AHOK KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS judgment shall dispose of Criminal Appeals No. 30 of 2009, 42 of 2009 and 173 of 2009 all having arisen out of judgment dated 15-1-2009 passed by the learned Additional Sessions Judge Ghumarwin, District Bilaspur in Sessions Trial No. 1/7 of 2007 convicting and sentencing the appellants for offence punishable under Section 392/34 read with Section 397/ 34 IPC.

(2.) THE prosecution case, in brief, is that PW-8 Rajinder Kumar on 7-8-2006 at about 5.05 p.m. lodged FIR Ex. PW-8/A at Police Station, Ghumarwin alleging that he was working as driver on Maruti Van No. HP- 01D-0590. On that day he was present at Dharamshala Hospital when three persons approached him and asked fare for going to Ghumarwin, which he disclosed Rs. 1800/-. One of them was weeping and two persons accompanying him told the complainant that the father of the person who was weeping had died and they wanted to reach home soon. THEy said that they had only Rs. 400/-, they would pay the remaining amount at Ghumarwin and they engaged the complainant to take them to Ghumarwin. THE complainant took Rs. 400/- from them, added Rs. 100/- from his own pocket and filled petrol worth Rs. 500/- in the taxi and proceeded to Ghumarwin at 8.30 a.m. along with those persons and reached Ghumarwin at 4.00 P.M., took the vehicle inside the hospital on the asking of those persons. One of them who was being addressed by others Shoki Bhai got down from the van and went to Sethi Medical Store, shook hand with a person at the counter and came back in the vehicle. He directed the complainant to turn the vehicle towards their house which was at a distance of 5-6 kilometers.

(3.) I have heard Mr. N. S. Chandel, Mr. Ashok Sharma and Mr. T. S. Chauhan, Ad vocates appearing for appellants in the above appeals and Mr. A. K. Bansal, Additional Advocate General with Mr. R. P. Singh, Assistant Advocate General for the respondent. The learned counsel for the appellants have submitted that the learned Additional Sessions Judge has not properly appreciated the evidence on record. The complainant has not identified the accused, the recovery of key of the van is highly suspicious. There are material contradictions in the prosecution story which go to the root of the case. There is no evidence that there was no petrol in the van when it was allegedly snatched or when it was allegedly recovered. The van took unreasonably longer time from Dharamshala to Ghumarwin keeping in view the distance between two places. It is not the case of the prosecution that van was stopped at any place for unreasonably long time while coming from Dharamshala to Ghumarwin. The prosecution has collected no evidence from Dharamshala to Ghumarwin so as to establish that accused in fact travelled from Dharamshala to Ghumarwin in the van. It has been submitted that accused Ashok Kumar never refused to participate in test identification parade. On behalf of the accused Sunil Kumar and Atul Sood, it has been submitted that they had already shown their hesitation to participate in the identification parade for the reasons given in their statements. In brief, it has been submitted on behalf of the appellants that prosecution has miserably failed to prove the case against the appellants, the learned Additional Sessions Judge has misconstrued, mis-interpreted and has drawn impermissible inferences from the material on record. It has been lastly submitted that the learned Additional Sessions Judge has erred in convicting and sentencing the accused. The learned counsel for appellants have submitted for setting aside impugned judgment and acquittal of all accused. On behalf of the respondent, it has been submitted that the prosecution has proved the case against all the accused beyond reasonable doubt. The learned Additional Sessions Judge has properly appreciated the material on record and no fault can be found with the impugned judgment when learned Additional Sessions Judge has come to the conclusion that the accused have committed offence for which they were charged and ultimately convicted and sentenced. A prayer has been made on behalf of the respondent for dismissing the appeals.