Himachal Pradesh High Court
State Of H.P vs Manoj Kumar @ Polu on 24 March, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
2025:HHC:7527 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 166 of 2014 a/w Cr. A. No. 167 of 2014 Reserved on: 20.03.2025 Date of decision: 24.03.2025 Cr.A. No. 166 of 2014 State of H.P. ...Appellant Versus Manoj Kumar @ Polu ...Respondent Cr.A. No. 167 of 2014 State of H.P. ...Appellant Versus Rajeev Kumar @ Jeewan Kumar ...Respondent Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting? No. For the Appellant: Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. J.
S. Guleria, Dy. A.G. For the Respondent(s): Mr. Rajesh Mandhotra, Advocate. Tarlok Singh Chauhan, Judge Since both these appeals emanate out of a common judgment of acquittal passed by the learned District & Sessions Judge, the same were taken up together for consideration and are being disposed of by way of a common judgment. 2
2025:HHC:7527
2. The story of the prosecution, in brief, is that complainant Puran Singh was doing the work of distributing the bakery items from Raja Ka Talab to Dhameta. On 27.03.2004, the complainant was taking meal in the hotel of one Ram Prasad at Fatehpur. Both the respondents were sitting on the bench. The complainant gave money to the owner of the hotel after taking meal, which was seen by the respondent. The complainant thereafter went to Dhameta on motorcycle and when he reached at Siyal Pul, at about 3:45 p.m., both the respondents came there on motorcycle bearing registration No. PB-35-5821 and stopped the motorcycle of the complainant. The respondent Manoj Kumar took out revolver and asked the complainant to hand over money. The complainant caught hold the revolver, but the respondent Manoj Kumar asked respondent Rajeev Kumar to take out knife. Respondent Rajeev Kumar gave beating to the complainant and caused injuries on his face. Both the respondents took away an amount of Rs. 5000/- from the complainant and fled away. However, while doing so, respondents left behind jacket at the spot. Report to this effect was made to the police on the basis of which an FIR under Sections 323, 341 and 392 read with Sections 34 of the Indian Penal Code and Section 25 of the Arms Act came to be lodged. 3
2025:HHC:7527
3. The police investigated the matter and on completion of the investigation the challan was put in the Court and the respondents were tried for the aforesaid offences.
4. After conclusion of the trial and hearing the parties, the learned trial Court convicted the respondents for the commission of the offence as under:-
Offence Imprisonment Fine In default u/s 323 of IPC Simple imprisonment for Rs.500/- Simple imprisonment for six months. 30 days 341 of IPC Simple imprisonment for Rs. 500/- Simple imprisonment for one month 10 days
392 of IPC Rigorous imprisonment for Rs.3000/- Rigorous imprisonment three years. for three months
5. Feeling aggrieved by the judgment passed by the learned trial Court, the respondents preferred appeals before the learned Sessions Judge, which were duly allowed and aggrieved by the acquittal of the respondents, the State has filed the instant appeal.
6. We really wonder why the State has filed the instant appeals given the fact that there are so many contradictions and inconsistencies in prosecution case, which go to the substratum of the case, some of which are being discussed below.
7. In order to prove its case, the prosecution examined as many as nine witnesses.
4
2025:HHC:7527
8. PW1 Puran Chand and PW3 Harnek Singh are the witnesses of the spot, but as observed above there are lot of contradictions in their statements.
9. As per the prosecution, the alleged incident was reported to the police by complainant Puran Singh (PW1) and his statement under Section 154 Cr.P.C. was recorded vide Ext. PW1/A on the basis of which FIR came to be registered.
10. PW1 while appearing in the witness box corroborated the facts stated in Ext. PW1/A before the Court and stated that the respondents had given knife blow and inflicted injury on his face, but there is no mention of this fact in the complaint Ext. PW1/A.
11. If that was not sufficient, even the knife which was alleged to have been used in the offence has not been taken into possession by the police. No sharp edge weapon injury has been found by the doctor as per the MLC Ext. PW8/A.
12. It has been held by the Hon'ble Supreme Court in Badri vs. State of Rajasthan (1976) 1 SCC 442, that where a witness modulates his version to suit the prosecution case, his testimony becomes suspected. It was held in para 19 of the judgment which reads as under:-
"19. Further, there was difference of opinion between the two Medical Officers examined in the case. The trial court refused to accept the evidence of the first doctor and 5 2025:HHC:7527 summoned as a court witness another doctor who disagreed with the previous one and gave evidence before the court after pursuing the post-mortem report. The trial court has noted that Patram was "compelled to change his version a little" because of doctor's opinion after the post-mortem examination was held on the spot the following morning. If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony."
13. As observed above, there is no mention of the knife and its consequential injury in the complaint Ext. PW1/A and this story has been introduced by the prosecution during the trial, which the Court would be reluctant to accept at its face value.
14. We may with advantage, refer to the decision of this Court in Nirmal Singh vs. State of H.P., (1987) Cr.l.J 1644, where the prosecution tried to introduce a new version during the trial and the Court observed as under:-
"9. We have minutely and carefully examined the entire record of the trial Court and feel no hesitation in saying at the very outset that the learned trial Judge in convicting the appellant has only betrayed his lack of judicial approach in the matter of appreciation of evidence in criminal cases or else there exists absolutely no material on the record which would even remotely connect the 6 2025:HHC:7527 appellant with the death of his wife, Smt. Kulwant Kaur, if at all she is actually dead."
15. Apart from the above, it has been categorically held by the Hon'ble Supreme Court in Ram Kumar Pandey vs. State of M.P. 1975 (3) SCC 815, that omission to state a fact in the FIR will affect the probability of the prosecution case. It shall be apt to reproduce para 9 of the judgment, which reads as under:-
"9. No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were, known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow' on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that or missions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."
16. In State of M.P. vs. Dhirendra Kumar 1997 1 SCC 93, the Hon'ble Supreme Court held that when the material facts not mentioned in the FIR are narrated by a witness, the substratum of the prosecution case gets altered and would cause a dent to the edifice on which the prosecution case is built. 7
2025:HHC:7527 It shall be apt to reproduce para 11 of the judgment which reads as under:-
"11. It was very emphatically contended by Shri Gambhir that as in the first Information Report (FIR) there is no mention about the dying declaration, we should discard the evidence of PWs.1 and 2 regarding dying declaration, because of what has been pointed out by this Court in Ram Kumar v. State of Madhya Pradesh, AIR 1975 SC 1024. We do not, however, agree with Shri Gambhir, for the reason that what was observed in Ram Kumar's case, after noting the broad facts, was that material omission in the FIR would case doubt on the veracity of the prosecution case, despite the general law being that statements made in the FIR can be used to corroborate or contradict its maker. This view owes its origin to the thinking that if there by material departure in the prosecution case as unfolded in the FIR, which would so if material facts not mentioned in the FIR are deposed to by prosecution witnesses in the court, the same would cause dent to the edifice on which the prosecution case is built, as the substratum of the prosecution case then gets altered. It is apparent that prosecution cannot project two entirely different versions of a case. This is entirely different from thinking that some omission n the FIR would require disbelieving of the witnesses who depose about the fact not mentioned in the FIR. Evidence of witnesses has to be tested on its own strength or weakness. While doing so, f the fact deposed be a material part of prosecution case, about which, however, no mention was made in the FIR, the same would be borne in mind while deciding about the credibility of the evidence given by the witness in question."8
2025:HHC:7527
17. Similar reiteration of law can be found in Siddaki Ram Reddy vs. State of Andhra Pradesh (2010) 7 SCC 697.
18. Following the judgment in Ram Kumar Pandey's case (supra), the Hon'ble Supreme Court in Sujit Biswas vs. State of Assam (2013) 12 SCC 406, held that omission to narrate important facts, is an important fact under Section 11 of the Indian Evidence Act and observed as under:-
"21. In Hate Singh Bhagat Singh v. State of Madhya Pradesh, AIR 1953 SC 468, this Court held, that any circumstance in respect of which an accused has not been examined under Section 342 of the Code of Criminal Procedure, 1898 (corresponding to Section 313 Cr.P.C.), cannot be used against him. The said judgment has subsequently been followed in catena of judgments of this court uniformly, taking the view that unless a circumstance against an accused is put to him in his examination, the same cannot be used against him. (See also: Shamu Balu Chaugule v. State of Maharashtra, AIR 1976 SC 557; Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566; and Sharad Birdhichand Sarda 1984 (4) SCC 116."
19. Once this Court gathers an impression that there are major contradictions going to the substratum of the case, then, undoubtedly, it would be necessary for this Court to scrutinise the evidence more carefully, particularly, keeping in view the deficiencies, drawbacks and infirmities and evaluate them whether it is against the general tenor of the evidence given by 9 2025:HHC:7527 the witnesses and whether the earlier version given by them to the investigating agencies is shaken as to render it unworthy.
20. Adverting to the facts of the case, the other spot witness PW3 Harnek Singh stated that respondent Manoj Kumar had given blow of katta (pistol) to the complainant on his mouth. He stated that the respondent Manoj Kumar was having katta with which he gave blow to the complainant on his face. Whereas PW1 has stated that the respondent Manoj Kumar, who was having katta had asked other respondent Rajeev Kumar to take out knife and that other accused had given knife blow to the complainant.
21. PW1 has further stated that he alongwith Harnek Singh had followed the respondents when they fled away from the spot towards Dhameta on their motorcycle, but there is no mention of this fact in the complaint Ext. PW1/A and also in the statement of PW3 Harnek Singh.
22. It needs to be noticed that as per the statement of PW1 Puran Singh, he had told the incident to PW3 Harnek Singh as he had come at the spot later on. But a perusal of the statement of PW3 Harnek Singh goes to show that the complainant had fallen at the feet of the respondents, when he reached the spot and in his presence the respondents had given blow of katta to the complainant. Intriguingly, PW3 Harnek Singh 10 2025:HHC:7527 does not make even a whisper regarding any amount having been snatched by the respondents from the complainant.
23. When cross-examined, PW1-Puran Singh stated that he had reported the matter to the police on 28.03.2004, at 8-9 a.m. and before that he had not intimated the police telephonically, but PW3 Harnek Singh would have a different story to narrate that he alongwith Puran Singh and another person had gone to the police post on 27.03.2004 and the incident was reported to the police. But as observed above, PW1 Puran Singh does not corroborate this fact and this is also not corroborated by the Investigating Officer PW9 Surender Kumar. Further PW3 Harnek Singh has stated that an application was given to the police by the complainant PW1 Puran Singh but then no such application has been placed on record.
24. PW1 Puran Singh has further stated that he had fallen on the road and the respondents were seen by him for the first time with the police.
25. PW8 Dr. Sucha Singh has also corroborated this fact that injury suffered by the complainant could be caused by fall.
26. Another interesting feature of the case is that the complainant before the doctor has given the history of fight with someone, as stated by PW8 Sucha Singh, but then he has not mentioned the time and place. Therefore, in such circumstances, 11 2025:HHC:7527 as rightly held by the learned Sessions Judge, the possibility that there was a fight or that the complainant had sustained injury after falling cannot be ruled out.
27. The learned Sessions Judge, while acquitting the respondents has taken note of the delay in lodging of the FIR, which findings cannot be faulted with given the fact that PW-1 complainant has stated that the matter was reported by him to the police on 28.03.2004 at 8-9 a.m., whereas the alleged occurrence had taken place on 27.03.2004 at 3:45 p.m. He also stated that Fatehpur Police Post was at a distance of 4-5 kms. from his house, but even then he did not report the matter to the police till 28.03.2004, even when he had a motorcyle with him. There is no explanation of the delay in lodging the FIR.
28. The Hon'ble Supreme Court while dealing with an issue of unexplained delay in lodging the FIR in Shankar Lal vs. State of Rajasthan (2004) 10 SCC 632 observed as under:-
"5. Even according to the prosecution the only witness to the incident in question is PW-6 therefore as contended by learned counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a village Upli for some work. From there he came back by bus at about 11'O clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is 12 2025:HHC:7527 about 4-5 miles and PW-6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakh's wife he did not inform her about the incident and it is for the first time he informs about this incident to PW-2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination in chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross examination that when he met PW- 2 Khyali Ram and told him about the incident in question but PW-2 supposedly told him that he had already come to know of the incident from PW-14. The prosecution has not found how PW-14 came to know of the incident. In this background if we appreciate the evidence of PW-6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the 13 2025:HHC:7527 prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5.4.1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the Police Station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW-6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to the benefit of doubt therefore this appeal succeeds and is allowed. The judgment and order of conviction of the 2 courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so his bail bond shall stand discharged."
29. The learned Sessions Judge after relying upon the testimony of PW-1 Puran Singh has observed that Test Identification Parade was essential in the case.
30. In this background, if the testimony of PW1 Puran Singh is adverted to, he has admitted that respondents were not known to him earlier and he came to know about their names only on 30.03.2004. Further in his cross-examination. PW-1 stated that he had seen the respondent for the first time with the police on 30.03.2004. He also admitted that no Test Identification Parade was conducted to identify the respondents. 14
2025:HHC:7527
31. Obviously in such circumstances, when the respondents were not known to the complainant at the time of occurrence, it was incumbent upon the police to have got conducted the Test Identification Parade so that the respondents could be identified by the complainant.
32. The only explanation offered by the prosecution for not conducting Test Identification Parade is that the respondents were identified in the police station by the complainant and PW3 Harnek Singh. Whereas PW3 Harnek Singh stated that at the time of identification of the respondents, they were not in mask face.
33. How the respondents could have been identified in the police station is beyond our comprehension and it defeats the very purpose and gives an unnecessary advantage to the prosecution in not conducting the Test Identification Parade. No doubt, Test Identification Parade is not considered a substantive piece of evidence, but then its relevance cannot be undermined, as it lends credence and assurance that investigation in the proceedings has proceeded on the right line.
34. The object of conducting Test Identification Parade is two folds. The first is to enable the witnesses to satisfy themselves that the prisoner to whom they suspect is the one who was seen by them in connection with the commission of the 15 2025:HHC:7527 crime. The second is to satisfy the investigating authority that the suspect is the real person whom the witness had seen in connection with the said occurrence.
35. We are also fully conscious of the fact that the Test Identification Parade is not mandatory and it is a part of investigation. It is useful when the eye-witnesses do not know the accused before the incident. The Test Identification Parade is usually conducted immediately after the arrest of the accused. If the Test Identification Parade is properly conducted and is proved, it gives credence to the identification of the accused by the concerned eye-witnesses before the Court. The effect of the prosecution failure to conduct Test Identification Parade will depend on the facts and circumstances of the each case.
36. The sheet anchor of the arguments of the prosecution is that the respondents while fleeing left behind a jacket at the spot and the jacket Ext. P2 was recovered by the police through memo Ext. PW1/B. But then this jacket was not got identified by any of the respondents. If that was not enough, the prosecution did not even lead any evidence to connect the jacket to prove to which of the respondents the same belonged to, after all, there are two respondents in the instant case.
37. As regards the amount of about Rs. 5000/- snatched from the complainant, as per the prosecution the currency notes 16 2025:HHC:7527 were recovered by the police from a toilet at the instance of respondent Rajeev Kumar, but then there are contradictions about the recovery of this amount.
38. PW-1 Puran Singh would state that he could not identify the currency notes and no identification mark was on the currency notes. Once that be so, without being identified by the complainant, it cannot be held that the currency notes are the same which were allegedly snatched by the respondents from the complainant.
39. Further I.O. PW9 Surender Kumar has stated that the toilet from where the currency notes were recovered was not having any door, whereas witness PW7 Ram Singh has stated that there was a door, but it was not locked.
40. Going by the statement of PW9 I.O. Surender Kumar, it is established that the toilet was a public place and accessible to the general public and, therefore, no credence on such recovery can be placed.
41. It is settled law that if the recovery of crime articles is made from an open place accessible to all, such evidence cannot be given much weight.
42. Reference in this regard can conveniently be made to the judgment rendered by three Judges Bench of the Hon'ble 17 2025:HHC:7527 Supreme Court in Kora Ghasi vs. State of Orissa (1983) 2 SCC 251, wherein it was held as under:-
1. The appellant was charge sheeted under Section 302 IPC but on trial the learned Sessions Judge acquitted the appellant on the ground that there was no sufficient evidence against him to prove the case beyond reasonable doubt. The State of orissa filed an appeal against the order of acquittal passed by the Sessions Judge and the High Court, on appeal, reversed the order of acquittal passed by the Sessions Judge and convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life. We have gone through the judgment of the Sessions Judge and that of the High Court and we are clearly of the opinion that the evidence against the appellant is very slender. The main evidence against the appellant consists of the retracted confession made by the accused before the Magistrate where he admitted to have assaulted the deceased with a lathi as a result of some altercation with the deceased. This confession has been held to be voluntary both by the High Court and Sessions Court and nevertheless as the confession was retracted corroboration was necessary.
According to the prosecution the confession was clearly corroborated by the fact that the appellant pointed out the weapon. These are the two main pieces of evidence against the appellant. It was also suggested, that three witnesses P.Ws. 2, 4 and 5 had last seen the deceased and accused together An important fact which has not been noticed by the High Court is that whereas in the FIR lodged by Hantal Podu P.W. 9 there is clear mention of the names of P.Ws. 2, 4 and 5, the name of the appellant is not disclosed in the FIR. On the other hand the names of P Ws. 2, 4 and 5 are mentioned in the FIR as being 18 2025:HHC:7527 suspected of killing the deceased. So for as the recovery is concerned we cannot attach much importance to this fact as it was from an open place accessible to all. At any rate after going through the judgment of the High Court and court below it cannot be said that the view taken by the sessions Judge was not reasonably possible in the circumstances of this case. It was not open to the High Court in the circumstances of this case to reverse the order of acquittal ever if it was possible to take a different view. The appellant has also been convicted under Section 201 IPC but we do not find any evidence under Section 201 IPC and therefore the accused is acquitted of that offence also. We, therefore, allow the appeal, set aside the conviction and sentence imposed 'on the appellant under Sections 302 and 201 IPC. The appellant will be released forthwith.
43. It is strongly urged by the learned Additional Advocate General that since the FIR made a mention of the number of the motorcycle of the respondents, therefore, identity was well-established.
44. Here the testimony of PW2 Ramesh Chand, who is a witness to the recovery memo Ext. PW2/A becomes relevant, when he stated that he had seen the motorcycle in the police station. He admitted his signature on Ext. PW2/A, but then stated that police might have taken the motorcycle into possession. A perusal of the testimony of PW2 Ramesh Chand shows that no recovery of motorcycle had taken place from the place as alleged by the complainant.
19
2025:HHC:7527
45. It is then vehemently argued by Mr. Rajesh Mandhotra, learned counsel for the respondents, that the katta allegedly used in the commission of the offence of robbery, as per the case of the prosecution, had been recovered and taken into possession by the police in front of Chajju Ram vide memo Ext. PW4/A, but then PW4 Chhaju Ram has stated in the Court on oath that he had seen the katta for the first time in the Court. This creates a serious doubt regarding the recovery of the katta from the respondents.
46. The reasons as accorded by the learned Sessions Judge while acquitting the respondents do not suffer from any infirmity or perversity. Consequently, the findings of the learned Sessions Judge are well merited and do not warrant any interference, particularly, when the view taken by the learned Sessions Judge is possible and plausible one.
47. In view of the aforesaid discussion and for the reasons stated above, we do not find any merit in the instant appeals and the same are accordingly dismissed.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
24 th
March, 2025 Judge
(sanjeev)