IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 729/1996 Reserved on : February 24, 2010 Date of Decision : March 4, 2010 State of H.P. …Appellant Versus: Noordhan & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht, Dy. A.G. For the respondents : Mr. Rakesh Jaswal, Advocate Sanjay Karol, J. The present appeal has been filed under Section 378 of the Code of Criminal Procedure against the judgment of acquittal dated 9.12.1993 passed by the learned Judicial Magistrate Ist Class-II, Palampur, Distt. Kangra, H.P. in Crl. Case No. 51-II/91. As per the case of the prosecution, Smt. Kaushalya Devi (PW-1) lodged a complaint (Ext.PW-6/A also Ext.PW-6/C) with Shri Maango Ram (PW-5 - Pradhan of the Gram Panchayat) to the effect that in the night of 3rd April, 1991, lock of her cattle shed was broken and two grown up goats stolen by “some 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 body”. The complaint in turn was forwarded to the police on the basis of which F.I.R. (Ext.PW-6/B) dated 5.4.1991 was registered with Police Station Baijnath, Distt. Kangra under Sections 380 & 457 IPC. The matter was investigated by ASI Jodha Mal (PW-6). Accused No.1 Noordhan was apprehended. One live goat and one hide of a dead goat was recovered from him. They were identified by the complainant. The goats were alleged to have been stolen by accused No.2 & 3, S/Shri Sirmori and Man Chand respectively, and sold to accused No.1 Shri Noordhan for a consideration of Rs.750/-. With the completion of the investigation, challan was presented in the Court and Noordhan was charged for an offence punishable under Section 411 IPC and Sirmori and Man Chand were charged for an offence punishable under Sections 380 & 457 IPC read with Section 34 IPC. The trial Court acquitted all the three accused persons, hence the present appeal. It is the specific case of the prosecution that accused Noordhan purchased two goats belonging to Smt. Kaushalya Devi knowing or having reason to believe that the same were stolen. Significantly none of the witnesses examined by the prosecution have deposed that accused Noordhan had dishonestly received/purchased the goats knowing or having reason to believe that the same were in fact stolen by accused 3 No.2 & 3. There is no iota of evidence to the said effect. The essential ingredients required to be proved so as to constitute an offence punishable under Section 411 IPC have not been proved at all. Hence the trial Court has rightly acquitted accused Noordhan. With respect to the charge for an offence punishable under Section 457 IPC against accused No.2 & 3, again there is no material on record to prove the same. In fact none of the prosecution witnesses has deposed that in furtherance of a common intention the said accused persons had committed lurking house trespass at night and had entered the cowshed of the complainant Smt. Kaushalya Devi (PW-1). There is also no circumstance linking the accused to the said crime. With respect to the second charge, it is relevant to point out that there is no direct evidence. As is evident from the complaint (Ext.PW-6/A) and F.I.R. (Ext.PW-6/B), it is the case of the prosecution that the complainant was not aware as to who had stolen her goats. She also suspected none. There is no eye witness to the occurrence of the alleged incident. Therefore, the case of the prosecution rests on circumstantial evidence. Importantly, complainant Smt. Kaushalya Devi (PW- 1) herself has not supported the prosecution. She was partly resiled from her earlier statement, hence declared hostile. Even though in her cross-examination, as carried out by the Public Prosecutor she has stated that Noordhan had purchased the 4 goats from Sirmori and Man Chand ‘who may be the accused persons present in the Court’ but however, subsequently she has categorically deposed that she saw the accused Sirmori and Man Chand for the first time in Court today. Hence, she had neither seen the accused persons committing the alleged offence nor identified them earlier. She has rendered the case of the prosecution to be doubtful by stating that the recovery memos vide which the police had seized the lock and chain of the cattle shed as also the hide and one live goat, were prepared in the police station and that even Shri Mango Ram (PW-5) and Shri Shonki Ram had signed the same in her presence. Now if the recovery memos were not prepared at the spot, then obviously the story of the prosecution is false. The investigation was not carried out in accordance with law as the proceedings were drawn up only at the police station. Importantly, in his deposition the Investigating Officer does not disclose the foundation of his suspicion of the alleged involvement of accused Noordhan in the alleged offence. Prior to the registration of the case none knew that Noordhan had purchased the goats allegedly belonging to the complainant. His deposition is simple to the effect that Noordhan disclosed that he had purchased two goats from accused Sirmori. How did the Investigating Officer reach upto Noordhan has not been explained. In any event, this fact stands contradicted by Shri Bishwa Ram (PW-3), according to whom Noordhan had 5 disclosed that he had purchased the goats from ‘two persons’. In any event, if Noordhan had disclosed the name of only Sirmori then why was Man Chand arrayed as an accused person. Further according to PW-3, police had conducted the search of the house of the accused Noordhan and it was during such search one live goat and hide of a goat was recovered. This fact is not disclosed by the Investigating Officer. No document of search has been placed on record. This speaks volumes of the manner in which the investigation was carried out, rendering the prosecution version to be totally unbelievable. We find no merit in the present appeal. The learned trial Court has rightly acquitted the accused persons. The appeal is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ), Judge. ( Sanjay Karol ), Judge. March 4, 2010. (rana)