STATE OF HIMACHAL PRADESH Vs. DEV RAJ

JUDGEMENT

(1.) THE State has challenged the acquittal of the respondent for offences under Sections 453 and 380 IPC. The learned Chief Judicial Magistrate, Bilaspur convicted the respondent herein and sentenced him to undergo rigorous imprisonment for two years under section 453 IPC and to pay a fine of Rs. 2000/ -, rigorous imprisonment for one year under Section 380 IPC and fine of Rs. 1000/ -. In default of payment of fine; he was sentenced to suffer rigorous imprisonment for six months. The sentence was ordered to run concurrently. The respondent appealed before the learned Sessions Judge who after re -appreciation of the entire evidence, set aside his conviction.

(2.) THE brief facts as noticed by the learned Courts below may be considered. The case of the prosecution is that PW1 Keshva Nand who was posted as Pharmacist in Primary Health Centre, Kalol, Police Station, Talai, reported to the police that on 24.5.1993 after locking the store of Primary Health Centre (hereinafter referred to as PHC), came back to his residence at 5 PM. In the intervening night of 24/25th May, 1993 at around 3.30 AM Subhash Chand, Halwai PW9 woke him up and told him that there was somebody inside the PHC as he had heard some noise coming from the hospital. He alongwith PW9 Subhash Chand immediately rushed to the dispensary and saw that the locks had been broken alongwith latches which were lying strewn on the ground. The lights of the PHC were on and one person came out from the store who was caught by Ramesh Chand and Subhash Chand PW9. He was identified as the respondent, who was posted at Civil Hospital, Ghumarwin as a peon. He states that the accused had already committed a number of thefts. The matter was immediately reported to PW8 Dr. Rajesh Kumar. Thereafter report was lodged and investigation commenced. The spot was identified from where the theft had taken place and recovery of the articles were made. Eleven witnesses were examined by the prosecution in support of its case. The learned Appellate Court considered the case on the points of (a) direct evidence; (b) disclosure statement Ext.PW3/A which was supposed to have been made by the respondent and which according to the prosecution was clinching evidence against him.

(3.) Adverting to the first aspect, the prosecution has relied upon the evidence of PW1 Keshva Nand Pharmacist, PW9 Subhash Chand, Halwai and PW8 Dr. Rajesh Kumar. The Court notices that PW1 Keshva Nand Pharmacist supports the prosecution version including the fact that the accused was apprehended with the help and assistance of Ramesh and PW9 Subhash Chand Halwai who had given the information about the burglary being in progress in the hospital whereafter the matter was reported to the police. PW8 Dr. Rajesh Kumar states that the accused was apprehended in his presence and had admitted his guilt but at the same time, he says that the accused has stated that he had been motivated and asked by PW1 Keshva Nand to commit this offence because the articles of the store were already short and the respondent -accused could commit the theft. In cross examination, he says that he cannot state as to whether it is the Pharmacist who had himself broken the locks. The learned Appellate Court holds that in these circumstances, it becomes difficult to say that the respondent had committed any theft as alleged by the prosecution more especially when the doctor himself says that the accused had disclosed that it was the pharmacist who had asked him to do so.