IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.337 of 1996. Date of decision: 15.3.2010 State of H.P ..Appellant Versus Sanjeev Kumar alias Sanju ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Addl. Advocate General with Mr.Ram Murti Bisht, Deputy Advocate General. For the respondent: Mr.Vishal Panwar, Advocate. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgement of the learned Sessions Judge, Hamirpur dated 7.7.1995 whereby he set aside the judgment of the learned Additional Chief Judicial Magistrate, Hamirpur dated 5.5.1995 passed in case No.37-II/93 convicting the accused of having committed an offence punishable under Sections 380 and 454 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a 2 period of six months and to pay a fine of Rs.500/- for the offence punishable under Section 380, IPC and similar rigorous imprisonment and fine under Section 454, IPC. Briefly stated the facts of the case are that one Man Chand, PW/1 lodged a complaint with the Police Station, Hamirpur that on 11.11.1992 he was not in his home. When he came back, he found that certain jewellery was missing from his house. On the basis of this complaint, an FIR Ext.PW1/A was lodged in which he had stated that when he came home, he found that certain jewellery was stolen. On this, the police made investigation and finally the accused was apprehended. When the accused was in custody, he made two disclosure statements Ext.PW1/B and Ext.PW1/F under Section 27 of the Indian Evidence Act. The only admissible part of the disclosure statement is that he had sold the part of the jewellery to two jewellers in Jawalaji and Shimla and could get the same recovered from the persons to whom he had sold these ornaments. Thereafter, the police took the accused to Jawalaji and Shimla and met the jewellers concerned. The original 3 jewellery except three silver coins was not in its original form and had been melted. Admittedly, there is no specific identification of the silver coins also. Therefore, the material which was recovered could not be said to be the material which was allegedly stolen from the house of Man Singh. On completion of the investigation, the challan was filed and the accused was summoned. The learned Trial Court convicted the accused but the learned Lower Appellate Court acquitted him. Hence the present appeal by the State. The two main circumstances which according to the prosecution link the accused with the commission of the offence are the receipts Ext.PW6/A and PW-12/A according to which the accused had sold certain items to the jewellers in question. Section 27 of the Indian Evidence Act deals with the disclosure of facts. The disclosure need not necessarily be of objects but can be of any facts. We may not agree with the learned Lower Appellate Court that because the ornaments had been melted, there was no proper disclosure statement under Section 27 of the Indian Evidence Act. The fact which 4 was disclosed by the accused and was known to him alone and to none else was the fact that he had sold the stolen items to a particular jeweller. This part of the statement would be admissible in evidence. Having held so, the prosecution must prove that the accused had, in fact sold the items to the persons named in the so called disclosure statement. No doubt both PW/6 and PW/13, the two persons to whom the accused had allegedly sold the stolen goods have stated that they purchased the same from the accused but their statements do not inspire any confidence. PW/6 Puran Chand is a salesman in the shop of one Shri Harish Malhotra at Shimla. Even the name of the shop has not been mentioned either in the statement or in the receipt. According to him, he was only a salesman and the items were purchased on behalf of the shopkeeper. This is apparent from the fact that he in cross-examination had admitted that the receipt was produced out of a ledger which was still lying in the shop. This witness claims that he was still working in the shop in question. The receipt shows that certain ornaments were 5 sold to PW/6 Puran Chand. This itself casts a doubt on the veracity of the receipt because if the alleged stolen items were purchased by the owner of the shop then how this receipt could have been issued by the salesman. The salesman may not have signed the receipt but the receipt should show that in fact, the goods were sold to the owner of the shop and the salesman had signed the receipt on his behalf. Furthermore, there are certain words on this receipt which have been encircled in red which according to him are not in his hand. The prosecution has failed to lead any evidence as to in whose hand, these words have been written. This clearly shows that the receipt has been tampered with and, therefore, no reliance can be placed thereon. Coming to the next witness PW/13, Sh.Rajinder Chopra. He has alleged to have written the receipt Ext.PW12/A whereby the accused sold some gold ornaments and received Rs.5500/- from this witness. The last line of this receipt shows that it has been signed on “12.12.1992”. The figure 12 for the month as well as the date has been over-written. PW/13 stated that the said 6 receipt was written by him. He was asked whether the overwriting was in his hand. He clearly stated that the overwriting was not in his hand. This again shows that the receipt has been tampered with. Assuming for the sake of arguments that the accused did sell the ornaments, but it should have been proved by the prosecution that the ornaments were sold after the theft took place. Once there is overwriting in the date, a doubt arises and, therefore, it is not possible to convict the accused on the basis of this receipt. The statements of PW/6 and PW/13 do not inspire confidence in view of the fact that the written documentary evidence produced does not corroborate their statements. In view of above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 15th March, 2010 (Sanjay Karol) (m) Judge 7