IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.181of 2002 Date of decision: 24.12.2008 State of H.P …Petitioner Vs Harkesh Kumar alias Kala ….Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Petitioner:/State. Mr. Rajesh Mandhotra, Deputy Advocate General For the Respondent: Mr. Tarlok Chauhan,Advocate ________________________________________________________ Per Deepak Gupta, J. (Oral): This appeal is directed against the judgment dated 30th April,2001 passed by the learned Addl. Chief Judicial Magistrate, Arki, District Solan acquitting the accused of having committed offences punishable under Sections 379 and 201 IPC. 2. The prosecution case in brief is that the complainant PW1 Shri Bali Ram was residing in the house of PW2 Narain Chand in village Siyar at Darlaghat. He had parked his motor cycle in the court yard of the house of his land lord on 20.11.1994 and has locked the same. Next day i.e. on 21.11.1994 at about 8.00 a.m. when he went to the court yard of the land lord he found that his motor cycle 1 Whether the reports of the local papers may be allowed to see the Judgment ?. Yes. was missing. He, thereafter, reported the matter to the police at Police Station, Darlaghat on 22.11.1994 at about 2.30 p.m. 3. On the basis of the complaint an FIR was lodged. The prosecution case is that during investigation the police received information that the motor cycle had been stolen by the accused. The accused at the relevant time was working as electrician at village Siyar. The accused had not been seen in the village since the day of the theft. He is a permanent resident of village Kundlu falling under the jurisdiction of police station, Nalagarh. 4. On receipt of the information the police formed a raiding party and went to village Kundlu along with the complainant. On 30.11.1994 at about 8.30 p.m. the accused came from Swarghat side riding on the motorcycle which had been stolen. He was checked by the police. The complainant identified this motorcycle to be one which was stolen. The motor cycle was taken into possession by the police. After completion of investigation the challan was filed against the accused. The accused was summoned. He appeared in court and pleaded not guilty. The learned trial court acquitted accused. Hence, the present appeal. 5. There is no evidence on record to show that it is the accused who stole the motorcycle from the court yard of PW2 on the night intervening 20.11.1994 and 21.11.1994. The main circumstance against the accused is the fact that he was riding on the motor cycle in question when the same was intercepted and recovered by the police on 30.11.1994. 6. The learned trial court has held that no reliance can be placed on this recovery since the police did not follow the procedure laid down by law and, therefore, the recovery is doubtful. Admittedly, the police had prior information that the accused stole the motor cycle and he is a resident of Kundlu . In such circumstances it was incumbent upon the police to have also associated some independent person with the raiding party. No independent witnesses were associated with the raiding party and only complainant Bali Ram and his driver Pardeep Kumar were joined by the police. Under Section 100 of the Criminal Procedure Code, the Investigating Officer is bound to associate two respectable persons of the area where the raid is being conducted. There is no explanation as to why no independent witnesses from village Kundlu or any other nearby village were not associated by the police. 7. Admittedly, Kundlu falls within the jurisdiction of Police station, Nalagarh. Under Section 166 of Criminal Procedure Code the investigating officer of the raiding party was bound to inform the Officer- in-charge of the police station of the area where the search was to be conducted. This was admittedly not done. 8. The prosecution has given no explanation for the non- compliance of the aforesaid two provisions of law. The learned trial court rightly acquitted the accused on the ground that the prosecution has failed to prove that the raid had been conduced and the recovery made in accordance with law. The prosecution can not take help of the recovery made in total violation of the statutory provision. In view of the above discussion I find no merit in the appeal which is accordingly rejected. December 24th 2008 ( Deepak Gupta), J. (Rita).