IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 211 of 2003 Date of decision: 31.08.2010 State of H.P. ... Appellant Versus Dalip Singh and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vikas Rathore, Deputy Advocate General. For the respondents: Mr. Ashwani Kumar Sharma vice Mr. Vikrant Thakur, Advocate, for respondents No. 1 and 2. Respondent No. 1 is also present in person. Ms. Devyani Sharma and Ms. Lalita Verma, Advocates, for respondent No. 3. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate 1st Class, Court No. 2, Paonta Sahib, dated 11.10.2002, vide which the respondents were acquitted of the charge framed against them under Section 379 I.P.C. read with Section 5 of Telegraph Wire Unlawful Possession Act, 1955. 2. Briefly stated, the facts of the case are that Om Parkash, J.T.O., moved an application Ext. PW2/A to S.H.O. Paonta Sahib regarding the theft of over head cable 20/6½/244 Meter on 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Bhuppur-Tibetan Colony link road. In the said application, it was alleged by him that one Mahima Nand, T.S.M., Paonta, had reported to him that somebody had stolen the cable wire about 244 Meters On Bhupur-Tibetan Colony link road in the intervening night of 25/26.3.2000 of the value of Rs.9,760/-. On this information, an FIR was registered. During investigation, accused Dalip Singh is alleged to have made disclosure statement under Section 27 of Indian Evidence Act and got recovered two bundles of cable wire, which were taken into possession by the police. After investigation, the challan was filed before the learned trial Court, who tried the respondents under the Sections mentioned above, leading to their acquittal. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the main evidence led by the prosecution as against the accused persons is the alleged disclosure statement made by one of the accused Dalip Singh. The said statement was recorded by PW-8 S.I. Devi Singh, Investigating Officer, who stated that he reached Paonta Sahib and found that Dalip Singh was waiting for a bus. On interrogation, the said Dalip Singh made a disclosure statement that he had kept two bundles of wire and one piece near the Yamuna river, which he can get recovered. His statement Ext. PW5/C was recorded in this regard. It was also signed by Mujahir Khan and Shamim Akhtar. Thereafter, the accused took the police party near the Yamuna river and got recovered two bundles and one piece which were taken into possession vide recovery memo Ext.PW4/A. 3 5. A perusal of the record shows that the disclosure statement was also signed by PW-5 H.C. Mujahir Khan and one Shamim Akhtar, constable. Out of these two witnesses Mujahir Khan has been examined as PW-5, who has stated that the Investigating Officer recorded the statement of respondent Dalip Singh in his presence and that of constable Shamim Akhtar, which is Ext. PW5/C and thereafter got recovered two bundles of telephone wires hidden under the bushes. He has not stated at all the wordings used by the accused at the time of making his statement under Section 27 of the Evidence Act Ext. PW5/C and he is not specific that any statement was made by the accused or what was stated by the accused at that time. Therefore, the disclosure statement Ext. PW5/C cannot be said to have been proved legally from his statement. The other witness, namely, Shamim Akhtar, constable, was not examined by the prosecution and was given up as unnecessary. The net result of the discussion is that the prosecution case rests upon the testimony of PW-8 Devi Singh, Investigating Officer, not corroborated by any other witness. It is also clear that the Investigating Officer had not associated any independent witness at the time of recording of the disclosure statement made by respondent Dalip Singh who was apprehended at the bus stand waiting for the bus, where many persons were available, who could have been easily associated by the Investigating Officer. His act in not associating any independent witness and the act of the prosecution in not examining the other witness to the disclosure statement leads to an inference that the disclosure statement made by respondent Dalip Singh cannot be said to have been legally proved. The alleged statements made by the accused persons are normally used by the 4 police in proving their case and until and unless these are not proved legally, these cannot be linked with the accused so as to hold them responsible for the recovery of the alleged stolen articles from their possession. 6. Apart from the above, the prosecution has also tried to lead some evidence from the statement of PW-5 H.C. Mujahir Khan that in his presence two persons came from the side of Tibetan Colony carrying a bundle of wire and they tried to slip away on seeing the police party and were apprehended and the names were told to the police as Nand Kishore and Dhanbir. The bundle in their hands were taken into possession vide recovery memo. Ext. PW5/B. He has not identified the respondents as the same persons, who were apprehended at that time. The statement of this witness cannot be relied upon that the accused persons were coming having one wire bundle in their hands and they were apprehended by the police. No other independent witness has corroborated this testimony and this evidence cannot be said to be sufficient to hold that the other two accused persons were guilty of the charge framed against them and insofar as Dalip Singh, respondent, is concerned, the disclosure statement was not legally proved. Statements of other witnesses are not material. 7. In view of the above discussion, the net conclusion drawn by the learned trial Court holding that the prosecution has failed to prove its case beyond any reasonable doubt cannot be termed as perverse, calling for an interference by this Court. 5 8. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. ( V.K. Ahuja ), August 31, 2010 Judge (BSS) 6