IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 36 of 1997 Date of decision: 21.05.2010 ________________________________________________________________ The State of H.P. .....Appellant. Versus Rajesh Kumar and another .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 ________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Ms. Ambika Kotwal & Ms. Renu Parwari, Advocates vice Mr. Sanjeev Kuthiala. ________________________________________________________________ R.B. Misra, J (Oral) . The present criminal appeal has come for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 31.10.1995, passed by the learned Chief Judicial Magistrate, Solan, District Solan, Himachal Pradesh, in case No. 175/2 of 1992, acquitting the alleged accused under Sections 457, 380 read with Section 34 of the Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. 3. The case of the prosecution precisely is that on 13.10.1992, Rajeev Gupta, complainant, was running business under the name and 1 Whether reporters of Local Papers may be allowed to see the judgment? :-2-: style of M/s Durga Floor Mills at Solan and his brother Vinay Kumar in the evening locked the shutter of the said Mills, whereafter at about 10:30 P.M., the same night, complainant Rajeev Gupta again went to the said Mills and took out some articles from the chest kept therein and thereafter locked the shutter of the premises and at about 11 P.M., his neighbourer, Sanjay Sood, informed him that the shutter of the shop was found half opened. On this, the complainant and his brother Vinay Kumar reached the spot and on checking, the chest of the shop was found missing in which cash of about Rs. 3,000/- including one cheque and one draft had been kept. The complainant and his brother continued search for the chest during night, but could not find the same and subsequently, on 14.10.1992 at about 8:15 A.M., the complainant reported the matter to the police on which FIR was registered and investigation started. During investigation, the police prepared site plan of the place of occurrence and took into possession one lock of the shop which was found lying in the street behind the Sub Jail, Solan and the same was taken into possession and which was identified by Rajeev Gupta to be the same which had been put on the shutter of the Mills. The police also took into possession one cheque No. SB/12-444108 for Rs. 5,000/- issued by Shri Kuldeep Kumar payable to self on the State Bank of Patiala which had been allegedly presented for encashment by accused Rajesh Kumar. During investigation, accused Vinay Kumar while in police custody allegedly made disclosure statement under Section 27 of the Evidence Act to the effect that he had kept concealed in a grass land in village Bacher one Iron Chest which he could got recovered from the spot. Accused Vinay Kumar is further alleged to have got recovered Steel Chest from the grassland and which was identified on the spot by Kulbhushan Gupta to be the same which :-3-: had been stolen from Durga Floor Mills, Lower Bazar, Solan. The same was taken into possession vide recovery and seizure memo. Similarly, the accused Rajesh kumar while in police custody is also alleged to have made disclosure statement under Section 27 of Evidence Act that he had kept concealed one bunch of keys with ring and some currency notes and coins in his residential house in village Ber and which he could get recovered and consequently, he is alleged to have led the police party to his residential house in village Ber and produced a tin container having been concealed in his sleeping room underneath a cot from which one bunch of keys with ring and currency notes and coins worth Rs. 843.95 Paise and one silver piece were recovered which were identified on the spot by Kulbhushan Gupta to the same which had been stolen from his shop. The police also prepared site plan of the place of alleged recovery and after recording statements of witnesses under Section 161 of Cr.P.C. and on completion of investigation, the police found sufficient evidence against both the accused. 4. After investigation, the challan was submitted for the offences under Section 457, 380 read with Section 34 of Indian Penal Code and in order to prove its case, prosecution has examined as many as six witnesses, whereas the the defence has denied the guilt through their statements under Section 313 of Criminal Procedure Code and has not preferred to lead any defence evidence. 5. PW-1 is Kuldeep Kumar Sharma, Cashier, State Bank of Patiala, to whom accused Rajesh allegedly presented cheque Ex. PW-2/A for encashment and who allegedly caught the accused near Mathura Radios, The Mall, Solan, alongwith the cheque. He also produced cheque Ex. PW-2/A to the police which was taken into possession vide seizure memo Ex.PW2/B. PW-2 is Ishwer Dass Pandiar, Head Clerk of :-4-: the State Bank of Patiala, who also saw accused Rajesh Kumar being caught by PW-1 and he is also a witness to seizure memo Ex. PW-2/B. PW-3 is Rajeev Gupta, who lodged FIR Ex. PW6/B to the police about the theft. He also is the witness of recovery and seizure memo Ex. PW-4/A of lock Ex. P1. PW-4 is Bal Dutt Mittal. He is a witness to disclosure statement Ex. PW-4/C of accused Rajesh Kumar of recovery and seizure memo Ex. PW-4/A of lock Ex. P1. He is also a witness of recovery and seizure memo Ex. PW-4/D of iron chest, Ex. P2, allegedly recovered at the instance of accused Vijay Kumar Shandil. Furthermore, he is one of the witness of recovery and seizure memo Ex. PW-4/E vide which currency notes and coins worth Rs. 843.95 and bunch of keys kept in container, Ex. P3, were allegedly recovered at the instance of accused Rajesh Kumar. PW-5 is K.R. Kaushal, Income Tax Officer, who issued cheque Ex. PW-2/A payable to self and which was allegedly stolen from the floor mill of the complainant. PW-6 is ASI Shyam Lal, who investigated this case. On the basis of rapat No. 35 copy of which is Ex. PW6/A recorded FIR, Ex. PW-6/B, also investigated this case. 6. On analysis of the prosecution witnesses and material on record, we notice that PW-1 Kuldeep Kumar in his testimony dated 08.11.1994 has divulged that Rajesh Kumar accused has presented the cheque Ex. PW-2/A in the bank and he was issued token and accused Rajesh Kumar was waiting to get the payment against the cheque presented by him. But, the cheque was stopped by PW-5 K.R. Kaushal, then the accused was asked to sit by the bank authorities and in the meantime, PW-1 telephoned Shri K.R. Kaushal, whereupon the accused ran away from the spot and PW-1 caught him near Mathura Radio and had handed over to the police and has put signature on the seizure memo Ex. PW-2/B. :-5-: 7. On analysis of testimony of PW-1, we notice that he has not said that he had handed over accused Rajesh Kumar to police alongwith cheque. He neither deposed that police came subsequently. He was told by the police that cheque Ex. PW-2/A has been taken into possession by the police and PW-1 was asked to put his signature on seizure memo Ex. PW-2/B. PW-1 in his cross-examination has, however, divulged that whenever a cheque is presented in the bank by any person, signatures of the presenting person is invariably taken on its back side and thereafter only the payment is issued to the customer, who has presented the cheque and in the present case no signature of Rajesh Kumar was found to have been taken by the bank authorities on the back of the cheque, Ex. PW-2/A. The token was neither found to have been issued to Rajesh Kumar accused nor any recovery was made from his possession. Nothing has been brought to light that what was the number of token and at what stage it was issued to Rajesh Kumar accused. Prosecution has endavoured to establish that Rajesh Kumar accused ran away from the bank, whereas, in the cross-examination a contradictory version has been given by PW-1 Kuldeep Kumar that two/three boys were present in the bank who had run away from the bank and who those boys were not known to him. Such narration creates doubt in the prosecution version. 8. PW-6 S.I. Shyam Lal has nowhere deposed that accused Rajesh Kumar was handed over to him by PW-1 Kuldeep Kumar alongwith cheque Ex. PW-2/A. On analysis of recoveries also, we notice that disclosure statements Ex. PW-4/B and Ex. PW-4/C of accused Vijay Kumar and Rajesh Kumar and consequent alleged recoveries of chest, Ex. P2, vide recovery and seizure memo Ex. PW-4/B and currency notes/ coins Ex. P3, bunch of keys, Ex. P5 and container, Ex. P4 vide memo Ex. :-6-: PW-4/E are also not inspiring confidence for the reasons that the disclosure statements, recovery and seizure memo are alleged to have been prepared on 19.10.1992, i.e. after six days of the said incident. 9. PW-4 Bal Dutt said to be related to the complainant, PW-3 Rajiv Gupta, has deposed that on 14.10.1992 lock of Durga Floor Mills was recovered from behind the Sub Jail Solan and was taken into possession vide recovery memo Ex. PW-4/A and thereafter accused persons were arrested. PW-4 has also deposed that statement of accused Vijay Kumar Ex. PW-4/B was recorded, who divulged that he concealed one iron chest in the grassland of Bachar and to which place the said accused led the police party and got recovered chest, Ex. P2, vide recovery memo Ex. PW-4/D. According to PW-4, Rajesh Kumar accused has also made a disclosure statement Ex. PW-4/C and got recovered some currency notes and coins, Ex. P5, bunch of keys Ex. P3 and container Ex. P4, vide recovery memo Ex. PW-4/E. 10. PW-3 Rajiv Gupta, the complainant, has categorically deposed that keys Ex. P3 are of lock Ex. P1 and subsequently he divulged that he had opened the shop at the relevant night and at that time the bunch of keys, Ex. P3, was in his possession. Subsequently, he also volunteered to state that the duplicate keys of Ex. P3 was also in his possession. In these circumstances, it is difficult when the bunch of keys, Ex. P3, and duplicate keys were in his possession, how the keys were stolen and how the bunch of keys were recovered. But, this aspect of the matter is not explained by the prosecution at all. 11. Prosecution has not successfully explained that how the recovery of currency notes and coins, Ex. P5, is made from the possession of accused Rajesh Kumar. It is also worth to note that disclosure statements of accused persons are alleged to have been :-7-: recorded on 19.10.1992 and the recoveries were also effected on the same day. Then, it is surprising that how PW-4 Bal Dutt in his examination in chief has deposed that it was on 14.10.1992 when the disclosure statements were recorded and the recoveries were effected on the same day. Such contradictory version has also weakened the prosecution case. 12. PW-4 has informed the police on 14.09.1992, thereafter he never remained with the police to support the police investigation and PW-2 has also stated that it was on 14.10.1992 itself that the police has obtained his signatures on the recovery memo Ex. PW-4/A of lock, Ex. P1, on disclosure statements Ex. PW-4/B and Ex. PW-4/C, whereafter police never obtained his signatures on any of the documents. Such statement of PW-4 further creates doubt in the prosecution case. 13. After noticing the contradictory version from the prosecution witnesses and improbabilities, the learned Chief Judicial Magistrate has rightly arrived at the conclusion that the prosecution fails to prove its case beyond reasonable doubt. 14. We also carefully examined the prosecution witnesses and material on record and above mentioned contradictions, we find prosecution witnesses are not inspiring confidence and apparent contradictions have been noticed, therefore, in our considered view criminal appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 21st May, 2010