STATE OF HP Vs. JIYA LAL

JUDGEMENT

(1.) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 19.7.1999 passed by learned Sessions Judge, Bilaspur in Criminal appeal No. 7 of 1994, thereby upsetting the conviction passed by learned Chief Judicial Magistrate in Cr. Case No. 193/1 of 1990, whereby the accused/respondents were convicted under Sections 457, 380 IPC read with Section 34 IPC and each one of them was sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500/- under Section 457 IPC and under Section 380 IPC, each of the Whether the reporters of the local papers maybe allowed to see the judgment? accused/respondents has been ordered to undergo rigorous imprisonment for six months and also to pay fine of Rs.300/-. In default of payment of fine, each of the accused/respondent has been ordered to undergo rigorous imprisonment for one month.

(2.) The prosecution case is that on the intervening night 30.5.1990 and 31.5.1990, five fans and one tarpaulin were stolen from the class room of D.A.V Public School, Barmana. On 31.5.1990, Smt. Manuja, Principal of the said school lodged a report at Police Station, Barmana in respect of the said theft on the basis of which, accused/respondents were charged. During the investigation, police arrested the accused/respondents in consequence of disclosure statement of accused Jiya Lal, four fans were recovered from the accused Jiya Lal. During the search of the house of the accused/respondent Prem Lal, one fan and one tarpauline were recovered. The case was tried for the aforesaid offences by the learned Chief Judicial Magistrate and the accused persons were held guilty. Being aggrieved, the accused/ respondents preferred criminal Appeal No. 7/94 before the learned Sessions Judge, Bilaspur, HP.

(3.) On the analysis of the prosecution witnesses and material on record we find that there is no direct evidence on record against the accused/respondents and the accused/ respondents have been convicted on the basis of the recoveries of the incriminating articles only. The first recovery relates to four fans which were stated to have been recovered in consequence of disclosure statement of accused Jiya Lal. In support of this recovery, the prosecution has led in evidence disclosure statement Ext PW-8/A which was being made in reference to disclosure statement made by accused Jiya Lal, during interrogation to Sh. Duni Chand, SHO (PW-10), in presence of witnesses Paras Ram and Nikru Ram. However, Nikru Ram has not been examined because he was not alive at the relevant time. Duni Chand, SHO (PW-10) has stated that during the course of interrogation, respondent/accused Jiya Lal had made disclosure statement Ext PW-8/A, clearly stating that the accused/respondent Jiya Lal had not made any disclosure statement, at all, in his presence. In the absence of any corroboration by the independent witnesses, it is not safe to believe the uncorroborated version of Sh. Duni Chand, SHO (PW-10). Therefore, in the absence of corroboration, the aforesaid evidence on record is not sufficient to prove that the accused/respondent Jiya Lal had made disclosure statement Ext PW-8/A regarding recovery of four fans. As regards the recovery of four fans, prosecution has led in evidence seizure memo Ext PW- 1/A. In support of this document, the prosecution has examined Duni Chand, SHO (PW-10) and the independent witnesses Jaswant Singh (PW-2) and Rajinder Kaushal (PW-9). PW-9 has stated that near his hotel at Sundernagar, the police had recovered fans, but he has explained that these fans were not recovered at the instance of accused Jiya Lal. The prosecution, therefore, cannot be said to have proved that the recoveries were made at the instance of Jiya Lal.