IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 285 of 2003 Date of Decision: 20th July, 2010 __________________________________________________________ State of H.P. ….Appellant. Versus Kishore Kumar ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Appellant: Ms. Ruma Kaushik, Addl. Advocate General For the Respondent: Shri K.S. Banyal, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). This appeal has been filed against the order of acquittal passed by the learned Judicial Magistrate Ist Class, Dharamshala acquitting the respondent for offences under Section 379 read with Section 34 of the Indian Peanl Code. 2. The prosecution case is that on the night of 4/5.8.2001, a maruti car bearing registeration No. DAV-8181 owned by the complainant Rakesh Kumar Mahanjan was parked outside his house at Shahpur was stolen. Complainant came to know about this fact the next morning. He did not know the chasis and engine number of the car as all documents including the registration were inside the car. First Information 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 Report Ext.PW8/A was recorded and police started investigation. It is alleged that during investigation, it was found that another FIR under Section 447 of the Indian Penal Code was lodged by one Kuljit Singh in whose shop theft of clothes was committed on the same night on which the car was stolen, which was later on found near village Simbal of Police Station Dhar District Gurdaspur on the road side and one sticker of clothes stolen from the shop of Kuljit Singh was also found inside the car. There all respondents namely Kishore Kumar, Rajesh Kumar and Naresh Kumar were arrested by the police and on the basis of disclosure statements made by them, two speakers from the stolen car and clothes stolen from the shop of Kuljit Singh and one rod were recovered vide seizure memos Ext.PW1/A, Ext.PW2/A and Ext.PW2/B. 3. The learned trial Court on the basis of evidence holds that the so called recovery has been effected on the basis of disclosure statements of accused under Section 27 of the Indian Evidence Act. Considering the evidence in its totality, mainly Ext.PW2/A, Ext.PW3/A and Ext.PW4/A, the Court holds that the recovery of these articles was not effected from the house of accused-respondent Rajesh Kumar, as was sought to be established by the prosecution. The statement Ext.PW4/A did not advance the case of prosecution as the witness to this memo Shri Pankaj admitted in his cross examination that no seizure memo was prepared in his presence nor any statement was signed by accused in his presence. To the same effect, is the disclosure statement Ext.PW3/A wherein the sole witness Jagdish Chand states that no disclosure statement was made in his presence and no report was prepared in his presence. In other words, the learned Court holds that the genesis of the entire circumstantial evidence which seeks to convict the respondents for the offences as charged has not been established on record. Learned Additional Advocate General submits that the other evidence in the nature 3 of circumstances namely that the car was recovered in and near the village where the accused were residing and that the speakers of car and clothes purportedly found in the car are sufficient for securing their conviction. 4. These circumstances cannot be considered to implicate the respondents with criminality. When the prosecution case itself is based on the seizure of these articles which has not been proved in accordance with law, there is no justification for convicting them for offences as alleged. The learned trial Court has relied upon two judgments one of Delhi High Court and second of Punjab and Haryana High Court holding that the provision of Section 166 of the Code of Criminal Procedure have been violated and that it is mandatory that the articles recovered should not be accessible to a witness before actual identification and witness should have no chance to seeing articles before being mixed up with similar articles. I am not entering into these submissions made by the respondents. 5. Without entering into the other aspects of the controversy, I hold that since the recovery itself has not been proved in accordance with law as the witnesses of seizure memos have disproved the recovery in their cross examination, there is no question of establishing the offences. There is thus no merit in this appeal. It is accordingly dismissed. Bail bonds furnished by the respondents are discharged. July 20, 2010 (Dev Darshan Sud) (ms) Judge