HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.260 of 2000. Decided on: October 8, 2010. State of H.P. …Appellant. VERSUS Lochna Nand & Another ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl.A.G. For the respondents: Mr. Romesh Verma, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 18.5.1999, passed by learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., in Case No. 144-2 of 1997 acquitting the respondents / accused under Sections 409, 420, 109 and 120- B of the Indian Penal Code. 2. The prosecution case is that accused Lochna Nand sold 20 liters diesel of Government vehicle No.HP.06-0402, to accused Kamlesh Kumar, for Rs.120/-. The accused-respondents were charged for the aforesaid offences and case was tried by Additional Chief Judicial Magistrate. Whether the reporters of the local papers maybe allowed to see the judgment? …2… 3. In order to prove its case, the prosecution has examined as many as 10 prosecution witnesses, whereas, the accused through their statements under Section 313 of Cr.P.C., have shown their innocence and denied the prosecution case. 4. On scrutiny of the prosecution witnesses and materials on record, it appears that on 17.2.1997, at about 4-5 P.M.,, while PW.1 Rajesh Kumar alongwith Pawan Kumar and Satish Kumar was sitting in the hotel of Bhagwan Dass at Nogli, a PWD truck bearing No.HP.06-0402 being driven by accused Lochna Nand, had come from Shimla side, stopped in front of Kartar Workshop. Accused Lochna Nand had some conversation with accused Kamlesh Kumar and after that took out a 20 liters plastic Can, containing diesel from the truck and handed it over to accused Kamlesh Kumar and accepted some money from him. PW.1 has further stated that he asked accused Lochna Nand from where he had brought the diesel. He told to him that he had brought the diesel from Nogli petrol pump and sold it to accused Kamlesh Kumar. Subsequently, accused Kamlesh Kumar, disclosed that he had purchased the diesel from somebody else. 5. PW.2 Pawan Chauhan has supported the version of Rajesh Kumar (PW.1). PW.3 Tara Singh is a witness of memo Ex.PW.3/A, vide which truck driven by accused Lochna Nand and its RC and key was taken into possession by the police. PW.4 Gurbaksh Singh has stated that he was working as a Junior Engineer, in HP.PWD Mechanical Division, and Petrol pump Nogli was in his charge. 6. PW.5 Rajesh Sharma deposed that he was posted as Junior Engineer in Brow Division, however, he was not aware of the incident. PW.6 Mohan Lal, deposed that he was posted as Store Keeper, and as per record, on 17.2.1997, diesel measuring 662 liters was issued to vehicle No.HP.06-0402. Accused Lochna …3… Nand was driving the said vehicle on that day, however, PW.7 Pyare Lal has not supported the prosecution case. 7. PW.6 Mohan Lal has deposed that he was posted as store keeper in HPPWD Deptartment at Nogli, and as per the record, on 17.7.1997, diesel measuring 662 liters was issued to vehicle No.HP.06-0402. PW.7 Pyare Lal and PW.8 Sant Ram have not supported the prosecution case. PW.9 Puran Chand Sharma has proved the certificate Ex.PW.9/A, which shows that accused Lochna Nand was working as a driver in HPPWD Department since 1.12.1995. PW.10 S.I. Daulat Ram has deposed that the investigation of the case was conducted by him. 8. In view of the testimony of PW.6 Mohan Lal 662 liters diesel was issued to Pyare Lal. The credit memo to that effect has been brought on the record, which also bears the signature of Pyare Lal. If the diesel had been issued in the name of Pyare Lal, then the prosecution cannot be said to have proved that 662 liters diesel of Government vehicle, had been entrusted to accused Lochna Nand. If there was no entrustment to accused Lochna Nand, then he cannot be held guilty for the commission of offence of misappropriation of property. It reveals from the testimony of PW.6 that diesel had been filled in the tank of the vehicle No.HP.06-0402 from the Petrol pump. There is no evidence on record that accused Lochna Nand had taken out 20 liters diesel from the tank of Government vehicle No.HP.06-0402. Similarly, there is no evidence on the record that the diesel was allegedly sold by accused Lochna Nand to accused Kamlesh Kumar, and the diesel recovered was the same diesel which was sold by Lochna Nand to accused Kamlesh. 9. PW.10 admitted in cross-examination that he did not find any shortage in the diesel in the Government vehicle. In the prevailing circumstances, if there was no shortage of diesel in the Government vehicle, prosecution cannot said to have proved that accused actually sold 20 liters of diesel of Government vehicle to …4… accused Kamlesh Kumar. If 20 liters diesel of Government vehicle No.HP.06-0402 had actually sold by accused Lochna Nand to accused Kamlesh Kumar, then shortage of the diesel could have been noticed in the tank of that vehicle. 10. In view of the facts and circumstances, we find that the prosecution has not been able to bring home the guilt to the accused and the prosecution has not been able to prove its case beyond reasonable doubt as such, there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 11 Bail bonds, furnished by the respondent, are hereby discharged. (R.B.Misra), J. October 8, 2010. (V.K.Ahuja), J. (Purohit)