HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 349 of 2002 Reserved on: 8.3.2010 Decided on: 9.3.2010 State of H.P. ……… Appellant. Versus Gurmeet Singh and others ………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 respondents No.1, 3 and 4: Mr.Bansi Lal, Advocate. For respondent No.2: Mr.K.D. Sood, Advocate. For respondents No.5 Mr.R.S. Cheema, Senior Advocate, to 9: with Mr.Anand Sharma, Mr.Pawan Girdhar and Ms.Tarnum Cheema, Advocates. V.K. Ahuja, J.: This is an appeal filed by the appellant against the judgment of the court of learned Sub Divisional Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., dated 12.12.2001, vide which he acquitted the respondents of the charge framed against them under Sections 407, 420, 120-B read with Section 34 of the IPC. Briefly stated the facts of the case are that on the intervening night of 27/28.8.1994, Inspector Ram Singh, S.H.O., Police Station, Rampur, received a secret information about an illegal consignment of bitumen being unloaded in the premises of M/s J.P. Company, Jhakri from three trucks, whose numbers were also mentioned therein. He lodged a rapat, on the basis of which the FIR was recorded at ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? - 2 - Police Station, Rampur. During investigation, it was found that on 23.8.1994, a consignment of 108 drums of bitumen were handed over by Shri Vipin Khanna, Contractor/Supplier to the Government of India, Ministry of Defence, Pathankot, to Gurmit Singh and Surender Singh, driver/owner for being taken to Leh, Kargil, out of which 36 drums of bitumen were to be delivered at Srinagar. It was alleged that the entire consignment of 108 bitumen drums was loaded by these two persons in two trucks. The loaded trucks were taken out of the depot and 36 drums of bitumen were shifted to another truck and respondent No.3 was the driver of the third truck. It was alleged that instead of taking the consignment to its destination at Leh, Kargil and Srinagar, these accused persons illegally diverted the same to Jhakri and delivered it at the premises of M/s J.P. Company, Jhakri. The entire consignment of 108 drums was lying at Jhakri, which was taken in possession by the police and after investigation, it was found that all these accused persons, in criminal conspiracy with respondents No.5 to 9, who are the employees of M/s J.P.Company, Jhakri, had committed the offence under Section 420, 120-B read with Section 34 of the IPC and have criminally misappropriated bitumen given to respondents No.1 to 3 for transportation. After investigation, the challan was filed against the respondents and respondents No.1 to 4 were charged under Sections 420, 407, 120-B read with Section 34 of the IPC and respondents No.5 to 9 were charged under Sections 420, 120-B read with Section 34 of the IPC. - 3 - The respondents were tried by the learned trial Court leading to their acquittal against which the State has come in appeal. I have heard Mr.J.S. Guleria, learned Assistant Advocate General for the appellant, Mr.Bansi Lal, Advocate for respondents No.1, 3 and 4, Mr.K.D. Sood, Advocate, for respondent No.2, Mr.R.S. Cheema, Senior Advocate, for respondents No.5 to 9. The submissions made by the learned Assistant Advocate General appearing for the appellant were that respondents No.1 to 4 were entrusted with delivery of bitumen to the authorities of defence services at different places, but in conspiracy with respondents No.5 to 9, they delivered the bitumen at the premises of J.P. Company at Jhakri of which respondents No.5 to 9 were the employees. Thus, it was submitted that there is evidence in the form of statement of the Contractor that the bitumen was handed over to respondents No.1 and 2 for being transported and to be delivered at the offices of defence services but they criminally misappropriated the same and did not deliver the same at the required destination. Therefore, they are liable and the findings to the contrary recorded by the learned trial Court can be termed as perverse calling for an interference by this Court. During the course of arguments, no specific evidence was pointed out as against respondents No.5 to 9 to prove the charge of conspiracy against them. On appraisal of the record of the case, it is clear that there is statement of the Investigating Officer PW-14 Inspector Ram Singh, who received the secret - 4 - information that bitumen was being brought to Rampur from Pathankot side, investigated the case and effected the recovery of the bitumen from the premises of M/s J.P. Company, Jhakri. To substantiate this recovery, the prosecution had also examined some witnesses, who supported the case of the prosecution, though not fully, namely, PW-2 Dharam Dev Sharma, a witness to the recovery memo Ext.PW-2/A and Ext.PW-2/B, and also witness to the recovery of the documents of the truck vide recovery memo Ext.PW-2/C and Ext.PW-2/D. PW-4 Shiv Ram is the other witness to the recovery of bitumen from the premises of M/s J.P. Company, Jhakri. The Investigating Officer also took into possession the record of Kandwal Barrier consisting of the extract of register regarding the entry of these trucks and other documents. Even in case the statements of all these witnesses stand proved and also if they prove the fact that this bitumen was recovered from the premises of M/s J.P. Company, Jhakri and these were brought by respondents No.1 to 3, who are the drivers of the trucks, the essential question is as to what is the charge as against the respondents and how the said charge stands proved. The charge as against respondents No.1 to 3 is of misappropriation of the bitumen handed over to these respondents, who are the drivers of the trucks, by the said Contractor and that they criminally misappropriated the same and did not deliver it at the place for which it was meant. There is nothing on the record to show that there is any grievance of the defence authorities since no witness was examined nor any evidence was led to show that the Investigating Officer ever contacted the - 5 - defence authorities and took up the complaint, through his superiors, with them in regard to the misappropriation of the bitumen entrusted to the drivers of the trucks. It was required of the Investigating Officer to have written a letter to these authorities to confirm if the bitumen was delivered at the place to which it was meant and as to whether there was any misappropriation in this regard. The other aggrieved person can be said to be the Contractor who had taken the contract for transportation and a complaint should have been taken from him as to the entrustment and then evidence should have been collected as to whether the bitumen so entrusted to the drivers of the trucks, was delivered at the place of delivery or not. There is no evidence to this effect also. Apart from the above, the prosecution had only examined the said contractor, who had taken the contract, allegedly, from the authorities for transportation, as PW-12, namely, Vipin Khanna. He stated in his statement that he had loaded 72 drums of bitumen in trucks (numbers given) and entrusted it to the driver Surender Singh for delivery at Srinagar Valley vide convoy note. 36 drums of bitumen were loaded in another truck for sending them to Karagil. He further stated that he received a recovery notice from the GREF Department and then only he learnt that these trucks have been unloaded at Rampur. He never produced any record or letter received from the defence authorities that the bitumen loaded in these trucks had not reached its destination. - 6 - It is, therefore, clear from the above discussion that the case has not been investigated in a proper manner and no proper complaint was taken from the aggrieved person and no evidence was collected or produced that this bitumen was not delivered at the place for which it was meant and thus the evidence led by the prosecution led to the acquittal of the respondents. Therefore, the findings so recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court and as such, 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. March 9, 2010. (V.K. Ahuja), (TILAK) Judge