State of H.P. vs Devi Ram

R.B. Misra, J.—The present appeal has come up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure, has been granted in reference to the impugned judgment and order dated 23.7.1999, passed by learned Additional Chief Judicial Magistrate, Arki, District Solan in Criminal Case No. 94/2 of 95, acquitting the alleged accused-Respondent, under Sections 457 and 380 IPC.

The prosecution case is that in the intervening night of 20.7.1995 and 21.7.1995, the accused- Respondent by committing lurking house tress pass by ertering into the shop of complainant Kuldeep Kumar in main Bazar Arki, committed theft of Rs. 2500/- lying in cash box. The matter was reported to the police. The accusedRespondent was found roaming in the market and on suspicion he was apprehended by the police and on interrogation he told that he had committed theft of Rs. 1500/- from the shop of complainant on 20.7.1995 and out of the said amount, he purchased a cycle for Rs. 600/-, a suit case for Rs. 200/- and a shirt for Rs. 100/- and the remaining amount was spent by him. On the basis of this confessional statement, all the three articles were recovered from the house of the accused-Respondent. After completion of investigation, the accusedRespondent was charged for the aforesaid offences.

In order to prove its case, the prosecution has examined as many as 10 prosecution witnesses. The accused-Respondent in his statement u/s 313 Code of Criminal Procedure has denied the prosecution case.The prosecution has allegedly recovered a cycle, a suit case and a shirt on the basis of confessional statement of accused- Respondent

PW 3 Jeet Ram has deposed that on 20.7.1995 he joined the police investigation and in his presence the accused-respondent had made a statement that he had committed theft of Rs. 1500/- from the shop of one Sh. Sood and out of that amount he purchased a cycle, a suit case and a shirt. The accused-respondent has also told that all these articles are lying in his house. Regarding this statement, fard Ex. PW 3/A was prepared by the police, which was, however, signed by PW 3. PW 3 has further stated that he does not know whether any other person had also signed the fard in question or not. PW 3 has further deposed that no recovery has been taken place in his presence. In cross-examination, firstly he has shown his ignorance about the recovery of the articles, but when his statement recorded u/s 161 Code of Criminal Procedure put to him, he admitted that part of his statement to be correct in which he has mentioned that accused-respondent had got effected recovery of the articles from his house. But in the crossexamination PW 3 has again shattered the case of the prosecution by stating that at the time of occurrence, he was on home guard duty and he never visited village Jalana in connection with this case. This witness has further stated that he never saw the house of accusedrespondent nor he ever visited there. PW 3 has also stated that he does not know what is written in fard Ex. PW 3/A. So much so, PW 3 has stated that he was bound to put the signature on asking by the police officials on any document, however, PW 3 has not supported the recovery having been made in his presence.

Likewise also, Narain PW 5 has deposed that nothing had happened in his presence. According to him, no recovery was effected by the police in his presence. Dharam Dass PW 8 has also stated that he had not seen any articles. This witness has also denied the confessional statement having been made by the accused- Respondent in his presence.

Taking into consideration the testimonies of PW 3, PW 5 and PW 8, it could be inferred that confessional statement by the accused-Respondent has not been made in their presence and recovery of articles as mentioned above has also not been effected in their presence. As such, the prosecution has totally failed to recover said articles in reference to the confessional statement made by the accused- Respondent in police custody. On appraisal of materials on record and prosecution witnesses, learned trial court has rightly arrived at the finding that prosecution has failed to prove its case beyond reasonable doubt and in our considered view also, in the facts and circumstances, the prosecution has failed to bring home the guilt against the accused. The conclusion drawn by the trial court calls for no interference. In these circumstances, criminal appeal being devoid of merit is dismissed. The bail bonds of the accused- respondent are discharged.