Himachal Pradesh High Court · 2010

For the respondent: Mr.Ramakant Sharma & Ms.Anita Dogra, Advocates. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the court of learned Judicial Magistrate Ist Class (III), Hamirpur, dated 22.6.2002, vide which the respondent was acquitted of the charge framed against him under Sections 380 and 420 of the IPC.

2. The prosecution story in brief is that on

8.10.1992 a report was lodged with the police by one Shamsher Singh in which he alleged that his wife used to remain ill and the respondent came to his house for treating her on

27.9.1992, took gold ornaments from his wife Rekha Devi and silver ornaments from his mother Simro Devi and after wrapping the same in a cloth, asked them to keep the same in a box and open the same after one year. However, after few days i.e. on 8.10.1992, the complainant Shamsher Singh opened the said box and found that the ornaments were missing from the said box. It was also alleged that the respondent also ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - stayed in the house of the complainant on 26.9.1992 and went out on 27.9.1992 at about 9.30 a.m. Thereafter a report was lodged with the police. After more than 1-1/2 years on

25.3.1994, the respondent was in police custody in some other case and the respondent took the complainant to his house and got effected the recovery of ornaments which were identified by the mother of the complainant. It is also the prosecution case that the disclosure statement was made by the accused in presence of two witnesses and thereafter recoveries were effected on 25.3.1994 from the house of the accused and after completion of the investigation, the challan was filed as against the respondent under the above mentioned Sections, who was tried by the learned trial Court leading to his acquittal.

3. I have heard the learned counsel for the parties and have gone through the record of the case.

4. On appraisal of the evidence led by the prosecution, it is clear that the prosecution case mainly rests upon the disclosure statement made by the respondent under Section 27 of the Evidence Act, which is Ext.PW-4/A, and the recoveries effected thereafter in pursuance of the said disclosure statement. The disclosure statement Ext.PW- 4/A was recorded by PW-8 K.G. Kapoor, Dy.S.P., who stated that he recorded the said statement of the respondent in presence of two witnesses, namely, Mohan Lal and Narender Kumar.

5. The said Narender Kumar has been examined as PW-4, who has stated that the accused made a statement that silver ornaments had been kept by him in his house on a - 3 - shelf, about which he only knows. A perusal of the disclosure statement Ext.PW-4/A shows that the respondent had given a detailed statement about the articles which had been kept by him in his house and the details of the ornaments were also given, which he could get recovered. But the said statement was not repeated by Narender Kumar, PW-4, who simply stated about the silver ornaments having been kept in the shelf about which only he knows. He stated that the other witness was Mohan Lal. He is not aware since when the accused was in custody of the police. He admitted in cross examination that the details of the ornaments were not given by the accused but this find mention in Ext.PW-4/A.

6. The other witness to the disclosure statement was PW-5 Mohan Lal, who stated that the respondent had stated that he would give the ornaments lying in his house. He did not state that any statement was recorded by the police or he witnessed the same. He was declared as hostile and was allowed to be cross examined by the prosecution. To prove the statement under Section 27 of the Evidence Act, the very words used by the accused in such statement are to be reproduced by the witnesses so that it could be linked with the accused. The statements of both these witnesses do not prove that any disclosure statement was made by the accused, which could be relied upon by the prosecution.

7. The prosecution had also examined PW-6 namely Bharat Bhushan in whose presence the recovery of the alleged ornaments was made. However, this witness has stated that he was taken to the house of the accused and the police was doing its investigation and he does not know as to what they - 4 - were doing or anything recovered. He was declared as hostile and was allowed to be cross examined by the police. He admitted that his signatures were there on recovery memo Ext.PW-1/A. He does not remember if the accused produced any jewellery before the police. The other witness to this recovery memo was not examined by the prosecution.

8. Apart from the above, there is a statement of PW-2 Simro Devi, mother of the complainant, who stated that the accused had come to their house and had taken their ornaments, which were wrapped by the accused in a white cloth and he asked them not to open the same and keep the same in a box. She further stated that the police made recoveries from the house of the accused and recovered the ornaments. She did not state as to when these recoveries were effected. She did not state that she identified these articles at the same place where they were recovered or at Police Station or in presence of any Magistrate. She was declared as hostile by the prosecution since she had not stated that she identified these articles.

9. PW-3 Rekha Devi is the wife of the complainant, who has simply stated that the respondent kept these articles in a box and had treated her in the house of her in-laws. She never stated that these ornaments were identified by her mother-in-law in presence of any Magistrate.

10. PW-8 K.G. Kapoor, Dy.S.P., investigated the case, has stated about the disclosure statement Ext.PW-4/A. He also stated about the recoveries from the house of the accused, but has not given the date of - 5 - recovery or after how much time these were recovered. There is nothing in his statement to show that he produced these articles before a Magistrate or got them identified from the complainant(cid:146)s mother. He admitted that the accused was arrested on 25.3.1994 and he recorded the disclosure statement on 25.3.1994 i.e. after about 1-1/2 years of the date when these ornaments were allegedly stolen from the house of the complainant.

11. From the above discussion, it is clear that the prosecution story rests upon the disclosure statement made by the accused and the recoveries effected in pursuance of the said statement, which have not been legally proved from the statements of the witnesses. Moreover, the recovered ornaments were never got identified by mixing them with similar ornaments before a Magistrate and simply these were linked with the accused and the challan was filed as against the respondent. Therefore, the final findings recorded by the learned trial Court on the basis of such weak evidence leading to the acquittal of the accused cannot be said to be perverse calling for an interference by this Court.

12. In view of the above discussion, I accordingly hold that there is no merit in the appeal, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. June 22, 2010. (TILAK) (V.K. Ahuja), Judge