Himachal Pradesh High Court
State Of Himachal Pradesh vs Kewal Krishan on 18 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 18TH DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CRIMINAL APPEAL NO. 525 OF 2009
Between:-
STATE OF HIMACHAL PRADESH
... APPELLANT
(BY MR. SUDHIR BHATNAGAR AND
MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. NARINDER THAKU,
MR. KAMAL KISHORE AND
MR. GAURAV SHARMAR,
DEPUTY ADVOCATES GENERAL)
AND
1. KEWAL KRISHAN
S/O SHANKER DASS,
CASTE RAJPUT,
R/O BHANJAL, PS AMB,
2. HARNAM SINGH
S/O BHULLA RAM,
CASTE RAJPUT,
R/O BHANJAL, PS AMB, DISTRICT UNA, HIMACHAL
PRADESH DISTT. UNA, HP
RESPONDENTS
(BY N.S. CHANDEL, SENIOR ADVOCATE WITH
MR. VINOD KUMAR GUPTA, ADVOCATE)
Whether approved for reporting: yes.
This appeal coming on for orders this day, the court delivered the following:
J U D G M E N T
Instant criminal appeal filed under S.378(3) CrPC lays challenge to
judgment of acquittal dated 23.9.2008, passed by learned Judicial Magistrate
First Class, Court No.1, Amb, District Una, Himachal Pradesh in Police
Challan No. 304-I-2003, under S.7(1)(a)(ii), 7(1)(a)(i) of Essential
Commodities Act.
2. In nutshell, case of prosecution, as emerges from the record is that
the accused No.1, Kewal Kishan being depot holder and accused No.2,
.
Harnam Singh being salesman of depot, sold 685 litres of Kerosene Oil in
black market at an increased rate in contravention of rate fixed by the
authorities. Besides above, prosecution also alleged that during inspection,
registers of accused were not found complete and they had forged entrees
regarding sale of kerosene oil.
3. Prosecution with a view to prove its case, examined as many as 16
witnesses, whereas, accused in their statements under S. 313 CrPC, denied
the case of prosecution in toto and claimed that they have been falsely
implicated. They also examined two defence witnesses HSC Kishan Dutt and
Ranvir Singh.
4. Learned court below, on the basis of evidence adduced on record
by respective parties held the accused not guilty of having committed offence
punishable under aforesaid provisions of law and acquitted them. In the
aforesaid background, appellant has approached this court in the instant
proceedings, praying therein for conviction of the accused after setting
judgment of acquittal.
5. Learned Additional Advocate General, while making this court
peruse the entire material available on record vis-à-vis judgment of acquittal
recorded by learned court below, vehemently argued that learned court below
failed to appreciate evidence in right perspective as such, judgment of
acquittal, deserves to be quashed and set aside, being not sustainable in eye
of law, however, having scanned the entire evidence, this court has no
hesitation to conclude that the prosecution has miserably failed to prove
beyond reasonable doubt that the accused sold 685 litre Kerosene Oil in black
market at increased rates. All the material prosecution witnesses turned
hostile and cross-examination conducted upon these witnesses nowhere
.
suggests that the prosecution was able to extract from them, anything
contrary to what they stated in their examination-in-chief.
6. Prosecution with a view to prove that the kerosene oil was sold at
inflated rates by the accused, examined PW-3 Roshan Lal, PW-5 Balbir
Singh, PW-6 Ravinder Nath, PW-7 KashoDevi, PW-8 Bali Mohammad, PW-
10 Kirpal Singh and PW-13 Rampal, but none of the above named witnesses
supported the case of the prosecution and as such,, they were declared
hostile.
7. Roshan Lal PW-1 deposed that rate of Kerosene Oil was increased
to Rs.2.87 in January. Such deposition/admission on his part is totally
contrary to the case of the prosecution, which had alleged against the
accused that Kerosene Oil was being sold by the accused at the rate of
Rs.2.87 instead of Rs.2.81 per litre. since said witness categorically stated in
his examination-in-chief that rate of Kerosene Oil was increased to Rs.2.87, it
cannot be said that the Kerosene Oil was being sold at higher price by the
accused.
8. Similarly, prosecution alleged that at time of inspection held on
1.3.2000, 685 litre Kerosene Oil was found missing and there was no record
of the same. However, evidence led on record reveals that on 4.4.2000, depot
was again checked and 712 litre of Kerosene Oil was recovered. If it is so, it
cannot be said that 685 litre of Kerosene Oil was found missing at the time of
physical verification on 1.3.2000.
9. FIR was lodged on the basis of complaint Exhibit PW-1/E forwarded
to police by PW-1. This witness deposed that he inspected the depot on
1.3.2000 in the presence of accused Harnam Singh, Hoshiyar and Rakesh
Kumar. Hoshiar PW-4 did not support the prosecution story, rather stated that
.
on 4.4.2000, 712 litre of Kerosene Oil was recovered from accused. Since on
4.4.2000, 712 litre of Kerosene Oil was recovered from the accused, it is not
understood how on the basis of inspection, if any, conducted on 1.3.2000, it
was claimed that 685 litre ofKerosene Oil was found missing.
10. PW-1 and PW-4, specifically stated in their depositions that the
quantity of Kerosene Oil stands complete with the depot holder. These
witnesses further admitted that the accused Kewal Krishan, used to supply
Kerosene Oil by tanker and there was enmity between DFC Yadvinder Pal
and the depot holder. This witness Hoshiar Singh, i.e. PW-4 admitted that
present case has been filed at the instance of DFC Yadvinder Pal. Most
importantly in examination-in-chief PW-4 stated that he received complaint
against depot holder from one Ashok Kumar, Pradhan, Gram Panchayat but
said Ashok Kumar never came to be cited as prosecution witness. Moreover,
complaint, if any lodged by Ashok Kumar never came to be led on record by
way of documentary evidence. One statement i.e. Exhibit PW-1/B purportedly
made by Ashok Kumar Pradhan is on record and same is Exhibited PW-1/A
by PW-1 Roshan Lal. Aforesaid statement was recorded on 4.3.2000 i.e. after
the date of inspection i.e. 1.3.2000, as such, same has no relevance, if any,
qua the shortage of stock of Kerosene Oil in the depot. Since PW-1 received
complaint from Ashok Kumar, Gram Panchayat Pradhan on 4.3.2000, it is not
understood how he could inspect depot on 1.3.2000.
11. PW-4 Hoshiar Singh categorically stated that the case against
accused came to be registered at the instance of DFC Una, Yadvinder Pal
who was inimical to Kewal Krishan and his father Such version of his renders
entire story of prosecution doubtful. Deposition with regard to case lodged at
.
the instance of Yadwinder Pal, DFC Una stands further substantiated with the
perusal of legal notice and letter issued by Kewal Krishan to complainant and
other authorities i.e. Exhibits D8, D5, D6 and D7. So far allegations with
regard to forged entries in the register regarding sale of Kerosene Oil are
concerned, evidence of the prosecution is totally lacking. Prosecution has
failed to specifically pin point the entries, which were forged by the accused.
12. True it is that in report, Exhibit PW-14/B, rendered by Document
Examiner, some writings in questioned documents have been written by
Harnam Singh but there is no oral evidence to reflect that what entries were
forged and with what purpose. In Ext. PW-1/E it has been alleged by the
complainant that the accused tempered the sale quantity in Kerosene Oil
register and committed forgery. However, prosecution has failed to prove on
record that tempering in sale register is false and has been made to cause
damage to some person or with a view to commit fraud. Mere tempering does
not mean that same has been made with the intent to commit fraud rather
same can be on account of correction of the record.
13. Having carefully perused/scanned the entire oral and documentary
evidence led on record by prosecution, this court finds no illegality or infirmity
in the judgment of acquittal recorded by learned court below, which appears
to be based upon proper appreciation of evidence and as such, the same is
upheld. Present appeal fails and is dismissed accordingly, being devoid of any
merit.
14. Appeal stands accordingly dismissed, alongwith all pending
applications. Bail bonds, if any, furnished by both the accused stand
.
discharged.
(Sandeep Sharma),
Judge
December 18, 2021
(vikrant)
r to
