Criminal Appeal No.190-SB of 1998 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.190-SB of 1998
Date of decision : 5.12.2008
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Kalicharan and another .....Appellants
Versus
State of Punjab ...Respondent
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. A.K.Walia, Advocate for the appellants
Ms. Manjari Nehru Kaul,Deputy Advocate General,
Punjab
S. D. ANAND, J.
The prosecution allegations, upheld at the trial, were as
under:-
Complainant PW- Inderjit Singh is running a hotel near Bus
Stand under the name and style of Prince Hotel. There are rooms
available in that hotel for those desiring to stay over there. There is also a
PCO installed in that hotel. That PCO also had STD facilities.
On 2.7.1996, at about 1.30 P.M., Appellant Gurpreet Singh
alias Happy came over to the hotel and booked room no.1 in his name.
Entry with regard to his checking-in was made in the register of hotel.
Gurpreet left the hotel in the morning of 3.7.1996 and retured at about
5/6.00 P.M., At that point of time, he was accompanied by appellant Kali
Charan, Appellant Gurpreet Singh asked Inderjit Singh complainant to
book a double bed room for them. They were allotted room No.6.
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Thereafter, both the appellants Gurpreet Singh @ Happy and also Kali
Charan made out station calls to Delhi. They did not pay up immediately
and held out a promise that they would pay the charges of out station calls
while checking out of the hotel.
On that day, Inderjit Singh left the hotel as usual at 11.00 A.M.
His servant namely Ragho Ram and Balak Ram stayed over at the hotel to
look after the guests staying therein.
Both the appellants came over to the PCO during night and
offered Ladoos as Parshad to both of them. They consumed it and fell
down unconscious thereafter. Then, the appellants committed the theft of
one FAX machine (valued at Rs.27,000/-), one computer( valued at
Rs.19,900/-), one two lines telephone set (valued at Rs.4800/-), one local
call meter (valued at Rs.1400/-) and cash amount of Rs.2800/- from the
cash box. When Sunil Kumar came to hotel on duty in the morning, he
found all the articles left scattered. On telephonic information furnished by
him, the complainant came over and found those articles missing. He
further found that the appellants had removed the pages documenting the
hiring of the hotel room and also the user of the STD facility from the
register. Inderjit Singh was on way to the police station to lodge the First
Information Report when ASI Prem Sagar met him enroute. It was there
that Inderjit Singh made statement Ex. PD to that police official who
forwarded it, alongwith his endorsement Ex. PD/1, to the Police Station
and, on whose basis, formal FIR was recorded.
On 9.7.1996, the Investigating Officer was heading a Police
Party which was holding a nakabandi near the old Rajpura Octroi, Patiala.
The police party was accompanied by Inderjit Singh/first informant. In the
meantime, appellant Kali Charan came from Sanauri side while he was
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carrying a bag on his right shoulder. His bag was searched on account of
suspicion and it was found to contain on computer machine and one
computer screen.
The prosecution allegations were buttressed at the trial by the
testimony of PW-1 Gurjinder Singh, PW-2 Dr. Vipin Sharma, PW-3 Inderjit
Singh, PW-4 Balak Ram, PW-5 Ragho Ram, PW-6 Bhupinder Singh,
PW-7 Gurdev Singh and PW-8 Prem Singh.
In the course of their statement under Section 313 Cr.P.C. the
appellants denied the prosecution allegations. They averred that they
were consuming liquor at Prince Hotel on 3.7.1996 when they had an
altercation with Inderjit Singh over the payment of telephone bills. In the
course of the altercation, the appellants caused damages to some glass
articles. They were arrested on that very day by the local police.
On appraisal of the material obtaining on the file, the learned
Trial Judge recorded a finding of indictment against the appellants.
The appellants are in appeal against their conviction by the
learned Trial Judge.
Learned counsel for the appellants argues, at the very outset,
that the appellant could certainly not have been convicted for an offence
under Section 380 IPC because they had not been spotted committing the
theft of the articles under reference.
Learned counsel is correct on facts. There is no prosecution
plea to the effect that appellants had been apprehended while committing
the theft of articles under reference. The impugned occurrence had
allegedly taken place on 3.7.1996; whereas the recovery of allegedly
stolen articles was effected on 9.7.1996 at about 9.00 P.M.
Learned counsel is also correct on facts when he argues that
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the prosecution had not been able to produce any evidence to prove that
the articles recovered from the possession of Kali Caran on 9.7.1996, did
infact, belong to Inderjit Singh complainant. PW6 Gurjinder Singh was
examined to prove that one Panasonic make FAX machine had been sold
by him to Happy Communication near Bus Stand, Patiala. Apart from the
fact that machine aforementioned was not produced in the Court on the
date PW-5 Ragho Ram, a recovery witness, was examined, it requires
pertinent notice that PW-6 Bhupinder Singh conceded, as correct, a
suggestion that “the name of the proprietor or partner of Happy
Communication is not mentioned in the bill” He also conceded that “this bill
is not signed by any such proprietor or partner of that concern”. Insofar as
PW-3 Inderjit Singh is concerned, he did aver, that it was he who had
purchased FAX machine in the name of Happy Communication but he did
not indicate his relatability to that concern. Suresh is averred to be the
person who had furnished the factual information to Inderjit Singh
complainant. He was not examined at the trial. It is in evidence that it is he
only who was running the PCO. He was, thus, the best circumstanced to
concede or deny whether the appellants paid up the STD charges at that
very time or whether they had any dispute about the payment thereof with
Inderjit Singh. His withholding at the trial would justify an inference that if
he produced, he would not have supported the prosecution plea.
Learned counsel for the appellants very correctly points out
that ocular presentation appears to have undergone variable stance
inasmuch as the earliest presentation made to the Medical Officer was of
accidental poisoning. It is in the statement of PW Gurjinder Singh that
there is a note in the bed head ticket that those accompanying the
employees disclosed that the latter had been administered poison in
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Parshad but name of the persons who administered that poison was not
mentioned therein. Infact, it is noticed therein that some stranger had
administered the same to them.
As already noticed, Gurpreet Singh appellant booked a room
in hotel in his own name. It was on the following day that he brought the
other appellant and booked room no.6 which had a double bed facility. The
identity of the appellants was, thus, known to the complainant. If things
had happened the way it has been alleged by the prosecution, there is no
reason why the identity of those who administered poison in Parshad would
not have been given to Medical Officer. Apart therefrom, it requires
pertinent notice that stomach wash of the two employees (to whom poison
had been administered in Parshad) was not sent for FSL for examination.
That was best piece of evidence which could nail the appellants who had
otherwise taken up a plea of denial in toto and had raised a plea of false
implication on account of an altercation which they had with Inderjit Singh
over the payment of STD calls they made from the STD PCO.
In the light of the foregoing discussion, it is apparent that the
prosecution had not been able to prove the charge against the appellants
beyond reasonable doubt. The appeal shall stand allowed. The finding of
conviction and also order on sentence shall stand set aside.
December 05, 2008 (S. D. ANAND) Pka JUDGE