IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 27 of 1997 alongwith Cr.A. Nos. 141 and 173 of 1997. Decided on: 07.09.2010. ___________________________________________________________ 1. Cr. A. No.27 of 1997. State of Himachal Pradesh. … Appellant. Versus Partap Singh. …Accused/Respondent. 2. Cr. A. No.141 of 1997. State of Himachal Pradesh. … Appellant. Versus Partap Singh. … Accused/Respondent. 3. Cr. A. No.173 of 1997. State of Himachal Pradesh. … Appellant. Versus Hari Chand. … Accused/Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant(s) : Mr. Rajesh Mandhotra, Deputy Advocate General. For the Accused/Respondents : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate in Cr. A. Nos. 27 and 141 of 1997. Mr. Neeraj Gupta, Advocate in Cr. A. No. 173 of 1997. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Deepak Gupta, J. (Oral). All these three appeals are being disposed of by one judgment since similar questions of facts and identical questions of law are involved in these appeals. 2. The appeals by the State are directed against the judgments delivered by the learned trial Court in case Nos.2/2 of 1991, 19/2 of 1989 and 65-2 of 1992/1988 respectively whereby the accused have been acquitted of having committed an offence punishable under Section 409 of Indian Penal Code. 3. The un-disputed facts are that the State of Himachal Pradesh made arrangement for supply of wheat and other food grains in the Dodra-Kwar area of District Shimla. Admittedly, this area is a very remote area and has only recently been connected by road. In the years 1986-87 and 1987-88, this area was not connected by road. 4. According to the system being followed by the State, from the godowns at Chirgaon, wheat and food grains were despatched to Netwar, Dodra, Kwar and Jakha centres. The wheat was handed over to the carriage contractor i.e. the Rohru Tehsil Co-operative M & C Union. The wheat was carried by road for some distance and thereafter, it was shifted on mules and was carried by the mules to the centres. Partap Singh was the Sub-Inspector of the department of Food and Civil Supplies at Dodra Kwar. Hari Singh alias HariChand accused was the Incharge of the depot at Jakha. Thereafter, inspection was carried out and on the basis of this inspection, complaint, was lodged by the District Food and Supplies Controller, Shimla, which led to the registration of F.I.R. Thereafter investigation was carried out and it was found that the wheat supplied in the area of Dodra Kwar was short and the value of the - 3 - wheat was worked out in all the three cases separately since there was separate shortage of wheat in these cases. The stock registers, despatch registers, transportation bills, receipts etc. and specimen hand writings of Partap Singh and Hari Singh accused were taken and sent to the Examiner of Question Documents. After completion of investigation, the accused were challaned. They pleaded not guilty and claimed trial. After trial, they have been acquitted. Hence, the present appeal. 5. We have heard Mr. Rajesh Mandhotra, learned Deputy Advocate General on behalf of the State and Mr. G.D. Verma, learned Senior counsel and Mr. Neeraj Gupta, Advocate learned counsel for the accused, and have gone through the entire record of the case. 6. The learned trial court came to the conclusion that as far as accused Partap Singh is concerned, the prosecution has failed to prove the entrustment of the wheat to him. As far as second accused Hari Singh is concerned, the learned trial court came to the conclusion that in view of the law laid down by the Apex Court in Sukhwinder versus State of Punjab, 1994 (2) Supreme Court Journal 394, the proper procedure had not been followed while taking the specimen hand writing of the accused and, hence, he acquitted the accused. 7. Many witnesses were examined in this case. It is not necessary to refer to the entire evidence. From the reading of the evidence, it is clear that the wheat was first entrusted to Rohru Tehsil Co-operative M & C Union, which was entrusted with the carriage of the wheat from Chirgaon to Netwar, Dodra, Kwar and Jakha centres. It was the duty of this Union to carry the wheat to the various centres. Due to lack of roads, it appears that wheat was sent through mules to the four centres. Admittedly, the accused Partap Singh could not have been - 4 - present at four different places at one day. At some places the wheat was received by the Chowkidars and at some places the wheat was received by the contractors. These contractors were shopkeepers who had been entrusted with the work of distribution of food grains on behalf of the Food and Civil Supplies Department. The system being followed, was that Kachi receipts were issued by the Chowkidar/Incharge of the centres. On the basis of these receipts, entries were made in the stock registers and thereafter formal (pucci) receipts were also issued. Admittedly, most of the receipts were not issued by the accused Partap Singh and, in fact, most of the receipts have been issued by the Chowkidars or the Incharges of the centres. These Chowkidars and Incharges of the centres while appearing in the witness box, have clearly admitted that they did not weigh the wheat at the time when it was handed over to them. Similarly, the muleteers, who have been examined, have also stated that they did not weigh the wheat when it was loaded on the mules or when it was handed over to the Chowkidars/Incharges of the centres. It is, thus, obvious that the receipts were issued on the basis of challans, which had been issued to the Rohru Tehsil Co-operative M & C Union. 8. The prosecution has miserably failed to prove whose duty it was to weigh the wheat. Nothing has been brought on record to show that it was the duty of Partap Singh to weigh the weight. In fact, such a duty could not have been cast upon him since he could not have been present at four different place on one day. We cannot loose sight of the fact that this is one of the remotest area of the State and the wheat was carried across the Chanshal Pass on mules and the possibility of the wheat falling off the mules cannot be ruled out. - 5 - 9. The learned trial court observed and rightly so that the main accused should have been the Rohru Tehsil Cooperative M & C Union, whose duty it was to ensure that the entire goods reached the spot. In a case like the present one, there could have been loss of wheat on the way also because it has been carried by the mules across an arduous track. Therefore, it was incumbent to weigh the wheat both at the start of the journey and at the end of the journey. This was not done. The prosecution has miserably failed to prove the entrustment of wheat to Partap Singh. Therefore, no case under Sections 409 and 420 of the Indian Penal Code is made out against any of the accused. 10. So far as accused Hari Singh is concerned, he was only the Incharge of the depot/Centre at Jakha (Jaskeen). As far as the specimen handwriting is concerned, the same was not taken as per law laid down in Sukhwinder’s case, wherein the Apex Court has held: “The direction given by the Tehsildar Executive Magistrate Shri S.P. Garg to the appellant Sukh Dev Paul to give his specimen writing was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act. The specimen writing of Sukh Dev Paul could not, therefore, be made use of during the trial and the report of the handwriting expert, when considered in the light of the foregoing discussion, is rendered of no consequences at all and cannot be used against Sukhdev Paul appellant to connect him with the crime.” 11. In view of the law laid down by the Apex Court in Sukhwinder’s case, the opinion of the Hand Writing Expert became totally irrelevant to decide the present case. The prosecution has led no other evidence to establish what was the quantity of the wheat which was entrusted to accused Hari Singh at Jakha and what was the - 6 - shortage, if any. The best evidence to prove what was the amount of wheat which was actually entrusted to the accused was the stock registers of the concerned centres/depots. These have not been placed on record and the best evidence has been withheld by the Prosecution. 12. In view of the above discussion, we find no merit in these appeals, which are accordingly dismissed. The bail bonds furnished by the accused-respondents are ordered to be discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. September 07, 2010. (sck).