Himachal Pradesh High Court
State Of Himachal Pradesh vs Dev Prakash And Anr. on 10 January, 2003
Equivalent citations: 2003CRILJ2882
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Respondents were challenged and tried for having committed offences under Section 381 read with Section 34 of the Indian Penal Code. Dev Prakash respondent No. 1 is working as helper in the District Treasury Office, Shimla. Both the respondents in furtherance of their common intention committed theft of stamp papers/ articles kept in the strong room under double lock of the District Treasury Office, Shimla.
2. As per prosecution case, P.W. 11 Devinder Kumar Gupta while working as District Treasury Officer, Shimla on 14-7-1993 found that 30 stamp papers of the value of Rs. 500/- each were missing. Total value of these stamp papers was Rs. 15,000/-. Verification was done by him when he rejoined his duty after having availed earned leave. It was during the course of yearly physical verification that not only the aforesaid stamps were found missing, but articles entered at item Nos. 1/3 and 3/34, respectively were also found missing. There is evidence on record to suggest that both the stamps as well as articles continued to be shown in the custody of the District Treasury Office. In addition to this, P.W. 4 Gajinder Kumar who works as stamp vendor in District Court Complex, Shimla also informed the complainant P.W. 11 Devinder Kumar Gupta that respondent No. 1 had come to sell stamp papers of the value of Rs. 500/- each numbering 30. Getting suspicious, said Gajinder Kumar brought this fact to the notice of P.W. 11.
3. Prosecution further alleges that the complainant probably thought that those stamp papers have been inadvertently sent to Sub-Treasury Offices at Theog, Chopal, Rohroo, Rampur, Bushehar and Jubbal. So, communications were addressed to these Sub-Treasury Offices. In response, all these Sub-Treasury Offices informed that they have not been received stamps in question. Father of Dev Prakash respondent No. 1, Jagat Ram is also working in Treasury Office in District Kinnaur. He was also contacted when he had come on Janamashtami on leave. Jagat Ram was contacted by P.W. 11 and was informed of the entire episode. It was Jagat Ram father of respondent No. 1 who traced and located the stamp papers and handed over those to the complainant P.W. 11. These stamp papers were handed over at the residence of P.W. 11 on 8-8-1993.
4. In the aforesaid background, after registration of F.I.R. Investigation was undertaken by the police. While in custody, disclosure statement vide Ex. P.W. 1/A in the presence of witnesses and recovery of gold in melted form was effected (the articles stolen from Treasury consisted of gold ornaments, in addition to stamp papers). Respondent No. 1 led the investigating party to the shop of Mahashaya Jewellers, Lower Bazar, Shimla and got recovered the stolen articles. Kapil Kumar P.W. 9 produced the gold in its melted form, to whom said respondent, as per prosecution, had sold the stolen gold articles. Memo in that behalf was prepared vide Ex. P.W. 1/B and recovered articles were sealed with seal impression "T." These recovered items from Mahashaya Jewellers were got tested by the police from P.W. 7 Lalit Kumar who after testing stated that purity of the gold was 22 carats.
5. In the aforesaid background, after completion of investigation, challan was put in Court. Trial Court was satisfied that there is enough material for charge-sheeting the respondents. And after framing charges and recording evidence, respondents were acquitted. Hence, this appeal at the instance of the State.
6. Shri R.C. Sharma, learned Assistant Advocate General submitted that theft of stamp papers as also the gold which both were lying in the strong room having double lock in the District Treasury Office, Shimla were found missing. Stamp papers were produced by none-else, but by father of respondent No. 1. Thereafter, disclosure statement was made and stolen gold articles were got recovered from Mahashaya Jewellers, Shimla. With a view to further support the case of the prosecution, Mr. Sharma submitted that statement of P.W. 11 coupled with the statements of P.Ws. 6, 7, 10 and 11 proved the case against the respondents beyond shadow of doubt. He further submitted that minor omissions in the statements of prosecution witnesses here and there are bound to occur in the natural course of things with the passage of time. Therefore, no exception can be taken to those. Reason being that human memory fails with the passage of time. Thus, the trial Court erred in ordering the acquittal of respondents which needs to be reversed by this Court.
7. Learned counsel appearing on behalf of respondents while controverting the submissions of learned Assistant Advocate General appearing on behalf of appellant/State submitted that on the basis of quality of evidence produced by the prosecution, the only conclusion possible was the one, that has been arrived at by learned trial Court to which no exception can be taken. Per them, accepting without conceding statements of all the P.Ws. with special reference to the P.Ws. relied upon by Mr. Sharma, even then the judgment of acquittal calls for no interference in this appeal.
8. Learned counsel appearing for respondents after referred to oral as well as documentary evidence, submitted that no case is made out which calls for interference in this appeal. They further submitted that this Court would be slow to interfere with the acquittal of the respondents as no case is made out in that behalf.
9. At best what can be said in this case is that stamp papers and gold articles as aforesaid were found missing on annual verification conducted by P.W. 11 Devinder Kumar Gupta, the then District Treasury Officer, Shimla. Stamp papers were delivered at the residence of P.W. 11 by the father of respondent No. 1. When a reference is made to the statement of this witness, it belies the stand taken by him in the complaint, i.e. Ext. P.W. 11/A. He has categorically stated in his statement in Court that the stamp papers were delivered in his absence to his wife, whereas in the complaint, this P.W. has stated that those were delivered. Whether those were delivered to the said witness himself or to his wife, Ext. P.W. 11/A is silent. In case, those were delivered to the wife of the complainant, she ought to have been examined and this fact would have found mention in Ex. P.W. 11/A. Said Jagat Ram was cited as a witness but not examined. Similarly, there are two writings purported to have been given by respondent No. 1 as well as his wife (to P.W. the Pradhan of Gram Panchayat) wherein they had admitted the guilt of respondent No. 1. If that was so, those writings ought to have been proved in accordance with law. However, no steps were taken by the prosecution in that direction. Learned Assistant Advocate General was unable to explain this omission when pointedly asked. In case, what was stated in these two communications addressed by the husband and wife to the Pradhan is correct, then the complexion of the prosecution case would have been completely changed. However, for the reasons best known to it, the investigating agency did not care to examine this aspect of the case. Similar is the position so far writing alleged to have been left by Jagat Ram father of respondent No. 1 while delivering the missing stamp papers at the residence of P.W. 11, is concerned. His handwriting should have also been got proved as per law. Reason for non-examination of Jagat Ram given by Shri R.C. Sharma, learned Assistant Advocate General, was that being father of respondent No. 1 prosecution could not ever take a chance to call him in the witness-box and then this person not supporting its case, but also dislodging the same. This apprehension may be well founded. However, fact remains what stopped the prosecution to have got the writing proved. Mr. Sharma was unable to explain it also.
10. There is ample evidence of the Treasury Staff examined by the prosecution during the course of trial, that double lock of the strong room of District Treasury Office, Shimla can only be opened with two keys. One used to remain with the District Treasury Officer and the other with the District Treasury Office, Shimla. There is evidence to prove that none of the respondents had access either to the keys in question or to the strong room so as to be in a position to remove from lawful custody of the District Treasury Office the stamps/gold articles in question, (which were found in melted form when the same were produced by P.W. 9). Investigating agency did not think to look into the case from this point of view. Strangely enough, stolen articles at Nos. 1/3 and 3/34 were not found in the original shape. P.W. 9 Kapil Kumar appeared in the witness-box. Per him, he inquired from the respondents why they want to sell the gold articles. Both of them as per P.W. 9 held out that they required money for purchase of land. He has placed on record one voucher Ex. P.W. 9/A. Police appeared to be happy with recovery of stolen articles in melted condition weighing 50 grams. At the same time except this voucher, no other record was obtained from this witness to see whether he had bona fide purchased the gold articles and then melted the same or there was something else in the matter. His account books and other records which he was to maintain under law, were not taken into possession. In fact, P.W. 9 was the best person to have produced documentary evidence to explain as to how he dealt with the matter so far sale of gold etc. by persons like respondents was concerned. As also how he made entries of such transactions in his record/account book. Voucher only indicated the payment and nothing else. Voucher is not a document which can be taken to be a book of account etc. showing as to what was the nature of transaction. This is very strange how this witness identified the respondents in Court when he appeared after about more than five years. This puts a very big question mark on the entire investigation process. These are some of the facets of this case which Mr. Sharma was unable to explain even though he persisted with vehemence for allowing the appeal.
11. The prosecution has miserably failed to bring home the guilt against the respondents beyond reasonable shadow of doubt. It hardly needs to be pointed out that in criminal jurisprudence, it is for the prosecution to bring home the guilt against accused otherwise presumption of innocence will be there, of course, this is subject to statutory presumption to the contrary, or evidence being conclusive and convincing pointing to one and only conclusion leading to the guilt of the accused. This being not the situation in the present case, even on reappraisal of the whole evidence, I am further of the view that trial Court has taken a balanced and reasonable view of the whole case while ordering the acquittal of the respondents and thus it calls for no interference.
12. No other point is urged.
13. In view of the aforesaid discussion, there is no merit in this appeal, the same is dismissed accordingly. Respondents are on bail. Their bonds are discharged.