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2013 DIGILAW 604 (HP)

State of Himachal Pradesh v. Rajan Kumar

2013-06-26

SURINDER SINGH

body2013
JUDGMENT Surinder Singh, Judge (Oral) The respondent was tried, charge-sheeted and acquitted for the offence punishable under Section 379 of the Indian Penal Code. The State felt aggrieved by the judgment of acquittal, hence the present appeal. 2. Shri Virender Kumar Verma, learned Additional Advocate General vehemently argued that the learned trial Court had taken a wrong view discarding the cogent and reliable evidence of the prosecution. If it is scrutinized cautiously, it is likely to be reversed. 3. On the other hand, Shri Naveen K. Bhardwaj, learned Counsel for the respondent has supported the impugned judgment of acquittal and ventilated that the prosecution has failed to prove that the police party was on patrolling duty and further that the rim in question belonged to HRTC, which is alleged to have been removed from the workshop. It is also submitted that the brake-drum in question was not having any identification mark entered in the stock register nor there is anything to show that any physical verification was ever made after the said incident by some responsible officer of the HRTC with respect to the missing of brake-drum. 4. I have considered the rival contentions of the parties and carefully re-appraised the evidence on record. 5. According to the case of the prosecution, PW-6 ASI Sajjan Pal, Investigating Officer was on patrolling duty alongwith H.C. Kuldeep Kumar and PW-5 HHC Dev Raj. At about 6.15 a.m., they noticed the respondent, hereinafter to be referred to as “the accused” coming from the side of the HRTC workshop, having brake-drum (rim of the tyre) on his shoulder which arose their suspicion. As such, the accused was stopped. PW-4 Paramjeet Singh, Chowkidar and PW-1 Ram Naresh, Fitter of the HRTC, also arrived there. PW-6 aforesaid asked from accused about his identity to which he disclosed and further asked as to why he was carrying the brake-drum. He could not give any satisfactory reply, but PW-4 Paramjeet Singh and PW-1 Ram Naresh, who happened to be present there, disclosed that it was of HRTC. Therefore, brake-drum was taken into possession vide memo Ext. PW-1/A in the presence of the witnesses. Since it was alleged to be a case of theft, as such, Rukka was sent for registration of the case. Therefore, brake-drum was taken into possession vide memo Ext. PW-1/A in the presence of the witnesses. Since it was alleged to be a case of theft, as such, Rukka was sent for registration of the case. Police prepared site plan, arrested the accused and after recording the statements of the witnesses, completed the investigation and filed challan in the Court for the trial of the accused for the offence punishable under Section 379 of the Indian Penal Code. He was accordingly charge-sheeted, to which he pleaded not guilty. 6. To prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. Though, he admitted his signatures on recovery memo Ext. PW-1/A, but denied its contents. He alleged false implication in the case. 7. At the end of trial, the accused was acquitted on the ground that the prosecution failed to prove that PW-6 Sajjan Pal alongwith other police officials was on patrolling duty. The trial Court further observed that around the HRTC workshop, there was a boundary wall and the Chowkidar always remained present at the main-gate. Thus, it was not possible to enter and carry such a huge item from inside the workshop. The accused was only apprehended on the basis of suspicion that the rim in question belonged to HRTC. 8. On scanning the record, I find that the prosecution had failed to prove that PW-6 Sajjan Pal alongwith other police officials was on patrolling duty. No such entry qua their departure was proved during the trial of this case. 9. Further PW-2 Harsaran Sharma admitted that HRTC workshop had a boundary wall. PW-1 Ram Naresh as well as PW-4 Paramjeet Singh both stated that there is only one entry through the main- gate to the workshop. Therefore, in these circumstances, in the early hours of the morning, when the main gate was also guarded by Chowkidar PW-4 Paramjeet Singh, how this brake-drum, which was about 40-50 kg in weight, could have been removed from the workshop by the accused. 10. Though, PW-1 Ram Naresh and PW-4 Paramjeet Singh have stated that the brake-drum belonged to HRTC, but there was no connecting evidence or the identification mark to prove this fact. 10. Though, PW-1 Ram Naresh and PW-4 Paramjeet Singh have stated that the brake-drum belonged to HRTC, but there was no connecting evidence or the identification mark to prove this fact. However, PW-1 Ram Naresh, Fitter of the HRTC, stated that the brake-drum was received in the HRTC workshop, entry qua which was reflected in the stock-register Ext. PW-2/A, which is said to be a photocopy of the register aforesaid. The perusal thereof shows that this was a register of sale proceeds of bus tickets maintained daily, but some items were reflected therein, which was signed by the Work Manager and Regional Manager. Significantly, the signature of the Work Manager is dated 27th February, 2003, i.e. after the incident. It has also not been proved who had made these entries in the said register, which appears to have been prepared in one go and further, there is nothing on record to show that any physical verification of the stock was ever made even after the said incident, so as to ascertain that there was a loss of any store item of the like nature. 11. It has also come in the statement of PW-5 HHC Dev Raj that he was residing in Police Colony just above the HRTC workshop. In absence of the departure report, it can also be presumed that he was easily available and included by PW-6 ASI Sajjan Pal, as a witness, at a later stage, in investigation of this case. 12. Further, a reference can also be made to the cross-examination of PW-6 ASI Sajjan Pal, wherein he admitted that because of the presence of Chowkidar at the main-gate, no person can go inside and out, who could not be noticed, which has also been substantiated by PW-1 Ram Naresh in his cross-examination. 13. There is also no evidence to the effect that PW-4 Paramjeet Singh, Chowkidar or anybody else had seen the accused coming inside and leaving from the HRTC workshop. 14. It has come in prosecution evidence that besides HRTC workshop, there was a workshop of PWD, where similar type of items are kept. There is nothing on record to connect this brake-drum with that of the HRTC. 15. Therefore, in the totality of the circumstances, in my opinion, the grounds of acquittal recorded by the learned trial Court are reasonable and borne out from the record, which require no interference. There is nothing on record to connect this brake-drum with that of the HRTC. 15. Therefore, in the totality of the circumstances, in my opinion, the grounds of acquittal recorded by the learned trial Court are reasonable and borne out from the record, which require no interference. As such, the appeal filed by the State is dismissed. 16. The accused is discharged of the bail bonds entered upon by him at any time during the proceedings of the case. 17. Send down the records.