HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 504 of 2000 Decided on: 7.10.2010 State of H.P. ……… Appellant. Versus Surjeet Lal and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.J.S.Guleria, Assistant Advocate General. For respondent No.1: Mr.R.K. Gautam, Senior Advocate, with Mr.Vikrant Chandel, Advocate. For respondent No.2: Ms.Archana Dutt, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment passed by the learned Chief Judicial Magistrate, Solan, H.P., dated 31.3.2000, vide which, the respondents were acquitted of the charge framed against them under Section 379/34 of the Indian Penal Code. 2. Briefly stated, the facts of the case are that a complaint was lodged with the police by one M.S.S. Rao that he had parked his Maruti Car No.DL-8C-1391, on the night intervening 17/18.9.1998 at bye-pass road in front of Bharat Trading Company in the area of Police Station, Solan. The said Car was allegedly removed by some unknown persons and FIR Ext.PW-9/A was lodged accordingly. The said Car was taken ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - in possession by the police of Police Station, Joginder Nagar on 22.9.1998 and thereafter, the accused were apprehended and the case was investigated. After investigation, the challan was filed before the learned trial Court, who tried the respondents for the offence, as detailed above, leading to their acquittal. 3. On appraisal of the record of the case, it is clear that the case of the prosecution is that they impounded the Maruti Car in question on 22.9.1998 in the area of Joginder Nagar Police Station and thereafter the accused persons were arrested on suspicion under Section 41(2) and 109 of the Cr.P.C. 4. PW-16 Kirpa Ram, the then SHO, Police Station, Joginder Nagar has stated that on 21.9.1998, he alongwith other police officials was present in the area of Harabagh, when he was informed telephonically by MHC Ramesh Chand that two persons were moving in suspicious circumstances in a Maruti Van. He has further stated that SI Dharam Chand alongwith other police officials tried to stop the Van on receipt of the information, but the occupants took the Van towards Basai Road Neri Bagwan and SI Dharam Chand alongwith other officials followed the said vehicle. He further stated that when he reached at Kunkar, he found the vehicle parked without any number and two persons ran away towards forest area. After some time, they brought two persons alongwith villagers and one of them was identified by him as Rakesh Kumar and the vehicle was taken in possession. It is clear from a perusal of the statement of this witness that the vehicle in question had been intercepted parked on the road side and the occupants had allegedly ran away who were - 3 - apprehended after some time, but it cannot be said that these were the same persons who were taking the said vehicle or were the occupants of the car in question. 5. PW-14 SI Dharam Chand has stated that he received an information from the MHC that one Maruti Car is coming towards Joginder Nagar in which some suspicious persons are sitting. They took the vehicle towards Kunkar, where the car was apprehended. He further stated that both the accused persons were also apprehended while running from the car though PW-16 SI Kirpa Ram has stated differently and it was never the case of the prosecution that these persons were apprehended at the spot. The statement of PW-14 SI Dharam Chand that they apprehended the accused persons at the spot does not inspire confidence. 6. PW-5 Nek Ram, an independent witness, has stated that the vehicle was parked on the road side and both the accused persons ran away, who were apprehended by the people there. He was declared as hostile since he had not supported the prosecution story. 7. PW-6 Rakesh Kumar, another independent witness, has stated that they found the vehicle parked at Kunkar and the persons had run away, who were apprehended from the forest. In cross examination, he has stated that the accused were apprehended after 1-1/2 hour. He was also declared as hostile since he had not supported the prosecution story. 8. PW-7 H.C. Ramesh Chand has only proved the rapat Ext.PW-7/A lodged in this regard. PW-8 Suresh Kumar has stated that the vehicle was found at Kunkar and two persons were sitting in the said vehicle. But he nowhere - 4 - stated that they were arrested at that time by the police also. In cross examination, he admitted that, on seeing their vehicle, the accused persons had run away and the MHC and Constables had followed them and no other person, apart from them, was present at that time. The statement of PW-8 Suresh Kumar is that the police officials followed a Car and there were two occupants in the said vehicle. The vehicle was parked in Kunkar forest and the accused were arrested and brought to Joginder Nagar. He nowhere stated that the accused were in the vehicle or were apprehended while running from the vehicle. In cross examination, he admitted that when they reached at the spot, the accused were not in the vehicle and they were not seen by him sitting in the car. He also stated that the accused were apprehended at a place 3 kms. away from the spot where the car was apprehended and they had been apprehended by the Constables Desar Singh and Bhoop Singh. Statements of the other witnesses examined by the prosecution are not material. 9. It is, therefore, clear that the case of the prosecution was that the car was found abandoned on the road side and the accused persons had run away from the spot. They had never been apprehended sitting in the car or that the car was not found in their possession which was stolen one, so as to hold the accused persons liable for the offence. There is no material evidence on record to show that the accused were found in possession of the stolen car and the evidence led is quite contradictory and all the independent witnesses have clearly stated, including some of the police officials, that the accused were not found sitting in the car when the car was impounded by the police. Therefore, the learned trial - 5 - Court had come to a right conclusion that the prosecution has failed to prove their case and the said findings cannot be termed as perverse and do not call for an interference by this Court. 10. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. Oct.7, 2010. (V.K. Ahuja), (TILAK) Judge