State of H.P. vs Pawan Kumar

R.B. Misra, J.—The present criminal 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 dated 8.5.2000, passed by learned Judicial Magistrate Ist Class (II), Shimla, H.P., in Criminal Case No. 217/2 of 95, acquitting the respondent-accused for the offences, under Sections 454 and 380 IPC, in reference to FIR No. 120/95, Police Station, West Shimla, H.P.

The prosecution story is that the complainant, resident of Anjli Cottage, Chaura Maidan, Shimla was away from house and had gone to office on 8.5.1995 and while going out, house was locked and keys were handed over to her neighbour Yashodha Devi. Children of complainant came to home from the school then they made a telephonic call to their mother about 4.00 P.M. that the lock of the house has been broken. After receiving information, complainant rushed to her house and found one golden ring, one Camera Minox with flash, one watch, one walkman worth Rs. 5,000/- were stolen from her house. Complainant enquired about the matter from her neighbour Yashodha Devi, to whom she has handed over keys of her house and came to know that respondent-accused person, during day time, had demanded keys from Yashodha Devi to which Yashodha Devi told respondent-accused that the children of complainant will come back from School about 4.00 P.M. and keys could not be handed over to them only. However, matter was reported to the police on 9.5.1995 about 6.00 P.M. after a day of occurrence and FIR Ext.PW7/A was registered and after investigation, respondent/accused was charged for the aforesaid offence.

In order to prove its case prosecution examined as many as seven witnesses, namely, PW-1 Sumer Singh, PW-2 Smt. Kamlesh Sharma, PW-3 Smt. Yashodha Devi, PW-4 Dinesh Kumar, PW-5 Hem Raj, PW-6 Desh Bandhu and PW-7 Sharven Kumar, whereas, the respondent-accused through his statement u/s 313 Cr.P.C. denied the prosecution case and examined one DW-1 Kush Kumar in defence.

On scrutiny of prosecution witnesses and materials on record, we notice that there is inordinate delay in lodging the FIR. The incident took place on 8.5.1995, whereas, FIR was registered on 9.5.1995, at about 6.00 P.M. and the delay has not been properly explained. In the facts and circumstances, the delay has made the prosecutions case fatal.

None of the prosecution witnesses had seen any person breaking the lock of the house of the complainant Kamlesh Sharma and the theft cannot be said to be committed by the respondent-accused. We have also noted that PW-5 Hem Raj has stated that some articles were recovered from the house of the respondent-accused at Solan but PW-5 has not stated that it was respondent-accused who had took them to his quarter as per his disclosure statement. PW-5 cannot tell date, day and month when he went to quarter of respondent-accused at Solan. There is no eye witness of the occurrence and the case of the prosecution wholly rests upon circumstantial evidence and the disclosure statement of respondent-accused Ext.PW2/C. Therefore, as far as the evidence on record, the prosecution has failed to prove disclosure statement Ext.PW2/C and subsequent recovery of stolen articles from the possession of the respondent-accused.

In our considered view, the prosecution has failed to prove its case beyond reasonable doubt and failed to bring home the guilt of the accused. Accordingly, the appeal, being devoid of any merit is dismissed.

Bail bonds, furnished by the respondent-accused are hereby discharged.