IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 155 of 2002 Date of decision: 26.12.2008 State of H.P. Appellant Versus Anil Kumar and another Respondents Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Ms. Shubh Mahajan, Deputy Advocate General. For the respondents: Mr. Rakesh Jaswal, Advocate. V.K.Ahuja, J. (Oral): This is an appeal filed by the State of Himachal Pradesh against the judgment of the Court of learned Chief Judicial Magistrate, Hamirpur, dated 29.9.201, vide which the respondents were acquitted of the charge framed against them under Sections 457, 511 read with Section 34 I.P.C. Briefly stated, the facts of the case are that on 14.7.1996, at about 12.05 during night time, a telephonic message was received at Police Station, Hamirpur, from one Rita Devi that one unknown person had entered their house with an intention to commit theft, who has been apprehended by them. A request was made to send some Police Officer to conduct the proceedings. On this rapat, PW HC Mahinder Sain was deputed to go to the spot, who went to the spot, recorded the Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 statement of Tilak Raj under Section 154 Cr.P.C. In the said statement, he alleged that on the previous evening his son Naveen Sharma, aged about 4½ years, had fallen in the Verandah and he was got admitted in the hospital. At about 11.30 P.M. today, he came alongwith his son from the hospital and was having a torch in his hand, he noticed that one person got down from the stairs of their house and he jumped from the Verandah and then to the courtyard and ran away. It was alleged that two persons had made this attempt and one of them was apprehended in the maize field, namely, Anil Kumar, while the other person whose name was learnt from the accused Anil Kumar as Sanjay Kumar, ran away from the spot. He further alleged that he can identify the said accused, if produced. He further alleged that this occurrence was witnessed by Ram Lal, Kishan Chand and one Baldev Raj. On this report, a case was registered and after investigation, the challan was filed as against the respondents before the learned trial Court, who tried the respondents, leading to their acquittal. I have heard Ms. Shubh Mahajan, learned Deputy Advocate General, for the appellant and have also gone through the record of the case. On appraisal of the record of the case, it is clear that the prosecution had examined five witnesses to substantiate their case and out of them only two witnesses were examined as eye witnesses, whose statements can be said to be very material. In so far as, accused Sanjay Kumar is concerned, there is no evidence to establish his identity that he has made his good escape at that time. PW-1 Tilak Raj has admitted that two persons tried to run away, but one of them Anil Kumar was apprehended, while the other Sanjay Kumar ran away, though, he came up with the plea that he had identified Sanjay also. 3 PW-2 Baldev Raj, the only eye witness examined in the case, has stated that he saw two persons running after jumping from the Verandah. PW-1 Tilak Raj ran away in following the said persons and apprehended one person who was Anil Kumar, while the second person had run away in the darkness. He could not identify the said person. Therefore, solitary statement of PW-1 Tilak Raj that the second accused was Sanjay Kumar cannot be relied upon to hold him guilty and, therefore, those findings of the learned trial Court holding that the prosecution had failed to prove its case against accused Sanjay Kumar call for no interference by this Court. Coming to the evidence as against accused Anil Kumar, PW-1 Tilak Raj has admitted that the said person had jumped from his house but was apprehended in his field at some distance. The learned trial Court had considered this question that the possibility that Anil Kumar was apprehended going from the common path cannot be ruled out since no witness has corroborated this statement that he had jumped from the Verandah to the outside of the house of the complainant. The complainant had only alleged that one person got down hurriedly jumping and he tried to apprehend him but he was apprehended in his field. It is, therefore, clear that the complainant had not apprehended accused Anil Kumar attempting to enter his house with an intention to commit theft or any other offence. PW-2 Baldev Raj has also stated that the complainant followed the accused and apprehended him at some distance and he had identified him. He also admitted that there was darkness and the second person ran away in the darkness. This witness has firstly stated that there was no light but again stated that the light was in the hand of PW-1 Tilak Raj, meaning thereby that he was holding a torch. The said torch was never taken 4 into possession by the police. In further cross-examination, he has stated that the lights were off and it was sufficiently dark at that time and the persons could not be identified. It is also clear that he had no where stated that he had seen Anil Kumar jumping from the house of the complainant. He admitted that ad-joining to the house of the complainant, there is a common path, which also gives support to the observations of the learned trial Court that the possibility that accused was apprehended while going from the common path, cannot be ruled out. The complainant in the complainant had alleged that he was coming from the hospital alongwith PW-2 Baldev Raj, his relative, though his statement was recorded after a lapse of time by the Investigating Officer who reached the spot and recorded his statement. However, in the last portion of his statement, he had simply stated that Ram Lal, Kishan Chand and Baldev Raj from the village, had seen the occurrence, though this Baldev Raj is living away at 17KM from the house of the complainant and is closely related to the complainant. Therefore, it cannot be said that the name of this Baldev Raj was mentioned by the complainant in his statement. The two other witnesses who had allegedly seen the occurrence, namely Ram Lal and Kishan Chand, were given up by the prosecution having been won over by the accused. No such inference can be drawn that these witnesses if examined would not have stated truthfully and it was for the Prosecutor to examine them and subject them to cross-examination, even if they turned hostile, then an inference could have been drawn by the Court in regard to their depositions. The complainant, namely, Rita Devi, sister of the complainant, who lodged the report with the police was not produced by the prosecution as a witness. The statements of the 5 complainant and PW-2 Baldev Raj are not such upon which implicit reliance can be placed to hold that the prosecution had proved their case against the accused beyond any reasonable doubt. The final findings recorded by the learned trial Court cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondents shall stand discharged forthwith. December 26, 2008 ( V.K.Ahuja ), (BSS) Judge 6