IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 381 of 1998. Decided on: 17.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Partap Singh and another. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the appellant : Mr. Ramesh Thakur, Assistant Advocate General, for the appellant. For the respondents : Mr. B.C. Verma, Advocate vice Mr. Pradeep Verma, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State is directed against the judgment dated 06.03.1998, delivered by the learned Judicial Magistrate, I Class, Court No. 2, Rohru in Police Challan No. 33- 2 of 1989, whereby the accused have been acquitted of having committed offences punishable under Sections 467, 409, 471 and 120-B of the Indian Penal Code. 2. 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. 1 Whether the reporters of the local papers may be allowed to see the judgment?.Yes. 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. 3. 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. In fact, he himself reported that the amount of wheat received by him was short by 481-47-000 quintals. Thereafter, inspection was carried out and on the basis of this inspection, complaint, Ex.-PW 1/A was lodged by the District Food and Supplies Controller, Shimla, which led to the registration of F.I.R. Ex.-PW-37/A. Thereafter investigation was carried out and it was found that the wheat supplied in the area of Dodra Kwar was short by 481-47-000 quintals and the value of this wheat was Rs.114831/-. The stock registers, despatch registers, transportation bills, receipts etc. and specimen hand writings of Partap Singh and Satyawaan accused were taken and sent to the Examiner of Question Documents. The opinion of the Examiner of Question Documents is Ext. PW34/A and the reasons in support of the opinion are Ex. –PW34/B. 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. 4. We have heard Mr. Ramesh Thakur, learned Assistant Advocate General on behalf of the State and Mr. B.C. Verma, learned counsel for the accused, and have gone through the entire record of the case. 5. 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 Satyawaan 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. 6. As many as 41 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 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. 7. 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 Chanulal Pass on mules and the possibility of the wheat falling off the mules cannot be ruled out. 8. The learned trial court observed and rightly so, that the main accused should have been the Rohru Tehsil Co- operative 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 Partap Singh. 9. As far as offences under Sections 467 and 471 and 120-B of the Indian Penal Code are concerned, the case of the prosecution is that Partap Singh had conspired with accused Satyawaan who had put his signatures on some of the receipts as Partap Singh. Reliance in this behalf had been placed on the report of PW-34, the Examiner of the Question Documents. The learned trial court on the basis of judgment of the Apex Court has held that the procedure followed by the prosecution while taking the specimen hand writings of these accused is not legal and, hence, the report could not be relied upon. We are in agreement with this view since the learned trial court based his judgment on the judgment of the Apex Court in Sukhwinder’s case, wherein it has been 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.” In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. The bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge May 17, 2010. (bhupender)