IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 351 of 2007 State of Uttarakhand …………. Appellant Versus 1. Sanjay Kumar S/o Sri Sobha Ram R/o Village Kheria Police Station Gamana District Aligarh present police Station Almora 2. Vikram Singh S/o Sri Sohanpal Singh R/o Village Nathhugeda police Station Gulawati District Bulandshahar. ……….Respondents Shri M. A. Khan and Shri B.S.Parihar, Brief Holder, present for the appellant/State. Shri Arvind Vashist, Advocate, present for the respondent Hon’ble Prafulla C. Pant, J. This appeal preferred under section 378 of Code of Criminal Procedure 1973, is directed against the judgment and order dated 31.08.2004, passed by Sessions Judge, Pauri Garhwal, in Criminal Appeal No. 10 of 2002, whereby respondents Sanjay 2 Kumar and Vikram Singh are acquitted of the charge of the offences punishable under section 380 and 411 of Indian Penal Code, 1860, (for short I.P.C). (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that respondents Sanjay Kumar and Vikram Singh were constables with the Uttar Pradesh Police posted in District Pauri. PW1 Ram Arun Fire Extinguish Officer lodged First Information Report (exhibit A- 1) on 19.04.1999 alleging that he had gone to Chamoli in connection with earthquake relief duties. He further disclosed in the report that PW2 Brijlal Dabral Leading Fireman had kept an amount of Rs. 1,443 in an envelope in an Almirah which is kept in cash box. There were four coins of denomination paisa 25 also in the envelope. 3 However, when on 19.04.1999 that envelope was searched, the same was not found. On the same day when other articles were checked it was found that a recruit blanket, three PT sweaters and three pocket lines were also found missing. PW1 Sri Ram Arun also mentioned in his report exhibit A- 1 that similar kind of theft had taken place in consumer store in Police Lines and it is possible that the same theaves might have committed the crime. On the basis of aforesaid report crime no 133 of 1999 was registered at police station Pauri, relating to offences punishable under section 457 and 380 of I.P.C against unknown persons. Investigation was taken up by Sub Inspector H.L. Tamta (since deceased). During investigation accused/respondents Sanjay Kumar and Vikram Singh said to have confessed the commission of theft and recovery of stolen articles was made on 4 pointing out of accused/respondent on the very day i.e. 19.4.1999, which included four tea leaves packets, two Toothbrush, two packet of wheel powder, one packet of Aravali Vanaspati, one packet of Premium Gold Coffee, nine cakes of Lux , three cakes of Dettol Soap, six cakes of Rin soap 300 gm, three cakes of Rin Shakti 250 gm , three packet of Jyoti, one packet of Jeera, two Colgate gel 50 gm, two Toothpaste Closeup 50 gm, one cherry polish, one packet of blade, two packet of clinic plus shampoo (small), one packet of Ezee (small) and empty envelope from which the money was already taken out two P.T under shirts and two keys were recovered. The aforesaid items except the envelope and two P.T under shirts related to crime no. 111 of 1999 i.e. the theft committed from the Consumer store police lines. This case pertains to crime no. 133 of 1999 which relates to 5 money kept in the aforesaid envelope and the two woolen under shirts, a recovery memo (exhibit A-3) was prepared on the very day i.e. 19.04.199. After completion of investigating the Investigation Officer submitted charge sheet (Exhibit-A11)against the accused/respondents Vikram Singh and Sanjay Kumar for their trial in respect of offences punishable under section 457, 380, 511 I.P.C. (4) The Chief Judicial Magistrate, after giving necessary copies, to the accused, as required under section 207 of Cr.P.C, heard the parties and framed charge of offences punishable under section 457, 380 and 411 I.P.C against both the accused, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Shri Ram Arun(complainant), PW2 Brijlal Dabral, PW3 Sub Inspector Brijmohan Gairola, PW4 Inspector Sheesh Pal Singh and PW5 6 Sub Inspector Anand Singh Kathait. Oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which they alleged that the have been falsely implicated in the crime. However, no evidence in defence was adduced. The trial court, after hearing the parties found both the accused guilty of charge of offences punishable under section 380 and 411 of I.P.C. After hearing them on sentence each one of the convicts was sentenced to rigorous imprisonment for a period of one year and also directed to pay fine of Rs. 500 under section 380 of I.P.C., and rigorous imprisonment for a period of six months and directed to pay fine of Rs. 500 under section 411 of I.P.C. Aggrieved by said judgment and order dated 30th of September 2002 passed by Chief Judicial Magistrate, Pauri Garhwal in criminal case no. 595 of 1999, the convicts preferred criminal appeal no 10 of 2002 before 7 Sessions Judge, Pauri Garhwal. Learned Sessions Pauri Garhwal, after hearing the parties allowed the appeal vide impugned order dated 31.08.2004, Hence this appeal was filed on behalf of the State after seeking leave to appeal. (5) Learned counsel for the State argued that the lower appellate court has erred in law in setting aside conviction recorded by the trial court. It is pleaded that the recovery of stolen articles from the accused/respondent was rightly believed by the trial court. (6) The alleged stolen articles , said to have recovered on pointing out of the accused/respondent mostly include such items which are easily available in the market and there is no identifying mark on said articles as to fact that they were the property stored in the consumer store or part of the Government property. No stock 8 register was produced by the witnesses before the trial court to show the purchase of the articles. It is hard to believe that an envelope will be safely kept in a dry tank by the thieves after taking out an amount of Rs. 1443 from it. There are no independent witnesses of the recovery said to have been made from the accused/respondent. No doubt the memo (exhibit A-3) bear signatures of the accused/ respondents but merely for that reason it can not be said that the charge as against the accused/respondents stood proved beyond reasonable doubt. The confession said to have been made by the accused/respondent, is hit by section 26 of Indian evidence Act 1872 as the admission made to the police Officer while in custody in not admissible in law. It has come on record from the statement of the witnesses and copy of the general diary that at 15.10 hours on the very day, after the First Information Report was 9 lodged at 13.45 hours, the accused/respondents had been shown arrested. Thereafter at about 16.10 hours recovery is said to have made on pointing out of the accused. (7) Assuming for a moment that from the evidence on record two views are possible i.e. to hold that the charge stands proved or not against the accused/respondents, it is not desirable on the part of this court to set aside the view taken by the lower appellate court, unless the same is perverse or against the evidence on record. This court agrees with the view that the view taken by the lower appellate court that the alleged recovery from the accused/respondents which is a joint recovery, in the facts and circumstances, of the present case, such a recovery is a weak kind of evidence which appears doubtful in view of the fact that neither any independent witnesses are taken 10 nor found corroborated from the stock register. (8) For the reasons as discussed above, this court is of the view that impugned judgment and order, whereby it is held by the lower appellate court that charge as against accused/appellants is not proved beyond reasonable doubt, needs not to interference by this court. Accordingly the appeal is dismissed. The lower court record be sent back. (Prafulla C. Pant, J.) Dt.29.07.2010 N.P