IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 630 of 2001. Date of decision: 25.05.2011. State of H.P. ….. Appellant. Vs. Mohinder Singh …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General. For the respondent : Mr. M. L. Brakta, Advocate R.B. Misra, J. (Oral. The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 21.7.2001, passed by the learned Judicial Magistrate Ist Class(4), Shimla, in Cr. Case No. 5/2 of 2000/97, acquitting the alleged accused for the offences under Sections 454 and 380 of the Indian Penal Code. 2. The prosecution case in brief is that one Rama Chandel filed a complaint that on 7.2.1996 at about 10.00 A.M., she was going out of her house with her minor child. On way, one unknown person met her and asked her regarding opening of the school. The Whether the reporters of the local papers may be allowed to see the Judgment? 2 complainant disclosed to the said person that she is taking her son for tuition, however, she went ahead and when came back at about 12 noon after finishing the bank work, she noticed that lock of her house was broken and from the Godrej almirah kept inside the house, some gold and silver ornaments were missing. The police registered the F.I.R. and started searching the accused. On 15.5.1997, lady S.I. Manjeet Kaur arrested one person in F.I.R. No. 110/97, who under interrogation disclosed that he has committed theft in the house of the complainant. On 21.5.1997 police recorded the statement of the accused under Section 27 of the Indian Evidence Act and on his disclosure statement, gold was recovered from one Gold-Smith Surinder Goel and similarly, silver was recovered from Lohar Jeweller. Recovery memos were prepared. When the police shown the accused to the complainant, she identified that unknown person as the same person, who met her on the way on the date of occurrence. On completion of investigation the accused-respondent was charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as twelve witnesses, whereas, the accused-respondent, through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW-1 Smt. Rama Chandel in cross-examination has indicated that she cannot say as to who has 3 committed the theft, however, PW-1 has endeavoured to support the prosecution case in consonance to the narrations made in the complaint. PW-2 Smt. Seema Sharma, associated to the investigation, has stated that the accused has committed theft by way of breaking the locks of the house and godrej almirah in reference to the statement of the accused-respondent made in the presence of the police officials and such statement was Ext.PW-2/A. PW-3 Sufal Kumar has stated that he was called at the shop of Surinder Goel, where the later one admitted that he purchased some gold weighing about 63.5 grms. and that the melted article was handed over to the police in his presence, which was sealed by the police vide memo Ext.PW-3/A. PW-4 Lalit Kumar, associated in the investigation has stated that in his presence accused-respondent disclosed the name of the shop of Harish Malhotra (PW- 8), who also admitted that he has melted the silver ornaments purchased from the accused. Two pieces of silver Ext.P-1 and P-2 were taken into possession and sealed in his presence. PW-5 Surinder Goel has deposed that the accused in the month of May, 1997 came to his shop and sold gold ornaments weighing about 63 grams. PW-5 in cross-examination has, however, stated that an amount of Rs.26,000/- was paid to the accused. However, PW-5 was not able to disclose the description of the ornaments purchased by him and was not in a 4 position to say that the alleged piece of gold, which was produced by him to the police was prepared from the same ornaments which were purchased by the accused. PW-5, however, stated in cross-examination that he used to issue receipt at the time of sale and purchase of jewellery and has denied that PW-3 Sufal Kumar has visited his shop. Contrary to it, PW-3 has deposed that he visited the shop of PW-5/Surinder Goel and that in his presence PW-5 has admitted that he had purchased certain gold ornaments from the accused. PW- 6 is ASI Bhoop Ram who registered the F.I.R. (Ext.PW- 6/A). PW-7 Sushil Kumar is a witness in whose presence, Harish Malhotra has handed over to the police two silver pieces. PW-7 has further stated that Ext.P-1 and P-2 were shown to him by the police and it was disclosed that these pieces were recovered from the shop of PW-8, Harish Malhotra, who has stated that he received a telephonic information that the police has taken his son to the Police Station. PW-8 has, however, not supported the prosecution case and was declared hostile. PW-8 has admitted that the accused has sold him silver to the extent of 25 grams. PW-9 Inspector Manjeet Kaur has stated that during investigation of case No. 110/97, the accused confessed his guilt that he has also committed theft in question. PW-10, Tilak has not supported the prosecution case. PW-11 ASI Dola Ram, the 5 Investigating Officer, has prepared the site plan Ext.PW-11/A showing the place of recovery as well as Ext.PW-11/B, i.e. site plan of the place of occurrence. PW-11 has categorically denied that he has pressurised Harish Malhotra to hand over the silver. PW-12, Inspector Om Parkash has received complaint (Ext.PW-1/A). 5. On analysis of the prosecution witnesses and the materials on record, we notice that the ornaments alleged to have been stolen by the accused-respondent were not recovered in the same form from the shops of PW-5 and PW-8 and such recovery was not strictly in accordance with the statement made by the accused and was not in consonance to the compliance of Section 27 of the Indian Evidence Act. Even the stolen articles could not be identified by the complainant. PW-5 Surinder Goel also could not categorically indicate that what ornaments were purchased by the accused and the melted articles handed over to the police were the out put of the same stolen articles. No receipt of sale or purchase was produced by PW-5 contrary to his assertions that he maintains receipt of sale and purchase of jewellery. It could not be established that the jewellery articles handed over to the police were of same stolen ornaments which were sold to PW-5 by the accused-respondent. PW-8 has not supported the prosecution case, rather handing over the silver in 6 question by putting wrapper over Ext.PW-8/A. Thus, the recovery from PW-8 cannot be said to be at the instance of the accused. The prosecution has failed to make a complete chain regarding the stolen articles from the house of the complainant and the recovery by the police. 6. On analysis of the prosecution witnesses and the materials on record, learned trial Court has rightly arrived at its findings that the prosecution has failed to prove its case beyond reasonable doubt. The prosecution has to stand on its own legs. In our considered view, the prosecution has also failed to bring home the guilt to the accused. There is no reason to interfere in the findings arrived at by the learned Judicial Magistrate Ist Class. Criminal appeal being devoid of merit is, therefore, dismissed. Bail bonds furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge May 25, 2011 (rana)