Judgment:
O.P. Bishnoi, J.
1. These two appeals have been filed by Ghewar Ram and Babulal separately but since both have arisen out of a common judgment, the same are being decided by this judgment. The appellant Ghewar Ram has preferred appeal No. 296 of 2001 and appeal No. 299 of 2001 has been filed by Babulal.
2. Both the accused-persons were found guilty under Sec. 379, IPC and Section 8/15 of the Narcotics Drugs and Psychtropic Substances Act, 1985 (for short 'the N.D.P.S. Act'). For the offence of theft, each one was awarded three years' R.I. Under Section 8/15 of the NDPS Act, each one was awarded 10 years' R.I. and a fine of Rs. 1 lac, and on account of non-payment of fine, they were ordered to undergo further R.I. for 2 years. The third accused Mangilal was acquitted of the charges under Section 379, IPC and Section 8/15 of the NDPS Act. The fourth accused Onkar Lal was also acquitted of the charges under Section 379, IPC and Section 8/29 of the NDPS Act.
3. According to the prosecution story, PW 1 Narain Lal lodged an oral F.I.R. Ex. P/19 on 13-6-99 at Police Station 'Bhadesar' District Chittorgarh, according to which, during the night intervening 12/13th June, 1999 when he was going near the house of Ghasi Jat, he found that four unknown persons were loading poppy husk in a truck bearing No. RJ 19-G/9312. According to the F.I.R., the poppy husk in village 'Dhanet Tokaria' were collected from the licensed agriculturists and after weighing it was to be taken away by the licensed contractors 'Amar Singh and party'. PW 1 Narain Lal suspected that the four persons who were loading the material did not represent the said 'Amarsingh and party' and when he questioned them and collected other villagers, two of them ran away and the two appellants represented that they were sent by the co-accused Onkar Lal to collect the material and hence they were loading the same in the said truck. A case under Section 379. IPC and Section 8/15 of the NDPS Act was registered by the Station House Officer PW 10 Shankerlal and appellants were arrested. The fourteen bags of Poppy husk were found loaded in the said truck which were weighed and it was discovered that total weight of the stolen material was 413 Kg. The arrested appellants disclosed that accused Mangilal and Mohanlal were with them who were able to make their escape good. Mangilal was subsequently arrested and challaned whereas Mohanlal was declared absconder and has not stood the trial. The challan was filed against two accused-appellants along with Mangilal and Onkar. They were charged for the offences as indicated above and all the four accused-persons pleaded not guilty.
4. At the trial, 15 witnesses were examined by the prosecution to bring home the charges and no defence evidence was led. The appellants in their statements under Section 313, Cr. P.C. stated that both had gone to the temple of 'Sawariyaji' where they were arrested by the police and they had no connection whatsoever with the material in question. They denied that they were loading any material in the said truck. Learned trial Judge heard the arguments and delivered the judgment dated 9-5-2001 whereby Mangilal and Onkar Lal were acquitted and the appellants were convicted and sentenced in the aforesaid manner.
5. I have heard the learned counsel for the appellants and the learned Public Prosecutor for the State and I find that both the appeals are fit to be allowed.
6. PW-1 Narain, PW Pyar Chand. PW-3 Shyamlal, PW-5 Nandlal, PW-7 Shankerlal, PW-9 Geroo and PW-13 Mathralal are said to be the eye-witnesses who allegedly caught the appellants at the place of occurrence while loading the truck. But none of the seven has been able to support the prosecution story against the accused-persons and all the seven have been declared hostile.
7. According to the prosecution story, PW Bhakhar Ram was the owner of the truck in question on the strength of 'power of attorney' and accused Gewar Ram was the driver and accused Babulal was 'khalasi' of the truck and in that capacity, the truck was in their possession. However, there is no cogent evidence to prove the above contentions and PW-4 Bhakhar Ram has denied that Gewar Ram and Babulal were ever employed on the truck. According to the prosecution story, one Rana Ram is the registered owner of the truck and Bhakhar Ram was holding the truck by virtue of a 'Power of Attorney' allegedly executed by the registered owner Rana Ram. Rana Ram has not been examined and the alleged Power of Attorney has not been tendered in evidence. Bhakhar Ram's testimony is to the effect that after the incident in question, the Power of Attorney was executed in his favour. Thus, he does not support the prosecution version that he was running the truck on the strength of 'Power of Attorney' on 12/13th June, 1999.
8. Needless to say that on the basis of the above testimony, it cannot be established that the appellants were committing theft or were loading the truck. The eight witnesses which were to connect the appellants with the alleged crime, have all turned hostile. The other seven witnesses are all police officials who allegedly went on the spot after the FIR was lodged by PW-1 Narain Lal. It will not be out of place to mention here that the FIR Ex. P/19 was not shown to PW-1 Narain Lal when he was in the witness box.
9. PW-6 Amar Singh Constable is the person who went to the spot with the S.H.O. PW-10 Shankerlal. PW-8 Ganpat Lal is incharge of Malkhana of the Police Station. PW-11 Kailash Chandra Constable has stated that he works in the office of the Superintendent of Police, Chittorgarh and was associated with sending the packets to the F.S.L. for chemical examination with a forwarding letter. PW-12 Bherualal is a Police Constable and has stated to the effect that a wireless was sent, by him to the higher police officials. PW-15 Pannalal is the Constable who allegedly carried the samples to the F.S.L. for chemical examination. PW-14 Mohammed Sharif, SHO, Bhadsora has stated that subsequently the case was investigated by him.
10. In this way, it is clear that there is no evidence to establish that the appellants were committing any theft or they were loading the material in the truck in question. The learned trial Court has observed that Gewar Ram being the brother of PW-4 Bhakhar Ram and appellant Babulal being from the same village. A presumption stands raised in favour of the prosecution story. I find that no such presumption can be raised and the conclusions of the learned trial Court are unsustainable.
11. Accordingly, both the appeals are allowed and appellants Ghewar Ram and Babulal acquitted of all the charges. The judgment of the learned trial Court dated 9-5-2001 finding the appellants guilty is set aside. The amount of fine, if deposited shall be refunded to the appellants.