HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 416 of 2003 Decided on: 1.6.2010 State of Himachal Pradesh ……… Appellant. Versus Desh Raj 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 the respondents: Ms.Sweta Julka, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the court of learned Chief Judicial Magistrate, Hamirpur, dated 28.9.2002, vide which the respondents were acquitted of the charge framed against them under Section 380 of the IPC. 2. Briefly stated the facts of the case are that on 21.1.1996, a report was lodged with the police by complainant Prem Singh PW-1 that his 23 slippers and 12 logs of Tuni, which were kept by him in his cattle shed, have been stolen and he expressed his suspicion upon the respondents that they may have committed this theft. A case was registered by the police and during investigation, it came up ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - that these logs and slippers were transported by the respondents in a truck belonging to PW-2 Bachiter Singh on the night of 18.1.1996, which were unloaded at the shop of PW-6 Dhyan Chand at Jhanikar. The recovery of the logs was made from the furniture shop of PW-6 Dhyan Chand and after investigation the challan was filed as against the respondents, who were tried by the learned trial Court leading to their acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution and the judgment passed by the learned trial Court, it is clear that the prosecution story is full of contradictions and infirmities, which have not been satisfactorily explained by the prosecution. The complainant Prem Singh reported the theft of 23 slippers and 12 logs of Tuni from his cattle shed on the night intervening 18.1.1996. However, when recovery was made only of 10 slippers, the complainant as PW-1 came up with the plea that the remaining logs and slippers were found in the other room of his cattle shed and only 10 slippers were stolen from his cow shed. This clearly shows that he intentionally gave the exaggerated figure of the logs and slippers and when the recovery of 10 logs was made, he shifted his version and stated that only 10 longs were stolen from his cattle shed. Therefore, the statement of the complainant cannot be relied upon. Moreover, the complainant had admitted that the respondents were working with him and there was some dispute in regard to payment of labour charges and that may be the reason for - 3 - implicating the respondents in the commission of this offence of theft. 5. PW-6 Dhyan Chand, from whose furniture shop the recoveries were effected vide recovery memo in which no date has been mentioned, has stated that prior to 18.1.1996, respondent Desh Raj had come to his shop and had stated that furniture is to be made for which he had left 10 logs in his furniture shop. It has been rightly observed by the learned trial Court that according to the provisions of the Indian Forest Act and the Rules framed thereunder, the furniture shopkeeper was required to make entry in his register in regard to the logs left by some person at his furniture shop. But PW-6 Dhyan Chand had failed to maintain any such register or produce the same or prove the entries therein and it may be to save his own skin that this witness may have come up with this plea that these logs were left by respondent No.1 prior to 18.1.1996. He could have been held up as an accused in the case since he had not made the entries in regard to the logs and as such he was equally liable for the offence, if any, committed by the respondents, but to save his own skin, he may have come up with the plea and his statement, in the absence of the entries in the register maintained by him, cannot be relied upon. 6. PW-2 Bachiter Singh has been produced to show that on 18.1.1996, he was driving the truck in which the logs were transported to the furniture shop. He stated that one Biru stopped him and told that his work of construction of a danga was going on and he requires sand and bazri, which should be brought by him. This witness further stated that - 4 - in the meanwhile, respondent Desh Raj came there and asked him to take some logs to the furniture shop. He further stated that the respondents loaded 8-10 logs in his truck. However, in cross examination, he stated that he had not made the entry in the log book maintained by him, though the entries are generally made in regard to the goods carried in the truck. He further stated that it was dark at that time. In cross examination, he omitted to state that the wife of respondent No.1 was also there and stated that it was only loaded by respondent No.1. He does not know the name of the furniture shopkeeper at whose shop he left these logs. 7. PW-3 Balbir Singh has stated that the construction work of his danga was going-on, on 28.1.1996 and he required sand and bazri and had requested Desh Raj, who was talking to a driver for carrying his logs to the furniture shop. This clearly shows that this occurrence had taken place on 28.1.1996, but the other evidence led by the prosecution, including the testimony of PW-2 Bachiter Singh, driver of the truck, is to the effect that the logs were carried on 18.1.1996 and there is no explanation for the discrepancy in the statements of these two witnesses. The learned trial Court has also referred to the testimony of PW- 9 H.C. Ramesh Chand, the Investigating Officer, who made contradictory statement in regard to the case, when firstly he stated that the slippers were taken into custody from one Dhyan Chand, which were identified by the complainant Prem Singh, but in cross examination, he shifted his stand and stated that these were sold by the complainant Prem Singh to the said saw mill/furniture shop owner PW-6 Dhyan Chand. - 5 - However, in further cross examination of this witness, it has come up that he did not make any entry in the case diary that these logs were sold by the complainant Prem Singh to Dhyan Chand PW-6. The learned trial Court has clearly observed in regard to the contradictory statement made by PW-9 H.C. Ramesh Chand and had observed that this witness appears to be a convenient witness, who changed his stand at his own convenience and, therefore, his statement was not relied upon observing that it was either to favour the accused or to help Dhyan Chand, the saw mill owner. 8. Keeping in view the evidence led by the prosecution, which did not establish that these logs were transported to the shop of PW-6 Dhyan Singh by the respondents and which evidence was quite contradictory, the learned trial court came to the conclusion that the prosecution has failed to prove its case beyond any reasonable doubt, which findings of the learned trial Court cannot be said to be perverse calling for an interference by this Court. 9. In view of the above discussion, 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. June 1, 2010. (V.K. Ahuja), (TILAK) Judge