IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 51 of 1994 Date of decision: 16.3.2009 State of H.P. …. Appellant. Vs. Raj Kumar. ... Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja. Whether approved for reporting?1. No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Gurudev Singh Thakur, Advocate. Per Deepak Gupta, J. This appeal by the State is directed against the judgement of the learned Sub Divisional Judicial Magistrate, Ghumarwin, District Bilaspur, in Case No. 234-1 of 1991 decided on 12.3.1993 whereby he acquitted the accused of having committed offences punishable under Sections 457 and 380 IPC. Briefly stated, the facts of the case are that the complainant Raj Kumar, PW-1 was running a watch and radio repair shop in Mohra Bazar, village Kapahara. He lodged a complaint that on 7.7.1990 when he opened his shop at about 9.30 a.m he found the slates of the back portion of the shop removed. On checking, he found that one stereo system – Sharp Model No. 88-22, some watches and 25 cassettes had been stolen from his shop on the intervening night of 6th – 7th July, 1990. Investigation was conducted but no clue was found and the police prepared an untraced report on 15.12.1990. On 14.9.1991 more than one year and two months after the alleged theft had taken place, the complainant informed the police that he had received information that the stereo and cassettes were in the possession of the accused. Thereafter the police conducted a search of the house of Sita Ram 1 Whether the reporters of the local papers may be allowed to see the Judgment . yes. 2 – father of the accused and recovered 22 cassettes. The name of the complainant was found on seven cassettes. Thereafter, the police went to Theog where the accused was working as Carpenter and searched his house and recovered the stereo and three cassettes. Thus the stereo and 25 cassettes are alleged to have been stolen were recovered from the accused and his father. The entire case against the accused is based on the recovery. The learned trial Court has held that the recovery has not been conducted in accordance with law. As far as the stereo is concerned, there is no identification mark on the stereo to show that it is the same stereo which was stolen from the shop of the complainant. 22 Cassettes were recovered from the house of Sita Ram – father of the accused and PW-3 Jai Singh and PW-6 Pritam Singh are the witnesses to such recovery. There are certain inherent contradictions and omissions in the prosecution case which indicate that the recoveries were not really affected. According to the complainant, he came to know about the fact that the stereo and cassettes were lying in the house of Sita Ram – father of the accused from some person. This person has neither been named nor examined in Court. The complainant also states that he sent two boys to the house of Sita Ram to purchase the stereo but Sita Ram did not show the stereo. Who were these two boys has also not been stated. It is apparent that the complainant himself tried to create evidence against the accused and his father. He has not disclosed the name of the informant or of the two boys. There is no explanation as to why he has tried to hide these names from the Court. According to the complainant, Sita Ram had offered to sell the stereo and therefore, the complainant handed Rs.500/- to the boys. This appears to be a totally imaginary and concocted story. 3 When the complaint was lodged the complainant had not stated that any of the cassettes bore his full name and address. Now, the accused is sought to be implicated on the ground that some of the cassettes bear the full address of the complainant. This was not the case initially set up. Even the statements of the witnesses are at variance with regard to the number of cassettes recovered from the house of Sita Ram. In any event, the accused cannot be made liable for the recovery made from the house of his father. The prosecution has failed to show that the cassettes recovered from the house of the father are the same which were stolen. The recovery of the stereo is also not without doubt. According to the police, the recovery of the stereo was made at Dargot falling under the jurisdiction of police station Theog. However, according to the evidence of PW-2, the memo of recovery Ext.PC was prepared at police station Talai on 17.9.1991. This casts a grave doubt on the recovery. It is surprising that the said recovery has allegedly been made with the association of witnesses from village Kapahara and no witness from village Dargot were associated with the same. In view of the above discussion, we find that the prosecution has miserably failed to prove its case. There is no merit in the appeal and the same is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. (Deepak Gupta), J. 16th March, 2009. ( V.K.Ahuja ), J. ™