Himachal Pradesh High Court
Khushal Singh vs State Of Himachal Pradesh on 12 July, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
Cr. Appeal No. 49 of 2017
Reserved On : 8.7.2019
Decided on: 12.7.2019
Khushal Singh .....Appellant
Versus
State of Himachal Pradesh ....Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Yes.
Whether approved for reporting?1 For the Appellant: Mr. B.B Vaid and Mr. Ajay Chandel, Advocates.
For the Respondent: Mr. Hemant Vaid, Additional
Advocate General with Mr.
Yudhveer Singh Thakur and Mr.
Vikrant Chandel, Dy.A.Gs.
Sureshwar Thakur, J
The instant appeal is directed, against, the impugned judgment, of, 20.1.2017, rendered by the learned Special Judge, Kullu, District Kullu, H.P., wherethrough the appellant herein (for short 'accused'), stood convicted, by the 1 Whether reporters of the local papers may be allowed to see the judgment?
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learned trial Court, for, an offence punishable under, Sections .
409 of IPC and Section 10 of HP.PSCP Act.
2. The brief facts of the case are that as per memorandums Ex. PW1/D and Ex. PW1/E of 11.1.1988, accused was given appointment as Junior Engineer on temporary basis in I&PH Department, and was posted as such in I&PH Division, Jubbal District Shimla, H.P. In the year 2009 , accused while posted as JE in I & PH Sub Division, Shamshi, was assigned the duties of inspection as well as to get carried out various works, such as construction of Life Irrigation scheme to villages Bhatgram, Tuniseri, Bashona and Bagicha, construction of pump house and chowkidar quarters etc, which work was awarded to M/S Ashadeep Construction Pvt. Ltd, Tharas, vide Agreement, Ex. PW2/E, being lowest tender and vide store indents Ex. PW2/B, Ex.PW2/C and Ex.PW2/D, accused were supplied various items, including certain quantity of cement bags for carrying out the works done at the construction sites, which indents ::: Downloaded on - 29/09/2019 00:43:37 :::HCHP ...3...
were taken into possession from Pankaj vaidya (PW2) vide .
memo Ex. PW2/A alongwith agreement of work Ex. PW2/E by the Investigating Officer. Similarly, vide store indents Ex.
PW3/B to Ex. PW3/G, accused were also supplied certain items including certain number of cement bags etc for carrying out the work done at the construction sites, which indents were taken into possession from chamaru Ram (PW3) vide memo Ex. PW3/A alongwith gate passes. As per Departmental Rules, after receipt of cement supply from the Department, accused was required to stack the cement in the store of Section Headquarters and in case of nonavailability of such store, accused had to take permission from the Department to stack and store the cement in private accommodation. On 5.6.2009, vide rapat Ex. PW13/C a secret information was received in the police station of SV & ACB, Kullu, to the effect that government supply cement, stacked by the accused in his house at Buin, was being misused. It was also informed that accused was supplying the government ::: Downloaded on - 29/09/2019 00:43:37 :::HCHP ...4...
cement to aforesaid Kamal Kishore (PW9) for construction of .
his house. On the receipt of said information, the investigation of the case was entrusted to Inspector Prem Singh (PW24), who alongwith other police officials visited the spot. The house of the accused was searched and during search 21 full bags, one open bag and 22 empty bags of government supply cement were found in the room. On the cement bags, there was inscription of words "not for sale and only for government supply". There was also mark of ISI on the bags. The cement bags were found to have been manufactured in March, 2009. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused, challan was prepared and filed in the Court.
3. The accused stood charged, by the learned trial Court, for his committing an offence(s) punishable, under Section 409, of, IPC, and, under Sections 13(1)(d), and, under Section 13(2), of, the P.C Act, and, under Section 10 of the H.P ::: Downloaded on - 29/09/2019 00:43:37 :::HCHP ...5...
PSCP Act, whereto which he pleaded not guilty and claimed .
trial.
4. In order to prove its case, the prosecution examined 25 witnesses. On closure of prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure was recorded, wherein, he pleaded innocence, and, claimed false implication. He chose to lead defence evidence, and, examined three witnesses including himself', in his defence.
5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction, against, the accused, for, an offence punishable under Section 409 IPC, and, Section 10 of HP.PSCP Act.
6. The learned counsel(s) appearing for the accused, has, concertedly and vigorously contended, qua the findings of conviction, recorded by the learned trial Court, standing, not based, on a proper appreciation of evidence on record, rather theirs standing sequelled by gross misappreciation, by it, of ::: Downloaded on - 29/09/2019 00:43:37 :::HCHP ...6...
the relevant material on record. Hence, he contends qua the .
findings of conviction, warranting reversal by this Court, in the, exercise of its appellate jurisdiction, and, theirs standing replaced by findings of acquittal.
7. The learned Additional Advocate General, has, with considerable force, and, vigour contended, qua, the findings of conviction, recorded by the Court below, standing based, on a mature and balanced appreciation, of, evidence on record, and, theirs not necessitating interference rather theirs meriting vindication.
8. This Court with the able assistance of the learned counsel, on either side, has with studied care and incision, evaluated the entire evidence on record.
9. The initial portion of the charge, appertaining to the appellant, stacking at his residence, some cement bags, does falter, (i) given PW4 (Sh. Hari Prakash), the SDO, of the Division concerned, in his testification, embodied in his cross examination, acquiescing to a suggestion, with, an echoing ::: Downloaded on - 29/09/2019 00:43:37 :::HCHP ...7...
therein, visavis, all the places, rather surrounding the house .
of the accused, being safe for storing thereat, the construction material, (ii) besides, his also voluntarily echoing, that, the afore construction material, being unamenable rather for being stored at an open place, and, also making articulations qua, if the accused had not kept, the, material at his residence, thereupon, hence he would be required, to, hire some accommodation, on rent. The effect of the afore voicing, is qua, the accused not carrying the requisite mens rea, in his rather stacking, the, cement bags at his residence, for, his hence enabling their user, for, extraneous exercise, rather his afore stacking being a sequel, of, avoiding the hiring of accommodation, on rent, hence for stacking them, (i) besides stacking of the construction material, by the accused, at his residence also when arose, from, the factum, qua his residence, holding proximity to the site of construction, whereat, it was to be used, thereupon also he cannot be considered to hold the apt mens rea. The infraction, if any, vis ::: Downloaded on - 29/09/2019 00:43:37 :::HCHP ...8...
avis, the relevant instructions prescribing qua cement bags, .
being kept only in the godown, of, the Office concerned, though, appears to be breached. However, any breach of the afore instructions, also does not visit the accused, with the requisite mens rea, (ii) given, the afore portion of the charge, appertaining to the accused, ensuring user of the afore stacked cement bags, at his residence, by one Kamal Kishore, for, facilitating the latter, to, construct his house, also, requiring adduction of firm evidence, comprised in the apposite sample, taken from the construction made by Kamal Kishore, and, (iii) also therealong with, the samples taken, from the cement bags, stacked at the residence of the convict/appellant rather being dispatched, to, the lab concerned, (iv) for their apt comparison thereat, and, thereafter an opinion being rendered qua there being interse compatible matching(s). However, when the afore endevour, stood unrecoursed, thereupon it cannot, be concluded, that the accused had conspired with Kamal Kishore, in his purportedly rather ensuring the latter ::: Downloaded on - 29/09/2019 00:43:37 :::HCHP ...9...
to use cement bags, stacked at his residence, hence, for .
facilitating Kamal Kishore, to, construct his house.
10. Be that as it may, even otherwise with PW4 rendering a testification, visavis, the consumption of cement bags, issued under the relevant indents, hence, at the construction site concerned, and, with no best evidence being adduced, visavis, user(s) at the site concerned, of the afore bags, as, issued under the relevant indents rather not bearing commensuration, with user(s) thereof, at the relevant construction site, (i) thereupon also charge, if any, against the accused, that he had beyond, the proportion(s) of hence validly issued apposite indents, either stacked them at his residence, and, thereafter had ensured their user by one Kamal Kishore, for the latter constructing his house, rather also faltering.
11. For the foregoing reasons, the instant appeal, is, allowed, and, the impugned judgment of conviction, and, sentence, rendered by the learned trial Court below, is, unsustainable, and, as such are set aside. The accused ::: Downloaded on - 29/09/2019 00:43:37 :::HCHP ...10...
stands acquitted, and, the fine amount, if any, deposited by .
the accused, is, ordered to be refunded to him. Bail bonds, if any, furnished by the accused are cancelled and discharged.
Send down the records.
12th July, 2019 ( Sureshwar Thakur ),
(priti) Judge.
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