IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.251 of 2001. Decided on: February 26, 2011. ___________________________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Babu Ram and another. …..Respondents. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the respondents : Ms. Shalini Pandav, Advocate, vice Mr. Adarsh Vasishat, Advocate. _________________________________________________________________ Per SURINDER SINGH, J : The respondents were charge-sheeted for the offences punishable under Sections 457 and 380 of the Indian Penal Code, for which they were tried and acquitted by the learned trial Court in Criminal Case No.8/2 of 1995, decided on 30th October, 2000. The said acquittal of the respondents has been challenged in the present appeal by the State. 2. The allegations on which the respondents were put on trial can be stated thus. On 24th and 25th November, 1994, there were incidents of theft in Whether reporters of the Local papers are allowed to see the judgment? - 2 - District Solan. On 25th November, 1994, PW6 Arbind Kumar, the then Manager of the UCO Bank Deothi branch noticed that the lock of the main gate of the Bank was broken. He immediately informed telephonically, Police Post Saproon, District Solan. PW16 Anant Ram, Incharge of the aforesaid Police Post visited the spot on the basis of complaint Ex.PW6/A made by Shri Arvind aforesaid. A formal FIR Ex.PW16/A was registered in Police Station Solan. 3. During investigation, PW8 Hoshiar Singh and one Shyam Lal disclosed that during intervening night of 24th/ 25th November, 1994, some thefts were also committed from their barber and confectionary shops respectively. Even PW14 Smt. Aruna Sharma, Headmistress of Government Middle School, Hatti and PW13 Jagmohan, Headmaster of the Primary School Hatti also brought to the notice that some thefts have been committed in their respective Schools also. 4. On 25th November, 1994, the respondents were found travelling in HRTC Bus at Ramshehar. They were apprehended on suspicion by the police of Police Station Ramshehar, later arrested in FIR - 3 - No.81/94 under Section 411 of the Indian Penal Code registered in Police Station Ramshehar, District Solan. The amount alleged to have been stolen in the present case alongwith some other articles was recovered from their possession vide memos Exts.PW9/A, PW4/A and PW4/B. Further, Scissors Exts.P1 to P3 were also got recovered, which were identified by PW8 Hoshiar Singh aforesaid having been stolen from his shop. Respondent Babu Ram made his statement Ex.PW9/B having disclosed about the theft committed by him and pursuant to that, the articles mentioned in the list Ex.PW9/A were also got recovered, which were later on handed over to the Police Station Sadar, Solan. The relevant documents and articles, which were involved in the present theft of Solan were taken into possession by the local police and the challan was presented against the respondents in the Court for the offences aforesaid. 5. The respondents were accordingly charge- sheeted, to which they pleaded not guilty and claimed trial. - 4 - 6. To prove its case, prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. The allegations which were found attendant upon each of them were denied by them. In defence, no evidence was led. 7. Learned trial court considered the matter whether the respondents had committed lurking house tress pass by entering into the premises of UCO Bank, Deothi and committed theft of one Cheque Book of the Bank, one Draft, 19 ticket of 75 paise, 20 ticket of 25 paise, one scissor make ‘Hello’, two Scissors make ‘Nazco’ one Cheque book of state Bank of India, currency notes of `475/- and the coins of 70.66 paise belonging to the UCO Bank, Deothi and also the commission of offence of theft of the Scissors from Barber shop of Hoshiar Singh. On examining the matter on the strength of the evidence placed on record , the learned trial Court noticed discrepancies in the statements of the witnesses and also that the recovery memos were not in conformity with the alleged statements of recovery, thus, disbelieved the evidence led by the - 5 - prosecution, consequently, acquitted the respondents by giving them the benefit of doubt. 8. We have re-examined the evidence on record. There is absolutely no direct or the circumstantial evidence on record with respect to the commission of offence of lurking house tress pass by night and also of commission of theft. Thus the case hinges upon circumstantial evidence in the shape of recoveries alone. 9. The respondents were in custody in FIR No.51/94 under Section 411 of the Indian Penal Code, registered in Police Station Ramshehar and It was only during their personal search at the time of their arrest that the recoveries of certain articles were made as mentioned in the memo Ex.PW4/A from Babu Ram and others recovered from respondent Gian Chand vide memo Ex.PW4/B. These articles were alleged to qua theft cases in Solan, subsequently, their custody was given to the local police of Solan. Now statement of PW11 ASI Prabhu Dayal on this aspect is quite important to note and is relevant. During that time, he was posted as the Investigating Officer in Police Station Ramshehar. He - 6 - had investigated FIR No.51/94 under Section 411 of the Indian Penal Code. He stated that the respondents were called through Constable Sohan Lal in that case and arrested by him and during their personal search, the articles mentioned in Exts.PW4/A and PW4/B were recovered from the respondents and later all these were handed over to PW16 ASI Anant Ram as these were pertaining to their cases, whereas, in the instant case, the story of the prosecution is that the respondents were apprehended by Ramshehar police when they were travelling in the HRTC Bus. He further stated that the personal search of the respondents was conducted in the presence of PW4 Salig Ram and PW5 Ram Rakha. PW5 Ram Rakha did not support the case of the prosecution case. Thus, he was declared hostile. He also disowned his statement alleged to have been recorded by the police under Section 161 Cr.P.C. and stated that nothing was recovered in his presence from the respondents. 10. PW4 Salig Ram admitted in his cross- examination that he had seen these articles mentioned in the aforesaid memos in the Police - 7 - Station, but no personal search of the respondents was conducted in his presence. He also stated that one Radio was lying on the table in the Police Station. Except this, he did not say anything else. Thus, in our considered opinion, the prosecution could not link and prove the recoveries mentioned in Ex.PW4/A and B aforesaid from the person of the respondents. 11. Further, the prosecution has also laid its reliance on the disclosure statement of respondent Babu Ram Ex.PW9/B allegedly recorded on 28.11.1994, which pertains to the recoveries already made on 25.11.1994 vide memo Ex.PW4/A from him. Pertinently, the said disclosure statement was recorded by PW16 ASI Anant Ram with respect to the recovery already made by PW11 ASI Prabhu Dayal, which definitely shatter the entire prosecution story and the evidence of alleged recoveries made from the respondents have become redundant is of no legal value. Further, the recovery of the scooter is made by PW1 HC Joginder Singh under Section 102 of the Code of Criminal Procedure. It has also not been linked with the respondents. Once the - 8 - recoveries have not been proved from the possession of the respondents, its identification by the claimants at a later stage would not fasten the guilt upon the respondents, for the offences charged. 12. In nut-shell, we find that the prosecution could not link the respondents with the alleged theft and the recoveries of the articles which were alleged to have been found stolen from the various places by leading cogent and reliable evidence. Thus, we do not find any material to convert the acquittal of the respondents into their conviction. The findings of acquittal recorded by the learned trial Court are borne out from the record, which requires no interference. As such, the appeal is dismissed being without any merit. 13. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of this case. 15. Send down the records. (R.B. Misra), Judge. February 26, 2011. (Surinder Singh), (Pds) Judge. - 9 -