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Himachal Pradesh High Court · body

2012 DIGILAW 513 (HP)

State of Himachal Pradesh v. Janak Raj

2012-09-06

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT Per Rajiv Sharma, Judge. State has come in appeal against the judgment of the learned Sub Divisional Judicial Magistrate, Anni rendered in Case No.13-2 of 2003 whereby respondent, who was charged with and tried for offences punishable under sections 409 and 177 of the Indian Penal Code, has been acquitted on 30.6.2004. 2. Case of the prosecution, in a nutshell, is that Er. D.C. Mahajan (PW-13), Sub Divisional Officer, Irrigation and Public Health Department, Nirmand reported the matter to the police by addressing a letter Ex.PW-13/A. According to the contents of the letter Ex.PW-13/A, 26 G.I. pipes 15 mm dia, which were lying at the site of work near village Bari, were stolen by some miscreant as per the information supplied to him by Janak Raj (accused) vide his letter dated 18.2.1997 Ex. PE. Police registered F.I.R. under section 379 of the Indian Penal Code. When ASI Kashmir Sing (PW-14) was conducting investigation of the case F.I.R. No. 19/1997 dated 17.2.1997 under sections 32 and 33 of the Indian Forest Act and section 379 of the Indian Penal Code, he recovered 26 G.I. pipes of 15 mm dia from the Nallah of village Bari, which were taken into possession vide memo Ex. PA. Thereafter, on 1.3.1997, 26 G.I. pipes were identified by the accused belonging to his Department (Irrigation and Public Health). One Sh. Shyam Dass (PW-11) during the course of investigation on 20.3.1997 disclosed to the police that on 11.2.1997, the pipes in question were purchased by him from accused Janak Raj and has kept the same in the house of Tikkam Ram. Statement of Shyam Dass (PW-11) was also recorded under section 164 of the Code of Criminal Procedure by learned Addl. C.J.M. Rampur to the effect that he has purchased 26 pipes of 15 mm dia from the accused for Rs. 4,000/-. F.I.R. Ex.PW-10/B was registered and the investigation was carried by the police. The site plan Ex.PW-12/A was also prepared. The police has also taken into possession register of M.A.S. vide memo Ex. PD and also taken valuation certificate of the Assistant Engineer, I.& P.H. Sub Division, Nirmand vide mark ‘A’. The copies of diary and despatch registers of the I.& P.H. Department were also taken into possession vide Ex.PW-6/A and Ex.PW-6/B vide memo Ex.PW-6/C. 3. The prosecution has examined 14 witnesses in all. Statement of accused under section 313 was also recorded. PD and also taken valuation certificate of the Assistant Engineer, I.& P.H. Sub Division, Nirmand vide mark ‘A’. The copies of diary and despatch registers of the I.& P.H. Department were also taken into possession vide Ex.PW-6/A and Ex.PW-6/B vide memo Ex.PW-6/C. 3. The prosecution has examined 14 witnesses in all. Statement of accused under section 313 was also recorded. The case of the accused is of simplicitor denial. The trial court has acquitted the accused on 30.6.2004. It is in these circumstances, the State has filed the present appeal. 4. Mr. Rajesh Mandhotra, learned Deputy Advocate General has vehemently argued that the prosecution has proved its case against the accused. According to him, the trial court has not correctly appreciated the oral as well as documentary evidence. 5. Mr. Romesh Verma has supported the judgment of acquittal. 6. We have heard the learned counsel for the parties and have perused the records carefully. 7. According to PW-13 Sh. D.C. Mahajan complainant he remained posted as Assistant Engineer in Irrigation and Public Health Department with effect from 1993 to 1998. He has addressed a letter Ex.PW-13/A to Station House Officer, Police Station, Nirmand to lodge F.I.R. as 26 pipes of 15 mm dia were stolen as reported by his Junior Engineer accused. Police registered the F.I.R. and investigated the case. He has admitted in his cross-examination that any material used to come to the store, its entry was to be made in the register. He has further admitted that while the material is issued to the official then entry in this regard has to be made. According to him, one register called “material at sight” is also maintained in which entries qua the material lying on the spot are to be made. 8. According to PW-12 Chander Singh, he was posted A.S.I. in Police Station, Nirmand with effect from 1994 to 1997. He was present at Arsu on 24.2.1997 when he received reliable information that at Bari Nallah near the house of Tikkam Ram, some stolen pipes of Irrigation and Public Health Department were lying. He alongwith HC Bhim Singh and Constable Bhag Chand visited the spot and verified from the local people and recovered the pipes in question. The pipes were taken into possession under section 102 of the Code of Criminal Procedure vide memo Ex. PA in presence of Khub Ram and Tulsu Ram. He alongwith HC Bhim Singh and Constable Bhag Chand visited the spot and verified from the local people and recovered the pipes in question. The pipes were taken into possession under section 102 of the Code of Criminal Procedure vide memo Ex. PA in presence of Khub Ram and Tulsu Ram. The pipes were handed over to Paras Ram local person on supurdari vide memo Ex. PA. He also prepared site plan Ex.PW-12/A. In his cross-examination, he has admitted that in the memos Ex. PA and PB he has not mentioned that the pipes in question were marked with blue colour. He has also deposed that he has not taken into possession any record from Irrigation and Public Health Department to establish that the pipes belonged to Irrigation and Public Health Department of Arsu section. He has also admitted that the pipes were recovered from the open place. 9. PW-14 Kashmir Singh has deposed that he was posted as A.S.I. Police Station, Nirmand from 1997 to 1998. He has taken into possession register known as “material at site” of Irrigation and Public Health Department vide memo Ex. PX. He has moved an application Ex.PW-14/A before the learned Addl. C.J.M., Rampur to record the statement of one Sh. Shyam Dass under section 164 of the Code of Criminal Procedure. Copy of the same was Ex.PW-14/B. 10. PW-9 ASI Dhan Singh has deposed that he arrested the accused and also released them as per orders of the learned Sessions Judge, Kinnaur Sessions Division. He has testified that when the case file was handed over to him by S.I. Ashish Kumar at that time, the register “material at site” was not enclosed with it. 11. PW-8 Braham Dutt has also carried out the investigation partially. According to him, during the course of investigation on 4.3.2001, on the demarcation of Paras Ram, pipes in question were found lying in the courtyard of Sh. Tikkam Ram. The Nallah is situated below the house of Tikkam Ram. He has identified the pipes which were taken into possession by the police during the course of investigation. He has admitted in his cross-examination that the store of the Irrigation and Public Health Department is situated on the curve of the road at place Arsu. Tikkam Ram. The Nallah is situated below the house of Tikkam Ram. He has identified the pipes which were taken into possession by the police during the course of investigation. He has admitted in his cross-examination that the store of the Irrigation and Public Health Department is situated on the curve of the road at place Arsu. He has also admitted that the Department of I.& P.H. has not produced any record before him to establish that the pipes in question were issued to the accused. He also admitted that the I.& P.H. Department has also told him that the measurement book in respect of the pipes in question has been misplaced. 12. PW-1 Paras has deposed that on 24.2.1997 during the course of investigation, the police has taken into possession 26 G.I. pipes vide memo Ex. PA. He has identified the sample of the pipe in the Court. According to him, the pipes were handed over to him by the police on supurdari vide memo Ex. PB. He also produced the pipes in question before the police and the police has taken into possession the same vide memo Ex. PC. He further deposed that he could not say to whom the pipes in question belonged. He has denied the suggestion that the pipes in question belongs to the Irrigation and Public Health Department. He has admitted in his cross-examination that the pipes in question were available in private shops. 13. PW-3 Mast Ram, Senior Assistant has produced the register known as “material at site”, which was taken into possession by the police vide memo Ex.PD. PW-4 Tulsu Ram and PW-5 Khub Ram have been declared hostile. They have denied the suggestion put to them that pipes in question have been recovered by the police below the house of Tikkam Ram in their presence. 14. The most material witness is PW-11 Shyam Dass. According to him, Irrigation and Public Health Department has sanctioned a water connection in his favour on 11.1.1997. Accused told him that he would provide him water pipes from Nirmand. 26 G.I. pipes were finalized between him and accused for a sum of a Rs. 4,000/-. Accused told him that 26 pipes are lying on the road and collect the same. He went to bring the labourers and shifted 26 pipes and kept the same in the courtyard of Tikkam Ram. 26 G.I. pipes were finalized between him and accused for a sum of a Rs. 4,000/-. Accused told him that 26 pipes are lying on the road and collect the same. He went to bring the labourers and shifted 26 pipes and kept the same in the courtyard of Tikkam Ram. However, Tikkam Ram came to him and told that the police has visited and inquired about 26 pipes. Thereafter, he visited the accused. He also visited the Police Station with Tikkam Ram. He was taken to the court of learned Addl. C.J.M. where his statement Ex.PW-11/A was recorded. He has admitted that on the sample pipe, which was shown to him in the court, there was no stamp fixed of Irrigation and Public Health Department. 15. PW-6 Ravinder Parkash, Senior Assistant of the Irrigation and Public Health Department has produced copies of despatch register Ex.PW-6/A and diary register Ex.PW-6/B. These were taken into possession vide memo Ex.PW-6/C. According to him, the pipes which are issued by their department, stamp of H.P. Government, I. & P.H. Department is fixed on the same. He has admitted that the sample of pipe which was shown to him in the court while recording his statement on that pipe, no such mark has been fixed. 16. It is evident from the evidence recorded that the prosecution has miserably failed to prove that the pipes in question were entrusted to the accused. Relevant record to this effect has not been proved. PW13 has admitted that the entries are made in the register when the material is issued to the officials. The entries to this effect are also made in the measurement book. PW-12 has admitted that the pipes in question were recovered by him during the course of investigation from open place. He has admitted that he has not made any inquiry from any person who has kept these pipes. PW-9 Dhan Sukh has admitted that during the course of investigation, the pipes in question were lying in the courtyard of Tikkam Ram and it was not recovered by the police from PW-11 Shyam Dass to whom the prosecution has alleged the accused has sold the pipes in question dishonestly. PW-8 SI Braham Dass has admitted in his cross-examination that the store of the Irrigation of Public Health Department is situated on the curve of the road. PW-8 SI Braham Dass has admitted in his cross-examination that the store of the Irrigation of Public Health Department is situated on the curve of the road. PW-12 Chander Singh has admitted that he has seen the entries of the pipes in question in the book of “material at site”, but this register has not been produced by the prosecution in the court to prove the factum that pipes in question were entrusted to the accused. PW-11 Shyam Dass has admitted that on the sample of pipe shown to him in the court there was no stamp of I. & P. H. Department. PW-6 has deposed that any water pipe issued to the official of the Department on that stamp of I&PH H.P. Government is fixed. However, the sample which was shown to him in the court, no stamp of H.P. Government was fixed. Thus, the prosecution has failed to prove that the pipes in question were entrusted to the accused and the same had been soled by him to Shyam Dass dishonestly for his benefit. 17. Accordingly, the learned trial court has rightly acquitted the accused and this court need not interfere with the judgment of the trial court. 18. Consequently, in view of the observations and discussions made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are discharged. No costs.