Hardip Singh v. Kewal Krishan & Anr.

formed the basis of FIR(Ex.P1). PW2 took into possession wheat loaded Truck vide recovery memo(Ex.P5), prepared the rough site plan(Ex.P7) of the place of recovery and also the site plan(Ex.P8) of godown, from where the wheat was loaded.

3. Levelling a variety of allegations in all, according to the prosecution, accused committed a theft of the Government wheat and dishonestly received the stolen property. On the basis of aforesaid allegations, the present case was registered against the accused, on accusation of having committed the offence punishable under Sections 379, and 411 IPC by the police of Police Station Jalalabad, District Ferozepur, in the manner indicated here-in-above.

4. After completion of the investigation, final police report/challan was submitted against the accused to face trial for the aforesaid offence as per provisions of Section 173 Cr.P.C.

5. Having completed all the codal formalities, the trial Magistrate framed the charge against the accused, for the commission of offence punishable under Sections 379 and 411 IPC vide order dated 05.07.2002. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.

6. The prosecution with a view to substantiate the charge framed against the accused, examined PW1-SI Raj Singh, who has stated on oath Criminal Revision No.1488 of 2004 3 that on 24.02.1998 in the wake of ruqa from PW2, he recorded the FIR (Ex.P1) and sent the same to PW2 vide his endorsement(Ex.P2). He also recorded the statements of the witnesses under Section 161 Cr.P.C. and submitted the final police report.

7. Sequelly, PW2-ASI Lal Chand has attempted to testify his investigation as initially projected by him in the manner stated above.

8. The important to note is the testimony of petitioner complainant PW3-Hardip Singh, who has stated on oath that he was the Driver of the Truck bearing registration No.RJ-13G-4251. On 24.02.1998, when he was taking tea near the railway crossing(Phatak) at Fazilka, Kewal Krishan- accused met and asked him to load 210 bags of wheat in his Truck for delivering the same at Ferozepur. Instead of reproducing the statement of PW3 in toto and in order to avoid repetition, suffice it to say that PW3 tried to corroborate the version contained in his earlier statement(Ex.P3) in his examination-in-chief.

9. Likewise, PW4-Lachman Dass, Paledar has stated in his examination-in-chief that he along with other labourers loaded 210 bags of wheat in the Truck, in question, and the accused paid Rs.400/- to them in this respect.

10. It will not be out of place to mention here that further examination-in-chief of PW3 and PW4 was deferred, for want of case property. The prosecution did not produce PW3 and PW4 subsequently in the court. As they did not appear for their further examination-in-chief and cross-examination despite six effective opportunities, therefore, the trial Magistrate closed the evidence of the prosecution in pursuance of the order dated 05.08.1999 passed by this Court in Criminal Misc.No.3676-M of

11. After the close of the evidence of the prosecution, statement of the accused was recorded as contemplated under Section 313 Cr.P.C. He denied the prosecution evidence in its totality and pleaded false implication at the hands of Manjit Singh son of PW1-SI Raj Singh, who was working with him as a Manager. However, the accused did not prefer to lead any evidence in defence despite adequate opportunities.

12. The trial Magistrate, after taking into consideration the evidence on record, acquitted respondent No.1(accused), for want of Criminal Revision No.1488 of 2004 4 adequate evidence, vide impugned judgment dated 20.02.2004 in the aforesaid manner.

13. It is not a matter of dispute that the State of Punjab did not file any appeal against acquittal but the petitioner did not feel satisfied with the impugned judgment of acquittal and filed the present revision petition. That is how I am seized of the matter.

14. Assailing the impugned judgment, learned counsel for the petitioner has vehemently argued that no doubt PW3 and PW4 did not appear during the trial for their further examination-in-chief or cross- examination, but yet the trial court committed an illegality and irregularity in acquitting the accused by ignoring the remaining evidence on record. Thus, he prayed that the impugned judgment be set aside.

15. Hailing the impugned judgment, on the contrary, learned counsel for the respondents urged that the trial court has rightly acquitted the accused for want of adequate evidence and no interference is called for in the impugned judgment of acquittal in exercise of limited revisional jurisdiction of this Court.

16. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after considering the matter deeply, to me, as there is no merit, therefore, the present revision petition deserves to be dismissed for the reasons mentioned here-in-below.

17. At the very outset, the cardinal fundamental principles of criminal law/jurisprudence have to be kept in focus, while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any legal substantive evidence as the evidence is essential element in criminal proceedings, notwithstanding the seriousness of the allegations alleged against the accused because criminal proceedings require strict proof of guilt. It is the evidence, on the basis of which, the decision of a criminal court is based and is the requirement of criminal justice. Otherwise, in the absence of the same, the court has no option but to record an order of acquittal, howsoever, painful the same may be.

18. Similarly, no one can dispute with regard to the proposition of Criminal Revision No.1488 of 2004 5 law laid down by the Hon'ble Apex Court in K.Chinnaswamy Reddy V. State of A.P. and another AIR 1962 Supreme Court 1788 (1) and Ayodhya Dube and others V. Ram Sumer Singh AIR 1981 Supreme Court 1415, relied upon, on behalf of the petitioner, that it is open to a High Court in revision to set aside an order of acquittal, even at the instance of the private parties, though the State may not have thought fit to appeal, but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.

19. Above being the legal position and evidence on record, now the sole question that arises for determination in the instant petition is whether there are glaring defects in the procedure or there is a manifest error on a point of law in the impugned judgment resulting in flagrant miscarriage of justice or not, so as to invoke the revisional jurisdiction of this Court.

20. Again, it is not a matter of dispute that the accused was charge- sheeted for the commission of offence punishable under Sections 379 and 411 IPC, for committing theft and dishonestly receiving the stolen property. Section 378 IPC defines the theft and postulates that whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Sequelly, Section 411 IPC posits that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

21. The stolen property has been defined under Section 410 IPC, to mean, the property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as “stolen property”. But if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.

22. The combined reading of these provisions would reveal that in the instant case in order to invoke the penal provisions of Sections 379 and Criminal Revision No.1488 of 2004 6 411 IPC, not only that the prosecution was required to prove the ownership or lawful possession of the property(wheat), but it also required to prove that the accused has dishonestly taken away wheat from the possession of the lawful owner without his consent.

23. Having regard to the rival contentions of the learned counsel for the parties, having gone through the evidence on record and after bestowal of thoughts over the entire matter, to my mind, all the essential ingredients of these Sections are miserably lacking in the instant case.

24. As is evident from the record that though the examination-in- chief of PW3 and PW4 was partly recorded, their further examination was deferred, but they did not appear in the court at any point of time for their remaining examination-in-chief and further cross-examination by the accused despite adequate opportunities. Hence, legally their incomplete statements are not admissible in evidence and cannot be used against the accused, in any manner. Therefore, no implicit reliance can be placed on their statements. If the partly recorded statements of PW3 and PW4 are excluded from consideration, then there is not an iota of evidence on record even to suggest remotely with regard to the ownership or lawful possession of the property in question. No doubt, the prosecution claimed that 210 bags of wheat were loaded on the Truck of the petitioner from the godown/Warehouse of the Government, but the prosecution did not examine any witness to prove the ownership or possession of wheat in question. Moreover, there is no evidence on record to prove (i) that the wheat was stolen from the godown/Warehouse, (ii) or any person, in-charge of the Warehouse have lodged any FIR with regard to the theft of wheat against the accused, and (iii) there was shortage of wheat in the stock of godown. Therefore, the essential ingredients of Sections 379 and 411 IPC are totally lacking in the present case. Hence, the evidence produced on record by the prosecution falls short, as is required to prove a criminal charge against the accused.

25. Moreover, the bare perusal of the record would reveal that the trial court has also recorded the findings of facts that the evidence of PW3 and PW4 is not admissible, recovery of 210 bags of wheat is not proved, the accused cannot be convicted on the sole statement of PW2-ASI Lal Chand, there is no evidence produced by the prosecution that the wheat was Criminal Revision No.1488 of 2004 7 stolen from the godown/Warehouse, there is no evidence at all on the file that officials of the godown/Warehouse have lodged any FIR regarding the theft of wheat against accused-Kewal Krishan or there was shortage of wheat in the stock of godown and there is no evidence on file that wheat, in question, was under the control and supervision of Kewal Krishan accused.

26. Meaning thereby, the trial court has recorded valid reasons in acquitting the accused and in that eventuality, it cannot possibly be saith that there is any glaring defect in the procedure or there is a manifest error on a point of law much less resulting into a flagrant miscarriage of justice.

27. No other point worth consideration has been urged or pressed by the learned counsel for the parties.

28. In the light of aforesaid reasons, to my mind, since the trial Court has recorded valid reasons in this respect, so, no ground for interfering in the impugned judgment of acquittal is made out in exercise of limited revisional jurisdiction of this Court, at the instance of driver of the Truck (petitioner), in the obtaining circumstances of the case.

29. For the reasons recorded above, this revision petition is hereby dismissed. March 17, 2010 ( MEHINDER SINGH SULLAR) JUDGE