1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 692 of 2001. Date of Decision: 18-12-2008. ____________________________________________________________ State of H.P. Appellant. Versus Dev Raj. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Sh. J.S. Guleria, Law Officer. For respondent : Shri R.K. Gautam, Senior Advocate with Ms. Radhika Gautam, Advocate vice counsel for the respondent. ______________________________________________________________ Surinder Singh, J. (oral) The respondent was put to trial in F.I.R. No. 155 of 1996 for the offences punishable under Section 457 and 511 of the Indian Penal Code. The case of the prosecution ended in fiasco, consequently the respondent was acquitted. His acquittal has been challenged in this appeal on the ground that the learned trial court did not appreciate the evidence of the prosecution in its proper and right perspective. I have heard Shri J.S. Guleria, Law officer and Shri R.K. Gautam, Senior Advocate duly assisted by Ms. Radhika Gautam, Advocate and have carefully examined the record of the case. Precisely, the case of the prosecution has been that on 23.6.1996 at about 11.00 P.M in village “Road”, the respondent is Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 alleged to have trespassed into the residential house of complainant Usha Devi during the night with an intention to commit theft. It was raining and the complainant noticed that the roof of her house was leaking. She went up-side and found the respondent present in the room. Immediately, she woke up her son PW4 Vinod Kumar and the respondent was apprehended on the spot. His identity was asked. He disclosed his name and address. PW5 Naresh Kumar tenant of complainant PW3 was attracted by the noise. He also came there and found that the respondent was present in the house of the complainant. Thereafter the complainant got recorded her statement Exhibit PW3/A to PW6 H.C. Piar Chand who was on patrolling duty in village Rehan, on the basis of which F.I.R. was recorded. Head Constable Piar Chand visited the spot, prepared the site plan Exhibit PW6/A and after completing the challan, it was presented in the Court for the trial of the respondent. The respondent was charge-sheeted for the offences aforesaid. He pleaded not guilty and claimed trial. PW3 Complainant Usha Devi stated that she found the respondent hiding himself in the room and she raised hue and cry, Naresh Kumar PW5, her tenant, came there and the respondent was apprehended. It was around 11.00 P.M. She also stated that she got recorded her statement Exhibit PW3/A in the Police Station and thereafter the Police visited the spot whereas, PW6 Head Constable Piar Chand has stated that the complainant met him along with a lady Pradhan during the patrolling in village Rehan on 24.6.1996 where her statement was recorded. She did not state about handing over the respondent to the Police whereas, PW4 and PW5 had 3 stated that when the police visited their house, the respondent was handed over to the Police but this fact has not been substantiated by the Investigating Officer Head Constable Piar Chand, who immediately after recording the statement of the complainant had visited the spot. He even did not say that he had seen the respondent on the spot. Therefore, in these circumstances it cannot be said that the respondent was apprehended by the complainant and the aforesaid persons on the spot and then handed over to the Police. Even the Investigating officer has not even given even a fleeting reference in his statement as to when the respondent was arrested in this case. On the top of it, there are other material contradictions lurking in the statements of the prosecution witnesses. Firstly, the complainant PW3 Smt. Usha Devi stated that though she informed the lady Pradhan of her Panchayat but she did not come on the spot whereas, the Investigating officer contradicted her and stated that when the statement of the complainant was recorded, she was accompanied by the Pradhan. Secondly, PW4 Vinod Kumar testified that the respondent had lifted the truck and had kept it near the door and concealed himself beneath the cot but the site plan Exhibit PW6/A shows the place ‘A’ where the respondent was alleged to have concealed himself which is a roof top of the house. Thirdly, the complainant categorically stated that the Police visited her house around 1.00 A.M. during the night. She did not say any where that she had gone to the village Rehan to report the matter whereas, the Investigating Officer stated to have recorded her statement at village Rehan at 3.00 P.M. on 26.6.1996 as indicated in Exhibit PW1/. Further, he gave quite contrary statement when 4 examined in the Court that the aforesaid statement was recorded by him in the morning of 24.6.1996. Fourthly, PW4 Vinod Kumar contradicted the statement of the complainant as well as that of investigating officer while saying that the Police was informed telephonically. Thus the story of meeting and reporting the matter at village Rehan to the Investigating Officer gets falsified. So in these circumstances, the prosecution case lacks probity and the statement of the complainant and her witnesses cannot be relied upon. Therefore the grounds for acquittal recorded by the learned trial Court are reasonable and borne out from the evidence on record which requires no interference. Accordingly the appeal is dismissed. (Surinder Singh) Judge. December 18, 2008. (bm)