IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.69 of 2004. Date of Decision: 11.11.2010. _______________________________________________ State of H.P. ….Appellant. Versus. Munni Lal. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the petitioner: :Mr.P.K.Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Dy. Advocate General. For respondent: :Mr.Dalip Kumar Sharma, Advocate. Dev Darshan Sud, J.(Oral). The respondent who was accused before the trial Court was charged for offences under Section 408 I.P.C. The case alleged by the prosecution against him was that he was working on daily wages with the Market Committee and was supposed to be keeping the record of the auction and entrusted the duty of depositing the cash etc. Sh. S.R.Kashyap, working as a Field Collector with the Committee and P.N. Verma (who has not been produced in evidence) checked the record of Market Committee, Theog from 1994 to 29.5.1995 and found that a sum of Rs. 60,977.23 was Whether reporters of the Local papers are allowed to see the judgment? yes. 2 collected and recorded in the receipt books maintained by the Market Committee. Out of this, some amounts were deposited with the H. P. State Cooperative Bank, Theog and Rs.1800/- was lying in the cash-chest. An amount of Rs. 49,167.23 was not deposited with the Bank. The respondent was entrusted with this amount which he did deposit and was guilty of mis- appropriation. 2. The case was reported to the police and F.I.R. Ext.PW17/A was accordingly registered. Investigation was conducted by S.I.Mohan Singh, who seized receipts etc. from the respondent. Although 21 witnesses were produced in evidence, the learned trial Court on the crucial evidence urged before it namely, Ext.P-1 the confessional writing of the accused-respondent, report Ext.P-2 prepared by PW3 S.R.Kashyap and P.N.Verma, held the case of the prosecution not proved. On the other evidence, the court found that it no where connected the accused with the commission of the offence. So much so, even the purported receipts supposed to be linking the respondent with the commission of crime, have not been proved on the record. Most of the originals of the receipts were not produced. Why this has been done, remains an obscure mystery. 3. Learned Additional Advocate General vehemently contends that the learned trial Court was in serious/ grave error in ignoring the evidence on record more especially when it is established independently by each witness as also by a conjoint reading of their evidence that the respondent was 3 guilty of the offence. Learned Additional Advocate General urges with vehemence that Ext.P-1 would clinch the entire prosecution case and in case it is referred to irrespective of any other evidence on the record, the document if read as a whole, was sufficient to sustain conviction as it was the confession of the respondent in his own handwriting. No other evidence is required to establish his guilt. 4. Adverting to this document Ext.P-1 what I find from the record is that one part/portion is at page-58 and the second part is purported to be at page-95 of the file. What is urged by the learned Additional Advocate General is that it is one complete document and should be read as such. Aside from the fact that even if it is to be treated as a single document there is no explanation as to why it has been kept in a disjointed manner and that too far apart, only the first page of this document has been marked and exhibited as Ext.P-1. The second page of this document at page-95 has not been marked as an exhibit. This page also contains the signatures of the respondent. What needs to be considered is that without being proved in accordance with law, the document cannot be accepted as being one which establishes the guilt of the respondent. 5. The submission made on behalf of the State that this document by itself establishes the guilt of the respondent as it is in his hand and acknowledges mis appropriation of the sum entrusted to him, cannot be accepted for the reason that in his statement under Section 313 Cr.P.C., the accused 4 denied his writing and his signatures which have not been proved on record. The reason for keeping these documents in a disjointed manner on the record is also not explained. There is no explanation on the record as to why this document has not been proved in accordance with law or why the writing of the petitioner was not sent for verification to the hand writing expert. Ext.P-1 has just been introduced in the evidence of PW3 S.R.Kashyap without anything more. 6. Learned Additional Advocate General submits that report Ext.P-2 submitted by PW3 Sh. S.R.Kashyap, if read in isolation from the other evidence implicates the respondent for the offences as charged. In his cross-examination this witness has admitted that he did not carry out any inspection and it was one P.N.Verma, who inspected the entire records/maintained by the Committee etc. and he had nothing do with this inspection. Mr.P.N.Verma has not been either produced in evidence or cited as a witness for the prosecution. As to why this witness was not produced in evidence or why the hand writing on Ext.P-1 of the respondent was not proved on the record, is not clear. I place on record my strong displeasure in the manner in which the case has been handled by the Investigating Agency and the prosecution. 7. Learned counsel submits that the evidence of the other witnesses and more particularly PW1 Om Parkash, PW2 Kedar Singh and PW5 Satya Pal and the other witnesses 5 establish the case of the prosecution. I find that the learned trial Court rightly holds that it was one Mr.P.N.Verma, who had conducted the inspection and was familiar with the facts of the case. The other witnesses have denied any knowledge with reference to the commission of the offence. The admission of PW3 that it was Mr.P.N.Verma who prepared this record etc. renders the evidence of other witnesses as being without any basis for being accepted to convict the respondent. On going through the record what I also find is that the so called receipts on the basis of which the prosecution seeks to prove its case, have not been proved in evidence. 8. It is by now well settled that the basic principle for seeking conviction under law is that a fact should be proved beyond any reasonable doubt. 9. Leave alone doubt, I do not find even proof of the fundamental facts constituting the offence. In these circumstances, there is no option, let this Court save and except dismissed this appeal. (Dev Darshan Sud), Judge. November 11,2010(R)