1. Heard and gone through the record. The present appeal by the State has been directed against the acquittal of the respondent passed by the learned Trial Court on 8.1.2001 in Sessions Case No.95/2 of of 2000, for the offence punishable under Sections 457, 380 read with Section 34, 414 and 411 of the Indian Penal Code.
2. In short, prosecution story, is that during the intervening night of 13/14.5.2000, complainant Ram Dass Panwar, was away from his residence along with his family to his native place. On 14.5.2000, Ramesh Kumar, a friend of the complainant informed him that when he visited his residence at Boileauganj and found that his house was lying open. He also informed the police. Complainant reached the spot. His statement was recorded by the police under Section 154 of the Code of Criminal Procedure. The complainant along with the police entered his residential room and found jewellery of his wife, missing from the almirah along with cash to the tune of `15,000/-. 5 gold plated spoons like were also found broken, which were taken into possession. Police also took finger prints for analysis.
3. The complainant expressed his suspicion on a Nepali, named Budhi Singh respondent who was running a 'Rehri' (tea stall) in the front of his house, since Nepali was not seen in an around and his 'Rehri' was also not there.
4. Thereafter, police arrested accused Budhi Singh. During his interrogation he made a disclosure statement under Section 27 of the Indian Evidence Act in presence of Ramesh Kumar (PW.3) and one Bhagwan Singh. Pursuant to which, shop of one Ganesh Suniar (accused) was identified and police recovered 40 grams a piece of gold from him which was taken into possession. The explanation given by respondent Ganesh Suniar was that he had melted the ornaments received from accused Budhi Singh. It is also alleged that accused handed over an amount of `20,000/- along with Pass Book to PW4 Tulsi Bahadur, which was taken into possession by the police vide Memo Ex.PW.4/A.
5. After completing the investigation, police came to the conclusion that respondent Budhi Singh, Ganesh Suniar and Shantanoo Thapa were involved in the alleged incident, as such, the challan was presented under Sections 457, 380 read with Section 34 against respondents except Ganesh Suniar, who was charge sheeted under Sections 414 and 411 of the Indian Penal Code.
6. The respondents did not plead guilty and claimed trial. In order to prove its case, prosecution examined its witnesses.
7. There is no direct evidence in the present case and the case totally hinges upon circumstantial evidence. Independent witnesses of recovery have not supported the case of the prosecution. The recovery of the alleged articles was not connected with the alleged theft of property thus relying upon the judgment of the Apex Court rendered in Shivaji Sabebrao Boldade Versus State of Maharashtra, 1973 SC 2622and Sharad's case reported in Sharad Birdhi Chand Sharda Versus State of Maharashtra, AIR 1984 SC 1622, the learned trial Court came to the conclusion that the circumstantial evidence brought forward was not of the conclusive nature and tendency, as such, the respondents were given benefit of doubt.
8. To connect respondents, prosecution heavily relied upon the disclosure statement of Budhi Singh, under Section 27 of the Indian Evidence Act, which is not a substantive evidence. The fact discovered is the gold from the shop of Goldsmith i.e. respondent No.2. It could not be connected with the alleged gold jewellery of the wife of the complainant. There is no evidence of receiving and melting the gewellery as alleged. Therefore, such recovery, in our opinion, is insufficient to conclude the guilt of the respondents with any of the offences charged.
9. In so far as the amount of `20,000/- is concerned, PW4 Tulsi Bahadur also did not support the case of the prosecution as alleged. Though he stated that accused Budhi Singh had entrusted an amount of `20,000/- with him being his co-villager. But this fact has been explained by Budhi Singh in his statement under Section 313 Cr.P.C. that he had sold his 'Rehri' to DW1 Hem Lal for `13,000/- which fact stands admitted by DW Hem Lal since respondent Budhi Singh was also running a tea stall and possibility of his earning of `7,000/- by this profession cannot be ruled out. Further, the amount of `20,000/- could also not been connected with the theft money to be that of the complainant. The above accused have given plausible explanation with respect to the amount which was entrusted to PW4 aforesaid.
10. Therefore, in the above circumstances, when the entire case hinges upon the circumstantial evidence i.e. recovery at the instance of the accused which stands not connected with the theft property of the complainant, in our considered view, offences charged cannot be said to have been proved by the prosecution beyond reasonable doubt. Thus the findings of acquittal, recorded by the learned trial Court, are borne out from evidence on record, which require no interference. The State appeal sans merit, hence dismissed.
11. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of this case. Send down the records.