HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 356 of 2001 Decided on: 22.4.2008. State of Himachal Pradesh ………Appellant. Versus Bhupender Singh ……Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.J.S. Guleria, Law Officer. For the respondent: Mr.Ajay Sharma, Advocate. V.K. Ahuja, J (Oral): This is an appeal filed by the State against the judgment of the court of learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, H.P., dated 1.12.2000, vide which the respondent was acquitted of the charge framed against him under Section 457 IPC. Briefly stated the facts of the case are that on 23.7.1999, Tulsi Ram serving in IPH Department, was on duty and at about 11.30 p.m., he noticed that the lights were on in the house situated near his office, which house was owned by one Sardarji, who had left for Jammu during day time. He thereafter called three persons, they went to the house and closed the outer door but when they were present near the back door, the respondent/accused ran away from _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - the house after opening the front door. It was also alleged that the accused left scooter on the road which was taken in possession and he enquired about the scooter on the next day. A telephonic information was given to the police on which the case was registered and the challan was filed before the learned trial Court who tried the respondent leading to his acquittal. Heard. A perusal of the record shows that Tulsi Ram (complainant) had firstly noticed that the lights in the adjoining house were on and he called three persons and they guarded the backdoor, while the accused ran away from the front door. The complainant when examined as PW-1 clearly stated that it was dark and he had only seen the back of the accused, therefore, could not say as to who had run away from that house. He stated that his companions were standing near the door. The first person who came to the spot at that time and was called by Tulsi Ram was PW-3 Munshi Ram but even his statement also suggests that it was dark night and when the accused person kicked the door, he became nervous and the said person ran away. The learned trial Court had considered the statement in full and had concluded that his statement also does not show that he had identified the accused as the person who was present in the house. The second person named by the complainant is Shamsher Singh who was examined as PW-2. But his statement shows that it was dark night. He has stated that his statement had not been recorded by the police and he was not associated by the police and thus his statement also does not establish the identity of the respondent. - 3 - The third person called by the complainant was Anil who has not been examined by the prosecution, though he has been cited as witness. There is also nothing on the record to show as to his non-examination. On the basis of the statements of the above witnesses, the learned trial Court concluded that the identity of the respondent was not established that it was he who was the person in the house adjoining the office of IPH Department. The recovery of screw and bolt allegedly at the instance of the respondent does not further substantiate the case of the prosecution. The recovery of the scooter was denied by the respondent in reply to a question put to him under Section 313 Cr.P.C. The mere fact that the scooter has been found near the place of occurrence is not itself sufficient to hold that it was the respondent who has committed theft. Thus, the final findings recorded by the learned trial court holding that the identity of the respondent was not established beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court. In view of the above discussion, it follows that there is no merit in the appeal filed by the appellant and the same is dismissed accordingly. The bail bonds furnished by the respondent are discharged. April 22, 2008 (TILAK) (V.K. Ahuja), Judge.