Dismissed

Bhupinder Singh @ Rahul v. State of Hp

Himachal Pradesh HC24 Nov 2017CR.A/537/2016

Case brief

AI extract

What is this about?

High Court of Himachal Pradesh dismissed the criminal appeal filed by the appellant convicted under sections 328 and 380 IPC for administering noxious substance and theft. The court held that alleged contradictions regarding the number of recovered bags did not affect the core of the case or create reasonable doubt.

What did the court decide?

Criminal appeal dismissed; pending applications dismissed; bail bonds discharged.

Bhupinder Singh @ Rahul Vs State of Hp — Cheating and Forgery | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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Cr. Appeal No.537/2016

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Reserved on: 16.11.2017 Decided on: 24.11.2017

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Bhupinder Singh @ Rahul …..Appellant Versus State of H.P. ….Respondent

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Coram:

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge .

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Whether approved for reporting?¹ NO For the appellant: Mr. Amit Kumar Dhumal, Advocate. . For the respondent: Mr. V.S. Chauhan, Additional Advocate General. _______________________________________________________________

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Tarlok Singh Chauhan:

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The appellant has been convicted by the learned Additional Sessions Judge-I, Shimla vide impugned judgment dated 31.10.2015/9.11.2015 in Sessions Trial No. 11-S/7 of 2015 under Sections 328 and 380 IPC and sentenced to undergo simple imprisonment for three years and fine of Rs.5000/- each for the aforesaid offences and in default of payment of fine to undergo further imprisonment for six months. However, both the sentences have been ordered to run concurrently.

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1 Whether reporters of the local papers may be allowed to see the judgment? yes

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2 The instant appeal has been filed by the appellant on the ground that the findings so recorded by the learned trial court are perverse and, therefore, deserve to be set aside.

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3 The case of the prosecution, in brief, is that the complainant, Smt. Sandishna Chauhan, a widow, had been living with her three minor children, namely, Kumari Ayushi, Kumari Anchal and Utkarsh in a rented premises at Sarswati Nagar, Tehsil and Police Station Jubbal. Utkarsh had some heart problem for which he was being treated at AIMS, Delhi. On 2.11.2014, the complainant visited Delhi for medical check-up of her son Utkarsh and after such check-up, she on 8.11.2014 came to Railway station, old Delhi, where the appellant, who introduced himself as Rahul, met her and helped her in boarding the train. The appellant also took mobile number of the complainant. The appellant repeatedly talked to the complainant on her mobile number and eventually, on 9.11.2014 at about 4.00 P.M., when the complainant reached at Lakkar Bazaar, Bus Stand, Shimla, she met the appellant, who accompanied with her to her residence at Sarswati Nagar. The appellant resided in the house of the complainant from 9.11.2014 to 11.11.2014. On 11.11.2014 at about 9.30 P.M., after taking

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dinner, the appellant offered one toffee each to the complainant and her minor children, which they consumed. After consuming these toffees, they became unconscious. In the morning when the complainant and her three children were found unconscious in their room, the police was informed and rapat to this effect was lodged with the Police Chowki, Sarswati Nagar on 12.11.2014. The complainant and her children were taken to the Hospital for treatment and when the complainant regained conscious and thereafter visited her premises, she found that not only ornaments but many other household articles were missing. She then got recorded her statement under Section 154 Cr.P.C.. ‘Rukka’ was sent to the Police Station, Jubal where FIR No.41/2014 came to be registered under Sections 328 and 380 IPC.

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4 After carrying out the detailed investigation, the police filed final report in the learned trial court and found sufficient grounds to presume that the accused had committed the offences punishable under the aforesaid sections. The appellant was summoned and eventually charge sheeted on 2.5.2015 for the offences punishable under Sections 328 and 380 IPC.

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5 The prosecution examined as many as 21 witnesses and closed its evidence. The appellant did not choose to lead any evidence in defence and in his statement recorded under Section 313 Cr.P.C., he denied the incriminating set of facts appearing against him in the prosecution evidence and pleaded innocence. On the basis of the evidence, the learned trial court vide impugned judgment dated 31.10.2015/9.11.2015 convicted and sentenced the appellant, as aforesaid.

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6 It is vehemently argued by Mr. Amit Kumar Dhumal, learned counsel for the appellant that there are material contradictions, improvements and omissions in the case of the prosecution, which have not been appreciated by the learned trial court, therefore, on the ground of perversity alone, the impugned judgment deserves to be set aside. On the other hand, Mr. V. S. Chauhan, learned Additional Advocate General for the respondent-State, would support the impugned judgment of conviction and sentence passed by the learned trial court.

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7 In order to appreciate the rival contentions of the parties, this Court is required to have a broad glance over the evidence led by the prosecution and thereafter to form a conclusion as to whether the prosecution has been able to

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establish its case beyond reasonable doubt or the same, as putforth by the learned counsel for the appellant, is full of contradictions, improvements and omissions so as to entitle the appellant an order of acquittal.

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8 The complainant, Sandishna Chauhan appeared as PW1 and stated on oath that she along with her three minor children was residing in a rented accommodation at Sarswati Nagar. She further stated that her son, Utkarsh was having heart problem and as such, she used to frequently visit Delhi for medical check-up and follow-ups. On 8.11.2014, she along with her son was present at Railway Station, Old Delhi, where the appellant first time met her and helped her in putting her luggage inside the train. Thereafter, the appellant remained in touch on her mobile phone and eventually met her on 9.11.2014 at about 4.00 P.M. at Lakkar Bazaar, Bus Stand, Shimla. The appellant had introduced himself as Rahul and resident of Delhi. The appellant travelled with the complainant in the bus to Sarswati Nagar and stayed in her house from 9.11.2014 to 11.11.2014. On 11.11.2014 at about 9.30 P.M., the appellant after taking dinner with the complainant and her three children offered them toffees. On consuming these toffees, the

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complainant and her children became unconscious and on the next day, she regained conscious in the Hospital and got her statement, Ext. PW1/A recorded. In the evening on 12.11.2014, she visited her house along with police and found that not only gold ornaments like gold ear ring, gold chain, silver ‘Kara’, four gold rings, but mobile phones, computer, LCD and artificial jewellery of her daughter were found missing. During investigation, the police took into possession piece of bet sheet having vomit material of Kumari Anchal vide memo Ext.PW1/B and put the same in a cloth parcel and sealed it with seal impression “T”. Two wrappers of toffees lying in the room were also taken into possession vide memo, Ext.PW1/C. On 13.11.2014, the appellant was brought by the police to the Police Station and found to be in possession of four bags i.e. one bag of blue colour, one red, one black and one small bag having flower prints. The stolen articles, Ext.P15 and Ext. P17 to Ext. P22 were recovered from the said bags and were duly identified by this witness to be belonging to her. In cross-examination, the complainant stated that due to personal introduction, the appellant had come to her house and stayed there from 9.11.2014 to 11.11.2014. She further stated that for the first

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time, she came to know about missing of her ornaments and other household articles when she returned from the hospital to her house. She denied that the appellant had not committed theft of ornaments and household articles.

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9 PW2, Kumari Ayushi, daughter of the complainant, has duly supported and corroborated the entire prosecution story that on 9.11.2014, the appellant first time came to their house along with her mother and brother and disclosed his name as Rahul, resident of Delhi. She further stated that the appellant stayed in their house upto 11.11.2014. On 11.11.2014 at about 9.30 P.M., they all had taken dinner and thereafter, the appellant offered toffees to each of them from his pocket and after consuming the same, they became unconscious and regained conscious only on 12.11.2014 while they were admitted in the hospital. The appellant had committed theft of jewellery, which was worn by her mother. After being discharged from the hospital, they visited the house along with police and found the ornaments and household articles missing. The police took into possession the piece of bed sheet having vomiting material and the same was sealed. On 13.11.2014, the police called them to the Police Station, where the appellant was brought along with

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stolen articles, some of which were identified by this witness as Ext.P-24 to P-46. In cross-examination, even though this witness was subjected to cross-examination, however nothing material could be elicited therefrom so as to shatter the version putforth by this witness with regard to the presence of the appellant in their house, offering of toffees and thereafter becoming unconscious.

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10 PW3, Harish Sethi, has stated that after receiving information, he reached the house of the complainant on 12.11.2014 at about 10.00 A.M., where he found the complainant and her three children to be lying unconscious on the bed. All these persons were shifted to hospital for treatment where they regained conscious. Thereafter, the police visited the house of the complainant where a piece of bed-sheet having vomiting material was taken into possession vide memo, Ext.PW1/B. The said memo was signed by him as well as the complainant. The wrappers of the toffees found in the room were also taken into possession and identified by the complainant to be the same wrappers from which toffees had been given by the appellant to them to consume in the night. The said wrappers were sealed in a cloth parcel with seal impression “H” and taken

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into possession vide memo, Ext.PW1/C, which was also signed by him. Even this witness was cross-examined, but nothing material could be elicited from such cross-examination, more particularly with respect to his reaching the house of the complainant, finding the complainant along her three children to be unconscious as also recoveries which had been effected in his presence, to which he had been signatory.

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11 PW4, Rajesh Rawat is signatory to recovery memos, Ext.PW1/D to Ext.PW1/F vide which stolen articles were taken into possession. This witness has proved the presence of the appellant at the Police Station when stolen articles were recovered from his bags.

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12 PW5, Nand Lal, brother of the complainant, has deposed that after receiving information, he had reached the hospital and saw his sister and her three children lying in unconscious state and they were being medically treated by the doctor. After regaining conscious, the complainant had narrated the entire incident to the police as to how they all became unconscious after consuming toffees having been offered by the appellant to them.

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13 PW6, Harnam Singh, has stated that he along with Joginder Singh, Pradhan, remained associated in the investigation of the case. During the course whereof, the appellant had given identification of room of the complainant where he had stayed vide memo, Ext.PW6/A, which was signed by him along with Pradhan Joginder Singh.

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14 PW8, Rakesh Kumar has proved the disclosure statement, Ext.PW8/A, which was given by the appellant to the effect that he could identify the room/residence of the complainant where he had given toffees to the complainant and her children. The said statement was signed by him and PW15 Man Singh Aukta, who has also supported and corroborated the prosecution story that the appellant had given disclosure statement, Ext.PW8/A to identify the place of occurrence.

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15 PW10, HC Om Parkash, Police Station Parwanoo, stated that on 12.11.2014, a telephonic information was received from SDPO, Rohroo that in Tiuni-Una bus, one passenger wearing light brown jacket and travelling on seat No.14 had given poisonous substance to someone and to this effect, he had made entry at Sr. No.38-A, Ext.PW10/A. This witness further

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proved on record copy of rapat No. 42-A, Ext.PW10/B and rapat No.50-A, Ext.PW10/C.

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16 PW7, HHC Tara Chand as well as PW9 Bharat Singh, Police Station Parwanoo, deposed that after receiving information from SDPO Rohroo, they laid a ‘Nakka’ at TDR Parwanoo on the main national highway. One HRTC bus bearing registration No. HP10A-6287 reached there at about 3.00 P.M., which was stopped. The appellant was found sitting on seat No.14 and as such, he was asked to de-board from the bus. The appellant was having two bags of black and blue colours. In black coloured bag of the appellant, LCD along with stand, woofer, silver ‘kara’, four golden rings out of which one was broken, one golden chain along with nail, two golden tops, ‘jhumke’, artificial bangles, chain, one big woofer and two mobile phones of Carbon and Celkon were recovered and taken into possession vide memo, Ext.PW7/A. In cross-examination, this witness denied that nothing had been recovered from the appellant.

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17 PW13, HC Kartar Singh, stated that on 13.11.2014, HC Gopal Singh, Investigating Officer, had deposited the case property with him – first parcel sealed with three seal impressions “T” containing a piece of bed sheet, second parcel

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sealed with three seal impressions “H” containing two wrappers of toffees, third parcel sealed with four seal impressions “H” containing ornaments, fourth parcel sealed with four seal impressions “T” containing red and gray bag having ornaments inside it, fifth parcel sealed with four seal impressions “H” containing blue coloured bag having computer, mobile, sim etc. inside it, sixth parcel sealed with four seal impressions “H” containing 12 mobile phones and seventh one Khakhi envelop sealed with three seal impressions “CMO” Sarswati Nagar, containing blood sample of the complainant. He had made entry to this effect in the Malkhana register at Sr. No.56 vide Ext.PW13/A. This witness further stated that he had sent cloth parcel containing piece of bed sheet having vomiting material, blood sample of the complainant, wrappers of toffees to SFSL, Junga vide RC No.54/14 dated 17.11.2014, Ext.PW13/B through L.C. Asha Negi and he also made entry to this effect in the Malkhana register.

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18 PW14, LC Sushma stated that on 12.11.2014, she entered rapat No.5 dated 12.11.2014 and also proved abstract of malkhana register, Ext.PW14/A, which was correct as per the original.

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19 PW16, Om Parkash, is the conduct of the bus, from which the appellant was apprehended on 12.11.2014 and proved that he was conductor in bus bearing registration No. HP-10A6287 which was going from Tiuni to Una. When bus reached at Sanwara, he received a telephonic call from Dy.S.P. Rohroo, who inquired about person(s) who had boarded the bus from Hatkoti and he, in turn, informed that there were some passengers who had boarded the bus from Hatkoti. The bus was stopped by the police near Parwanoo and one person along with his luggage was asked to de-board the bus.

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20 HC Gopal Singh, Investigating Officer, who appeared as PW21 stated that after receiving information, he had recorded statement of complainant under Section 154 Cr.P.C., Ext.PW1/A which was sent to the Police Station, Jubbal for registration of the FIR and on the basis of which, FIR Ext.PW20/A was registered. During investigation, the complainant and her children were got medically examined. The blood sample of the complainant was also taken. Thereafter, he visited the spot and prepared the site plan, Ext.PW21/A and clicked the photographs, Ext.PW21/B-1 to Ext.PW21/B-6. The information regarding occurrence was also given to the SDPO, Rohroo, along

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with identification of the appellant. The information was given to various police posts including the Police Station Parwanoo, upon which information was received from the said Police Station that one person so apprehended was brought to Shimla regarding which rapat, Ext. PW10/C was recorded. The police officials were sent to Shimla to bring the appellant and accordingly, on 13.11.2014 the appellant was brought to Police Post, Swara. After checking the bags of the appellant, stolen articles were recovered, which were taken into possession separately. This witness further stated that on 12.11.2014 he had taken into possession a piece of bed sheet containing vomit material of the daughter of the complainant and wrappers of the toffees etc. He proved on record memo, Ext.PW10/C, vide which the appellant came to be arrested. This witness further proved the disclosure statement vide which the appellant had identified the residence of the complainant where he had committed the offences in question. This witness was subjected to lengthy crossexamination, but nothing material could be elicited therefrom. He denied that the appellant being the outsider had been falsely implicated, though he did state that he had not taken any bills of articles from the complainant.

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21 PW18, Dr. Abhinav Gautam, medically examined the complainant and her three children and proved on record that they were administered nitrazepam, which was found in their blood samples so drawn by this witness. He further stated that detected drug can cause confusion, delusion, disorientation, dizziness, hangover and sleepiness and had given his opinion, Ext.PW18/F, Ext.PW18/H, Ext.PW18/G and Ext.PW18/J on the MLCs of each of the persons.

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22 PW19, Dr. Rajesh Kumar, Scientific Officer, SFSL, Junga, proved on record receipt of three parcels, Ext.P1 to Ext.P3, which were sealed with seal impressions “T” and “H”. He further stated that the seals were intact and tailed with specimen seals. On examination of the parcels, traces of nitrazepam were detected and no other poison was detected. He proved on record his report, Ext.PZ.

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23 This is the entire evidence led by the prosecution.

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24 It is vehemently argued by Mr. Amit Kumar Dhumal,

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Advocate, that entire case of the prosecution is full of contradictions, improvements and omissions and therefore, no conviction on the basis of such evidence could have been recorded by the learned trial court. Elaborating the submission,

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he would submit that PW1 Sandishna Chauhan would claim that four bags had been recovered from the possession of the appellant, whereas PW2 Ayushi would claim three bags while PW7 HHC Tara Chand would claim that there were only two bags.

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25 Adverting to the plea of so-called contradictions, inconsistencies, embellishments and improvements in the prosecution case, it is a settled position of law that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time

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of occurrence. Where the omissions amount to a

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contradiction, creating a serious doubt about the truthfulness of the witness and the other witnesses also make material improvements while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or

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improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which

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the evidence can be rejected in its entirety. The Court has to

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form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

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26 Exaggerations per se do not render the evidence brittle. But, it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited (Refer: State, represented by Inspector of Police vs. Saravanan & another AIR 2009 SC 152; Arumugam vs. State AIR 2009 SC 331; Mahendra Pratap Singh vs. State of Uttar Pradesh (2009) 11 SCC 334 and Dr. Sunil Kumar Sambhudayal Gupta & Ors. vs. State of Maharashtra (2010) 13 SCC 657) .

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27 Judged in the light of aforesaid exposition of law, it would be noticed that the contradictions and inconsistencies that are sought to be pointed out in fact do

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not even constitute contradiction, which may create even the remotest doubt leave alone serious doubt in the prosecution case. Moreover, the so called contradictions do not even go to the root of the case.

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28 The learned counsel for the appellant has not been able to shatter the prosecution case that the recoveries had been effected from the appellant and, therefore, mere fact that there were two or three bags is inconsequential, as it is not the number of bags, but the stolen articles recovered from the appellant, that is material and those were required to be established by the prosecution and have been so established. The learned counsel for the appellant has also not been able to point out any infirmity or even raise any suspicion much less a doubt on the recovery effected from the appellant. Once this is the position, then so called contradictions of number of bags, in my considered opinion does not have much bearing and cannot be a ground to doubt the case of the prosecution.

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29 However, before parting it needs to be observed that this appeal was taken up for final hearing (even though it was filed in October, 2016) on the request made by the learned counsel for the appellant to the effect that the appellant had

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already undergone the sentence as awarded by the learned trial court. Upon enquiry, it was revealed that though the appellant after completing his sentence was released, but was thereafter apprehended and is currently lodged in jail by the Punjab Police in connection with another case registered against him under Sections 328 and 380 IPC and, therefore, the appellant appears to be a habitual offender.

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30 In view of the aforesaid discussions, I find no merit in this appeal and the same is accordingly dismissed. Pending application(s), if also stands dismissed. Bail bonds are discharged.

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(Tarlok Singh Chauhan) Judge 24^th November, 2017 (pankaj)

Bhupinder Singh @ Rahul v. State of Hp

Case brief

What is this about?

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Bhupinder Singh @ Rahul v. State of Hp

Case brief

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