscribed outside or inside the suitcase. In his statement, which was recorded first in point of time, which formed the basis of FIR, it was stated by Satish Kumar PW 1, that the suitcase was of black colour. When the suitcase was produced in the Court, it was not of black colour. When the suitcase was allegedly taken into possession, vide memo, Ex. P29/ A, lock of the same was found broken. Word "VIP Odyssey", was found scribed on the said suitcase on the front side. Once the lock of the said suitcase was broken, the question of bringing the numbers of the same in line, and opening it by Satish Kumar ,(PW1) did not, at all, arise. It appears that some other suitcase, which was having numbers and could be opened by mailing the same, was procured by the investigating agency, and ultimately, it succeeded in planting the same, against Manoj Kumar, accused, so as to connect him, with the instant ease, The suitcase, even otherwise, could not be said to be so valuable a thing, which could not be destroyed, by Manoj Kumar, accused, had he looted the same, from Vinod Kumar, at the time of alleged occurrence. He could not be expected to keep the same, with him, for such a long time, after the alleged occurrence, knowing fully well that, in case, the same was recovered from him, it could be used, as an incriminating piece of evidence against him, to connect him, with the present case. The factum that, all these disclosure statements, alleged to have been made by the accused, and the recoveries allegedly got effected by them, were a staged managed affair, in a zeal to solve the crime, is clearly proved from the statement of Prehlad Singh (PW7), who up to 5-11-2004 was posted as S.H.O., Police Station Tosham. During the course of his cross examination, it was stated by him, that he did not record the disclosure statement of Manoj Kumar on 5-11-2004. He admitted as correct that a special investigating team was constituted to investigate this case, under the orders of the Inspector General of Police. It was admitted by him, during the course of his cross examination, that directions were given for apprehending the accused persons. It was further stated by him that the Inspector General of Police, directed that, in case of failure to perform their duty, the officials would be punished, and, in case of success, they would be rewarded. When Prehlad Singh (PW7) was not able to solve the crime and get any recovery effected from the accused, with a view to save the honour of the police, the Inspector General of Police, issued directions, as stated above. It was with a view to get reward that Prahlad Singh, Inspector (PW16), who took charge as SHO of Police Station Tosham on 6-11-2004, again interrogated the accused and allegedly got planted the recoveries of partly amounts, referred to above, some documents, and a suitcase, so as to connect them with the instant case, with a view to exhibit compliance with the orders of Inspector General of Police, that he had detected the crime, though by indulging into dubious means. It was nothing but a device, adopted by Prahlad Singh (PW16) to show his bona fides, to his Superior Officers, that he had detected the crime. The statement of Prahlad Singh (PW7) who remained SHO, Police Station Tosham till 3-11-2004, therefore, clearly proved the mode and manner, in which the recoveries were planted against the accused, by Prahlad Singh, Inspector (PW16), who took over the charge of Police Station Tosham on 6-11-2004. In the aforesaid backdrop, it could be said that neither any disclosure statements were made by the accused, referred to above, nor any recoveries were got effected by them, and they were falsely implicated, Just with a view to connect them with this case. The trial Court was wrong, in relying upon the evidence of recoveries.
28. Coming to the alleged refusal of the accused, regarding giving of their foot moulds, it may be stated here, that the evidence with regard to the same is also doubtful. The alleged occurrence took place, at a brick kiln, and a number of persons, must be visiting that place. Prahlad Singh, SI (PW7), who was SHO, Police Station Tosham, on 5-11-2004 stated that he did not move an application, on that date, before the Judicial Magistrate for taking the sample foot moulds of the accused. There is an application dated 8-11-2004, Ex. P23, moved by S.H.O. Police Station Tosham. Three pairs of foot moulds which were allegedly lifted from the place of occurrence on 13-10-2004, were despatched to the F.S.L. Madhuban, for being kept intact. Vide the application dated 8-11-2004, a prayer was made to the Judicial Magistrate, concerned, that permission be granted for lifting the sample foot moulds of the accused, so that the moulds lifted from the place of occurrence, may be got compared. The statement of Manoj Kumar, Raj Kumar and Shree Bhagwan was recorded on that day. They stated that, they did not intend to give their foot moulds. Thereafter, Sanjay Sandhir, Judicial Magistrate (PW9) disposed of the said application, vide order Ex. P25. It may be stated here, that the foot moulds, which were allegedly lifted from the place of occurrence, by the police, and statedly sent to the FSL, Madhuban, were In fact, never sent to the FSL. There are two reports of the FSL, placed on the record i.e. Ex. P68 and Ex. P69. These reports are only with regard to the blood stained clothes, blood stained earth and one jacketted bullot. Except these reports, there is no other report with regard to the factum that the foot moulds, allegedly lifted, from the place of occurrence, were ever sent to the FSL and were examined by it. Where those foot moulds, which were allegedly lifted from the place of occurrence, had gone, was not known. It was a matter, which remained shrouded in mystery. Since the original foot moulds, which were lifted from the spot, never saw the light of the day nor the same were sent to the FSL, as stated, the application Ex. P23, dated 8-11-2004, the alleged refusal, on the part of the accused, in giving the sample foot moulds, was of no consequence, as in the absence of the original foot moulds, allegedly lifted from the place of occurrence, the same could not be compared. Not only this, Sanjay Sandhir (PW9), during the course of his cross-examination, stated that the accused were brought, from police custody, and he also remanded them to police custody, by passing order Ex. P25 on 8-11-2004. It was required of the concerned Judicial Magistrate, to send the accused, in the first instance, to judicial custody and to afford them, an opportunity, as to whether, they wanted to give their sample foot moulds or not. They had been brought, in police custody, and were also remanded to police custody, though in the heading of the application, Ex. P22, prayer for judicial remand was made, yet in the prayer Clause of the application, prayer for police remand was made, and, consequently, the said Magistrate remanded them to police custody. Since the accused were brought from police custody, and were remanded to police custody, it could not be said that the statement Ex.P24, made by them, was voluntary. The Magistrate concerned did not adopt the proper procedure, in asking the accused, as to whether, they wanted to give their foot moulds. In these circumstances, and, in view of the reasons, recorded above, on account of the alleged refusal, on the part of the accused, to give the sample foot moulds, no adverse Inference could be drawn against them, that had they given the sample foot moulds, they would have been connected with the Instant case. In these circumstances, the alleged refusal was hardly of any consequence. The trial Court was wrong in holding that the accused stood connected with the commission of crime. The finding of the trial Court, in this regard, is perverse and deserve to be set aside.
29. The Counsel for the respondent, however, placed reliance on Lachhman Ram v. State of Orissa to contend that the recovery of articles, made very soon, after the dacoity, at the instance of the accused, was sufficient for their conviction under Section 395 of the Indian Penal Code. The submission of the Counsel for the respondent, in this regard, does not appear to be correct. The facts of the aforesaid case, go to show that test identification parade of the accused was held, during the course of investigation of the case, by the Investigating Officer. Some of the witness identified them, as the perpetrators of crime. Their evidence, in the Court, was also consistent regarding the identification of the accused.
30. The High Court, however, came to the conclusion, that the chances of showing the accused, before holding their test identification parade, to the witnesses, could not be ruled out and, as such, their identification, in the said tests identification parade was of no consequence. However, the Apex Court did not agree with this view of the High Court. Not only this, in the aforesaid case, the articles looted in the dacoity, were got recovered, at the instance of the accused, very soon after the commission of crime, and by invoking the statutory illustration (a) appended to Section 114 of the Evidence Act, 1872, the Apex Court held that it was proved that the accused committed the crime. Not only this, even the consistent and reliable evidence of the panch witnesses, greatly impressed the Apex Court. In the instant case, the facts are distinguishable. The occurrence allegedly took place on 12-10-2004. The alleged recoveries were effected from the accused, in pursuance of the disclosure statements made on 6-11-2004 and afterwards. It means that the recoveries were not allegedly got effected, by the accused, immediately after the occurrence. The recoveries were allegedly got effected for the first time, by some of the accused, after about 25 days, after the alleged occurrence, and some recoveries were allegedly got effected by them, after a very long time. Under these circumstances, the statutory Illustration (a) appended to Section 114 of the Evidence Act, 1872, could not be invoked, in this case. Not only this, no identification parade, in the instant case, was held by the Investigating Officer, during the course of investigation to pinpoint the identity of the accused. On the other hand, Satish Kumar (PW1) and Avnish (PW2), the two eye-witnesses, failed to identify the accused as the perpetrators of crime, and there was no other evidence, on record to prove the identity of the accused. Even, the alleged recoveries got effected by the accused, in pursuance of the disclosure statements, allegedly made by them, have been held to be doubtful for various reasons, recorded hereinbefore. In this view of the matter, no help can be drawn, by the Counsel for the respondent, from Lachhman Ram case (supra). The facts of the instant case, therefore being completely distinguishable, from the facts of the aforesaid authority, no help can be drawn therefrom, by the prosecution. The submission of the Counsel for the respondent, being without merit, must fail, and the same stand rejected.
31. The accused also allegedly pointed out the place where the occurrence took place. It may be stated here, that their such statements were hardly of any consequence, as the place of occurrence, was already in the knowledge of the Police on the basis of the statement of Satish Kumar (PW1), which, ultimately, led to the registration of the FIR. Even if, it is assumed, that the accused, after about one month, and even later than that, pointed out the said place, that hardly mattered. No help, therefore, could also be drawn by the prosecution, from the said statements of the accused, allegedly made by them, pointing out the place of occurrence.
32. No other point was urged by the Counsel for the parties.
33. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based on the correct appreciation of evidence, and law on the point. The same warrant interference and are liable to be set aside.
34. For the reasons recorded hereinbefore, Criminal Appeal Nos. 889-DB of 2006, 939-DB of 2006, 29-DB of 2007 and 3-DB of 2007 are accented. The Judgment of conviction and the order of sentence dated 11-11-2006, are set aside. The appellants shall stand acquitted of the charge framed against them. The appellants/accused, if in custody, shall be set at liberty at once, if not required in any other case. If anyone of them is on bail, he shall stand discharged of his bail bonds.