IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 493 of 2000 Decided on: 23.11.2010 State of H.P. ..…Appellant Versus Raju alias Surjit Kumar. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. A.G. For the respondent : Ms. Archna Dutt, Advocate, as Amicus- Curiae. R.B. Misra,J. (Oral) Ms. Archna Dutt, Advocate is requested to assist the Court as amicus-curiae and she has kindly agreed for the same. 2. The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 17.10.1997, passed by learned Chief Judicial Magistrate, Hamirpur, H.P. in Criminal Case No. 73-II of 1997, acquitting the respondent-accused for the offence, under Sections 454/380 of the Indian Penal Code. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case is that Vishwanath PW-1 was away from the house at his Shocker repair shop, his mother informed him that theft has taken place and household goods including golden and silver ornaments worth Rs. 22500/- have been stolen from the house. PW-1 Vishwanath rushed to the house and found that locks of his two trunks were broken and his belonging were lying here and there and ornaments of golden and silver such as two Tikas, two golden Naths, three golden rings, two silver necklaces, two pairs of anklets (Pajebs), two silver hair pins and two pairs of silver anklets (Pajebs) were found missing. FIR was registered and after investigation respondent-accused was charged for the aforesaid offences and case was tried by Chief Judicial Magistrate. 3. In order to prove its case, the prosecution examined as many as seven prosecution witnesses, whereas the respondent-accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW-1 Vishwa Nath, the complainant, has stated that on 14.1.1997 he received a telephonic message/call from his mother that ornaments were stolen from the house and accordingly he came and found that golden and silver ornaments were missing, FIR was registered. On inquiry, PW-1 also came to know that some Charanis came to the house two days back and he was having doubt over those Charanis also. However, he made application Ext.PW1/A to the police, upon which police swung into action and respondent-accused made a disclosure statement that he had concealed the ornaments under the grass and two Naths, one Tika, one golden ring, one 3 necklace, one pair of hair clips, one Choora were earlier recovered from the bag of the respondent-accused and the ornaments were got identified by the police through PW-1 at Nadaun in the presence of Naib Tehsildar. PW-2 R.L. Thakur, Naib Tehsildar stated that on 1.2.1997 at 4.00 P.M., SHO, Police Station, Nadaun made an application for identification of articles sealed in a parcel, which was opened and similar ornaments were demonstrated with the stolen ornaments and then PW-1 called to identify his ornaments, who has identified the same. PW-3 Smt. Leela Devi, wife of Shri Dina Nath and the mother of Vishwa Nath PW-1 has stated that she was with her daughter- in-law in the house and she has just gone to collect fodder from the field, during that interval theft was committed and when she came back she found door opened and the trunks were opened and clothes and ornaments were found missing. PW-4 Braham Dass, Ex-Pradhan, Gram Panchayat, Kangoo joined the investigation and in presence of him and Mehar Singh the police had taken into possession one trunk Ext.P7 of which bolt was broken vide memo Ext.PW4/A. According to prosecution, as per disclosure statement made by accused Raju he had divided his share of ornaments and one Baloo Tika, one golden ring, one pandel silver, one choora silver were hidden by him under the grass which he could recover by giving demarcation and his disclosure statement Ext.PW4/B was recorded. PW-5 Jagar Nath also stated as per record date of birth of Surjit Kumar is 29.5.1980. PW-6 HC Bachitter Singh has stated that on 14.1.1997 Vishwa Nath made an application Ext.PW1/A upon which FIR Ext.PW6/A was registered by him. PW-7 SI 4 Amar Chand has stated that he remained posted as SHO at Police Station, Nadaun since 1996 and at the instance of PW-1 FIR No. 5/97 was registered. In view of the disclosure statement made by the accused under Section-27 of Evidence Act, stolen ornaments were got recovered under a heap of grass which were taken into possession vide memo Ext.PW4/C. 5. On analysis of prosecution witnesses and materials on record, we notice that PW-1 has stated that Choora was recovered on 15.1.1997 at 3.00 P.M. If the version of PW-1 is believed as true then what was the need of recording the disclosure statement on 16.1.1997, when recovery was already made. Apart from this, Choora is also included in the list which is alleged to have been recovered at the instance of accused along with other golden and silver ornaments but PW-1 has stated that two Naths, one Tika, one golden ring, one pair of hair clips and one Choora had earlier been recovered from the bag of the accused as is evident from the examination-in-chief of PW-1 which is altogether contradictory to the disclosure statement, as per recovery memo complainant had stated that ornaments had already been recovered on 15.1.1997. The disclosure statement is not proved on record as some of recovery is stated to have been affected on 15.1.1997, whereas, this disclosure statement in respect of stolen goods was recorded on 16.1.1997 under police custody, therefore, reasonable doubt is created in genuineness of the case of the prosecution. We also notice that none of the prosecution witnesses has ever stated that stolen articles were found having been concealed in his sister in law’s house. In the facts and circumstances, the recovery of few 5 stolen goods on 15.1.1997 at 3.00 P.M. and disclosure statement having been made by accused about those articles on 16.1.1997 creates serious doubt. The place of recovery also creates doubt. The testimony of PW-4 that Charanis had come to his house over whom PW-1 was having suspicion, creates doubts in the prosecution case. . 6. In the facts and circumstances, learned trial Court had rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the respondent-accused. Accordingly, the appeal, being devoid of any merit is, therefore, dismissed. 7. Bail bonds, furnished by the respondent-accused, are hereby discharged. 8. Word of appreciation is placed on record for Ms. Archna Dutt, Advocate, who has assisted this Court as Amicus- Curiae. (R.B. Misra), Judge. November 23, 2010, (Sanjay Karol), Judge. (vs)