IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.116 of 2003. Date of decision:22.03.2010. Parkash Chand …Petitioner Versus State of H.P. …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: Mr.J.R. Thakur, Advocate. For the Respondents: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. This revision petition has been instituted by one of accused Parkash Chand who has been convicted by the two Courts below for an offence under Section 406 of the Indian Penal Code. 2. The case of the prosecution which was lodged at the instance of Tulsi Ram (PW-9), owner of truck No.HIB-345, was that accused Parkash Chand, petitioner herein, was employed by him as driver and PW-6 Shiv Kumar was employed by him as cleaner of the truck. On 13.11.1990, this truck was booked for carrying cement from ACC factory Barmana to cement dump at Hoshiarpur 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 by the H.P.Ex-servicemen Union, Barmana. According to gate pass No.47690, dated 13.11.1990 and G.R. No.098353, 180 bags of cement were loaded in the truck. On 11.1.1991 Tulsi Ram received a letter stating that the cement transported by Parkash Chand has not been received at Cement Dump at Hoshiarpur. The case further proceeds that on the inquiry made by Tulsi Ram about the bags of the cement, Shiv Kumar PW-6, Cleaner of the truck, has told him that 180 bags of cement were sold by Parkash Chand driver at village Daloh, Samlohal and Badaghat and were not transported to Hosdhiarpur and a sum of Rs.18,000/- was misappropriated by him. Accused Khazan Singh and Parkash Chand were ordered to stand trial for offences under Sections 406 and 411 of the Indian Penal Code. 3. The learned trial Court, relying upon the evidence on record, convicted both the accused. Two appeals were filed before the learned Sessions Judge. The learned appellate Court acquitted Khazan Singh of offences under Section 411 but sustained the conviction of the petitioner under Section 406 of the Indian Penal Code. While acquitting Khazan Singh, the learned Sessions Court holds that it could not be established that any offence under Section 411 of the Indian Penal Code was made out against Khazan Singh. The prosecution case was that Khazan Singh had purchased 151 bags of cement from Parkash Chand. The Court fortifies these submissions from the fact that Khazan 3 Singh had no motive to buy this cement as it is easily available in the market. The Court also considers the case of the prosecution that 25 bags of cement were sold to PW-2 Balak Ram, PW-3 Ram Baksh, PW-4 Kishori Lal, PW-5 Pyar Singh and holds that there is no evidence to establish that these persons had actually purchased the cement. All these witnesses were declared hostile. The learned appellate Court finds that no evidence much less evidence acceptable in law was brought on the record to show that these persons had in-fact bought cement from accused Parkash Chand. The Court then proceeds to consider the case of Khazan Singh and again gives a positive finding that no cement was purchased by him. In other words the very foundation of the case of the prosecution that is that the accused had sold cement to these witnesses and the other accused, which cement had to be transported by him from Barmana and was delivered at Hoshiarpur is knocked out. 4. In these circumstances, learned counsel appearing for the petitioner urges that the judgment of the learned appellate Court is perverse so far as the conviction of Parkash Chand is concerned. He submits that in addition, there is no evidence that the goods were in-fact entrusted to Parkash Chand as none of the documents show that there was entrustment of these goods to the petitioner. When considered in its entirety, the evidence does not at all establish the 4 involvement of parkash Chand. He also referred to the evidence of PW-9 Tulsi Ram who states that he was the owner of the truck who then in the same breath states that he does not remember the name of the driver. He was declared hostile. 5. It is urged by the learned Additional Advocate General that this Court cannot sit in second appeal over the judgment rendered by the appellate Authority which has considered the entire factual situation in its entirety. True this is the principle of law which is well established. But at the same time this Court can always interfere if it finds that the findings arrived at are perverse. There is not a single document on record showing actual entrustment to Parkash Chand. All the witnesses of the prosecution through whom it tried to establish that the cement entrusted to the petitioner was sold to them, have denied any such purchase. So much so even the second accused Khazan Singh, who is supposed to have purchased the major part of the cement stock, has also denied this fact. 6. In these circumstances, the basis of the case set out by the prosecution is knocked out. Even the informant PW-9 Tulsi Ram has resiled from his statement. A complete reading of the evidence of these witnesses even after they have been declared hostile does not establish the guilt or involvement of the petitioner. I have carefully scrutinized the record 5 and find it surprising that the learned trial Court should have convicted both Parkash Chand and Khazan Singh on evidence which no prudent man would hold shows their involvement. Even the learned appellate Court has also not accepted the version of the prosecution that the cement was sold by Parkash Chand. 7. In these circumstances, I allow this revision petition and acquit the petitioner of the offences as charged. I hold that the prosecution has not been able to establish its case and there is no evidence against Parkash Chand. This revision petition is accordingly allowed and the petitioner is acquitted of offences as charged. The bail bonds furnished by the petitioner shall stand discharged. March 22, 2010. (Dev Darshan Sud) (aks) Judge.