IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 148 of 1998 Decided on : March 19, 2010 State of H.P …Appellant Versus Sukhwinder Singh …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assitant Advocate General. For the Respondents : Mr. Ramesh Sharma, Advocate. Surjit Singh, Judge (Oral) State has appealed against the judgment, dated 22.7.1997, of trial Magistrate, whereby respondent, who was tried for offences, under Sections 457 and 380 IPC, has been acquitted. 2. Case of the prosecution is that on 11.11.1995 at 12.30 a.m., PW-1 Pradeep Kumar lodged a report at Police Station, Amb, that on 9.11.1995 he had locked his shop situate in Amb Bazaar and that on 10.11.1995 at 8.30 a.m. when he went to his shop and opened the lock, he found that lock of his cash-chest had been broken which aroused his suspicion that theft might have been committed. He further reported that he went to the back side of the shop and found that the door on the back side was broken. A sum of Rs.608 was found missing from his cash-chest. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. Respondent was apprehended by PW-2 Om Parkash, PW-3 Pawan Kumar and PW-4 Prabhat on 11.11.1995. He had with him currency notes of Rs.388, besides a purse, a hexa, a torch, a camera and one iron bolt. Respondent, however, managed to escape, while being taken to Police Station. He was later on arrested. 4. Case of the prosecution is that the currency notes, which were recovered from the respondent, were part of the money that had been stolen from the cash-chest of Pradeep Kumar PW-1, on the night intervening 9th and 10th November, 1995. 5. Trial Court acquitted the respondent, holding that while according to the testimony of PW-2 Om Parkash respondent was apprehended on 10.11.1995, the other two witnesses said that he was apprehended on 11.11.1995. 6. We have heard the learned Additional Advocate General as also the learned counsel for the respondent and perused the record. 7. What has been observed by the trial Court, as ground for acquitting the respondent, is borne out from the testimony of the above-named three witnesses, namely PW- 2 Om Parkash, PW-3 Pawan Kumar and PW-4 Prabhat. This observation, in our considered view, is enough for not interfering with the judgment of the trial Court. 8. We find something more than what has been noticed by the trial Court. According to the above named three witnesses, respondent was apprehended with a part …3… of the stolen currency either on 10th or 11th November, 1995. Theft was noticed by PW-1 on 10.11.1995. He did not lodge the report on that day, but on 11.11.1995. According to the above named three witnesses, currency notes and other articles, recovered from the respondent, had been handed over to the police on the night around 10 or 11. It appears from the testimony of the three witnesses that respondent was allegedly apprehended on the night intervening 10th and 11th November, 1995, and that is why one of the witnesses, namely PW-2 Om Parkash stated that he was apprehended on 10.11.1995 and the other two stated that he was apprehended on 11.11.1995. Memo. Ext.PW2/A against which money and other articles, allegedly recovered from the respondent, were handed over to the police, shows that the money and other articles were handed over to the police on 11.11.1995. 9. It appears that the money and the articles were handed over on the night of 10th and 11th November, 1995, after midnight, say after 12. FIR Ext.PW10/A was lodged at 12.30 a.m., that is to say, on the night intervening 10th and 11th November, 1995. FIR appears to have been lodged only after the alleged recovery of the money and the articles. Now, when the FIR had been lodged after the alleged recovery of the money and the articles from the respondent, even though theft had come to notice much earlier, i.e. more that 16 hours prior to that, possibility cannot be ruled out that the money, allegedly recovered …4… from the respondent, is not part of the money claimed by PW-1 Pradeep Kumar to have been stolen from his shop. Had any money been stolen from the cash-chest kept in his shop, Pradeep Kumar would have promptly lodged report with the police, especially when it was allegedly a case of theft after house breaking, in the night. For the foregoing reasons, appeal is dismissed. (Surjit Singh), J. March 19, 2010 (ss) (Rajiv Sharma), J.