1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 582 of 2001 Decided on May 10, 2011 ________________________________________________________________ State of H.P. …Appellant. Versus Parveen Kumar ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. S.D. Vasudeva, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 21.6.2001, passed by Learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in Criminal Appeal No.4-K/1999 under Sections 457 and 380 of the Indian Penal Code acquitting the alleged respondent-accused in reference to FIR No.195/1994 dated 29.12.1994. 2. Pappu son of Sh.Makholi Ram and present accused- respondent Parveen Kumar were accused for the aforesaid offence and were tried in Criminal Case No.56-II/1995 by learned Additional Chief Judicial Magistrate, District Kangra and both were found guilty of the aforesaid offence and were 2 sentenced punishment till rising of the Court and fine to the amount of `5000/- and in default of payment of fine amount, both the accused-respondents were to undergo simple imprisonment for six months. Accused-convict Pappu son of Sh.Makholi Ram, however, has not preferred any criminal appeal before the learned Sessions Judge, whereas accused- respondent Parveen Kumar preferred criminal appeal No.4- K/1999 before the learned Sessions Judge, Kangra at Dharamshala, against the judgment dated 5.1.1999 passed by learned Additional Chief Judicial Magistrate, Kangra. Learned Session Judge, Kangra at Dharamshala, after admitting the criminal appeal No.4-K/1999, has acquitted the accused- respondents for aforesaid offences. 3. In short, the prosecution case, is that on the intervening night of 28-29.12.1994, both the accused Pappu and Parveen removed some Karyana articles from the shop of Jagrup after breaking open the lock of the shop and committed theft of Ghee, Dal chaney, Gari, Khilari Bidi, Match box, Sugar, tea, Haldi, Toffees, bathing soap, cigarette, Masala and currency to the tune of `925/- total value of `1155/-. In the same night, both the accused committed theft of cement bags from the school under construction at Dargela and removed the cement bags and other articles in a tractor. Thereafter, the accused sold the cement bags at some concessional rate to one Raj Singh at Village Rait. The other articles were sold near a bridge at Rait. On receipt of the information, the accused were arrested. 3 4. After investigation, respondents accused were charged for the aforesaid offences and the case tried by learned Additional Chief Judicial Magistrate. In order to prove its case, the prosecution has examined as many as 7 prosecution witnesses, whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 5. In the present case we have to see the legality of the impugned judgment dated 21.6.2001 passed in respect of accused-respondent Parveen Kumar. PW.1 Sh.Hem Raj, PW.2 Sh.Jagrup, PW.3 Sh.Kewal Singh and PW.6 Sh.Raj Singh were relied upon by the prosecution for convicting both the accused- respondents. PW.1 Sh.Hem Raj and PW.3 Sh.Kewal Singh were the witnesses of recovery of the articles, however, they were declared hostile. PW.1 Hem Raj has denied that the recovery of stolen articles, as alleged, was effected at the instance of the accused Parveen Kumar, as such, the recovery memo becomes doubtful. This makes the prosecution case weak as in the recovery memo reliance has been made on the disclosure statement of accused Parveen Kumar, as such, the involvement of accused Parveen Kumar in the aforesaid offence becomes doubtful. 6. Testimony of PW.3 Sh.Kewal Singh also makes the prosecution case weak and also makes the presence of accused-respondent Parveen Kumar doubtful, as at the time of recovery of stolen articles, PW.3 has admitted only the presence of accused Pappu, a co-accused. Both the witnesses 4 of recovery, who have put their signatures on recovery memo though have been declared hostile, but their testimony cannot be discarded on the ground only that the witnesses of recovery were declared hostile. Whereas, PW.3 Sh.Kewal Singh has admitted the presence of accused Pappu at the time of recovery. 7. The prosecution witness Raj Singh, who had deposed about cement being brought to his house on the night of 28.12.1994 by both accused Parveen Kumar and Pappu and being kept there, cannot be given much credit, however, Raj Singh has received the stolen property, whereas the stolen articles were carried in a Tractor. Therefore, it becomes doubtful that when the stolen articles were carried in a Tractor, there was no reason as to why the place of Raj Singh only was chosen to stack the cement allegedly stolen by the accused. It is surprising that how the stolen cement owned by Subhash Chand (PW.4) could be kept at the place of Raj Singh. We also take note of the fact that PW.4 Subhash Chand, who claims to be the owner of the cement bags, had not lodged any report with the police about cement bags belonging to him having been stolen by accused Parveen and Pappu. The report was lodged only when the recovery of 7 bags of cement was made out of 23 bags of cement were stolen. 8. The depositions of PW.4 Subhash Chand, PW.6 Raj Singh and PW.7 Brij Bhushan cannot be taken in support of the prosecution case, moreso, when in view of testimony of PW.1 Hem Raj and PW.3 Kewal Singh, who depose in Court about the 5 recovery of certain stolen articles having been made through Pappu for which he was convicted but nothing is emanating from the record that recovery was made at the instance of accused-respondent Parveen Kumar and even the persons who were actually involved in the alleged theft. 9. After analysis of the prosecution witness and materials on record, we notice that learned First Appellate Court (learned Additional Sessions Judge) has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 10. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge May 10, 2011 (V.K. Sharma) (Purohit) Judge