IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 396 of 2004 Decided on : 29.10.2010 ______________________________________________________________ State of Himachal Pradesh …Appellant. Versus Madan Kumar and another …Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1 No. For the appellant : Mr. Anil Jaswal, Dy. Advocate General. For the respondents : Mr. Vinay Thakur, Advocate. _______________________________________________________________ V.K. Sharma, Judge (oral). The State is in appeal against the judgment dated 29.1.2004, of the learned Sub Divisional Judicial Magistrate, Rampur Bushahr, whereby the respondents herein who shall hereinafter be referred to as ‘the accused’ were tried for the offence under Section 379 IPC and were ultimately acquitted. 2. The gravamen of charge against the accused was that on the basis of circumstantial evidence they were connected with the alleged offence of theft relating to the tyres and petrol of Maruti Van bearing registration No. HP-01-0375 belonging to 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 the complainant Shri Dinesh Kumar (PW-1) and audio cassettes lying therein. 3. In brief the case of the prosecution was that on 23.6.2000 at about 6.00 PM the complainant, PW-1 Dinesh Kumar had parked his Van at a place known as Taklach and had thereafter left for his home situate at some distance from there. On the following day (24.6.2000) at about 9.00 AM he found that all the four tyres of the vehicle were missing. Apart from that about 10 litres of petrol and 8-10 audio cassettes were also found to have been stolen from the vehicle. Then he came back home and narrated the incident to his father. It is stated that thereafter he kept on searching for the stolen articles. It was only on 26.6.2000 at about 12.00 noon that while he was sitting in another Maruti Van bearing registration No. HP02-2009 at Nogli, he found that one of the stolen audio cassette was lying in the said Van. On this he enquired about it from the driver of that Van, Krishan Kumar, who told that the cassette was already lying in the vehicle since 24.6.2000,when he was engaged as driver in that vehicle by the earlier driver Madan Kumar (accused No.1). 4. On completion of investigation the accused were sent up to face trial. On being charged, they pleaded not guilty and claimed to be tried. The prosecution evidence followed. It examined as many as 5 witnesses. On close of the prosecution evidence the accused were examined under Section 313 Cr.P.C., wherein, their 3 defence was that of total denial. However, they did not lead any evidence in defence. 5. On conclusion of the trial the accused were acquitted. It is how the State is in appeal before this Court. 6. I have heard the learned Dy. Advocate General appearing on behalf of the State and the learned counsel for the respondents and perused the record. 7. Whereas accused No.1 Madan Kumar was sought to be connected with the alleged offence on the basis of the alleged disclosure statement made by him under Section 27 of the Evidence Act, accused Harish Kumar was arraigned on the allegation that he had produced the stolen cassettes to the police. In so far as the disclosure statement and consequent recovery of tyres is concerned, the learned trial court on appraisal of the evidence on record has concluded that the recovery of the tyres stood already effected on 28.6.2000 at 2.00 PM in utter contradiction to the case of the prosecution that the same were recovered on 29.6.2000. There are inherent contradictions in the statements of PW-2 Bhagwan Dass and PW-3 Shri Subhash Chand, with regard to production of audio cassettes by co-accused Harish Kumar vide memo Ex.PW-1/D. Suffice it to say that the evidence with regard to production of these cassettes is also not upto the mark. Furthermore, memo 4 Ex.PW-1/D which is based on an inculpatory statement cannot be taken into consideration as legally admissible evidence. 8. For the reasons stated above, I see no reason for any interference with the impugned judgment of acquittal dated 29.1.2004. Accordingly, the appeal is dismissed. (V.K.Sharma) Judge. October 29, 2010. Lsp*