IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal 637 of 2001 Decided on 23. 12.2008 State of H P …….Appellant Versus Manoj Kumar & another ……. Respondents Coram: The Hon’ble Mr. Justice Surinder Singh.J. Whether approved for reporting ?1 No For the appellant: Mr. J.S.Guleria, Law Officer. For the Respondents: Mr. Ramakant Sharma, Advocate. Surinder Singh, J. (oral) The State has challenged the acquittal of the respondents, recorded by the learned trial court in Criminal Case No. 2- II/2000 decided on 30.8.2001, for the offences punishable under sections 419 and 109 of the Indian Penal Code, on the ground that the learned trial court did not appreciate the evidence in its right perspective. Heard and gone through the record of the case. The factual matrix of the case, on which the respondents were put on trial by the learned trial court are: Surinder Singh respondent was a student in the Senior Secondary School, Shahpur and he was to appear in the matriculation examination, scheduled to be held in the month of March-April, 1998. He was allotted Roll No.208323 by 1 Whether the reporters of Local Papers may be allowed to see the judgment ?yes 2 the Board of School Education, Dharamshala. On 1.4.1998 respondent Manoj Kumar is alleged to have appeared in the examination, representing himself as Surinder Singh in the Science paper. He was allegedly caught red handed by the Flying Squad, answer-sheets Ex.P-1 to P-5 were taken into possession along with the admission card Ex.PW-5/C. It is also alleged that the photograph on the admission form Ex.PW-5/B was different from the photograph on Ex.PW5/C. The matter was reported to the Superintendent Examination, present in the examination hall. He sent a complaint to the police, on the basis of which FIR was lodged. Head Constable Raghubir Singh (PW-14) visited the spot and prepared the site plan Ex.PW-14A and also took into possession the attendance sheet Ex.PW-14/B along with admitting writing of Manoj Kumar vide Memo Ex.PW-14/C. Thereafter, specimen writings Ex. PC to PZ of respondent Manoj Kumar and that of Surinder Singh Ex.PA/1 to Ex.PA18 were taken before the Magistrate at Dharamshala, thereafter answer sheets aforesaid along with specimen and admitted writings were sent to the Government Examiner Questioned Documents for comparison. Report was received, on the material supplied to the expert it was not possible for him to express any definite opinion. The respondents were arrested on 3.4.1998, later on they were enlarged on bail. After completing the investigation of the case, challan was presented in the court for the trial of the respondents. Finding a prima-facie case against the respondents, they were charge-sheeted, to which they pleaded not guilty and claimed trial. Prosecution examined its witnesses to prove the charges and the respondents were also examined under section 313 of the Code of 3 Criminal Procedure, seeking their explanation to the circumstances which were found attendant on each of them. Their case was denial simplicitor. No evidence in defence was led. At the end of the trial, the respondents were acquitted on the grounds, firstly that they could not be connected with the alleged offence, secondly none of the witnesses of the prosecution identified the respondent Manoj Kumar having appeared in the examination in place of Surinder Singh, thirdly the photograph on the admission card Ex.PW5/C was loose, and the Principal of the School where respondent Surinder Singh was studying could also not recognize respondent.. PW5 Suraj Parkash had accompanied the Flying Squad of the Board. According to him, there was a source report about the alleged offence and the Flying Squad went to the examination centre at Shahpur, on the direction of Secretary Education Board where the said matriculation examination was being conducted and found that examinee, who was found sitting in the examination hall, was not the same person, as shown in the photograph Ex.PW5/C. Thereafter, the matter was reported to the Superintendent Examination but he was not examined during the trial of the case to identify respondent Manoj Kumar. PW-5 has no where stated that the said examinee was detained till the arrival of the police even he did not identify him during the trial. Although according to him, answer sheets were handed over to the police. PW1 Ram Sawarup, who was on duty in the said examination hall, did not identify any of the respondents. PW2 Smt. Santosh Nag was also a supervisor in the said examination hall but she has also not stated anything about the presence of the respondent Manoj Kumar in the examination hall. Similar are the 4 statements of PW3 Amrit Paul Singh another Supervisor. PWs 4, 8 and 9 have not supported the case of the prosecution as such they were declared hostile and nothing material could be extracted in their cross-examination by the prosecution. Further, the report of the Examiner of Questioned Documents on record do not support the prosecution case. The state has moved the application, under section 311 of the Code of Civil Procedure for his examination, which is of no avail in the light of the above facts. Hence he is not a material witness. Thus, I do not find anything in the statements of the prosecution witnesses to establish that it was Manoj Kumar who is alleged to have appeared in the said examination in place of Surinder Singh respondent. Therefore, in these circumstances I am of the considered opinion that the prosecution has failed to link any of the respondents by leading a cogent evidence with the offences charged and the findings arrived at by the learned trial court cannot be said to be perverse. Hence, the appeal sans merit and is accordingly dismissed. Cr.M.P.No.686 of 2008 The application filed under section 311 of the Code of Criminal Procedure, seeking permission for examining the Government Examiner of Questioned Documents, is of no avail as discussed above, therefore, dismissed. December 23,2008 (Surinder Singh),J. (D)