IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No.256 of 1996 Date of Decision: 5th March, 2010. State of Himachal Pradesh Appellant. Versus Krishan Kumar Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Vivek Thakur, Additional Advocate General. For the respondent: Mr. Subhash Sharma, Advocate. Deepak Gupta, J. (Oral) This appeal is directed against the judgment of the learned Sessions Judge, Chamba, in Criminal Appeal No. 6 of 1993 decided on 3.8.1995 whereby he allowed the appeal of the accused and set aside the judgment of the learned trial Court dated 15.6.1993 convicting the accused of having committed offences punishable under Sections 409, 468, 471,477-A, IPC and sentenced him to undergo rigorous imprisonment for six months for each of the offences and further directed that sentence shall run concurrently. The prosecution case in brief is that the accused at the relevant time was posted as sub Whether the reporters of Local Papers are allowed to see the Judgment? Yes. 2 Inspector, Food and Supplies Department. According to the prosecution, between the period 24.4.1986 and 21.5.1986 240 quintals of wheat was entrusted to the accused, who was required to make entries in this regard in the concerned registers. It was also the duty of the accused thereafter to check the memos and the receipts. The accused thereafter used to arrange for the transportation of Wheat to Tribal areas through Carriage Contractor Shri Rishi Ram. The prosecution version in brief is that out of these 240 quintals of wheat in fact only 200 quintals were handed over to Shri Rishi Raj for being delivered to the Tribal areas. Therefore, the accused misappropriated 40 quintals of wheat. According to the prosecution, the accused had handed over 10 quintals of wheat to Shri Rishi Ram on 24.4.1986 for onward transmission to Tundah vide Ext.PW-2/A. The case of the prosecution is that accused used the carbon copy of Ext.PW-2/A, which is Ext.PW-2/H to claim that another amount of 10 quintals of wheat was sent to Tundah. Overwriting was made over the dated 24.4.1986 and the same was shown to 21.5.1986. Similarly, the prosecution alleges that 30 quintals of wheat was handed over to Shri Rishi Ram for onward transmission to Tundah on 25.4.1986 vide Ext.PW-2/C. The accused used the carbon copy of Ext.PW-2/J by overwriting on the date 3 showing that 30 quintals of wheat had been sent on 21.5.1986. The accused in his statement under Section 313, Cr.P.C. has not denied the fact that it was part of his duty to receive the wheat and send it for onward transmission. However, he has denied that he made any alterations in the aforesaid two documents or that he submitted the carbon copies of the bills claiming them to be originals to his superior officers at Chamba. To prove the charge against the accused it was incumbent upon the prosecution to show that the accused had been entrusted with 240 quintals of wheat. Other than the bare oral statement of PW-1 there is not an iota of evidence to show that any such entrustment was made. Except for the allegations made in the complaint and the oral statement of PW-1 no document has been placed on record to show that in actual fact 240 quintals of wheat was entrusted to the accused during this period. In the Government, entrustment is not made by oral orders. Wheat, if it had been entrusted would have been sent alongwith some writing and proper receipt obtained from the accused. The documents in this regard have not been produced and, therefore, adverse influence has to be drawn against the prosecution. 4 It is extremely important to note that even the trial Court while framing the questions to be put to the accused under Section 313, Cr.P.C. has not even put a question to him that 240 quintals was entrusted to him. Therefore, the very entrustment having not been proved, it knocks out the very base of the prosecution case. Assuming for the sake of argument that entrustment has been made then also we find that it is not possible to hold the accused guilty on the basis of the evidence on record. The accused has denied that he made overwriting on the carbon copies of the documents. The Examiner of Questioned Document opined that the main writing giving details of the wheat is in the hand of the accused. The accused in fact does not deny this fact. The only question is whether overwriting in the date in the carbon copies was made by the accused or not. Here the report of the Examiner of Questioned Document is that he can give no opinion with regard to these overwritings. Therefore, the prosecution has also failed to prove that overwriting was in the hand of the accused. Another reason to acquit the accused is that initially an enquiry was conducted and report Mark A was made, which forms part of the challan. This report in fact indicts Rishi Ram, Carriage Contractor 5 (PW-2), Rattan Chand, who is the supervisory officer of the accused and the accused himself. This report was submitted by Shri Ved Parkash Sharma on 4.2.1987 and was the first report regarding the shortage of the wheat. Shri Ved Parkash Sharma has not been cited as a witness nor examined in the Court. The prosecution has failed to give any valid reason for not examining him as a witness. According to this report, PW-1 Shri Rattan Chand, PW-6 Rishi Ram were the main accused and the accused was also their accomplice. Surprisingly, these two persons have not been made accused and they have been cited as prosecution witnesses. Therefore, their testimony cannot be used against the accused because it is a self exculpatory statement. Instead of proving the report given by Shri Ved Parkash Sharma, Section Officer of the Food & Supplies Department, the prosecution procured another abridged scrutiny report Ext.PW-2/X from Partap Chand, Accountant. It is more than apparent that exercise was done with a view to save prosecution witnesses PW-1 and PW-6. As such, it is more than apparent that the investigation in the case has been totally unfair. In view of the above discussion, we are of the view that the prosecution has failed to prove that 240 quintals of wheat was entrusted to the accused. It has also failed to prove that the 6 accused forged any document or used such document for unjust enrichment. No case is made out against the accused. The Court below rightly acquitted the accused. The appeal is accordingly dismissed. Bail bonds, if any, are discharged. (Deepak Gupta) Judge. 5th March, 2010 (Sanjay Karol) (C) Judge.