IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 364 of 1996 Date of Decision : March 16, 2010 State of Himachal Pradesh Appellant Versus Rajinder Singh alias Narinder Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Additional Advocate General with Mr. Ram Murti Bisht, Deputy Advocate General for the appellant. For the respondent : Ms. Vidushi Sharma, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 20.5.1995 delivered by the learned Sessions Judge, Chamba Division, Chamba, H.P. in Criminal Appeal No. 1 of 1995 whereby he allowed the appeal filed by the respondent (accused) and set aside the judgment dated 31.12.1994 passed by the learned Chief Judicial Magistrate, Chamba District, Chamba convicting the accused of having committed offences punishable under Sections 457 and Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 380 of the Indian Penal Code and sentencing him to imprisonment till the rising of the Court and to pay a fine of Rs. 1000/- in respect of each of the offences and in default of payment of fine the accused was directed to undergo simple imprisonment for one month on each count. The allegation against the respondent (accused) is that he committed theft in the house of the complainant Sh. Dharam Chand (PW-1). The complainant lives in the said house alongwith his two brothers and widow of a third brother. On 30.4.1993 the two brothers Sh. Tilak Raj and Baldev Raj alongwith their wives had gone to attend a marriage function in the house of their respective in-laws. The complainant who was employed as a Work Assistant in Chamera Project went to a place known as “Tatru” to take meals in a marriage feast. He returned home at about 12 midnight. His wife and Smt. Sheela Devi widow of the third brother and sister Thakri Devi were present at home. They all went to sleep. In the morning when they got up they found that the rooms in which they were sleeping were bolted from outside. They asked the children to open the doors. According to the complainant one steel almirah was kept in the room which was being used by his brother Sh. Tilak Raj. On 3.5.1993 the complainant went to attend his duty. The key of his steel almirah normally used to remain with him. However, on that day he had handed over the key to his sister Thakri Devi as some payments were to be made to the masons and labourers. 3 After the complainant went to perform his duty Thakri Devi opened the room in which the almirah was kept. She found that the almirah had been cut and all the ornaments and cash were stolen. When the complainant returned in the evening of 3.5.1993 they first tried to find out themselves what had happened and after that lodged a complaint with the police. The case was investigated and the accused was arrested. He allegedly made two disclosure statements Ext. PW 4/A and Ext. PW 1/C. In the first disclosure statement Ext. PW 4/A the accused allegedly stated that he had kept the gold and silver ornaments in a cloth bag which had been kept in a tin box and then kept concealed by him at “Ghasitan” in a natural cave. He further stated that the currency notes were concealed by him in the crack of a stone at a place known as “Sappar” situated near his land. He also disclosed that he had kept the instrument used for cutting the almirah (“Chaursi” Ext. P-1) in his house in the almirah. The other part of the disclosure statement is not admissible since that is confessional in nature. According to the police on such disclosure statement being made, the currency notes, gold and silver ornaments and the “Chaursi” were recovered. The second disclosure statement Ext. PW 1/C is totally inadmissible in evidence since in this statement the accused is pointing out at the scene of the theft and the manner of committing the offence. This is not a disclosure statement under Section 27 of the Indian Evidence Act, 1872 and the same is in the nature of a confessional statement. 4 Since this statement has been made to the police it is inadmissible in evidence. Therefore, the only evidence linking the accused to the offence is the recovery and the disclosure statement Ext. PW 4/A. The two witnesses of this disclosure statement are Sh. Munshi Ram (PW-4) and Sh. Kaka Ram (PW-5). Both of them turned hostile and did not support the prosecution. Sh. Munshi Ram (PW-4) is a cook in the Police Line and Sh. Kaka Ram (PW-5) is a stock witness since he admitted in his cross examination that he had appeared as a prosecution witness in about 25 to 30 cases pertaining to police station, Chamba. The disclosure statement is purported to have been made on 7.5.1993. Both these witnesses state that they were asked to sign the disclosure statement at the police station at night on 7.5.1993. This version is totally contradicted by Sh. Dharam Chand (PW-1) and Sh. Nudhu Ram, Pradhan of the Panchayat (PW- 2). According to the complainant (PW-1) the police visited the village where the theft had taken place on 5.5.1993. The accused was arrested on 6.5.1993 and the disclosure statement was made by him on 7.5.1993 in the presence of the villagers in the village. He states that the disclosure statement was made by the accused while sitting in the courtyard at about 11 a.m. Thereafter the persons who were present there had gone to the disclosed places and the aforesaid articles were taken out by them. Sh. Nudhu Ram (PW-2) states that the recovery was affected on 7.5.1993 whereas according to the prosecution the recoveries were made vide recovery memos Ext. 5 PW1/D, Ext. PW1/E and Ext. PW1/F on 8.5.1993. Thus it cannot be said that the recovery was made in the manner set out by the prosecution. No conviction can be based on this disclosure statement which does not at all inspire confidence. The learned Sessions Judge rightly acquitted the accused. We find no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. The case property, if not disposed of already, shall be disposed of in accordance with the orders of the learned trial Court. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 16, 2010 (PK)