Himachal Pradesh High Court
Dinesh Kumar vs State Of Himachal Pradesh on 4 March, 2024
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.84 of 2012 .
Reserved on : 04.12.2023
Decided on : 04.03.2024
Dinesh Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.
For the petitioner : None.
For the respondent : Mr. Tejasvi Sharma, Additional
Advocate General.
Virender Singh, Judge.
PetitionerDinesh Kumar has filed the present revision petition, under Section 397, read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.PC') against the order dated 13.3.2012, passed by the Court of learned Sessions Judge, Shimla, District Shimla (hereinafter referred to as the 'appellate Court'), in Criminal Appeal No.8S/10 of 2010, titled as Dinesh Kumar versus State of H.P. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/03/2024 20:31:51 :::CIS 22. Vide order dated 13.3.2012, the learned appellate Court has affirmed the judgment of conviction .
and order of sentence dated 22.12.2009, passed by the Court of learned Judicial Magistrate First Class, Court No.3, Shimla (hereinafter referred to as the 'trial Court'), in Criminal Case No.62/2 of 2009, titled as State of H.P. Vs. Kulbhushan & Another.
3. Vide judgment of conviction and order of sentence dated 22.12.2009, as referred to above, learned trial Court has convicted the petitioner for the offence punishable under Section 411 IPC and sentenced to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.2,000/. In default of payment of fine, he has been directed to further undergo simple imprisonment for one month.
4. For the sake of convenience, the parties to the present lis are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court.
5. The report, under Section 173(2) Cr.PC, has been filed, on the basis of the following facts: ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 3 4.1. On 4.4.2009, a copy of Rapat Rojnamcha recorded with Police Post Dhami, was received with Police .
Station, West Shimla. The said report was lodged by Shri Virender Pal, son of Shri Bala Nand, on the ground that he has a grocery shop at Ganahatti market. They are four brothers. He and his brother Vijay Pal are drivers by profession.
4.2. In r the month of September, 2007, the complainant had purchased new Bolero Pick by getting the same financed from Sundram Finance Limited, Solan. The vehicle was registered vide registration No.HP51B1228.
4.3. The complainant, apart from running his business, also used to drive the same. His brother used to drive another vehicle, having registration No.HP631228.
4.4. In the month of December, 2008, one Ashok Kumar, aged about 2530 years, by introducing himself as driver, approached him and shown his driving licence to him, upon which, the complainant apprised him that he does not require the services of the driver. However, he has requested him to provide his mobile number.
::: Downloaded on - 22/03/2024 20:31:51 :::CIS 44.5. Consequently, said Ashok Kumar has given his mobile number. In the month of March, 2009, Ashok .
Kumar again requested him to give him the job of driver, but, complainant refused to do so.
4.6. On 5.4.2009, Ashok made a call to him, upon which, the complainant requested him to come to his shop on 6.4.2009. On 6.4.2009, at about 10.0011.00 a.m., Ashok reached at the shop.
r His driving licence was checked, in which, his name has been entered as Ashok Goyal, Village Chadi, P.O. Gaggal, District Kangra, H.P. 4.7. The driving licence was issued by the authorities at Sonipat and valid till 2011. Thereafter, said Ashok was engaged as driver in the Bolero Pick up. On 7.4.2009, at about 2.00 p.m., Ashok Kumar drove the vehicle No.HP51B1228 to Khalini and from where, he had taken the same to Barotiwala.
4.8. On 7.4.2009, at about 7.307.45 p.m., Virender Pal had telephonically contacted Ashok Kumar, on his mobile No.9418622010 and Ashok Kumar apprised him that after unloading the goods at Barotiwala, he has to load goods from some factory and he will return after 23 ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 5 days. After 3 days, Ashok did not come back and his phone was found to be switched off.
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5. On the basis of the above facts, the police registered the case, under Section 411 IPC, against the accused and criminal machinery swung into motion.
6. Accused Kulbhushan, was arrested in case FIR No.88/06, dated 27.5.2006, registered under Sections 406, 420, 467, 468, 471 IPC, with Police Station, Baijnath, from Chandigarh. During investigation, on 4.5.2009 he has disclosed that he has taken away vehicle No.HP51B1228.
7. ASI Harjeet Singh, Incharge Police Post Dhami, has interrogated the accused at Police Station, Baijnath.
Not only this, he has also disclosed that he has taken away number of vehicles. He has also disclosed that he used to sell those vehicles in Haryana and UP. His custody was transferred in the present case.
8. During investigation, he has made a statement under Section 27 of the Indian Evidence Act. On the basis of such statement, he got recovered stereo make 'Sony', on 15.5.2009. Vehicle No.HP51B1228, was produced by the ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 6 mother of Dinesh Kumar, which was identified by complainant Virender Pal.
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9. After completion of the investigation, police filed the report under Section 173(2) Cr.PC, in the trial Court.
10. On the basis of report under Section 173(2) Cr.P.C, the learned trial Court found a primafacie case against accused Kulbhushan, for the commission of offences, under Section 408 IPC and against Dinesh Kumar, under Section 411 IPC, as such, they have been chargesheeted, vide order dated 20.8.2009.
11. When the charges, so framed, were put to the accused, they had not pleaded guilty and claimed to be tried. As such, prosecution has been directed to adduce evidence, to substantiate the charges framed against them.
Consequently, the prosecution has examined, as many as, 9 witnesses.
12. After the closure of the prosecution evidence, the entire incriminating evidence, appearing against the accused, was put to them, in their statements, recorded under Section 313 Cr.PC. The accused has denied the entire prosecution case and took the simplicitor defence of ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 7 denial. However, in defence, the accused have not led any evidence.
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13. Thereafter, the learned trial Court, after hearing the learned Assistant Public Prosecutor, as well as, learned defence counsel, has convicted accused Kulbhushan under Section 407 IPC and sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs.2,000/, in default of payment of fine, he has further been directed to undergo simple imprisonment for one month, whereas, convict Dinesh Kumar has convicted under Section 411 IPC and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/, and in default of payment of fine, he has further been directed to undergo simple imprisonment for one month.
14. Aggrieved from the said judgment of conviction and order of sentence, both the accused have preferred appeal before the learned Appellate Court, however, vide judgment dated 13.3.2012, learned appellate Court has dismissed the appeals.
::: Downloaded on - 22/03/2024 20:31:51 :::CIS 815. Aggrieved from the said judgment, present .
revision petition has been preferred before this Court, mainly, on the ground that the learned trial Court has wrongly convicted the accused for the offences, for which, he has been chargesheeted, as, there is no evidence adduced by the prosecution to connect him with the crime.
16. The findings have further been assailed on the ground that the learned trial Court has wrongly relied upon the statement of PW9 and ingredients of Section 411 IPC have not been fulfilled in the present case. Evidence of PW1 is also stated to have been wrongly relied upon and the entire case of prosecution is stated to be vague and does not prove the ingredients, for which, accused Dinesh has been convicted.
17. When, the case was fixed for arguments, none has appeared for accused Dinesh, as such, the arguments of learned Additional Advocate General were heard and matter has been reserved to decide on merits.
18. In order to decide the present revision petition, in an effective manner, it would be just and appropriate for ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 9 this Court to discuss the evidence adduced by the prosecution.
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19. After framing charges, the prosecution has examined PW1, HC Yashwant Singh, who has deposed that on 15.5.2009, he has investigated the case, along with, HHC Ram Lal and Vijaypal. In the presence of this witness and Ram Lal, Dayawanti wife of Vijay Sharma has produced ther vehicle bearing No.HP51B1228, and disclosed that in the month of April, 2009, Kulbhushan @ Lucky has left the vehicle with her son Dinesh Kumar.
The Police has seized the vehicle vide seizure memo Ex.PW1/A.
20. This witness has admitted that the place, from where, the vehicle, in question, was recovered, was parking of Court complex. Then, again stated that parking was outside the Court complex. He has feigned ignorance about the fact that Dinesh was having the contract of parking place. He has also deposed that he could not say whether accused Kulbhushan has parked the vehicle in the parking of accused Dinesh.
::: Downloaded on - 22/03/2024 20:31:51 :::CIS 1021. In the crossexamination by accused .
Kulbhushan, this witness has deposed that Dinesh met them at Court complex. Firstly, he had stated that the vehicle was parked at Court complex, but, no document to demonstrate that the vehicle was not parked in the parking, but, Dayawanti brought the same, has been taken on record. r
22. In the presence of this witness, Dayawanti was not inquired that from where she had brought the vehicle.
No independent witness was associated. He has feigned his ignorance about the fact as to from where Dayawanti had brought the vehicle.
23. PW2 Vijay Pal has deposed that he is owner of vehicle No.HP51B1228. Thereafter, his brother has employed Kuldeep, as driver, in the said vehicle. On 7.4.2009, accused has taken the vehicle, along with goods loaded in it to Barotiwala. He has identified the said driver as accused Kulbhushan. Accused did not come back thereafter. On 15.5.2009, he was associated in the ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 11 investigation of the case, where Dayawanti came and disclosed that vehicle No.HP51B1228 was given to her son .
by accused Kulbhushan and he thereafter kept the vehicle with her. Vehicle was produced by Dayawanti, which was taken into possession, along with its papers, vide seizure memo Ex.PW1/A.
24. In the crossexamination, this witness has deposed that the vehicle was parked in the parking. In the crossexamination by the learned counsel representing accused Kulbhushan, he has deposed that they reached at Panipat on that day at about 2.003.00 p.m., Dayawanti met them at Court complex. She was called by ASI. Apart from the vehicle, in question, 34 other vehicles were found to be parked in the parking. Court complex was at the distance of 5060 meters from the spot. The vehicle was without stepney and battery, which were brought by Dayawanti. Place from where the vehicle was found parked was busy one. When Police inquired from Dayawanti as to why, the battery etc., were removed, she admitted that those were removed by her.
::: Downloaded on - 22/03/2024 20:31:51 :::CIS 1225. PW3 HHC Ram Lal was posted, at the relevant time, at Police Post Dhami. On 15.5.2009, this witness, .
along with, HC Yashwant Singh and Vijay Pal remained associated in the investigation of the case and in their presence, Dayawanti has produced vehicle No.HP51B 1228, along with its papers, vide memo Ex.PW1/A.
26. PW4, HC Mohar Singh No.123, was posted as I.O. in police Post Tikkar.
r As per the directions of the seniors, investigation of case No.64/09, Police Station, West, was done on 8.5.2009. In the presence of this witness, accused Kulbhushan, has made disclosure statement Ex.PW4/A, disclosing therein that he could get recovered one stereo make 'Sony' and old blanket, along with vehicle bearing No.HP51B1228, containing the documents of vehicle in question, about which, only he is having the knowledge. His statement was recorded. The said statement Ex.PW4/A, was witnessed and also signed by accused Kulbhushan. This witness has admitted that they took Virender with them from Shimla. He has feigned his ignorance whether any recovery was got effected or not.
::: Downloaded on - 22/03/2024 20:31:51 :::CIS 1327. PW5 Virender Pal, has been examined on 7.4.2009. He has deposed that he purchased HP51B .
1228, in the name of their brother Vijay Pal. Kulbhushan was employed as driver, who has disclosed his name as Ashok Kumar. On the driving licence, his name was also written as Ashok Kumar. On 5.4.2009, accused made a telephonic call to him and requested him to engage as driver, upon which, this witness has engaged him as driver on 7.4.2009. On 7.4.2009, he drove the vehicle from Khalini to Barotiwala. On that day, at about 7.307.45 p.m., he has called from his mobile No.9418622010, disclosing that he has reached at a place known as Patta, upon which, he has directed him to come back. He has deposed that he has to load some goods from there.
28. Thereafter, the accused did not come back and his phone was also found switched off. They had searched him for 23 days, but, he was not found. Accused Kulbhushan, discloses his name as Ashok Kumar, upon which, he has made a complaint. DDR No.144 was entered, upon which, FIR Ex.PW5/B was registered. On 4.5.2009, this witness has gone to Police Station, Baijnath, ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 14 where, Kulbhushan was identified by him, the person who was employed as driver on his vehicle No.HP51B1228.
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29. This witness has further deposed that he has made statement under Section 27 of the Indian Evidence Act, mentioning therein that he has handed over Vehicle No.HP51B1228 to Dinesh at Ward No.2, Batra Colony, Panipat. Mother of Dinesh Kumar has disclosed that Dinesh has r purchased the vehicle for a sum of Rs.50,000/, regarding which, memo Ex.PW5/C has been prepared, which was witnessed by him.
30. According to this witness, accused has disclosed that the place, where he has kept the vehicle, is only in his knowledge. On 8.5.2009, accused Kulbhushan, has made statement Ex.PW4/A, disclosing therein that he could got recover the music system make 'Sony', one blanket and one file, containing the documents of vehicle No.HP51B1228, from the place, about which, only he was having the knowledge. On 8.5.2019, the said documents were got recovered, which were taken into possession vide memo Ex.PW5/A. ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 15
31. Since, this witness has not supported the case of the prosecution, as such, at the request of learned .
Assistant Public Prosecutor, has been declared hostile.
32. In the crossexamination, this witness has admitted that accused Kulbhushan, made a statement, under Section 27 of the Indian Evidence Act, at Kurukshetra. He has admitted the contents of Ex.PW4/A. The statement r was got recorded at Govindgarh (Kurukshetra). Vehicle No.HP51B1228, was found parked at Batra Colony, Panipat. The fact that vehicle was handed over to Dinesh, was disclosed by accused.
33. In the crossexamination, this witness has deposed that when accused was employed as driver, copy of his driving licence was not retained. This witness has not submitted the details of the articles, which were transported to Baddi Barotiwala, on 7.4.2009. The complaint was made on 14.4.2009. From 7.4.2009 till 14.4.2009, no complaint was made, with regard to the fact that his driver has not come back, nor his vehicle was found. On 4.5.2009, he has gone to Baijnath. Volunteered that on 5.5.2009, accused was brought to Shimla by ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 16 Police. They reached at Police Station West on 6.5.2009.
Till 6.5.2009, no investigation was conducted by the Police .
in his presence. He has admitted that on 6.5.2009, the statement Ex.PW5/C, was not written in his presence.
This witness has visited Police Station West on 7.5.2009.
34. On 8.5.2009, at about 56 p.m., they had proceeded to Panipat, along with ASI Harjeet Singh, SI Ram Lal and Constable Sunil. They had straightway gone to Batra Colony and stayed there till 9.5.2009. Ex.PW4/A was written by the Police in Shyam Colony Govindgarh, at that time, Harjeet Singh, Yashwant etc., were also present.
No documentary proof was found qua the fact that accused has sold the vehicle to Dinesh for a sum of Rs.50,000/.
35. PW6, Inspector Puran Chand, has prepared the final report and on completion, presented the same before the Court.
36. PW7 Sumer Chand, was associated in the investigation of the case. From the possession of accused Kulbhushan @ Lucky, one blanket, and documents were taken into possession, by the Police, vide memo Ex.PW ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 17 5/D. The documents, which were prepared by the police, has signed by this witness and Hoshiyar Singh.
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37. This witness has admitted that in his presence, nothing was recovered from the house of Kulbhushan. He has also admitted that accused has not got recovered any articles.
38. PW8 ASI, Harjeet Singh, is the Investigating Officer of the case. He has deposed about the manner, in which, he has conducted the investigation of the case.
Interestingly, he has also deposed the fact that accused Kulbhushan has mentioned his name as Rahul Goyal in Airtel.
39. In the crossexamination, this witness has deposed that CDR of Mobile No.9418622010, was not placed on the file. Any employee of the service provider has not been associated, as witness, in this case. This witness has met Mohinder Singh on 4.5.2009 and gone to Baijnath. He was called by the Police of Police Station Baijnath. Said Mohinder was not associated as witness.
When this witness has gone to Baijnath, HHC Ram Lal and other constables were with him. When accused was taken ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 18 in the custody, in this case, he was already in custody in some other case.
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40. According to this witness, statement of the accused was written at Police Station. Before recording the statement under Section 27 of the Indian Evidence Act, no permission was obtained from Executive Magistrate/ Judicial Magistrate. After reaching Panipat, they had gone to Police Station, from where, they had gone to the house of accused. He could not disclose as to who had apprised him about the house number of accused Dinesh. No one from Police Station, Panipat had accompanied them. He could not disclose about the house number situated at Govindgarh, where they had gone. Ex.PW4/A was written at Govindgarh. No independent witness was associated while recording Ex.PW4/A. Spot map was prepared at Shyam Colony, Kurukshetra. Dayawanti has produced vehicle No.HP51B1228 and its RC on 15.5.2009.
41. This witness has visited the house of accused Dinesh twice. When the vehicle was taken into possession, a number of persons were present there, but, no one was associated as witness. No document has been obtained ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 19 from the Airtel Company that accused has revealed his name as Rahul.
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42. PW9 Dayawanti has deposed that Dinesh never came with Kulbhushan nor Kulbhushan had brought any vehicle. She has further deposed that no vehicle was produced by her to the police.
43. Since, this witness has not supported the case of the prosecution, as such, at the request of learned Assistant Public Prosecutor, she has been declared hostile.
Despite lengthy crossexamination by the learned Assistant Public Prosecutor, nothing incriminating could be elicited from her statement.
44. In the crossexamination by the learned counsel representing the accused, this witness has deposed that contents of Ex.PW1/A were not read over to her by the Police and she has put her thumb impression on the document, written by the Police.
45. Learned trial Court, in the present case, has convicted accused Dinesh Kumar, for the offence punishable, under Section 411 IPC, and sentenced him to ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 20 undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/.
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46. In appeal by accused Kulbhushan, as well as, Dinesh Kumar, learned Sessions Judge has dismissed their appeals, vide judgment dated 13.3.2012.
47. In order to convict a person, it was incumbent upon the prosecution to prove his guilt, beyond the shadow of reasonable doubt. The prosecution has to stand upon its own legs.
48. The conviction, in the present case, has been recorded mainly, on the basis of documentary and oral evidence, adduced by the prosecution. According to the learned Courts below, it has been proved that accused Dinesh had received the vehicle, in question, from Kulbhushan, whereas, the evidence of the prosecution is contrary to the above facts.
49. The star witness, upon which, the prosecution is relying is mother of Kulbhushan. She has been examined, as PW9. She has not supported the case of the prosecution, as such, on the request of learned Assistant Public Prosecutor, she has been declared hostile and ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 21 learned Assistant Public Prosecutor has been permitted to crossexamine her.
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50. Despite lengthy crossexamination, nothing material could be elicited from her. Her evidence assumes significance, in this case, as, it is the specific case of the I.O. that PW8, ASI Harjeet Singh, as well as, the star witness, as, she was the person, who had allegedly produced the vehicle, in question, to the Police on 15.5.2009.
51. PW1 HC Yashwant Singh, has deposed that he was associated in the investigation. In his presence and in the presence of Ram Lal, PW9 Dayawanti, has produced vehicle No.HP51B1228, which was taken into possession by the Police.
52. Not only this, this witness has further deposed that PW9 Dayawanti has disclosed that in the month of April, 2009 Kulbhushan @ Lucky has left the vehicle with her son Dinesh. When, Dayawanti has not deposed so, when appeared, in the witnessbox, no reliance can be placed on the testimony of this witness, as, statement of ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 22 Dayawanti, under Section 164 Cr.PC, has not been recorded.
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53. The much relied document, i.e., recovery memo Ex.PW1/A, is too short to prove that vehicle No.HP51B 1228, had allegedly been handed over to accused Dinesh by Kulbhushan @ Lucky. When, the vehicle, in question, has not been recovered from the possession of accused Dinesh Kumar, then, as to how, the learned trial Court has convicted him for the offence punishable under Section 411 IPC, remained unexplained by the learned trial Court, as well as, learned First Appellate Court.
54. PW9, Dayawanti, has put her thumb impression on Ex.PW1/A, and in her crossexamination, by learned counsel representing the accused, she has deposed that she does not know about the contents of Ex.PW1/A, nor the same was read over to her.
55. Even, the I.O. has not deposed that PW9 Dayawanti, has disclosed that the said vehicle was handed over to Dinesh Kumar by Kulbhushan @ Lucky. In his crossexamination, the I.O. has simply deposed that on 15.5.2009, Dayawanti wife of Vijay Pal, who is mother of ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 23 Dinesh, has produced vehicle No.HP51B1228, which was taken into possession, vide memo Ex.PW1/A, upon which, .
both the witnesses had put their signatures and Vijay Pal put his signature, as identifier of the vehicle, in question.
56. When the I.O. has not deposed about the material fact, then, the evidence of PW1, qua the alleged disclosure of PW9 that in the month of April, 2009, Kulbhushan @ Lucky, had handed over the vehicle, in question, to her son Dinesh, is inconsequential.
57. Similarly, PW2, Vijay Pal, simply deposed that when, they reached at a place near Court Complex, at Panipat, Dayawanti, came there and disclosed that accused Kulbhushan has handed over vehicle No.HP51B 1228 to her son. He has not deposed that Dayawanti has deposed that vehicle was handed over by Kulbhushan to her son known as Dinesh Kumar. From the words used by PW2 'her son', no inference can be drawn that the said words were in reference to accused Dinesh Kumar.
58. Another fact, which also assumes significance is that PW2, has admitted, in the crossexamination that when, they reached on the spot, the vehicle, in question, ::: Downloaded on - 22/03/2024 20:31:51 :::CIS 24 was parked there. 34 other vehicles were also parked there. Meaning thereby, the theory of the Police that the .
vehicle, in question, was handed over to the Police by Dayawanti, does not inspire confidence.
59. PW5 Virender Pal has put forward the different story by deposing that the mother of Dinesh Kumar disclosed that the vehicle, in question, was purchased by accused Dinesh Kumar for a sum of Rs.50,000/, whereas, no such, deposition has been made by the I.O. and other witnesses.
60. Considering the above facts, this Court is of the view that the evidence of the prosecution is too feeble to connect accused Dinesh Kumar with the commission of the alleged crime, what to talk of proving the case beyond the shadow of reasonable doubt.
61. Consequently, the revision petition is allowed by setting aside the judgment of conviction and order of sentence dated 22.12.2009, passed by the learned trial Court, against accused Dinesh Kumar. His personal and surety bonds are ordered to be discharged.
::: Downloaded on - 22/03/2024 20:31:51 :::CIS 2562. In view of the provisions of Section 437A Cr.PC, accused Dinesh Kumar, is directed to furnish a .
personal bond in the sum of Rs.30,000/, with one surety in the like amount, before the Registrar (Judicial) of this Court, within a period of four weeks, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
Record be returned to the quarter concerned.
( Virender Singh ) Judge March 04, 2024(ps) ::: Downloaded on - 22/03/2024 20:31:51 :::CIS