IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.530 of 2004. Date of Decision: 14th October, 2011. ____________________________________________________ State of Himachal Pradesh ….Appellant. Versus D.C. Rana ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. A.K. Bansal, Addl. Advocate General and Mr. P.M. Negi, Dy.Advocate General. For the respondent: Mr. Ashwani Pathak, Advocate. ____________________________________________________ SURINDER SINGH, J. (Oral) : The respondent was acquitted of the offences punishable under Sections 407 and 420 of the Indian Penal Code, feeling aggrieved the State has challenged the acquittal in the present appeal. 2. Heard and gone through the record in detail. 3. Precisely, the case of the prosecution can be stated thus. In the year 1992-93, the Executive Engineer, B&R, HPPWD, Kumarsain Division, invited tenders for the carriage of 99.84 metric-tone of bitumen from “Mathura Refinery” Mathura (U.P.) to HPPWD stores situated at Sunni and Kumarsain. Whether reporters of the Local papers are allowed to see the judgment? - 2 - About 50 metric-tone was to be carted to Sunni store and similar quantity was to Kumarsain. Tenders of M/s. U.P. Himachal Transport Company (Registered), I.D. Mukand Complex Holigate, Mathura for which respondent D.C. Rana was the Proprietor, were approved. The respondent is alleged to have supplied only 56.94 metric-tone of bitumen at both stores as against about 100 metric- tone. Despite repeated reminders, he did not care to make good the loss. Consequently, the Executive Engineer, B&R, HPPWD Kumarsain Division sent a written complaint on 20.7.1998 to the Station House Officer, Police Station, Kumarsain, which culminated into FIR No.37 of 1998 under the aforesaid sections. 4. Though the matter was investigated, but police presented a cancellation report on the ground that the alleged misappropriation had taken place at Mathura (UP) beyond their jurisdiction. Learned trial Court sent notice to the complainant. After hearing the objections vide order dated 31.5.2000 took cognizance for the offences aforesaid that it was continuing offence - 3 - and the Court has jurisdiction and procured the presence of the accused/respondent. 5. Finding a prima facie case against the respondent, he was accordingly charge-sheeted under Sections 407 and 420 of the Indian Penal Code. He pleaded not guilty and claimed trial. 6. To prove its case, the prosecution examined PW1 Shri Bhim Chand Gupta, the then Assistant Engineer, PW2 Shri Dev Parkash, Senior Assistant, HPPWD, Kumarsain Division, PW3 Shyama Nand, Senior Assistant, PW4 HC Vinod Kumar, PW5 Shri N.K. Singla, the then Junior Engineer. PW6 Shri Ram Chand Udwani, the then Assistant Engineer and PW7 Shri Baljeet Singh, the then XEN, besides examining PW8 Shri B.S. Negi, the then SHO. The respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. However, no evidence in defence was led. 7. At the end of trial, respondent was acquitted on the ground that there was no cogent evidence with respect to the non-delivery of less quantity and further that there have been contradictory - 4 - statements of the witnesses of the prosecution. The learned trial Court also took notice of the statement of PW2 Shri Dev Parkash and drew adverse inference for non-production of the record so as to enable the Court to properly and effectively adjudicate upon the matter. Further, the prosecution had also relied upon the alleged undertaking of the respondent to supply the alleged quantity of bitumen vide his letters Ext.PX and PY, which were produced by PW5 Shri N.K. Singla during his examination conducted by the learned Public Prosecutor for the first time in the Court, which was objected to by the learned defence counsel. Thus, these documents were not read in evidence nor put to the accused in his statement under Section 313 of the Code of Criminal Procedure. The learned trial Court also observed that the accused did not admit the correctness of these documents and except this there is no other incriminating evidence available on record. 8. As a matter of fact, if the documents Ext.PX and PY are taken out of consideration, there - 5 - remains nothing on record to connect the accused with the alleged offence. The documents aforesaid were not tendered to the police during investigation nor it was brought on record as per procedure with due notice to the accused. These were also neither admitted by the accused nor it is proved to have been executed by the accused. Even during the examination of PW5 Shri N.K. Singla, Junior Engineer aforesaid these documents were not produced during his examination-in-chief and it was only after the cross-examination of the witness was conducted the learned Public Prosecutor, sought permission to re-examine the witness which led to the production of these documents, subject to objection raised by the learned defence counsel. The perusal of the record shows that the learned trial Court also did not found it as an incriminating circumstance to put to the accused in his statement for the reasons that these documents had not come on record as per procedure. 9. It is a settled law that if any incriminating circumstance has not put to the accused that - 6 - cannot be read against him in any manner. The Apex Court in Sanatan Naskar and another v. State of West Bengal, AIR 2010 SC 3570, has examined in para 10 of the judgment the relevancy and, objective of Section 313 of the Code of Criminal Procedure. The said para reads as under: “10. The answers by an accused under Section 313 of the Cr.PC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr. PC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr. PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr. PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his - 7 - version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important in- criminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) of Cr. PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced - 8 - by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.PC as it cannot be regarded as a substantive piece of evidence.” 10. Against the aforesaid fact, when Exts.PX and PY are not a circumstance much less an incriminating circumstance, it was rightly not put to the accused; particularly when it has not been brought on record by legal means, such production of the documents cause material prejudice to the accused. Further, in the light of above cited principle it is apparent that even if it is considered to be incriminating circumstance and not put to the accused, it cannot be used against him. Otherwise also, the undertakings to supply the deficit quantity by the respondent these documents Ext.PX and PY would not be an incriminating circumstance for the purpose of proving the guilt against the accused/respondent, which lacks mens rea. At the most, it would incur a civil liability against him. Since both these documents are not enough to prove the guilt of - 9 - the accused, also in view of the fact that the supply orders Ext.PW6/A to PW6/D reflect that the quantity of bitumen which was sought to be carried by the respondent to the PWD stores at Sunni and Kumarsain stood supplied as the full and final bill of the requisite quantity was passed and approved by the Executive Engineer for its payment. Thus the prosecution evidence is infirm, weak, contradictory and not worth reliance. Therefore, the learned trial Court rightly held that it was not possible to hold that the prosecution has been able to prove the case against the respondent beyond reasonable doubt. 11. In my opinion, reasons for acquittal are borne out from the record, which require no interference. As such, the appeal filed by the State sans merit and is accordingly dismissed. 12. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. 13. Send down the record. October 14, 2011. (Surinder Singh), J. (rc)