Himachal Pradesh High Court
State Of Himachal Pradesh vs Rakesh Kumar on 29 September, 2023
Author: Virender Singh
Bench: Virender Singh
1 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.
of Whether approved for reporting?1 For the appellant: Mr. Mohinder Zharaick, Addl.
rt A.G with Mr. H.S. Rawat, Addl.
A.G., Mr. Tejasvi Sharma, Addl.
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.
::: Downloaded on - 29/09/2023 20:35:21 :::CIS 2Rakesh 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, of the learned trial Court has convicted accused Hana Paven for the commission of offences, punishable under Sections 420 rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 3 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."
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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 of appeal may be summed up as under:-
5.1. The Police of Police Station, Manali has filed a rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 4 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, of complainant had gone to adjoining restaurant for bringing tea for her. His neighbour Abdul Hameed has also gone to his rt 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.
::: Downloaded on - 29/09/2023 20:35:21 :::CIS 55.6. 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.
of 5.7. It is the case of the police that accused Rakesh knowingly had purchased the gold, worth of Rs.52,000/-, for rt 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.
::: Downloaded on - 29/09/2023 20:35:21 :::CIS 69. 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 of by them.
10. The learned trial Court, after hearing the learned rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 7 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.
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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 of accused Hana Paven, has fully been established on record.
14. On the basis of above facts, a prayer has been rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 8 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.
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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 of and one gold bracelet for a sum of Rs.13,000/-. According to him, the police had taken into possession five golden rings rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 9 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.
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17. In cross-examination by learned counsel for accused Rakesh, this witness has deposed that total seven rt 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, ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 10 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.
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20. PW-3 Chaman Lal was Pradhan of Gram Panchayat, Vashisth. On 18.06.2008, complainant disclosed rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 11 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 of statement was forwarded to the Police Station, upon which, FIR Ext. PW-4/B was registered.
rt
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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 12 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 of signatures over memo Ex. PW-1/A were obtained after threatening accused Hana Paven. In the presence of witness rt 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.
::: Downloaded on - 29/09/2023 20:35:21 :::CIS 13No 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 of a.m., one girl came to the shop and disclosed her name as Hana Paven. The said girl disclosed that she is staying in rt 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. ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 14 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.
of The said cross chain was the stolen property. Accused Hana Paven had admitted that she had stolen the said articles. On rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 15 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 of also been produced by him. Police had told accused Rakesh that they will take into possession the golden ring along-with rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 16 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 of in her alleged disclosure statement.
33. As per case of the prosecution, accused Hana rt 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 ::: Downloaded on - 29/09/2023 20:35:21 :::CIS 17 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 of is Param Dev. The said witness Param Dev has not been examined by the learned A.P.P. and vide statement made on rt 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.
::: Downloaded on - 29/09/2023 20:35:21 :::CIS 1839. 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 of 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 rt 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
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