HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 426 of 2002 Decided on: 20.7.2011 State of Himachal Pradesh ……… Appellant. Versus Ashok Kumar ………Respondent. Coram: The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General & Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr.Anand Sharma, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Chief Judicial Magistrate, Chamba, dated 2.2.2002, vide which the respondent was acquitted of the charge framed against him under Section 409 of the Indian Penal Code. 2. Petition under Section 378(3) Cr.P.C. was filed alongwith the appeal for grant of leave to appeal, which was granted by this Court and the appeal was admitted for hearing. Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 3. Briefly stated the facts of the case are that on 20.7.1992, a written complaint was sent by the Executive Engineer, Irrigation-cum-Public Health Division, Chamba to the Superintendent of Police, Chamba in regard to misappropriation of GI pipes. The complainant had alleged that certain quantities of GI pipes of 1/2” dia was taken into custody by the patrolling party of Police Station, Chamba on 12/13-1-1992, which were loaded in a private truck, as intimated by the SHO. On receipt of the said report, the complainant made an investigation and found that 9490 Rmt. GI pipes of 15 mm dia were shown consumed against the water supply scheme Theda Pateda and Challiera Banera (tap in every kitchen) by Ashok Kumar, J.E. However, on verification, it had been found that 7525 Rmt. G.I. Pipes have been actually consumed. Thus, there was a difference of 1965 Rmt. GI pipes of 15mm dia, which were allegedly misappropriated by the said J.E. Ashok Kumar. On this report, the case was registered and after investigation, the challan was filed before the learned trial Court, who framed the charge as against the respondent under Section 409 IPC. On conclusion of the trial, the respondent was acquitted of the charge framed against him. 4. We have heard the learned Senior Additional Advocate General for the appellant and the learned counsel for the respondent and have gone through the record of the case. 5. The submissions made by the learned Senior Additional Advocate General appearing for the appellant was that the verification had been got done by the - 3 - complainant/Executive Engineer, IPH from his officials and according to their report, the consumption of pipes was shown more and since there was a difference of 1965, which were also shown to have been consumed in the Scheme, therefore, the findings to the contrary recorded by the learned trial Court holding the respondent not guilty are liable to be reversed. 6. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein. 7. The first question which arises for consideration is as to how the complainant i.e. Executive Engineer, IPH had observed that these were the pipes which were allegedly used by the respondent in the said Scheme and he had not actually consumed the whole pipes, which had been shown to have been consumed by him. There is nothing on the record to show that any complaint was lodged by any member of public or any official that the respondent had consumed less number of pipes but had shown them more and therefore, action be taken as against him. There is no complaint proved by the SHO also that the pipes which he had recovered were belonging to the IPH Department or were being carried in some truck at the instance of the respondent or had been misappropriated from the stores of the IPH Department. No investigation on these lines appears to have been conducted that these pipes were recovered belonging to the IPH Department or there was some marking or these were being transported at the instance of the respondent. The only evidence led by the prosecution is that they carried out all the measurements at the spot and - 4 - concluded that less number of pipes were consumed but more were shown and as such the respondent is liable. Therefore, the evidence of the prosecution has to be appreciated in light of the above fact as to whether the prosecution had been able to prove that less number of pipes were consumed in the said Scheme which was implemented under the respondent who was working as a Junior Engineer in the Department. 8. To prove the above fact, the most material witnesses can be said to be the persons who physically verified the pipes installed underground for the implementation of the said Scheme. PW-1 Raghuvir Singh, JE, has stated that he alongwith one Mr.Verma, Assistant Engineer and one Mr.Arora, Assistant Engineer, on the directions of the Executive Engineer, had gone to the spot, carried out the measurements and compared the pipes installed underground and also compared them with the measurement book and found that 1800 meter less pipes were consumed. He stated that thereafter, the report was submitted to the Executive Engineer. He has not referred to any such report or any such measurements carried out at the spot alongwith two other officers of the Department and found as to in what manner the measurements were taken and how they concluded that these much pipes were consumed less. There is nothing in his statement and he was declared as hostile and was allowed to be cross examined by the prosecution and he only proved the recovery memos Ext.PW-1/A and Ext.Pw-1/B. In cross examination, he stated that he had gone in the month of June/July but since no report prepared by him was proved on record, his statement cannot be said to be relevant. The - 5 - details of the measurements carried out and the pipes measured at the spot should all have been proved from the report submitted by him, if any, but the same never saw the light of the day when his statement was recorded. 9. The other witness PW-3 Shri R.K. Verma, Assistant Engineer, has stated that at the instance of the Executive Engineer, he alongwith Shri B.N. Arora and Shri R.C. Goel verified the measurement book and prepared the report Ext.PW-3/A. He clearly stated that no digging of the pipes laid underground was got done by him and, therefore, it cannot be concluded from his statement as to how much pipes were used. He clearly stated that he never associated the accused at that time. 10. The third witness PW-4 Shri B.N. Arora, the then Assistant Engineer, has also stated similarly. He stated that the report Ext.PW-4/A was submitted. He also admitted that he had not called the accused at the time of measurements. He admitted that no digging was done at the spot. He admitted that under the Schemes where these pipes were laid, the place is hilly. He also admitted that after the pipes were laid, verification is done by the SDO and this is recorded in the measurement book. PW-15 Amar Singh, retired SDO, has stated that he had gone to the spot for measurement of pipes under the water supply scheme. However, he admitted that the accused was not associated at that time. He stated that he does not know as to when these measurements were carried out. He was declared as hostile and was allowed to be cross examined by the prosecution. - 6 - 11. Apart from the above, the prosecution had also examined PW-2 Jai Ram, who is a formal witness. PW-5 R.S. Verma is the complainant himself, who had sent the report to the police on receipt of information from the SHO on the basis of which the case was registered. PW-6 R.C. Goel, the then SDO, has stated that he prepared the estimates of the Scheme and has also stated that physical verification was done and the physical verification reports are Ext.PW-4/A to Ext.PW-4/C. He has nowhere stated the manner in which the verification was done or the details thereof. PW-7 Balbir Singh has only stated that the pipes which had been installed under the supervision of Ashok Kumar, J.E., were checked. PW-8 Dhani Ram had only fixed the pipes. PW-9 Amro had also fixed the pipes. PW-10 Vinod Prasad, Assistant Engineer, has stated that nothing has happened in his presence and he was declared as hostile. PW-12 Anil Kumar is not relevant. PW-13 Rai Singh, Dy.S.P. was posted as SHO at the relevant time and on receipt of the report, he ahd registered the FIR Ext.PW- 13/A. PW-14 Hans Raj, ASI, had conducted the part investigation. 12. On appraisal of the above evidence, it is clear that the prosecution has not led cogent and reliable evidence to prove that actual measurements of the pipes laid underground was carried out after digging the pipes from which it could be concluded that less number of pipes were fitted underground while implementing the Scheme. The prosecution has tried to lead evidence of the handwriting expert, but the accused admitted that he was the JE and under his supervision these schemes were carried out and were - 7 - implemented and he had not denied his signatures in the measurement book. But the fact remains that the prosecution has to prove that less number of pipes were fitted underground and those pipes were misappropriated by the accused, in which it had miserably failed. The learned trial Court had discussed the evidence and had concluded that the prosecution case has not been proved beyond reasonable doubt and those findings cannot be said to be perverse calling for an interference by this Court. We accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. The bail bonds furnished by the respondent shall stand discharged. (R.B. Misra), Judge July 20, 2010. (V.K. Ahuja), (tilak) Judge