CRIMINAL APPEAL 9 on 31 October 2000

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Criminal Appeal No.85of 2001

Date of Decision: 21[st] December, 2010

State of Himachal Pradesh Appellant Versus Ram Dass Respondent

Coram

The Hon’ble Mr. Justice R.B.Misra,J. The Hon’ble Mr. Justice Sanjay Karol,J.

Whether approved for reporting[1]? No.

For the appellant: Mr.R.K.Sharma, Sr. Addl. Advocate General.

For the respondent: Mr. Rajiv Jiwan, Advocate.

Sanjay Karol,J. (Oral)

For an offence, which is alleged to have been committed on 14.1.1993, accused was put to trial. In terms of judgment dated 31.10.2000 passed by Chief Judicial Magistrate, Bilaspur, Case No. 9-1 of 1996, titled as State of H.P. vs. Ram Dass, accused stands acquitted of the charged offence.

2. It is the case of the prosecution that Popo Ram, complainant was residing in Village Jabal alongwith his two daughters, namely, Rajo and Banto. On 14.1.1993 he had gone to attend the marriage ceremony of a relative at village Dadwal. His daughters were at home. On 15.1.1993 Shri Bansi Lal informed the complainant that theft had taken place in his house and his gun (topidar) was stolen.

Whether the reporters of Local Papers are allowed to see the Judgment?

Accordingly on 15.1.1993 complainant lodged a complaint on the basis of which FIR No.12/93 (Ext.PW-9/A) dated 15.1.1993 was registered under Section 457, 380, IPC and Section 25 of Arms Act at Police Station Sadar, Bilaspur. Police investigated the matter and on 7.8.1995 i.e. after a period of 2 ½ years, gun was recovered from the house of accused. Same was taken into possession vide recovery memo (Ext.PB). Licence of the gun issued in the name of the complainant was recovered vide recovery memo (Ext.PW-1/A). Since the accused was found to be possessed with gun without any valid licence in his name, sanction for prosecution from the District Magistrate, Bilaspur, was obtained in terms of order (Ext.PW-8/A). With the completion of investigation challan was presented in the Court for trial.

3. Accused was charged for having committed offences punishable under Sections 457, 380 IPC and Section 25 of the Arms Act, to which he did not plead guilty and claimed trial.

4. In order to prove its case prosecution examined 10 witnesses and statement of accused under Section 313, Cr.P.C. was also recorded. Court below acquitted the accused, hence the present appeal. 5.Importantly in the complaint it is so recorded by the complainant that Rajo Devi was not able to identify the person who committed theft by entering his house. Now admittedly no identification parade was carried out by the police. It is not the case of Rajo Devi (PW-2) that she know the accused from before or could identify him by name or physical features. Her testimony in Court to the effect that accused had committed theft of the gun by entering the house is thus unbelievable. Her version stands contradicted with the material on record. She does not appear to be a truthful witness. Rajo Devi (PW-2) was just 13 years of age at the time of alleged offence. Her statement was recorded on 13.11.1998. It is not her case that in between this period she had identified the accused and informed the police or her father about the same. Hence, it cannot be said that prosecution has been able to prove the charged offence of theft.

6. With regard to recovery of gun vide memo (Ext.PB), it is the case of the prosecution that recovery was effected from the house of the accused. Now it has come on record through the testimonies of Sh. Popo Ram (PW-3), Sh. Sant Ram (PW-4), Sh. Dharam Pal (PW-5), SI Manjhail Singh (PW—6), H.C. Naresh Kumar (PW-9) and Sh. Thakur Dass (PW-10) that accused has a joint family. His brothers and other relations reside with him. Prosecution has not proved the fact that the alleged recovery took place from the house exclusively owned or possessed by the accused. Prosecution has prosecuted only the accused. Were other members of the house interrogated or what action was taken against them is not evident from record. 7.Recovery memo (Ext.PB) is witnessed by Sh. Sant Ram (PW-4), Sh. Dharam Pal (PW-5) and Bali Ram (PW-1). Bali Ram (PW-1) has not supported the prosecution. Testimonies of PW-3, PW-4 and PW-5, to our mind, do not inspire confidence. PW-4 and PW-5 are not the resident of the area. That apart, their statements stand contradicted by other witnesses. According to Shri Naresh Kumar (PW-

9), Investigating Officer, recovery was not effected in the presence of the accused. On this count they have contradicted the version of PW-3 and PW-4 with regard to the presence of accused at the time of recovery. Shri Dharam Pal (PW-5) is silent on this aspect. Thus it cannot be said that prosecution has been able to prove, beyond reasonable doubt, the fact that gun was recovered from the possession of the accused or that accused was found possessing the same without any valid licence.

8. Accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is made out. Present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

(R.B.Misra) Judge.

December 21, 2010 (C)

(Sanjay Karol) Judge.