CRR NO. 1893 OF 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 1893 OF 2002 Date of decision: 21.03.2009 Davinder Singh ……Petitioner Versus The State of Punjab …..Respondent Before: HON’BLE MR. JUSTICE A.N.JINDAL Present: Mr. N.S.Kandhola, Advocate for the petitioners. Ms. Simsi Dheer, AAG,Punjab A.N.JINDAL, J This revision petition is directed against the judgment dated 4.09.2002 passed by the Additional Sessions Judge, Rupnagar, dismissing the appeal of Davinder Singh filed against the judgment dated 3.03.2001 passed by Judicial Magistrate Ist Class, Ropar convicting him and sentencing him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/- under Section 407 IPC on the allegation that after loading 260 bags of Surf from M/s Hindustan Lever Limited, Majra in his truck bearing Registration No. PCI-4888 owned by Rajinder Singh(since proclaimed offender) did not deliver the same at the destination i.e. Kale’s Transport Service, Block No. 40 and 53, Shakti Farm House, Amargol, Hurli, Distt. Dharwad(Karnataka). The brief resume of the case is that, Davinder Singh petitioner was the driver where as Rajinder Singh accused was the owner of aforesaid Truck bearing No. PCI-4888 and the said truck was being plied under Truck Union, Kurali. The case was registered against the petitioner as well as Rajinder Singh on 17.07.1996, on the application of Palinderjit Singh to SHO Police Station, Kurali wherein he disclosed that Davinder Singh after loading the truck with 260 packets of Surf from M/S Hindustan Lever Limited, Majra to deliver the same to Kale’s Transport Service, Block No. 40 and 53, Shakti Farm House, Amargol, Hurli, Distt. Dharwad(Karnataka) but he did not reach the destination. During the investigation on 18.07.1996, the Investigating Officer recovered the 145 bags of the Surf from Davinder the petitioner and the remaining from Rajinder Singh owner of the truck. CRR NO. 1893 OF 2002 2 Both were arrested. After the investigation the challan was presented against them. Charges under Section 407, 468, 471 and 120-B of the Indian Penal Code were framed against them to which they denied and opted to contest. During trial the prosecution examined Rajinder Singh Raj from the office of DTO, Ropar as PW-1, ASI Karnail Singh(PW-2), ASI Tara Singh(PW-3), Rajo Bai from the office of RTO, Patiala(PW-4), Tarlochan Singh from the office of DTO, Ropar(PW-5), Palinderjit Singh, informant( PW-6), SI Sohan Lal(PW-7) and Jai Parkash Purohit (PW-8). In their Statements under Section 313 of Cr.P.C. both the accused denied all the allegations and pleaded their false implication. Ultimately, the trial ended in conviction of the petitioner under Section 407 of Indian Penal Code. However, he was acquitted by all other remaining charges. Appeal preferred by him also failed. The prime argument addressed is that the evidence in order to connect the petitioner with the crime is lacking in as much as Palinderjit Singh(PW-6) has not supported the prosecution case, no proper identification has been made and the ownership of the truck is also in dispute, therefore, the petitioner deserved to be acquitted . Heard. Ample evidence has been led on the record in order to establish that Rajinder Singh was the owner of the truck, however, law could not have access to him as he was declared as proclaimed offender. In order to prove the involvement of the present petitioner, two essentials which need to be established are that; whether the recovered 260 bags of Surf were lifted by the accused for the M/s Hindustan Lever's Depot and whether the said property was recovered from the petitioner. With regard to the first ingredient, it is noticed that Jai Parkash Purohit (PW-8) from the Hindustan Lever Ltd. has deposed that M/s Hindustan Lever Ltd., Majra had booked their Surf packets for their transportation to Kale’s Transport Service, Block No. 40 and 53, Shakti Farm House, Amargol, Hurli, Distt. Dharwad (Karnataka) through Majra Road Carriers, Kurali and these packets were to be transported through Truck No. PCI-4888. He has proved these facts by documentary evidence Ex.P4 and Ex.P5. It is also proved on the record that M/S Hindustan Lever Limited had also CRR NO. 1893 OF 2002 3 moved a complaint that this material despatched through the petitioner had not reached the destination. Similarly, the Investigating Officer Sohan Lal has also deposed that on 18.07.1996, he had apprehended the petitioner along with the truck No. PCI 4888 and recovered 15 bags of surf and the remaining 113 bags of surf were recovered from the house of Rajinder Singh owner of the truck. Despite lengthy cross-examination over the aforesaid witnesses, their testimony could not be shaken so as to disbelieve them. The fact that the petitioner was a driver over the afore-stated truck also stands fully established as the driving license of the petitioner was also recovered from the truck which bears his photograph which is sufficient to prove his identity being the driver over the truck while going to the worst, even if he is not proved to be the truck driver. Yet recovery was effected from him by the Investigating Officer. Therefore, he cannot rebut the fact that he had been entrusted with the Surf bags for delivery at Hurli but he committed the breach of trust. No doubt PW-6 Palinderjit Singh has not supported the case of the prosecution in all the material particulars. However, he has admitted his signatures over the various documents including Ex.PF. Though he denies having made statement under Section 161 Cr.P.C. Yet during the cross examination, he has not denied that the surf was to be dispatched by Hindustan Lever Limited through Truck No. PCA- 4888 and has also supported the fact of the petitioner being the driver was plying of the truck in the truck Union at Kurali. That apart, the findings of fact returned by the two courts below that the petitioner was entrusted with the goods and he did not deliver the same as per promise, being based on the oral as well as documentary evidence can't be easily intereferred with. No defect, irregularity much less illegality resulting into miscarriage of justice has been detected or pointed out. These findings can't be disturbed for the minor discrepancies as pointed by the counsel for the petitioner. Thus the fact with regard to the loading of the surf from the go-down of the Hindustan Lever Ltd. to be delivered to certain person at Hurli (Karnataka) by the petitioner and with regard to non delivery of the same at the promised destination stand misappropriation thereof, stand fully established. CRR NO. 1893 OF 2002 4 In the facts and circumstances of the present case, no leniency on the quantum of sentence could be extended to him. Resultantly, finding no merit in the petition, hereby the same is dismissed. [A.N.JINDAL] JUDGE 21st March, 2009 SKaushik