JUDGMENT : Dharam Chand Chaudhary, J. This appeal has been directed against the judgment dated 14.5.2007 passed by learned Sessions Judge, Shimla in Cr. Appeal No. 15- S/10 of 2006, whereby on reversal of the judgment passed by learned JMIC Chopal, District Shimla in Cr. Case No. 105-1 of 2003/65-II of 2003, he has allowed the appeal and acquitted the respondent (hereinafter referred to as the accused) from the charge under Sections 454 & 380 IPC. 2. It is, Naresh Kumar (PW-4) who has set the machinery in motion by way of lodging report Ext. PW-1/A in Police Post Nerwa, Tehsil Chopal, District Shimla registered as rapat No. 14 on 2.8.2003 at 8:30 PM. The contents of Ext. PW-1/A reveal that Naresh Kumar (PW-4), the complainant was running meat shop at Nerwa Tehsil Chopal, District Shimla. On 2.8.2003, as usual in the morning he came to the shop after locking his quarter. His other partner had gone to graze the goats. In the evening, around 6-6:30 PM, when he returned to the quarter, found the lock he had put on the door broken. When he entered inside the room, noticed that the lock of Almirah was opened. When he opened the same, the trunk in which he used to keep his money was found stolen by someone. In the trunk, he had kept Rs. 25,000/-, his matriculation certificate and receipts. He suspected someone having broken the lock during day time and stolen the trunk and also the currency notes lying therein. He made every possible effort to find out as to who had committed the theft but of no avail. 3. On the basis of the rapat Ext. PW-1/A, FIR Ext. PW-7/A came to be registered in PS Chopal, Distt. Shimla, under Sections 454 and 380 IPC on the next day i.e. 3.8.2003. The police started investigation in the matter. The broken lock Ext. P-1 was taken into possession. The spot map Ext. PW-8/A was also prepared. As per further case of the prosecution, on 8.8.2003, the I.O. along with other police officials had gone for patrolling towards Rana Kyar side. The accused was spotted there who on noticing the presence of the police got perplexed and tried to run away. On suspicion, he was overpowered and on enquiry, he disclosed his name as Jagmohan and other antecedents. The accused was spotted there who on noticing the presence of the police got perplexed and tried to run away. On suspicion, he was overpowered and on enquiry, he disclosed his name as Jagmohan and other antecedents. His personal search was conducted in the presence of PW-2 Panne Lal and PW-3 Maghu Ram. It is in their presence, a sum of Rs. 10,000/- was recovered from the accused and taken into possession vide recovery memo Ext. PW-2/A. During the course of further interrogation of the accused, he disclosed that on 2.8.2003 during day time by breaking open the lock of the quarter of Naresh Kumar (PW-4), he entered inside and removed the trunk therefrom. The accused was arrested on 9.8.2003. During his custodial interrogation, he made disclosure statement Ext. PW-2/B on 10.8.2003 in the presence of PW-2 Panne Lal and PW-3 Maghu Ram. Subsequently, he led the police party accompanied by PW-2 Panne Lal and PW-3 Maghu Ram to forest where he had identified the place of recovery of trunk Ext. PX wrapped with cover of quilt Ext. PY beneath a tree. On opening the same, the matriculation certificate of Naresh Kumar (PW-4) and receipts Ext. P-1 to P-3 were recovered threfrom. The same were taken into possession vide recovery memo Ext. PW-2/C. The trunk Ext. PX was also taken into possession vide the same memo in the presence of witnesses. 4. During his custodial interrogation, he further revealed that in the stolen trunk, a sum of Rs. 16,000/- was found kept out of which a sum of Rs. 6,000/- was already spent by him for his personal needs. He, however, denied that there were Rs. 25,000/- lying in the trunk. 5. On completion of the investigation, report under Section 173(3) Cr.P.C. was filed by the Investigating Agency in the trial Court. Learned trial Magistrate, on prima-facie finding a case under Sections 454 and 380 IPC having been made out against the accused, framed charge against him accordingly. He, however, pleaded not guilty and claimed trial. Consequently, the prosecution in order to sustain the charge against him examined the complainant Naresh Kumar who has stepped in the witness box as PW-4. PW-1 Thebu Ram is a witness to the recovery of the broken lock Ext. P-1 of Nelson-3 make, vide recovery memo Ext. PW-1/A from the spot i.e. quarter of the complainant. Consequently, the prosecution in order to sustain the charge against him examined the complainant Naresh Kumar who has stepped in the witness box as PW-4. PW-1 Thebu Ram is a witness to the recovery of the broken lock Ext. P-1 of Nelson-3 make, vide recovery memo Ext. PW-1/A from the spot i.e. quarter of the complainant. PW-2 Panne Lal again a meat seller and running his shop at Chirgaon market as well as PW-3 Maghu Ram were allegedly associated at the time of recovery of Rs. 10,000/- immediately after the arrest of the accused on 8.8.2003 at Rana Kyar who have stated that the currency notes Ext. P-2 worth Rs. 10,000/- were recovered from the accused and taken into possession vide recovery memo Ext. PW-1/A. They both further revealed that on 10.8.2003 in their presence, the accused had made disclosure statement Ext. PW-2/B and pursuant to that got recovered the trunk allegedly stolen by him in the jungle. The same was found wrapped in a quilt cover and hidden nearby a tree. The lock of the trunk was found broken. Inside the trunk, besides matriculation certificate, receipts were found kept. The trunk was taken into possession vide recovery memo Ext. PW-2/C. PW-5 Bhero Singh is neighbour of Naresh Kumar (PW-4) the complainant being residing adjacent to his quarter. He was associated to show that one boy (accused) was seen wandering at the site of the quarter of Naresh Kumar (PW-4) during day time. Also that in the evening, the said witness told him about the lock of his quarter broken by someone and a sum of Rs. 25,000/- stolen therefrom. 6. The remaining witnesses are official, hence, formal because PW-6 Const. Shishu Pal has proved rapat rojnamcha Ext. PW-1/A. PW-7 Asha Ram has registered the FIR Ext. PW-7/A on the receipt of rukka and prepared the challan on the receipt of the case file from PW-9 ASI Ramesh Chand, the I.O. which lateron was presented in the Court. PW-8 HC Virender Kumar had partly investigated the case as the spot map Ext. PW8/A was prepared by him. The photographs Ext. PA to PC of the spot were also stated to be taken by him. PW-9 is the investigating officer. He has deposed about the manner the investigation progressed in the case and the accused nabbed on 8.8.2003 at Rana Kyar. PW8/A was prepared by him. The photographs Ext. PA to PC of the spot were also stated to be taken by him. PW-9 is the investigating officer. He has deposed about the manner the investigation progressed in the case and the accused nabbed on 8.8.2003 at Rana Kyar. He has also supported the prosecution case qua recovery of Rs. 10,000/- vide memo Ext. PW-2/A in the presence of PW-2 Panne Lal and PW-3 Maghu Ram from the accused. The statements of witnesses, according to him were recorded as per their version. According to him, the disclosure statement Ext. PW-2/B was made by the accused while in custody and on the basis thereof got recovered the trunk Ext. PX, Quilt Ext. PY, receipts Ext. P-1 to P-3. He has also identified the broken lock Ext. PZ. The same, according to him were taken into possession vide recovery memo Ext. PW-2/B. 7. The accused in his statement recorded under Section 313 Cr.P.C. has denied the entire prosecution case either being incorrect or for want of knowledge and in his defence stated that he had business dealings with the complainant and certain disputes had cropped up amongst them about the payment of money to him by the complainant. He, as such, was falsely implicated in this case. 8. Learned trial Judge, on hearing learned Assistant Public Prosecutor and also learned defence counsel has arrived at a conclusion that the charge under Sections 380 and 454 IPC against the accused stands proved beyond all reasonable doubt with the help of cogent and reliable evidence produced by the prosecution. He, as such, was convicted and sentenced to undergo rigorous imprisonment for three years and imposed the penalty of Rs. 5,000/- and in default ordered to undergo rigorous imprisonment for a further period of six months. In appeal, as noticed at the outset, learned lower appellate Court has reversed the judgment passed by learned trial Court and acquitted the accused of the charge framed against him. 9. It is the legality and validity of the judgment passed by learned lower Appellate Court, under challenge in the present appeal on the grounds, inter alia, that learned lower Appellate Court has not appreciated the evidence available on record in its right perspective and passed the impugned judgment on hypothesis, conjectures and surmises. 9. It is the legality and validity of the judgment passed by learned lower Appellate Court, under challenge in the present appeal on the grounds, inter alia, that learned lower Appellate Court has not appreciated the evidence available on record in its right perspective and passed the impugned judgment on hypothesis, conjectures and surmises. The prosecution evidence comprising the testimony of the complainant Naresh Kumar (PW-4) corroborated by PW-2 Panne Lal and PW-3 Maghu Ram fully substantiate the prosecution case, however, stated to be erroneously ignored. The recovery of the trunk Ext. PX at the instance of the accused is duly established on record, however, the evidence qua the disclosure statement Ext. PW-2/B made by the accused while in custody and the recovery of trunk in the presence of witnesses at his instance is erroneously brushed aside. Ample evidence qua arrest of the accused on 8.8.2003 at Rana Kyar and recovery of the part of the stolen money i.e. Rs. 10,000/- from him in the presence of the witnesses also connect the accused with the commission of the offence. The prosecution evidence has, therefore, been ignored without assigning any reason. The impugned judgment is stated to be legally and factually unsustainable. The same has been sought to be quashed. 10. On hearing Mr. Narinder Guleria, learned Addl. Advocate General on behalf of the appellant State and Mr. Chandernarayan Singh, Advocate, learned defence counsel as well as going through the evidence available on record, the only question which arises for determination is that though the prosecution has proved its case against the accused beyond all reasonable doubt, however, the learned lower Appellate Court has illegally reversed the judgment passed by learned trial Court and acquitted the accused of the charge framed against him. 11. The close scrutiny of the prosecution case and the evidence available on record reveals that the prosecution story right from the very beginning till completion of the investigation inspires no confidence for the reason that PW-5 Bhero Singh, the immediate neighbour of the complainant (PW-4) no doubt in his examination-in-chief has come forward with the version that on the day of occurrence i.e. 2.8.2003 during day time he had noticed the accused wandering in the vicinity where the building in which they have taken accommodation on rent is situated. He, therefore, had expressed his suspicion on the accused to have broken open door of the quarter of the complainant and stolen the money lying in the trunk inside the room. However, when as per his version, he is also running a shop at Nerwa as is stated in his cross-examination and when he as per his own statement was in his shop up to 7:00 PM, how he could have noticed the accused wandering in the vicinity on that day. Even, if it is believed that he came to his quarter to have lunch at 1-1:30 PM and it is at that time, he noticed the accused wandering there why had not disclosed this fact to the complainant particularly when as per his version the accused had been coming to the complainant off and on. Therefore, it was expected from this witness that he should have apprized the complainant when he came to know about the theft that the accused who had been visiting him was wandering in the vicinity on that day. PW-5 Bhairo Singh, therefore, is a liar and deposed falsely for some extraneous consideration as has come in the cross-examination of PW-1 Thebu Ram. Interestingly enough, as per his statement, in other houses adjoining to the building in which they were residing 30-35 other tenants are also residing. It is not understandable as to how anyone or the accused could break open the lock of the quarter of the complainant and entered inside and also removed the trunk therefrom and that too during broad day light because PW-4 the complainant when returned to the quarter in the evening at 6-6:30 PM, noticed that theft was committed there by someone. In the month of August, 6/6:30 PM is a time when it is not even sunset also, meaning thereby that the so called theft was committed during day time, which in our considered opinion, was not possible in the locality which is inhibited by other people also that too during day time. 12. The statement of PW-3 Maghu Ram can also be pressed in service qua this aspect of the matter. No doubt, as per his statement in examination-in-chief, broken lock mark Nelson-3 Ext. P-1 was taken into possession in his presence vide recovery memo Ext. 12. The statement of PW-3 Maghu Ram can also be pressed in service qua this aspect of the matter. No doubt, as per his statement in examination-in-chief, broken lock mark Nelson-3 Ext. P-1 was taken into possession in his presence vide recovery memo Ext. PW-1/A, however, during his cross-examination, he has denied the recovery of lock by the police in his presence though he has admitted his signatures on Ext. PW1/A. The signatures of another witness on this memo, namely, Mohan Lal were also obtained. PW-2 Panne Lal and the complainant are known to him. He was invited by the complainant to come to his quarter and when he went there, the complainant, PW-2 Panne Lal and PW-5 Bhairo Singh had been consuming liquor and also eating meat. It is they who asked him to make a statement so that the accused is convicted in this case. Therefore, the story qua theft committed in the quarter of the complainant is not at all established. 13. The rapat Ext. PW-1/A was entered in the rojnamcha of Police Post Nerwa on 2.8.2003 at 8:30 PM. The FIR Ext. PW-7/A was also registered on the basis thereof in PS Chopal on 3.8.2003 at 9:00 AM. What efforts were made by the police after registration of FIR to trace out the culprit till 8.8.2003, nothing material in this behalf has come on record. Interestingly enough, as per the testimony of PW-2 Panne Lal he was informed by the complainant on 3.8.2003 about the theft committed in his house. While at Aarakot at 3:30 PM, on that very day, the accused met him there at the bridge. PW-3 Maghu Ram, Sohan Lal and Sajhi Ram were also with him. In their presence, he asked the accused at Aarakot bridge that he had committed theft in their quarter. After that on 8.8.2003, they all caught hold of the accused and he was taken to police Chowki at Nerwa. It is in this way, the accused was taken into custody by the police. The investigation conducted in this case, however, discloses all together a different story qua arrest of the accused by the police as the police party when on patrol duty at Rana Kyar noticed the accused there who on seeing the police became nervous. It is in this way, the accused was taken into custody by the police. The investigation conducted in this case, however, discloses all together a different story qua arrest of the accused by the police as the police party when on patrol duty at Rana Kyar noticed the accused there who on seeing the police became nervous. He, therefore, was nabbed during the course of his search conducted in the presence of PW-2 Panne Lal and PW-3 Maghu Ram, who allegedly came in a car there. Currency notes in parcel Ext. P-2 worth Rs. 10,000/- were recovered from him. Such contradictory evidence, that too qua material aspects of the prosecution case, demolishes its entire case and the possibility of the accused having been implicated in this case falsely cannot be ruled out. 14. Now, if coming to the alleged recovery of Rs. 10,000/- during the personal search of the accused in the manner as claimed by the prosecution, the same again inspires no confidence for the reason that when the story qua arrest of the accused in the manner as claimed by the prosecution is false, the recovery as alleged by the prosecution is also doubtful. Above all, as per the prosecution case, the complainant had kept Rs. 25,000/- in the trunk. The investigation conducted at the most reveals that the accused had admitted the currency notes worth Rs. 16,000/- having stolen by him from the trunk and that out of the same, Rs. 6,000/- were spent by him to meet with his personal needs. Nothing tangible which can be termed as cogent and clinching evidence qua this aspect of the matter has, however, come on record. A sum of Rs. 10,000/- even if believed to be recovered from the accused is not a big amount nor any such recovery can be taken to believe that this amount was the part of the alleged stolen money by the accused. Admittedly, the accused, the complainant and PW-2 Panne Lal had business dealings with each other as they all were running meat shops. According to the accused, he had cleared the accounts, however, irrespective of it they (the complainant and PW-2 Panne Lal) had been claiming the balance amount of Rs. 10,000/- payable by him to them. Admittedly, the accused, the complainant and PW-2 Panne Lal had business dealings with each other as they all were running meat shops. According to the accused, he had cleared the accounts, however, irrespective of it they (the complainant and PW-2 Panne Lal) had been claiming the balance amount of Rs. 10,000/- payable by him to them. He has stated so while answering question No. 12 in his statement recorded under Section 313 Cr.P.C. In view of there being business dealing with them, the possibility of the accused having been implicated by the complainant PW-4 and PW-2 Panne Lal, cannot be ruled out, as Panne Lal is none else but in relations as brother-in-law being the husband of the sister of the complainant. As such, the possibility of conspiracy having been hatched by both of them to implicate the accused in a false case cannot be ruled out. 15. Now, if coming to the so called disclosure statement Ext. PW2/B made by the accused on 10.8.2003, while in custody in the presence of PW-2 Panne Lal and PW-3 Maghu Ram, the same is again not proved on record for the reason that PW-2 Panne Lal in his cross-examination has expressed his ignorance as to at what time, they had gone with the police in the search of trunk. He also expressed his ignorance as to at what place the trunk was lying. He is illiterate and does not know to read and write and the contents of the documents got signed from him were not read over and explained to him. Now, if the statement of PW-3 Maghu Ram qua this aspect of the matter is seen, he had signed one paper on 8.8.2003 whereas the another on 8.10.2003 in Police Post Nerwa. The place of recovery of the trunk according to him was identified by the accused to the police on 8.10.2003 meaning thereby that he has not supported the prosecution case qua the disclosure statement made on 10.8.2003 and the trunk was recovered on that very day. The disclosure statement rather, as per his version was recovered on 8.10.2003. Initially, he denied the suggestion that he is not aware of the place of recovery of the trunk, however, in the same breath has expressed his ignorance qua the place of recovery of the trunk and also its size. The disclosure statement rather, as per his version was recovered on 8.10.2003. Initially, he denied the suggestion that he is not aware of the place of recovery of the trunk, however, in the same breath has expressed his ignorance qua the place of recovery of the trunk and also its size. Therefore, with this type of evidence available on record, neither it is proved that the accused had made the disclosure statement Ext. PW-2/B in the presence of PW-2 Panne Lal and PW-3 Maghu Ram while in custody nor that it is he who had identified the place of recovery of the trunk. The documents Ext. PW-2/B and the recovery memo Ext. PW-9/B as well as site plan Ext. PW-8/A have been prepared falsely by the Investigating Agency. 16. In view of the contradictory statements made by PW-1 Thebu Ram, PW-2 Panne Lal, PW-3 Maghu Ram and PW-5 Bhairo Singh as discussed hereinabove, the evidence as has come on record by way of testimony of the complainant Naresh Kumar (PW-4), qua the manner in which he found the theft having been committed in his quarter and the alleged recovery of currency notes worth Rs. 10,000/- from the accused cannot also be believed to be true. The remaining prosecution witnesses being police officials are formal as discussed hereinabove. The evidence as has come on record by way of their testimony need not to be elaborated because the present is a case of circumstantial evidence and in view of the evidence discussed hereinabove, the prosecution has miserably failed to connect the accused with the commission of the offence. 17. In view of what has been said hereinabove, learned lower Appellate Court has not committed any illegality or irregularity while allowing the appeal and acquitting the accused of the charge framed against him under Sections 380 & 454 IPC. The impugned judgment, as such, cannot be said to be legally and factually unsustainable. The same rather is upheld. Consequently, the appeal fails and the same is accordingly dismissed. The personal bonds furnished by the accused shall stand cancelled and the surety discharged.