1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 612 of 2002. Date of decision: 05.08.2011. State of Himachal Pradesh. …Appellant. Versus Pritam Singh & Ors. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon'ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1 For the Appellant : Mr. Vivek Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Dy. A.G. For the respondents : Mr. N.K. Thakur, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 3.5.2002 passed by the learned Chief Judicial Magistrate, Una in case No. 84-1 of 1997 whereby the accused were acquitted of having committed an offence punishable under Section 382 read with Section 34, IPC. 2. The prosecution story, in brief, is that on 20.5.1997, the complainant had gone to Nangal in a Maruti van bearing No. CHK-7834 owned by him. According to the complainant, he had gone to get his van serviced. Shri Dharampal was also sitting 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 with him in the van. When he was returning and was near Ajouli Chowk Subeg Singh signalled to stop the van. Thereafter Pritam Singh, owner of Kamal Dhaba, Subeg Singh resident of Sansowal and Ashwani Kumar, driver in HRTC ( all three accused) got into the vehicle and asked him to drop them at Una. On the way to Una, when they had crossed Mehatpur, two of the accused Pritam Singh and Ashwani Kumar enquired from the complainant why he had not made payment of Rs.10,000/- to Subeg Singh. The complainant replied that he and Subeg Singh belong to one village and he would make payment to him of his own. This exchange carried on up to Una, where the complainant stopped the van near Kamal Dhaba owned by accused Pritam Singh. Thereafter the accused got down from the van and pulled out the complainant from the van. Then Pritam Singh snatched the key of the van and stated that they would not return the van to him till the payment of Rs. 10,000/- is made to Subeg Singh. He was also threatened and thereafter complainant went to his house and narrated the incident to his brother. Then they contacted the accused but they did not return the vehicle and thereafter complaint, Ex.PW2/A, was filed with the police Incharge of Police Post, City Una on 29.4.1997 i.e. after 9 days of the incident. FIR Ex.PW4/A was lodged and Pritam Singh, accused was arrested. It is alleged that Pritam Singh made a disclosure statement Ex.PW1/A which led to the recovery of the van. 3 3. In a case under Section 382, IPC it may not be normally necessary to prove that the complainant or the person from whom the goods have been stolen is actually owner of the same. But in the present case, this issue assumes importance because of the fact that the story of the complainant is that he was the owner of the vehicle which was stolen. When a person files a complaint his testimony has to be appreciated, keeping in view the facts narrated by him. The accused produced copies of affidavits Ex. DA and Ex. DB dated 21.5.1997 and 12.6.1997 respectively. These affidavits have been executed by the complainant and one Shri Kuldip Saini. According to these affidavits vehicle in question was transferred. The incident took place on 20.5.1997. Even as per the complainant, on 20.5.1997 he was in possession of the vehicle but these affidavits showing the transfer of the vehicle, was prepared on 21.5.1997 and 12.6.1997, after the alleged extortion and theft had taken place. 4. It is also more than apparent that Section 382 is not applicable to the facts of the present case. Section 382 reads as follow: “382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.-Whoever commits theft, having made preparation for causing death, or hurt or of restraint, or fear of death, or of hurt, or of restraint, to any person in order to the committing of such theft, or in order to the effecting of his escape after the committing of 4 such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” It is apparent from the bare perusal of Section 382 IPC that before committing theft, the accused before committing theft, should have made preparation to cause death or hurt to a person. Here is a case where the story of the complainant is that he had gone to Nangal to get his vehicle serviced. Without going into the question as to whether the vehicle was owned by him on that day, how could the accused know that the accused was going to Nangal to get his van serviced. Even the version of the complainant is that near Ajouli Chowk he was signalled to stop the van and he voluntarily permitted the accused persons to sit in the vehicle. He in fact changed the route to suit the accused persons. Therefore, it is apparent that the accused persons got into the vehicle with the consent of the complainant. 5. It is more than apparent that there was some dispute with regard to money between the complainant and accused Subeg Singh. Complainant in his statement also stated that he was made to sign some papers but these papers were not produced by anybody but it is apparent that these papers related to some transaction. There is no explanation why these papers have not seen in the light of the day. Further more, there is no explanation why the complainant remained silent for 9 days. In case the van had actually been taken by force by the accused 5 persons, what prevented the complainant from lodging a complaint on the same day. 6. The incident took place virtually in the heart of Una town. No resistance was offered by the complainant and Dharampal. Whereas the accused were three persons and complainant along with Dharampal were two persons. They could have at least resisted the taking away of vehicle and they could have even raised an alarm. There is no evidence in this regard. The police post is available in Una town merely at a distance of 200 yards. No compliant was lodged. All these factors cast a grave doubt on the prosecution story. We, therefore, are of the view that no interference is warranted in the judgment of acquittal passed by the learned trial Court. Accordingly, the appeal is dismissed. Bail bonds are discharged. (Deepak Gupta) Judge (Sanjay Karol) Judge August 5, 2011. (jai)