STATE OF H P Vs. KISHORE KUMAR

JUDGEMENT

(1.) This appeal has been filed against the order of acquittal passed by the learned Judicial Magistrate Ist Class, Dharamshala acquitting the respondent for offences under Section 379 read with Section 34 of the Indian Peanl Code.

(2.) The prosecution case is that on the night of 4/5.8.2001, a maruti car bearing registeration No. DAV-8181 owned by the complainant Rakesh Kumar Mahanjan was parked outside his house at Shahpur was stolen. Complainant came to know about this fact the next morning. He did not know the chasis and engine number of the car as all documents including the registration were inside the car. First Information Report Ext. PW 8/A was recorded and police started investigation. It is alleged that during investigation, it was found that another FIR under Section 447 of the Indian Penal Code was lodged by one Kuljit Singh in whose shop theft of clothes was committed on the same night on which the car was stolen, which was later on found near village Simbal of Police Station Dhar District Gurdaspur on the road side and one sticker of clothes stolen from the shop of Kuljit Singh was also found inside the car. There all respondents namely Kishore Kumar, Rajesh Kumar and Naresh Kumar were arrested by the police and on the basis of disclosure statements made by them, two speakers from the stolen car and clothes stolen from the shop of Kuljit Singh and one rod were recovered vide seizure memos Ext. PW 1/A, Ext. PW 2/A and Ext. PW 2/B.

(3.) The learned trial Court on the basis of evidence holds that the so called recovery has been effected on the basis of disclosure statements of accused under Section 27 of the Indian Evidence Act. Considering the evidence in its totality, mainly Ext. PW 2/A, Ext. PW 3/A and Ext. PW 4/A, the Court holds that the recovery of these articles was not effected from the house of accused-respondent Rajesh Kumar, as was sought to be established by the prosecution. The statement Ext. PW 4/A did not advance the case of prosecution as the witness to this memo Shri Pankaj admitted in his cross examination that no seizure memo was prepared in his presence nor any statement was signed by accused in his presence. To the same effect, is the disclosure statement Ext. PW 3/A wherein the sole witness Jagdish Chand states that no disclosure statement was made in his presence and no report was prepared in his presence. In other words, the learned Court holds that the genesis of the entire circumstantial evidence which seeks to convict the respondents for the offences as charged has not been established on record. Learned Additional Advocate General submits that the other evidence in the nature of circumstances namely that the car was recovered in and near the village where the accused were residing and that the speakers of car and clothes purportedly found in the car are sufficient for securing their conviction.