IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.216 of 1998 Decided on : April 23, 2010 State of H.P. …Appellant. Versus Anil Kumar …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajinder Dogra, Additional Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : M/s H.K. Bhardwaj & Y. Paul, Advocates. Surjit Singh, J (Oral) This appeal by the State is directed against the judgment dated 4th September, 1997, of learned Sessions Judge, whereby accepting the appeal of respondent Anil Kumar against the judgment of the trial Magistrate, by which he had been convicted of and sentenced for offences, under Sections 454 and 380 of the Indian Penal Code, he has been acquitted. 2. Prosecution case is that Manju Raghuvanshi (PW- 2) has her residence in a suburb of Solan town, known as Deoghat. At a short distance from there, lives her brother Surinder Kumar (PW-1). On 1st September, 1993, around 3.45 p.m., when Sushila (PW-4), wife of PW-1 Surinder Kumar, was present on her rooftop, she saw someone Whether reporters of the local papers may be allowed to see the judgment? …2… entering the house of her husband’s sister PW-2 Manju Raghuvanshi. She informed her husband PW-1 Surinder Kumar, who immediately went to his sister’s house. On reaching the house of his sister, PW-1 Surinder Kumar found that locks of the main doors were lying broken. He entered the house and found the respondent holding a box of jewellery. He overpowered him and informed the police. In the meanwhile, PW-3 Satish Kumar also reached there. A police party, headed by PW-5 ASI Anant Ram reached the spot. Respondent was arrested. Statement of PW-1 Surinder Kumar, under Section 154 of the Code of Criminal Procedure, was recorded, which is Ex. PW-1/A. It was sent to the Police Station and case was formally registered, on the basis of it, vide FIR Ex.PW-5/B. Locks and the jewellery were taken into possession. Scene was got photographed. On completion of investigation, challan was filed. 3. Trial Magistrate convicted and sentenced the respondent. Respondent filed appeal in the Sessions Court. That appeal has been accepted, vide impugned judgment, and the respondent acquitted. 4. We have heard the learned Additional Advocate General as also the learned counsel for the respondent and gone through the record. 5. We have appraised the evidence afresh. We find no infirmity in the manner the learned Sessions Court has dealt with the case and appraised the evidence. …3… 6. Respondent took the plea that he had been falsely implicated in the case, at the instance of his father-in- law Vidya Sagar, who is employed as an Inspector in the Police Department, because he is not on good terms with him. Husband of PW-2 Manju Raghuvanshi is also a Police Officer, subordinate to the father-in-law of the respondent. The fact is admitted by PW-2 Manju Raghuvanshi in her testimony. 7. It is in the aforesaid background that the learned Sessions Judge has scrutinized the prosecution evidence. Learned Sessions Court has noticed some inconsistencies and infirmities in the evidence. According to PW-1 Surinder Kumar, locks were lying on the floor, when he reached the house of his sister. PW-5 ASI Anant Ram got the scene photographed from PW-6 Sanjeev Kumar. Some of the photographs taken by this witness, which are Ex. P-1 to Ex. P-9, show that locks were not lying on the floor but they were hanging on the sliding bolts of the doors. Again, according to PW-1 Surinder Kumar, he had himself taken over the wooden box, containing jewellery, from the respondent and handed it to the police, but Police Officer, PW-5 ASI Anant Ram stated that he recovered the wooden box from underneath the belt of the pants of the respondent on personal search of the respondent and that the respondent was having a pair of pliers also with him. …4… 8. Again, PW-3 Satish Kumar says that he reached the spot after the arrival of the police, but PW-1 Surinder Kumar says that he reached before the police came. 9. PW-2 Manju Raghuvanshi stated that she identified the stolen jewellery to be hers before it was sealed, but PW-1 Surinder Kumar has stated that the jewellery and the box had been sealed by the police before PW-2 Manju Raghuvanshi reached that evening. 10. Aforesaid contradictions apart, we find that in spite of the fact that it was a case of broad day light house breaking, PW-1 Surinder Kumar did not raise any alarm. His conduct in not doing so is quite unnatural. As a matter of fact, anybody on seeing a thief or robber entering the house, after breaking open the locks, would himself get alarmed and scared and apprehend danger to his life, while planning to overpower him, because normally thieves and robbers are armed with lethal weapons and here is a case where PW-1 Surinder Kumar did not even shout for help, before entering the house or when overpowering the thief. For the foregoing reasons, we see no merit in the present appeal. The same is, therefore, dismissed. ( Surjit Singh ), J April 23, 2010(sd) ( V.K. Sharma ), J