IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 515 of 2000 Date of decision: 27.09.2010 _________________________________________________________ The State of H.P. .....Appellant. Versus Piar Chand @ Piaru & ors. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? __________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For respondent No.1 : None. For respondents No. 2 & 3: Mr. Lalit K. Sharma, 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 and order dated 07.08.1999, passed by the learned Chief Judicial Magistrate, Kullu, District Kullu, in Police Challan No. 398-1/97 270-2/98, acquitting the alleged accused-respondents under Sections 457, 380 and 411 of the Indian Penal Code. 2. Prosecution case is that Shri Mangat Ram, resident of Bhutti Colony Jarad, made a complaint that on 18.05.1997, at about 2 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... a.m., when he wanted to come out of his room, in order to attend the call of nature, the door of the room was closed from out side. By breaking open the window, he managed to come out and found the lock of the other room broken. On entering that room, he found some boxes missing. One box was found broken out side and one chaak (gold), weighing 5 grams, of value Rs. 2,000/-, a ring (silver) of value Rs. 60/- and a pair of Pyle/Paijev (silver) of value Rs. 120/- were found to have been stolen. A T.V. (B & W) of value Rs. 8,000/- was also found to have been removed by someone. In that respect, a complaint was made and accordingly FIR was lodged. After completion of investigation accused-respondent was charged for the aforesaid offences and the case was tried by the Chief Judicial Magistrate. 3. In order to prove its case, prosecution examined as many as seven witnesses, whereas, accused through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. Recovery of Ex. P-4 (paijev) and Ex. P-5 (chaak), vide fard, Ex. PW-2/C, do not go to conclusively prove the case of the prosecution that the said ornaments had been given at the shop of PW-5, Balbir Singh, by the accused-respondent Krishana because he (PW-5) is an interested witness. Stolen ornaments, Ex. P-4 and Ex. P-5 had been recovered from his shop. 5. PW-7 Hari Pal (Investigating Officer) has endeavoured to support the prosecution case. On the analysis of the materials on record, we notice that the occurrence is of 18/19.05.1997, but the FIR was registered on 20.06.1997, as such, the prosecution case that the accused-respondents Piar Chand and Prem Singh had committed ...3... lurking house trespass, on the intervening night of 18/19th May, 1997, by breaking open the lock/kunda of the room/house of Mani Ram (son of the complainant), and had committed theft is not proved beyond reasonable doubt and the recovery of the articles had not been proved by the prosecution. 6. On analysis of the prosecution witnesses and the material on record, learned Chief Judicial Magistrate has rightly found that the prosecution has not been able to prove its case that the accused-respondents have stolen the alleged articles from the house of the complainant and the same were recovered through their disclosure statements. 7. In absence of valid recovery of the stolen articles, the prosecution cannot be said to have proved its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt against the accused-respondents. In these circumstances, criminal appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 27th September, 2010 (virender)