IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 644 of 2001. Judgement reserved on: 18.9.2008. Date of decision: September 26, 2008. State of H.P. ….. Appellant. Vs. Desh Raj …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Addl. Advocate General and Mr. J.S. Guleria, Law Officer. For the Respondent : Mr. Dharamvir Sharma, Advocate. Kuldip Singh, Judge. The State has come in appeal against judgement dated 13.7.2001 passed by learned Addl. Chief Judicial Magistrate, Court No.1, Shimla in case No. 125/2 of 2000/95 acquitting respondent under Section 454 IPC. 2. The prosecution case in brief is that statement Ex. PW 1/A of PW 1 Dinesh Kumar was recorded under Section 154 Cr.P.C. in which he has stated that on 27.4.1995 at about 9.30 a.m., he was going to his office from his quarter, on the way towards the quarter of his friend Naresh Sharma he had noticed that a boy with iron rod in his hand was going up stairs in 17-C. In the meantime, he heard Whether the reporters of the local papers may be allowed to see the Judgment? …2… sound of breaking of a lock of the door, he immediately went up stairs and when he reached near the quarter of Naresh Sharma, he saw that the lock of his door was broken. He came down and went up with neighbour Gurdial Negi and saw an iron rod lying outside the door. He pressed the door bell but nobody responded, he pushed the door and entered the room and found that a stranger (boy) inside the room, he asked from that boy about Naresh Sharma, he said that he had gone to office. Thereupon both of them came out and the boy closed the door from inside. On suspicion, he bolted the door from outside. He requested his another friend Dinesh Verma to inform Naresh Sharma on telephone. On this, police came on the spot and recorded his statement. The stranger (boy) disclosed his name as Desh Raj. The statement Ex. PW 1/A was recorded by PW 4 Inspector Ram Saran. On the statement of PW 1, FIR Ex. PW 3/A was registered, spot map Ex. PW 4/A was prepared, recoveries of locks Ex. P 1, Ex. P 2 and rod Ex. P 3 were effected through memos Ex. PW 2/A and Ex. PW 4/B. On completion of investigation, challan was presented in the court. The respondent was charged for offence punishable under Section 454 IPC, to which he pleaded not guilty. The prosecution has examined five witnesses. The statement of respondent was recorded under Section 313 Cr.P.C., in which he pleaded his innocence. The learned Additional Chief Judicial Magistrate acquitted the respondent on 13.7.2001, hence this appeal. 3. I have heard Mr. A.K. Bansal, learned Additional Advocate General with Mr. J.S. Guleria, Law Officer for the appellant, Mr. Dharamvir Sharma, learned counsel for the respondent and gone …3… through the record. On behalf of the appellant, it has been submitted that learned Additional Chief Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondent. The prosecution has proved the case against the accused beyond reasonable doubt and therefore, submission has been made for setting aside the impugned judgement and convicting the respondent under Section 454 IPC. The learned counsel for the respondent has supported the impugned judgement and has submitted that learned Additional Chief Judicial Magistrate has rightly appreciated the material on record. The prosecution has miserably failed to prove the case and therefore, judgement of acquittal recorded by the learned Addl. Chief Judicial Magistrate does not require any interference. 4. PW 1 Dinesh Kumar in his statement in the court has stated that on 27.4.1995 at about 9.30 a.m. he saw the accused going up stairs with an iron rod in his hand, he heard the sound of breaking of the lock. He went there and pressed the door bell and accused opened the door, on his asking the accused told that Naresh Kumar had gone to office. The accused closed the door and he also bolted the door from outside. Thereafter he informed the police from the residence of Dinesh. Rajesh Sharma his colleague came with police and police recorded his statement Ex. PW 1/A. In cross examination, he has stated that he has heard portion A to A of his statement Ex. PW 1/A which is wrong. He did not enter the house nor he called Gurdial Negi, according to him portions B to B and C to C of his statement are wrong. He came to know the name of the accused …4… from Court summons and admitted that he was not aware of the name of accused. The lock was not broken in his presence. 5. PW 2 Naresh Sharma has stated that at about 10.00 a.m., on 27.4.1995 he was informed by his colleagues that lock of his house had been broken and the man had been caught and was kept there in the house. He went to the Police Station but before him Rajesh was already there. The police went to the spot, the door was open and the accused was inside the house. He has signed memo Ex. PW 2/A. The broken locks Ex. P 1 and Ex. P 2 are the same which were sealed. He did not support the prosecution on the point of recovery of rod and was declared hostile. In the cross examination conducted on behalf of the prosecution he has stated that he does not know that iron rod was taken into possession by the police. He rather volunteered that police had taken away iron rod. 6. PW 3 D.W. Negi, Dy. S.P., Junga is a formal witness and he has stated that in the year 1995, he was S.H.O., Police Station, Chhota Shimla. On completion of investigation, challan was presented. FIR Ex. PW 3/A was written by ASI Besar Singh, who was murdered. PW 4 Inspector Ram Saran has stated that in the year 1995, he was posted at Police Station, Chhota Shimla as Addl. S.H.O. He recorded the statement under Section 154 Cr.P.C. Ex. PW 1/A of Dinesh Kumar. The recoveries were made through memo Ex. PW 2/A and Ex. PW 4/B. In cross examination he has stated that he visited the spot, there was none except policemen when he reached the spot, door was closed and bolted from outside. Naresh reached the spot about 20 minutes after the arrival of this witness. PW 5 …5… Rajesh Sharma is a witness to recovery memos Ex. PW 2/A and Ex. PW 4/B. 7. PW 1 is the material witness but he has contradicted himself. In his statement Ex. PW 1/A recorded under Section 154 Cr.P.C., he has stated that he called Gurdial Negi. He pressed the door bell but none responded and thereupon he pushed the door and went inside. He saw one stranger (boy) in the room of Naresh Sharma who on inquiry told that Naresh Sharma had gone to office. Thereafter both of them came out and the boy closed the door from inside, he on suspicion bolted the door from outside. He requested his friend Dinesh Verma to inform Naresh Sharma on telephone. In his statement in the court, he has stated that he pressed the door bell and upon this, accused opened the door. The accused closed the door from inside and he bolted the door from outside. In his statement in the court he has not stated that he called Gurdial Negi and Gurdial Negi was on the spot when he entered in the room of Naresh Sharma. He was confronted with portions A to A, B to B and C to C of statement Ex. PW 1/A, he denied to have made such statement. In his statement in the court he has stated that he came to know the name of accused through summons, whereas in his statement Ex. PW 1/A he has stated that on inquiry, accused disclosed his name as Desh Raj. Gurdial Negi has not been examined by prosecution. 8. PW 1 has made improvements and variations in his statement and therefore, he cannot be relied. PW 2 Naresh Sharma is not an eye witness. He has stated that when door was opened, …6… accused Desh Raj was inside the room. PW 2 Naresh Sharma has stated that he does not remember whether iron road was taken into possession or not and he was declared hostile. From the cross examination of this witness, nothing could be extracted by the prosecution. PW 4 Inspector Ram Saran has stated that Naresh reached the spot about 20 minutes of their arrival on the spot. In these circumstances, PW 2 Naresh Sharma can also not be relied in support of the prosecution. PW 4 Inspector Ram Saran in his statement has stated that when police reached spot at that time except policemen no one was on spot. The prosecution has led contradictory evidence to the effect whether the door was bolted from inside when prosecution witnesses and police reached the spot or it was just closed and the prosecution witnesses as well as police of their own opened the door and went inside. The learned Addl. Chief Judicial Magistrate on the basis of material on record has rightly come to the conclusion that prosecution has failed to prove the case against the accused, under Section 454 IPC. The view taken by the learned trial Magistrate is a possible view from the evidence on record. No case for interference has been made out. 9. Resultantly, the appeal is dismissed, bail bonds of respondent are discharged. September 26, 2008. ( Kuldip Singh ) (Hem) Judge.