IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 247 of 1997 Decided on : 18.08.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Pankaj Guleria … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra Addl. Advocate General. For the respondent : Mr. B.S. Thakur, Advocate. _________________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 7.3.1996, passed by the learned Judicial Magistrate 1st Class, Court No.2, Shimla, H.P, in Case No. 36/2 of 1996, acquitting the accused-respondent for the offences under Sections 454/380 IPC. 2. The prosecution case is that on 13.1.1996, complainant PW-2 Vimal Negi lodged a report Ex.PW-2/A before police post Sanjauli, regarding theft of Rs. 14,900/- alleging that a sum of Rs. 14,900/- kept in an almirah was stolen from Room No. 109, Bhabha Hostel, Indira Gandhi Medical College, Shimla, (IGMC for 1 Whether reporters of the local papers may be allowed to see the judgment? 2 short). It was further alleged that on 12.1.96 one Vikrant and his friend Pankaj Guleria had come to Room No. 109, Bhabha Hostel IGMC in connection with release of Motor Cycle of complainant when a sum of Rs. 500/- along with RC of Motor Cycle was handed over to said Vikrant in presence of accused Pankaj Guleria and that the said sum of Rs. 500/- was taken from almirah and both Vikrant and accused Pankaj Guleria had seen the said sum of Rs. 14,900/- which was wrapped in a Motor Cycle cover. Both Vikrant and accused had then enquired the complainant of his next day programme and had also fixed an appointment on 13th January, 1996 between 4.30 P.M. to 5.00 PM at the Mall Shimla, but none of them turned up. On reaching Room No. 109, the lock on the door was missing and it was simply bolted and on opening the door, the entire belongings were in mess and the aforesaid sum of Rs.14,900/- viz. currency notes of the description of 100x90=9000/- loose and 50x100=5000/- bundle were found missing. A daily diary report Ex.PW-1/A was recorded in P.P. Sanjauli and on the basis of the same, F.I.R Ex.PW-7/A was registered in P.S. Dhalli. During investigation spot of theft was visited by the investigating officer and Motor-Cycle cover Ex.P-93, Lock Ex.P-94 and Rod Ex.P-95 alleged to have been kept in the bed were handed over to the investigating officer by complainant Vimal Negi and were taken into possession vide Memo Ex.PW- 2/D and spot map Ex.PW-7/B was prepared. Accused Pankaj Guleria was arrested by the I.O on 14.1.96. It is alleged that on 3 15.1.96 accused Pankaj Guleria while in police custody made a confessional statement Ex.PW-4/A under Section 27 of Indian Evidence Act to the effect that on 13.1.1996 at about 3.45 PM he alone had broken the lock of Room No. 109 with a rod and stolen a sum of Rs. 14,900/- and had kept them in a pillow cover in the bed room of one Arun Dutta at Happy Cottage Sanjauli, Shimla and he can get the same recovered. Accused Pankaj Guleria pursuant to aforesaid statement Ex.PW-4/A was taken to the quarter of Arun Dutta at Happy Cottage and he got recovered a sum of Rs.14,000/- viz. currency notes of 100x90=9000/- description and 100 notes of Rs.50/- which were taken in possession by possessory memo Ex.PW-2/B along with pillow Ex.P-1, spot map of recovery Ex.PW-5/C was also prepared. Accused also led police officials to Room No. 109 Bhabha Hostel IGMC Shimla and identified the said room vide memo Ex,PW- 2/C. After completion of investigation, accused Pankaj Guleria was challaned for the commission of offence punishable under Section 454/380 IPC. 3. In order to prove its case the prosecution has examined as many as 9 witnesses. Whereas the accused-respondent had denied the prosecution case. 4. The place of occurrence is a hostel of Medical College consisting of more than 50 rooms and 26-27 rooms are situated on the wing where the alleged theft is stated to have taken place in broad day light. However, none of the inhabitants of the hostel 4 could notice such house breaking or even see that a stranger had entered the hostel and no warden or perfect of the hostel is aware of the theft. The testimonies of PW-2 Vimal Negi, PW-3 Ajay Singh, PW-6 Vikrant and PW-7 Amit Bhardwaj are most material from the point of view of prosecution. PW-2 Vimal Negi had deposed that on 13.1.96 at about 3.00 PM he found his lock missing and door was simply bolted. He had further deposed that lock was recovered by him when he came back after lodging FIR and next day lock and rod were handed over to the police. In cross examination PW-2 Vimal Negi had taken a new stand that lock and rod were recovered by him on 14.1.96 from his bed. PW-2 had admitted that he slept in same room during night but it is quite strange that he could not see the rod and lock. On the other hand PW-3 Ajay Singh deposed that police came on 13.1.96 itself and rod Ex.P-95 and cover Ex.P-93 were taken into possession on the same day. PW-3 has admitted in his cross examination that when he first went to the room of PW-2 only cover was there and lock and rod were not there and lock and rod were recovered only when police came. 5. On analysis of statements of PWs-2 and 3 it appears that there are material contradictions emanating. As per the versions of PW-2 and PW-3 the rod and lock were not there in the room when they entered the room after alleged house breaking. Further the key of the lock has not been recovered and there is no explanation to this effect. It is also strange that a person sleeping 5 in the same room could not see the rod in the bed in which it was kept. Therefore strong presumption arises that the lock and rod were kept in the room in between the lodging of FIR and return of complainant from Police Post Sanjauli by someone else. Admittedly no one has seen the accused entering the room and theft cannot be linked with the accused and only circumstantial evidence could be collected. PW-4 is a Home Guard. PW-5 Mast Ram on the other hand deposed that the alleged statement Ex.PW-4/A was given at 7.00 or 7.30 PM and he did not go inside the police post. If statements of PW-4 and 5 are believed to be true there are contradictions qua the time as well as making of statement. If statement of PW-4 is believed the statement was given in between 3.45 PM and 4.00 PM, whereas in terms of PW-5 the statement was given at about 7.00/7.30 PM. PW-4 stated that PW-5 was already sitting in police post Sanjauli, whereas PW-5 stated that he never entered the police post. As such PWs-4 and 5 do not inspire confidence. 6. On analysis of prosecution witnesses and material on record we notice that link evidence is missing and the prosecution witnesses are not inspiring confidence. On the basis of material on record, the learned trial court has 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 prove its case and we do not find any scope for 6 interference with the impugned judgment of acquittal. Accordingly, the appeal is dismissed being without any merit. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 18, 2010. (lsp)