1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 685 of 2001. Date of Decision: 6.1.2009 ____________________________________________________________ State of H.P. Appellant. Versus Ghindro Ram. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. J.S. Guleria, Law Officer. For respondent : Mr. Anup Chitkara, Advocate. _________________________________________________________ Surinder Singh, J. Heard and gone through the record. The State has assailed the judgment of acquittal passed in Criminal Case No. 140-II of 1997/95 decided on 21-3-2001 by learned trial Court on the ground that the learned trial Court did not appreciate the evidence of the prosecution in the right perspective and attached undue importance to the minor contradictions of its witnesses. If the evidence on record is examined properly, there are grounds to convert the acquittal into conviction. In short, the prosecution case can be summoned up thus. On 7-3- 1995, respondent Ghindro Ram hired a Mohindra pick-up owned by Hans Raj, bearing registration number H.P. 48-0263, which was locally called as ‘NC’ to take three gunny bags full of old plastic shoes from village Salooni to Chamba. He paid the fare to the Hans Raj aforesaid. The Driver of the said vehicle was PW3 Hem Raj. They left Salooni around 8/9 a.m. PW2 Whether reporters of the Local papers are allowed to see the judgment? . Yes 2 Hoshiar Singh also took a lift along with his daughter. Besides respondent, his labourer Dhiano was also travelling with them. No sooner did they covered half km from Saluni, the respondent stopped the said vehicle near “Banja Ka Mor” and he picked up 2/3 sealed gunny bags from some distance and loaded it in the said vehicle. PW2 Hoshiar Singh is alleged to have cautioned the respondent not to do so as these articles belonged to Irrigation and Public Health Department, but he did not pay any heed to it. Hoshiar Singh noticed a jeep of IPH Department, going ahead of them and saw PW5 Sunil Kanotra S.D.O. sitting therein. On reaching village Sundla, PW2 Hoshiar Singh informed the S.D.O. PW5 Sunil Kanotra that the respondent had loaded some articles of their Department in the said vehicle. The S.D.O. got un-loaded them in the premises of PWD Rest House and on checking, it was identified to be a Chlorinator of the IPH Department along with some fencing pieces of the angle iron from PW7 Tarsem Lal Junior Engineer. Thereafter, the said articles were loaded in another vehicle and taken to the Police Station, Kihar in District Chamba by him. He got registered F.I.R. Exhibit PW7/A against the respondent under Section 379 of the Indian Penal Code. These fifty-three articles were taken into possession vide memo Exhibit PW2/A. The police visited the spot and prepared the site plan Exhibit PW8/A from where the said articles were alleged to have been loaded and found missing. In addition to the aforesaid articles, the police also recovered a hexa-blade vide memo Exhibit PW2/A. The value of the stolen articles was assessed which was of rupees 4700/- as per the assessment Exhibit PA made by the Junior Engineer. The Police also took into possession the extract of the material at site register (MAS) Exhibit PB. After completing the investigation, the challan was presented against the respondent in the court for his trial. 3 Finding a prima facie case under Section 379 of the Indian Penal Code, the respondent was accordingly charge-sheeted to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. He did not lead any evidence in defense. At the end of the trial, he was acquitted of the charge which has been challenged in this appeal. On the perusal of the record of trial court, it was painful to note that the learned trial Court did not put the circumstances which were found attendant upon the accused in his statement recorded under Section 313 of the Code of Criminal Procedure. The learned Presiding Officer had completely shown his ignorance about its purport and object. The purpose of examination under this section is to enable the accused to explain the circumstance. If such circumstance is not put to him for seeking his explanation, it cannot be used against him. Thus in order to give a fair opportunity, the trial court is bound to put such questions for the explanation of the accused under Section 313 Cr.P.C. which are found attendant upon him on the basis of the prosecution evidence led in the Court. Therefore, in order to see that no prejudice is caused to the accused-respondent, an opportunity was given to him in the interest of justice seeking his explanation to the circumstances which had appeared in the prosecution case against him, as such his supplementary statement was recorded by this Court on 6-1-2009. During the course of his examination, the respondent has also filed the written statement of his defense Exhibit DA. The respondent raised the defense that in the year 1995, he was an educated un-employed youth. Thus to support his family and the ailing father, he started selling the new shoes from door to door and employed a 4 labourer named Dhiano with him. Side by side, he was also pursuing his further studies. To increase his sale, he floated a Scheme under which every buyer who used to purchase new shoes from him, he had been giving discount in exchange of the old plastic shoes and the old plastic shoes. The old plastic shoes so received, used to be further sold by him to earn more. When-ever he was to purchase the new consignment of shoes, he had been taking the old shoes to Chamba from where he used to purchase the new shoes. When there was no such requirement for the purchase of new shoes, he had been sending his labourer along-with load of old shoes so taken in exchange. On the day of the alleged incident, he did not travel in the vehicle aforesaid but he had sent his labourer Dhiano with 2/3 Nugs of the old plastic shoes. PW2 Hoshiar Singh was known to him and he also traveled in the said vehicle as a passenger. The owner of the vehicle was his brother-in-law. He received a message from Police Station, Kihar to reach there and he was implicated in the false case at the instance of Hoshiar Singh aforesaid who connived with the officials of the IPH Department. After pursuing his further studies, he was employed as JBT teacher and for the last about eight years, he is working as such. On the scrutiny of the evidence, I find that the explanation given by the respondent to the extent that he was not accompanying the vehicle, is wrong. PW3 Hem Raj, the driver of the truck was examined in the trial court, he has categorically stated that the respondent was travelling with him along with his consignment. PW2 Hoshiar Singh has also corroborated this version which has not been assailed in their cross-examination. Further, PW1 Baldev Singh Supervisor stated that the Police had taken the respondent to Police Station Kihar in his presence. Therefore, in view of the above evidence, which has not been disputed by the accused in the cross- examination, stands fully proved that the respondent was travelling in the said vehicle. 5 Now the next question is whether the prosecution has been able to prove that the respondent had committed the theft of the articles Exhibit P1 to P-53 of IPH Department? In this behalf, statement of PW3 Driver Hem Raj is required to be noted. He nowhere stated that after starting from Saloni, they had stopped in-between any where or for that matter, the respondent had loaded any item from Banja-ka-Mor. In contrast, PW2 Hoshiar Singh stated that after covering half km from Salooni, the vehicle was got stopped by the respondent and he lifted 2/3 sealed bags from Banja-ka-Mor and loaded in the vehicle. If the bags were sealed, it is not understood as to how the said witness came to know about the articles and what was the basis for saying that it belonged to Irrigation & Public Health Department. Further he had stated that the jeep of the SDO was going ahead of them and he informed him at Sundla about the said articles which were got un-loaded by the S.D.O. and further stated that he boarded the said vehicle again and went to Chamba. He did not say anything about its identification having been done in his presence. Further the material at site register Exhibit PB reveals that a chlorinator was issued to the site but there is no proof of its having been installed at the place from where it is alleged to have been removed. There is also no evidence that the articles so recovered were under the charge or possession of any officer or official of the IPH Department. Although site plan Exhibit PW8/A reveals that the Investigating Officer noticed the fencing of the area missing from near the place from where the alleged articles were recovered but neither the Investigating Officer nor any witness of the IPH Department was examined about its installation at that place. In the above circumstances, firstly the loading of the said articles from Banja-ka-Mor as stated by PW2 is shrouded by suspicious circumstances as the statements of the prosecution witnesses are sharply contradicting each other. Practically there is nothing on record to prove the ingredients of either of the offence under Section 379 or Section 411 of the 6 Indian Penal Code. Therefore for the reasons aforesaid, there is no material to convert the acquittal of the respondent into conviction. Accordingly, the appeal filed by the State is without any merit and is dismissed. (Surinder Singh) Judge. January 6, 2009. (bm)