HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 188 of 1994 Reserved on: 20.8.2008 Decided on: 22.8.2008 State of Himachal Pradesh ………Appellant. Versus Lal Singh and another. ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr.Rajesh Mandhotra & Mr.R.M. Bisht, Deputy Advocate Generals. For the respondents: Mr..Bimal Gupta, Advocate. Per V.K. Ahuja, J: This is an appeal filed by State of Himachal Pradesh against the judgment of the court of learned Additional Sessions Judge(I), Shimla, dated 4.10.1993, vide which the respondents were acquitted of the charges framed against them under Sections 392 read with Section 120-B of the IPC. Briefly stated the facts of the case are that on 5.5.1988, R.K. Dogra, Range Officer, Kanda, and Mela Ram, Chowkidar of the same Range, were coming back from Chopal carrying cash amounting to Rs.57,000/-. They were __________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. attacked on the way by two persons, who had put masks on their faces and after giving danda blows and knife blows to both these persons, they looted the amount of Rs.57,000/- from them and also took away other articles, namely, uniform, a file etc. which they were carrying. The prosecution case is that the respondents were arrested on 11.5.1988 and in pursuance of the disclosure statements made by them, Rs.40,000/- was recovered at the instance of respondent Lal Singh from the forest while Rs.17,000/- was also recovered at his instance and cloth bag etc were also recovered at the instance of respondent Baru Ram. After investigation, the challan was filed before the court of Judicial Magistrate and after committal, the case was sent to the learned trial Court, who tried both the respondents leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The main submission made by the by learned Deputy Advocate General for the appellant-State was that the disclosure statement made by the accused persons had been proved in evidence from the statement of the Investigating Officer and other witnesses which prove the guilt of both the respondents and the findings to the contrary recorded by the learned trial Court are liable to be reversed. A perusal of the record of the case shows that the case of the prosecution solely rests upon two disclosure statements and the recoveries effected in pursuance of the two disclosure statements. It is clear from a perusal of the evidence produced by the prosecution consisting of the statements of 29 witnesses that both the respondents had their faces muffled at the time of occurrence and were not apprehended at the spot. Once their faces were muffled and the prosecution witnesses had no opportunity to see the accused or identify them, there was no question of identification parade have been conducted for the identification of the accused, as observed by the learned trial Court in its judgment. The accused persons had not been seen by any person near the place of occurrence or had not been apprehended at the spot and only evidence led is in regard to the disclosure statements made by them after their arrest on 11.5.1988 i.e. after six days. It has to be considered as to whether the disclosure statements made by them were duly proved according to law or not and as to whether the recoveries effected in pursuance of those statements can be linked with the accused or not. The first disclosure statement proved in evidence is Ext.PH, which was recorded by the Investigating Officer PW-26 Davinder Dutt, Sub Inspector, who had recorded this statement and is the scribe of the said statement. In his statement, he has stated that he recorded the statement of Lal Singh Ext.PH, who disclosed that one attachi-case containing uniform of D.R. Dogra and Rs.17,000/- had been concealed by digging a pit inside the ground. He also disclosed that a knife had been concealed by him in a gunny bag containing Chokar. He stated that he recorded this statement in the presence of the witnesses, whose names he does not know. In case the said disclosure statement Ext.PH is perused, it will show that the accused has nowhere stated that he had concealed the attachi-case containing uniform inside the ground by digging a pit. The statement shows that the accused has stated that he has hidden the notes of Rs.17,000/- covered in a plastic paper in his fields. Thus, it is clear that while making statement, the Investigating Officer has not repeated the exact words used by the accused in giving his disclosure statement under Section 27 of the Evidence Act. The witness was required to prove the exact words used by the accused at the time of making of the statement before it could be relied upon. However, he has stated differently. Apart from the above, a perusal of this statement Ext.PH shows that these words in regard to Rs.17,000/- having been hidden appeared to have been added subsequently in the statement in the manner in which these words were inserted in the statement. Therefore, it suggests that this statement may have been recorded subsequent to the recovery. The witness to this statement was PW-12 Jati Ram, who, when examined in the court, turned hostile and did not support the prosecution story at all since he stated that he was not associated in the investigation of the case nor any recovery was made at the behest of accused Baru Ram, though his statement was recorded in regard to accused Lal Singh. The other witness to the recovery memo, namely, Kirpa Ram was also examined as PW-28 and he also turned hostile. He simply stated that his signatures were obtained in connection with the recovery of the attachi-case etc. and his signatures were obtained on 4-5 papers. From the above discussion, it is clear that both the independent witnesses to the disclosure statement Ext.PH have not supported the prosecution story and even the statement of the Investigating Officer himself was not sufficient to prove the disclosure statement. The recoveries in pursuance of this disclosure statement were effected vide recovery memo Ext.PE. A perusal of the same shows that the Investigating Officer has stated that he got the sum of Rs.17,000/- recovered from a field on 15.5.1988, apart from a knife. The witness to this statement was Kirpa Ram PW-28, mentioned above, who has not supported the prosecution story and the other witness Bansi Ram examined as PW-5 has partly supported the prosecution story by stating that a sum of Rs.17,000/- was got recovered by accused Lal Singh hidden in a plastic bag in the fields. This is contrary to the version that the money was hidden in an attachi-case or plastic cover. Moreover, these recoveries were effected after three days since Ext.PH was recorded on 12.5.1988 and the recoveries were effected on 15.3.1988. There are no reasons on record as to why the recovery was made after three days and the possibility that by this time, the money had been planted or hidden in the fields cannot be ruled out. Therefore, this statement under Section 27 of the Evidence Act and the recoveries effected in pursuance of the statement cannot be linked with the accused persons since these were not proved legally and beyond any reasonable doubt. The other recovery memo Ext.P-9 pertains only to the pin pointing of the place where the knife was hidden and its recovery at the instance of Lal Singh, which does not prove that this knife was used at the time of commission of the offence. The other alleged disclosure statement recorded is Ext.PJ made by respondent Baru Ram, who has stated that he has hidden the dandas, naqab etc. used for covering the face in his house and he could get the recovered. The said statement Ext.PJ does not lead to the recovery of any stolen article and, therefore, does not further substantiate the case of the prosecution. We have gone through the judgment of the learned trial Court, who had referred to some other evidence also, which is not material, but the net result remains the same that the prosecution had miserably failed to prove their case beyond any reasonable doubt and the final findings recorded by the learned trial Court leading to the acquittal of the accused do not call for an interference by this Court and as such are liable to be affirmed. In view of the above discussion, we hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. August 22, 2008. (V.K. Ahuja), (TILAK) Judge.