1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 32 of 2003 Date of decision: 27th October, 2011 State of Himachal Pradesh …Appellant Versus Dev Raj ….Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the Respondent: Shri Ashok Sharma, Advocate Dev Darshan Sud,J.(oral) The State has challenged the acquittal of the respondent for offences under Sections 453 and 380 IPC. The learned Chief Judicial Magistrate, Bilaspur convicted the respondent herein and sentenced him to undergo rigorous imprisonment for two years under section 453 IPC and to pay a fine of ` 2000/-, rigorous imprisonment for one year under Section 380 IPC and fine of ` 1000/-. In default of payment of fine; he was sentenced to suffer 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 rigorous imprisonment for six months. The sentence was ordered to run concurrently.The respondent appealed before the learned Sessions Judge who after re- appreciation of the entire evidence, set aside his conviction. 2. The brief facts as noticed by the learned Courts below may be considered. The case of the prosecution is that PW1 Keshva Nand who was posted as Pharmacist in Primary Health Centre, Kalol, Police Station, Talai, reported to the police that on 24.5.1993 after locking the store of Primary Health Centre (hereinafter referred to as PHC), came back to his residence at 5 PM. In the intervening night of 24/25th May, 1993 at around 3.30 AM Subhash Chand, Halwai PW9 woke him up and told him that there was somebody inside the PHC as he had heard some noise coming from the hospital. He alongwith PW9 Subhash Chand immediately rushed to the dispensary and saw that the locks had been broken alongwith latches which were lying strewn on the ground. The lights of the PHC were on and one person came out from the store who was caught by Ramesh Chand and Subhash Chand PW9. He was identified as the respondent, who was posted at 3 Civil Hospital, Ghumarwin as a peon. He states that the accused had already committed a number of thefts. The matter was immediately reported to PW8 Dr. Rajesh Kumar. Thereafter report was lodged and investigation commenced. The spot was identified from where the theft had taken place and recovery of the articles were made. Eleven witnesses were examined by the prosecution in support of its case. 3. The learned Appellate Court considered the case on the points of (a) direct evidence; (b) disclosure statement Ext.PW3/A which was supposed to have been made by the respondent and which according to the prosecution was clinching evidence against him. 4. Adverting to the first aspect, the prosecution has relied upon the evidence of PW1 Keshva Nand Pharmacist, PW9 Subhash Chand, Halwai and PW8 Dr. Rajesh Kumar. The Court notices that PW1 Keshva Nand Pharmacist supports the prosecution version including the fact that the accused was apprehended with the help and assistance of Ramesh and PW9 Subhash Chand Halwai who had given the information about the burglary being in progress in the hospital whereafter the matter was reported to the police. PW8 Dr. Rajesh Kumar states 4 that the accused was apprehended in his presence and had admitted his guilt but at the same time, he says that the accused has stated that he had been motivated and asked by PW1 Keshva Nand to commit this offence because the articles of the store were already short and the respondent-accused could commit the theft. In cross examination, he says that he cannot state as to whether it is the Pharmacist who had himself broken the locks. The learned Appellate Court holds that in these circumstances, it becomes difficult to say that the respondent had committed any theft as alleged by the prosecution more especially when the doctor himself says that the accused had disclosed that it was the pharmacist who had asked him to do so. 5. We have gone through the evidence of this witness and find that his testimony remains unrebutted. We are unable to understand that if the so called confession of the accused pointed accusing finger towards the guilt of PW1 Keshwa Nand, then why he has not been arraigned as one of the accused. In these circumstances, the learned Appellate Court rightly holds that testimony of PW1 Keshva Nand cannot be relied upon. 5 6. On the question of incriminating circumstance that is the disclosure statement Ext.PW3/A in which the accused has stated that during the intervening night of 24/25.5.1993 he broke open the locks and latches of the PHC and the shops, the Court holds that this statement cannot be used for convicting the respondent as it does not relate to the subject matter of the theft. It only identifies the places which according to the Court becomes meaningless to fasten guilt on the accused. The learned Court also holds that this statement is hit by Section 24 of the Indian Evidence Act. Adverting to the evidence of PW1 Keshva Nand, the learned Court holds that he is an interested witness and cannot be relied upon without corroboration from PW8 Dr. Rajesh Kumar. In cross examination, he admits that the bag of the accused containing the articles was on the table of the dispensary and that when he came out from the dispensary he was not holding any bag. The evidence of PW8 Dr. Rajesh Kumar also establishes that the bag was not recovered from the accused. Adverting to the testimonies of PW5 Ram Pal, PW6 Gorakh Singh and PW7 Rakesh Kumar, the learned Court says that their evidence cannot be relied upon for basing any conviction 6 as all these three shopkeepers never reported the matter to the police that their shops have been burgurled. The so called recovered articles were handed over to them by the SHO. The Court holds that on the evidence of PW7 Rakesh Kumar who in cross examination says that stolen articles were shown to him by the SHO since the bag was with him. In these circumstances, the Court holds that it was unable to establish as to whether the lurking house trespass and theft was committed by the respondent. 7. We have given an anxious consideration to the evidence on record and submissions made on behalf of the State and hold that the appreciation of the evidence as noticed above by the learned Appellate Court is in consonance with the accepted principles of law. We find that PW1 Keshva Nand Pharmacist has not been interrogated by the police more so when his name was disclosed by the respondent-accused to PW8 Dr. Rajesh Kumar. We also find that none of the other witnesses as noticed above made any complaint to the police regarding the burglary/theft in their shops and that the goods were already in possession of the police. In these circumstances, we hold that the prosecution has been 7 unable to prove its case against the respondent/accused. This appeal is therefore dismissed. Bail bonds furnished by the respondent stands discharged. Appeal stands diposed of and no order as to costs. (R.B. Misra) Judge (Dev Darshan Sud) Judge October 27, 2011(ms)