IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 143 of 1997. Reserved on 04.06.2010. Decided on 17.06.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Shankar Dass. …Respondents. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For respondent : Mr. Tek Chand Sharma, Advocate. ---------------------------------------------------------------------------------------- Per Rajiv Sharma, Judge: State is seeking reversal of the judgment passed by the learned Sessions Judge, Kinnaur, Sessions Division, Rampur Bushahr in case No. 10-R/10 of 1995/93, dated 11.07.1996, whereby the appeal of respondent was accepted and the judgment of the learned trial Court was set aside. 2. The case of the prosecution, in a nut-shell, is that PW-1 Gian Dev registered F.I.R. at Police Station, Kaza under Section 457/380 of the Indian Penal Code. It was stated in the F.I.R. that at about 10 A.M., when PW-1 reached in the office, the Chowkidar told him that somebody has broken the locks of the office of Shri R.K. Sood, S.D.O. and entered in his room. He 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - saw the cash chest lying open. The keys of the room were with Shri R.K. Sood. He had also noticed that somebody entered the residential house of the S.D.O. The case was investigated by the Police. On 28.06.1991 at about 6:30 P.M., the accused has purchased some items from the shop of Lala Jagan Nath (PW-4). He paid Rs.30/-. PW-1 Gian Dev was also sitting in the shop and he asked the shopkeeper to return the ten rupees notes which the accused had given to him and compared the numbers of the notes. Gian Dev told the shopkeeper that he should not give these notes to anybody as these notes were stolen. The accused was taken into custody. During investigation, few currency notes were recovered from his pocket. He made a disclosure statement under Section 27 of the Indian Evidence Act and admitted that he had kept Rs.15,500/- below Kaza Hospital beneath the stone. The currency notes which were lying in a tin were recovered and taken into possession. The challan was put up against the accused under Section 457/380 of the Indian Penal Code. He was tried by the learned Chief Judicial Magistrate, Kinnaur and was convicted. He was sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.3000/- and in default of payment of fine, he was ordered to further undergo six months simple imprisonment. The accused preferred an appeal before the learned Sessions Judge, Kinnaur, Sessions Division, Rampur Bushahr. The appeal was accepted and the judgment of the learned trial court was set aside. Hence, this appeal by the State. - 3 - 3. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent (accused). 4. Mr. Tek Chand Sharma, Advocate learned counsel for the respondent has supported the judgment of the learned trial Court. 5. We have heard the learned counsel for the parties and gone through the record carefully. 6. PW-1 is Shri Gian Dev. He deposed that on 6/7th June, 1991, when he came in the morning to the office, he was told by Sonal Chhopal (Chowkidar) that lock of S.D.O’s office was broken and cash chest was lying open. S.D.O. R.K. Sood was on tour. He wrote a letter to the X.E.N. and A.D.C., Kaza informing them about the incident. On the basis of letter written by P.W.-1, F.I.R. Ex.-PW1/A was registered. Police recovered few currency notes from the chest. He further deposed that on 28.06.1991 at about 5:30/6:00 P.M., he was sitting in the shop of Jagan Nath (PW-4). Accused Shankar Dass came and bought underwear etc. and paid him Rs.30/- of the denomination of Rs.10/- each. The details of these currency notes were given to him by S.D.O. S.K. Sood before going on tour. He took the three currency notes of Rs.10/- each from the shopkeeper Jagan Nath and on verification, found that these 10 rupees notes were taken from the same bundle. He told the shopkeeper to keep these notes in safe custody and he informed the S.D.O.. These notes were taken into possession by the Police from Jagan Nath vide memo Ex.-PW1/C. - 4 - 7. PW-2 is Shri Thakur Dass. He was working as a Contractor. According to him, the accused gave a disclosure statement, on the basis of which, the accused led them to a spot near Kaza Hospital where currency notes of Rs.15,500/- were recovered from a tin. He signed Ex.-PW2/B. He also signed Ex.- PW2/D vide which Jhabbal was recovered at the instance of the accused. 8. PW-3 is Shri Desh Raj. He was posted as Supervisor. He was declared hostile. PW-4 is Jagan Nath. He deposed that on 28/29th June, 1991, accused came to his shop and purchased vest and two packets of four square cigarettes. He paid Rs.30/- in the denomination of Rs.10/- each. Then, he left the shop. P.W.1 was also sitting in the shop. He told PW-4 to check the numbers of these notes. He, however, disclosed that the Police had already given him the numbers of Rs.10/- notes. He tallied the same and thereafter, the Police had taken into possession those currency notes vide memo Ex.-PW1/C. In his cross-examination, he admitted that the Police had given the detail of numbers of currency notes 3-4 days before. This information was supplied by a Police Constable. 9. PW-5 is Shri R.K. Sood. He deposed that there are two keys of the cash chest. One key used to remain with him and one key was kept with Senior Assistant and in case the Senior Assistant was on leave, then both the keys were kept by him. He kept both the keys on 29th May in a leather bag and thereafter put them in a Trunk. When he came back on 09.06.1991, he noticed that the glass of his main entrance was broken. He also noticed that the latch of the box where he had - 5 - kept the keys of the chest was also broken. In his cross- examination, he admitted that Gian Dev (PW-1) had not submitted any application seeking the leave. He did not remember when he had obtained the second key from him. He also admitted in his cross-examination that Thakur Dass was working as Contractor in his department. He further admitted that the place from where the currency notes were got recovered by the Police was at a high place and the accused has pointed from a distance that he has kept the tin near cliff. He also deposed that the accused has got the currency notes recovered from a tin (Everyday Milk) near Kaza Hospital. 10. PW-6 is Shri Surender Kumar. He has admitted his signature on memo Ex.-PW3/A. In his cross-examination he has admitted that keys Ex.-PW3/C were with the Police. PW-8 Paras Ram has investigated the matter. According to him, the recovery of currency notes was effected after the disclosure statement was made by the accused under Section 27 of the Indian Evidence Act near Kaza Hospital. 11. The case set-up by the prosecution does not inspire confidence. Statements of PW-1 and PW-4 are unbelievable. PW- 1 has deposed that he was sitting in the shop of PW-4 at 5:30/6:00 P.M. The accused came and purchased certain items from PW-4 and paid Rs.30/- in the denomination of Rs.10/-. After the accused left, he asked PW-4 to hand over those three currency notes of Rs.10/- denomination each and after verifying the same, he came to the conclusion that these notes were stolen from the bundle of Rs.10/- from the office of S.D.O. The statement of PW-1 cannot be believed. There was no occasion for - 6 - PW-5 R.K. Sood to discuss the numbers of currency notes before going on tour. No officer discusses the numbers of currency notes before going on tour. The presence of PW-1 in the shop of PW-4 is also doubtful. It is intriguing to note that when the accused has visited the shop of PW-4 and paid three notes of ten rupees denomination, PW-1 was sitting there and the number of these currency notes tallied with currency notes of ten rupees bundle. The recovery of these currency notes vide memo Ex.- PW1/C is suspect. PW-4 has also been produced to corroborate the statement of PW-1. Three currency notes of ten rupees denomination were handed over by the accused to him for purchasing certain items. There is discrepancy also in the items which were purchased by the accused. According to PW-1, he has only purchased one underwear, however, according to PW-4, he has purchased vest and two packets of four square cigarettes. PW-4 has categorically admitted in his cross-examination that the Police had also given him the numbers of these currency notes 3-4 days prior to the occurrence. This information was supplied by a constable. This statement further raises a doubt the manner in which the prosecution has tried to link the accused with the stolen money. 12. PW-2 Thakur Dass was working as a Contractor in the same department. He was associated when the recoveries were effected on the basis of disclosure statement made by the accused under Section 27 of the Indian Evidence Act for recovering currency notes and Jhabble ( iron rod). He deposed that the currency notes were concealed by the accused near Kaza Hospital. - 7 - 13. PW-5 R.K. Sood also deposed that the currency notes were got recovered by the accused near Kaza Hospital. PW-8 Paras Ram also deposed that the currency notes were got recovered by the accused from a place near Kaza Hospital. The recovery has been effected by the Police from an open place which was accessible to the general public at large. The person who had stolen the money will not hide the same in open place which is accessible to the people at large. In view of this, the recovery of currency notes on the basis of disclosure statement allegedly made by the accused is doubtful and cannot be relied upon. 14. PW-6 Surender Kumar was also working as a Supervisor in the office of PW-5 Shri R.K. Sood. This witness was under the influence of Shri R.K. Sood, therefore, he is not a truthful witness. The statement of PW-5 in whose office the theft has taken place is also not believable. He has deposed that there are two keys of cash chest. One key was kept by him and another key was required to be kept by Senior Assistant. The prosecution has failed to prove that the Senior Assistant has ever proceeded on leave. Thus, the prosecution has failed to explain satisfactorily why two keys were with Shri R.K. Sood, S.D.O. It has also come in the statement of PW-5 that Senior Assistant has never applied for leave. In other words, one key was with Senior Assistant. The prosecution has miserably failed to connect the accused with the alleged offence. The Police has not joined any independent witnesses during the course of investigation. There was P.W.D. colony near the house of S.D.O., however, no local person was involved in the investigation. The - 8 - prosecution has not proved how the money was recovered by the accused from the cash chest which was locked and the keys were with PW-1 Gian Dev and Shri R.K. Sood, S.D.O. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (R.B. Misra), Judge (Rajiv Sharma) Judge June 17, 2010. (bhupender) - 9 -