State of Himachal Pradesh vs Sudershan Kumar and Others

Surjit Singh, J.—State has appealed against the judgment dated 1st January, 2007, of learned Special Judge, Solan, whereby Respondents Sudershan Kumar and three others, who were tried for offences, Under Sections 120B, 409, 218 and 420 of the Indian Penal Code, and Section 13(2) of the Prevention of Corruption Act, 1988, have been acquitted.

Respondent Sudershan Kumar was working as Incharge of H.P. State Civil Supplies Corporation, Chambaghat, a suburb of Solan town, and Respondent Ramesh Chand son of Bhagwan Singh (hereinafter Whether reporters of the local papers may be allowed to see the judgment? referred to as Ramesh Chand - I) as helper in the aforesaid Corporation, in the month of May, 2003. Respondent Pawan Kumar Sahni is the proprietor of a flour mill, known as Giri Raj Atta Mill, at Deonghat, another suburb of Solan town. Respondent Ramesh Chand son of Sher Bahadur (hereinafter referred to as Ramesh Chand - II) was employed as Munshi by Respondent Pawan Kumar Sahni, for assisting him in the affairs of the aforesaid flour mill.

Prosecution''s case is that on 30th May, 2003, Shri Hari Chand (P.W. 14), Dy. S.P. (Vigilance), received secret information that a truck was being loaded with wheat bags at H.P. State Civil Supplies Corporation Depot at Chambaghat and that the wheat was to be carried to the flour mill of Respondent Pawan Kumar Sahni, in an illegal and unauthorized manner. The wheat was, in fact, meant for distribution to the persons living below poverty line and it could not have been sold to anybody else. P.W. 14 Dy.S.P. Hari Chand deputed Sub Inspector Shri Bheem Singh (P.W. 11) to verify the information, received by him. Said P.W. 11 SI Bheem Singh went to Chambaghat and found that wheat was being loaded in Truck No. HP-14-6189. He returned to the office of P.W. 14 Dy.S.P. Hari Chand at Solan and informed him about what he had seen.

Soon Truck No. HP-14-6189 appeared on the National Highway from the side of store of H.P. State Civil Supplies Corporation at Chambaghat. It was followed by P.W. 14 Dy. S.P. Hari Chand, in a Government Gypsy. He was accompanied by P.W. 11 SI Bheem Singh and some other police officials. Truck crossed Solan town and proceeded towards Deonghat. It stopped behing two trucks, which were already parked near the flour mill of Respondent Pawan Kumar Sahni. P.W. 14 Dy.S.P. Hari Chand accompanied by P.W. 11 SI Bheem Singh and other police officials deboarded their vehicle and went to the site where the truck had been stopped. Driver of the truck, namely P.W. 2 Shri Duni Chand, was in driver''s seat. Respondent Ramesh Chand - II was in the driver''s cabin. There were no papers, regarding transportation of wheat, available with the driver. On enquiry, driver told that the wheat had been loaded at the instance of Respondent Ramesh Chand - II, who claimed that the papers were with him. Wheat bags, loaded in the truck, were counted. They were 130.

A written report was prepared, which is Ex. P.W. 10/L and sent to the Police Station, for formal registration of the case. Case was formally registered, vide FIR Ex. P.W. 10/M. Driver of the truck, i.e. P.W. 2 Shri Duni Chand and Respondent Ramesh Chand - II were taken into custody. Truck, loaded with 130 bags of wheat, was seized and taken to the police Station. Respondents Sudershan Kumar and Ramesh Chand - I were also taken into custody. On 31st May, 2003, or say the next following day, Gate Pass Book Ex. P.W. 6/A-6 was taken into possession. It had a carbon copy of Gate Pass, dated 30th May, 2003, per which 130 bags of wheat had been loaded in Truck No. HP-14-0198, for being carried to Arki. This is the last Gate Pass in Book Ex. P.W. 6/A-6. Carbon copy of the Gate Pass, available in Book Ex. P.W. 6/A-6, is Ex. P.W. 9/A. Police, during verification, found that HP-14-0198 is the registration number of a Scooter and not a Truck or mini Truck.

During the course of investigation, specimen writings of Respondents Sundershan Kumar and Ramesh Chand - I were also taken. Their admitted writings/ signatures were also seized. Specimen and admitted writings/signatures of these two Respondents were sent to the Handwriting Expert, namely P.W. 9 Dr. Minakshi Mahajan, for comparison. She opined that the signatures Mark Q-3, on Gate Pass Ex. P.W. 9/A, was similar to the standard signature of Respondent Sudershan Kumar and the body of the Gate Pass Mark Q-1 tallied with the standard writings of Respondent Ramesh Chand - I.

On completion of investigation and after obtaining sanction to prosecute Respondents Sundershan Kumar and Ramesh Chand - I, report, u/s 173 of the Code of Criminal Procedure, alongwith relevant papers, was filed in the Court of learned Special Judge, who, after complying with the requirement of Section 207 of the Code of Criminal Procedure, and hearing the learned Public Prosecutor and the learned defence Counsel and perusing the record, charged Respondents Sudershan Kumar and Ramesh Chand - I with offences, Under Sections 120B, 408, 218 of the Indian Penal Code, and Section 13(2) of the Prevention of Corruption Act, 1988. The other two Respondents were charged with offences, Under Sections 120B and 420 of the Indian Penal Code.

Prosecution examined 17 witnesses, besides proving some documents, to substantiate its charge. Respondents Sudershan Kumar and Ramesh Chand - I, in their statements, u/s 313 of the Code of Criminal Procedure, admitted certain facts. They admitted that Respondent Sudershan Kumar was posted as Incharge of the store at Chambaghat and Respondent Ramesh Chand - I was posted as Helper in the said store, at the relevant time. They also admitted having got loaded 130 bags of wheat in Truck No. HP-14-6189. They, however, pleaded that the wheat was got loaded for being transported to Arki, as per Gate Pass Ex. P.W. 9/A. With respect to the number of vehicle being HP-14-0198, in Gate Pass Ex. P.W. 9/A and not HP-14-6189, in which the wheat had actually been loaded, they explained that the number had been written inadvertently.

Learned trial Court has believed the defence version. It has also observed that prosecution''s case is not proved beyond reasonable doubt. It has been observed that police party should have waited for the unloading of the truck and that from the fact that the truck was not actually taken to the premises of the factory of Respondent Pawan Kumar Sahni, but was still by the side of the road, it cannot be said that the Respondents were caught red-handed. Consequently, the Respondents were acquitted.

We have heard learned Assistant Advocate General, as also learned Counsel representing the Respondents and reappraised the entire evidence.

View taken by the learned trial Court that because of the truck having been intercepted on the National Highway, case of the prosecution cannot be said to have been proved, beyond reasonable doubt, is perverse, on the face of it. Learned trial Court has not taken into account the entire gamut of evidence adduced by the prosecution. The proved facts; rather the admitted facts are that the wheat was loaded in the truck, in question, the registration number of which was HP-14-6189. When the truck was intercepted and its driver P.W. 2 Shri Duni Chand taken into custody, he did not have the Gate Pass with him. Carbon copy of the Gate Pass was made available to the Investigating Agency, by Respondent Sudershan Kumar, on the next following day. It was in the Gate Pass Book Ex. P.W. 6/A-6. Carbon copy of Gate Pass itself is Ex. P.W. 9/A. In the Gate Pass, number of the vehicle written is HP-14-0198. Admittedly, this is not the registration number of the vehicle, in which 130 bags of what had been loaded. It has come in evidence, per testimony of P.W. 5 Shri Bal Krishan, a Clerk from the Office of Registration and Licencing Authority, Solan, that registration No. HP-14-0198 is of a Scooter and not of any truck. Gate Pass Ex. P.W. 9/A is the last pass of the date 30th May, 2003. The fact that the number of the vehicle, mentioned in it, is different from the number of the truck, in which wheat was loaded, when seen in the light of the fact that no copy of the Gate Pass was available with the driver of the Truck, proves, beyond reasonable doubt, that this Gate Pass Ex. P.W. 9/A was prepared subsequently to cook up defence plea that the wheat was being consigned to a Depot at Arki.

It was the defence of Respondents Sudershan Kumar and Ramesh Chand - I that the wheat had been dispatched to a Depot at Arki. So, it was for them to have proved this defence. They examined the owner of the vehicle, namely D.W. 2 Shri Sandeep Kapila, who stated that he received a call from Respondent Sudershan Kumar, for deputing a truck, for carrying wheat to Arki. So, he deputed his Truck No. HP-14-6189, with driver P.W. 2 Shri Duni Chand. The witness is not trustworthy. Log Book of the vehicle, which is Ex. P.W. 10/J-3, has not been filled-in after 10th October, 2002. No explanation for not filling-in the Log Book, which pertains to the truck, in question, has been offered by the owner. His explanation, for the truck having been brought to Deonghat, instead of being taken to Arki, straightway from Chambaghat Depot, is that the driver came to him to collect money for diesel and also to get the truck repaired, as its wheels got jammed. The same is shown to be false.

P.W. 2 Shri Duni Chand very categorically stated that he had been taken to Deonghat by Respondent Ramesh Chand - II, who was Munshi of the proprietor of the flour mill at Deonghat. He did not say that the vehicle was to be taken to Arki. No suggestion was put to him that his vehicle developed some snag and so it was taken to Deonghat for repair. It was suggested to him that he had run away from Deonghat, after parking the Truck there and that he had been brought back with the help of the owner of the truck, which he denied. This is nobody''s case that the driver had run away. Neither the prosecution witnesses stated like that nor did D.W. 2 Shri Sandeep Kapila, the owner of the Truck, say so.

Had there been any truth in the defence plea that the consignment was meant for Arki Depot, Respondents Sudershan Kumar and Ramesh Chand - I could have very easily proved it from record, which was supposed to be available with them. There was supposed to be some requisition from the store at Arki. That requisition could have been proved. Again, some invoice, with regard to the consignment, in question, could have been proved or atleast carbon copy of the invoice retained in the Depot at Chambaghat could have been produced. Gate Pass Ex. P.W. 9/A bears the signature of the person who received the consignment. If the consignment was meant for Arki store, signature on the Gate Pass was supposed to be of some employee of the store at Arki. That employee could have been examined or atleast named by Respondents Sudershan Kumar and Ramesh Chand - I. All these circumstances have been totally ignored by the learned Special Judge and, therefore, we have observed that the view taken by him that the defence plea that the consignment was meant to be taken to Arki stands probabilized, is perverse.

Coming to the role of the other two Respondents, Ramesh Chand - II was admittedly employed with Respondent Pawan Kumar Sahni, the proprietor of the flour mill. This Respondent Ramesh Chand - II, as per testimony of P.W. 14 Dy.S.P. Hari Chand and P.W. 11 SI Bheem Singh, was in the truck with driver P.W. 2 Shri Duni Chand. Driver P.W. 2 Shri Duni Chand has also stated that Respondent Ramesh Chand - II was with him and that he had instructions from said Respondent Ramesh Chand - II to drive the truck to the factory at Deonghat. Admittedly, P.W. 2 Shri Duni Chand himself had been booked as an accused in the case and, therefore, he falls in the category of an accomplice and as such his testimony cannot be believed, without corroboration.

We find enough corroboration to the testimony of P.W. 2 Shri Duni Chand. The first corroborative circumstance is the fact that P.W. 2 Shri Duni Chand or Respondent Ramesh Chand - II did not have the Gate Pass, at the time when the truck was intercepted. Another piece of corroborative evidence is the fact that Gate Pass is proved to have been prepared subsequently to create false defence plea. Third, testimony of the owner of the Truck D.W. 2 Shri Sandeep Kapila is proved to be false, because some of the material facts testified by him were not put to P.W. 2 Shri Duni Chand, in his cross-examination. Next corroborative circumstance is the fact that Log Book of the vehicle is not being filled-in since October, 2002, which fact suggests that the vehicle was being used for illegal activities. This is particularly so, when the owner of the truck, Shri Sandeep Kapila, while in the witness-box as D.W. 2, admitted that the truck was being plied regularly and the proprietor of the flour mill had been sending wheat flour, in his truck, to various stations in Himachal Pradesh.

Truck was attached with the wheat flour mill, per unchallenged testimony of P.W. 2 Shri Duni Chand, its driver. Not only that his testimony, with respect to this fact is unchallenged, but otherwise also, as demonstrated hereinabove, his testimony is corroborated by various pieces of evidence, especially the fact that the vehicle had been driven to the factory of Respondent Pawan Kumar Sahni, from the Depot at Chambaghat at the instance of Ramesh Chand - II, Munshi of Respondent Pawan Kumar Sahni and it had been parked there behind two trucks.

Learned Counsel representing Respondent Sudershan Kumar says that had the consignment been meant for the flour mill, truck should have been straightway driven into the factory premises. It has come in the evidence that two trucks were already parked outside the gate of the factory, which means that unless those two trucks were driven away, the truck, in question, could not have been taken to the factory premises.

As a result of the above discussion, we are of the considered view that trial Court''s judgment is perverse, on the face of it and, hence, unsustainable. Consequently, appeal is accepted and the judgment of the trial Court is set aside. Respondents Sudershan Kumar and Ramesh Chand - I are convicted of offences, under Sections 120B, 409, 218 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988. The other two Respondents Ramesh Chand - II and Pawan Kumar Sahni are convicted of offence of conspiracy only, u/s 120B, read with Sections 409, 218 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988.

Respondents-convicts be produced, in person, in the Court on 30th May, 2011, for being heard on the quantum of sentence. Non-bailable warrants of arrest be also issued against them, for the aforesaid date.