Judgment:
Sham Sunder, J.
1. This appeal is directed against the judgment of conviction, and the order of sentence, dated 06.07.95, rendered by the Court of Additional judge, Designated Court, Amritsar, vide which, it convicted accused Harvinder Singh, and Manjinder Singh, for the offence, punishable under Section 411 of the Indian Penal Code, and sentenced them, to undergo rigorous imprisonment for a period of six months each.
2. The facts, in brief, are that on 12.12.91, Assistant Sub Inspector, Savinder Singh of Police Station Chhehartta alongwith Head Constable Jassa Singh and other Police officials, was present near Gurdawara Baba Darshan Singh, for checking and holding a picket (nakabandi) under the supervision of Balbir Singh, Station House Officer. At about 5.30 P.M., four persons on two scooters came from the side of bye-pass. They were asked to stop. One person who was pillion rider succeeded in running away from the spot. Three persons were apprehended, Scooter No. PB-02-C-2230, was being driven by Harvinder Singh and Bhupinder Singh, was the pillion rider. Manjinder Singh alias doctor, was driving scooter No. PIA-7915. On personal search of Manjinder Singh, accused, one loaded pistol P1, was recovered, fro the right pocket of the pant worn by him. On unloading the same, one live cartridge P2, was recovered. Manjinder Singh, accused, could not produce any licence or permit, for the possession of the pistol, and the cartridge. On interrogation, Manjinder Singh, accused, told that the person who succeeded in running away was Bau son of Darshan Singh, resident of village Khaper Kheri. Harvinder Singh, Manjinder Singh and Bhupinder Singh, could not produce any document of ownership' of the scooters. Rough sketch PE of the pistol was prepared, which was attested by Jassa Singh, and Dalbir Singh, Head Constables. Pistol P1, and cartridge P-2, were taken into possession, vide memo PE, attested by the prosecution witnesses. Scooter No. PB-02-C-2230, was taken into possession, vide memo PG, attested by the prosecution witnesses. Scooter No. PIA-7915 was taken into possession, vide memo PH, which was also attested by the prosecution witnesses. Chassis number and engine number of the scooters were mentioned, in the recovery memo PH. Ruqa PJ was sent to the police station, on the basis whereof, the first information report PJ/1, was registered by Sub Inspector Mohinder Singh. Rough site plan PK, of the place of recovery, with correct marginal notes, was prepared. The accused were arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned.
3. On their appearance, in the court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 392 and 411 of the Indian Penal Code, as also under Section 3/4 of the Terrorist Disruptive Activities (Prevention) Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Deepak Kumar (PW-1) Ripud-aman Tejpal (PW2), Assistant Sub Inspector Savinder Singh (PW-3), Head Constable Jassa Singh (PW-4), Surinder Singh, Clerk DTO Office, Amritsar (PW5) and Head Constable Mohinder Singh, Armourer (PW-6). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
5. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, did not produce any evidence, in defence.
6. After hearing the counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted Harvinder Singh and Manjinder Singh, accused, for the offence, punishable under Section 411 of the Indian Penal Code, but acquitted them, of the remaining offences.
7. Feeling aggrieved, the instant appeal, was filed by Manjinder Singh, accused (now appellant).
8. I have heard the counsel for the parties, and have gone through the evidence, and record of the case, carefully.
9. The counsel for the appellant, submitted that no offence, punishable under Section 411 of the Indian Penal Code was constituted, but the trial Court, was wrong, in recording conviction, and awarding sentence for the same. He further submitted that no evidence was produced by the prosecution, to prove that scooter No. PIA-7915, which was allegedly recovered from the appellant, belonged to Deepak Kumar and, as such, was the stolen property. The submission of the counsel for the appellant, in this regard, appears to be correct. Savinder Singh, Assistant Sub Inspector, PW-3, is the Investigating Officer. It was he, who apprehended accused Manjinder Singh, who was found in possession of scooter No. PIA-7915. The prosecution was required to prove that scooter No. PIA-7915, which was allegedly recovered from Manjinder Singh, and his companion, was the ownership of Deepak Kumar, from whom, the same was allegedly snatched. Deepak Kumar, stated that he was the owner of scooter No. PCM-6623, and not PIA-7915. It appears that scooter No. PIA-7915, and scooter No. PCM-6623 were two different scooters. Surinder Singh, Clerk, Office of the DTO, Amritsar, when appeared as, PW-5 stated that he brought the summoned record of scooter No. PCM-6623, bearing chassis No. 230217, and engine No. 229100. He did not state that chassis number of scooter No. PIA-7915, was the same, as that of scooter No. PCM-6623, which belonged to Deepak Kumar. No cogent evidence was produced by the prosecution that rake number plate bearing No. PIA 7915, was affixed to scooter No. PCM-6623. The registration certificate or copy thereof in relation to scooter No. PCM 6623, was not got exhibited so as to ascertain that the chassis and engine number of the scooter recovered from Manjinder Singh, tallied with the chassis number and engine number of scooter No. PCM-6623. Assistant Sub Inspector Savinder Singh, PW-3 stated that he did not verify regarding the 'registration of scooter No. PIA-7915 allegedly recovered from Manjinder Singh. The bald statement of Savinder Singh that the Scooter recovered from Manjinder Singh, was the one, which belonged to Deepak Kumar, and bore the actual No. PCM-6623, in the absence of any documentary evidence, which could be easily available, was hardly of any consequences, to bring home the guilt of the accused. Since scooter No. PIA-7915, did not belong to Deepak Kumar, as to who was the owner thereof, was for the prosecution to prove. Had the prosecution proved that scooter No. PIA-7915, belonged to Deepak Kumar, and the same was found in possession of the accused, in the absence of furnishing any proof, with regard to the ownership thereof, it could be said that he dishonestly received and retained the stolen property. Even, Deepak Kumar, did not lodge any report, with regard to the theft of scooter No. PIA-7915. The prosecution, thus, miserably, failed to bring home the guilt to the accused. In these circumstances, no offence, punishable under Section 411 of the Indian Penal Code, was made out. The trial Court, thus, acted on conjectures and surmises, in holding that the offence, punishable under Section 411 of the Indian Penal Code, was committed by the appellant. The finding of the trial Court, are liable to be set aside. The submission of the counsel for the appellant being correct, is accepted.
10. No other point was urged, by the counsel for the parties.
11. The judgment of conviction and the order of sentence, rendered by the trial Court, are not based, on the correct appreciation of evidence and law, on the point, and the same are liable to be set aside.
12. For the reasons recorded above, the appeal is accepted. The judgment of conviction and the order of sentence are set aside. The appellant shall stand acquitted of the charge, framed against him. If the appellant is on bail, he shall stand discharged of his bail bonds, and, if he is in custody, he shall be set at liberty, at once, if not required, in any other case.
13. The Chief Judicial Magistrate, is directed to comply with the judgment, with due promptitude.