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2010 DIGILAW 2615 (PNJ)

Shiv Kumar v. State of U. T. Chandigarh

2010-09-10

A.N.JINDAL

body2010
JUDGMENT Mr. A.N. Jindal, J.:- Shiv Kumar, accused – petitioner (herein referred as ‘the accused’) was tried for the offence under Section 411 of the Indian Penal Code 1860 and ultimately, Judicial Magistrate Ist Class, Chandigarh vide his judgment dated 7.9.1999 convicted and sentenced him to undergo rigorous imprisonment for a period of six months. His appeal also failed. 2. The case relates to the theft of stationery by the accused, a sweeper, posted in the office of District Treasury, Punjab at Chandigarh. 3. On 8.11.1995, Shri K.C.Thakur, the then District Treasury Officer brought to the notice of the police that some stationery from their office was stolen and he was suspecting that the accused, who was absent on that day, had committed the theft. On this information, Assistant Sub Inspector Gurmail Singh held a picket (Nakabandi) near round-about of sector 14-15 and 24-25 Punjab University, Chandigarh. In the meantime, he saw the accused coming. On suspicion, he was apprehended. On interrogation, he made disclosure statement (Ex.PG) that he had kept concealed seven bundles containing stationery articles including Registers, Papers, etc., in a Jhuggi near Dhanas village and he could get the same recovered. Ultimately, he got recovered the said bundles (Ex.P1 to P7), which were taken into possession by the Investigating Officer vide memo Ex.PJ. On completion of the investigation, the challan against the accused was presented. 4. Finding a prima facie case against the petitioner, he was charged for an offence under Section 411 IPC, to which he pleaded not guilty and claimed trial. 5. The prosecution in order to substantiate its charges, examined K.C.Thakur (PW1), Brij Mohan (PW2), Sub-Inspector Satbir Singh (PW3), Head Constable Nafe Singh (PW4), Assistant Sub Inspector Gurmail Singh (PW5) and Kisho Ram (PW6). 6. When examined under Section 313 of the Code of Criminal Procedure, 1973, the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. In defence, he examined Tarsem Lal (DW1), who deposed that he knew the accused for the last fifteen years and he was not a criminal and that he did not steal any stationery. 7. Arguments advanced by Mr.B.S.Baath, Advocate – amicus curiae for the petitioner as also by Mr.Ram Pal Verma were heard and record perused. 8. In defence, he examined Tarsem Lal (DW1), who deposed that he knew the accused for the last fifteen years and he was not a criminal and that he did not steal any stationery. 7. Arguments advanced by Mr.B.S.Baath, Advocate – amicus curiae for the petitioner as also by Mr.Ram Pal Verma were heard and record perused. 8. It has been duly established by Brij Mohan (PW2) Junior Assistant in the office of the District Treasury, Union Territory Chandigarh that the articles, so recovered from the accused were stolen from their office. The identity of the articles was reduced into writing by the police vide memo Ex.PE, which was signed by this witness. He has identified these stolen articles in the court as well. Head Constable Nafe Singh (PW4) has stated that he recorded the FIR Ex.PW3/A and also identified the case property Ex.P1 to P7. Thus, the argument of the counsel that the case property was stolen is not proved, is without any merit. 9. The other contention raised by counsel for the accused is that ingredients of offence under Section 411 IPC are not fulfilled. The main ingredients of Section 411 IPC are that the prosecution is to prove the property, so recovered from the accused, was ‘stolen property’ and the other is ‘recovery of stolen property’. In the present case, Brij Mohan (PW2) has stated that the articles, which were recovered from the accused, belonged to their office. Similarly, ASI Gurmail Singh (PW5), Investigating Officer of the case, who had arrested the accused has also stated that the said property was recovered from the accused. Thus, there is no reason to hold that the prosecution did not lead the required evidence. 10. Even otherwise, records transpire that the courts below have returned a finding of fact regarding guilt of the petitioner on proper appreciation of the evidence. The impugned judgment also sans any perversity, irregularity or illegality warranting interference by this Court. 11. In case State of Orissa vs. Nakula Sahu and others, AIR 1979 SC 663, it was held that the High Court should not have interfered with the concurrent findings recorded by the Trial Court and the Sessions Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the Trial Court or the Sessions Judge. Once again, in 1999, in case State of Kerala vs. Puttamana Illath Jathavedan Namboodiri, 1999(1) RCR(Criminal) 808, the Apex Court held that the revisional jurisdiction is one of the supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 12. Similar observations were made in case Jayakanth vs. State of Karnataka, 2009(5) RCR (Criminal) 896 (Karnataka), wherein, it was observed that unless the petitioner establishes that there is an error apparent on the face of the record or there is such illegality or perversity in the order of the courts below, the High Court cannot disturb the findings recorded by the lower court. 13. Keeping in view the above, the findings of guilt of the petitioner concurrently recorded by both the courts below, are upheld. 14. Lastly, coming to the argument with regard to the quantum of sentence, it is observed that the accused is a previous offender. He had earlier been convicted by Additional Chief Judicial Magistrate in FIR No.276 dated 5.6.1983 registered at Police Station East under Section 25 of the Arms Act and again convicted by Judicial Magistrate Ist Class, Chandigarh in case FIR No.5 of 1981 registered at the same Police Station for the similar offence. In the circumstances, the accused cannot be extended the benefit of probation. Even otherwise, no concession in quantum of sentence could be awarded to such a habitual offender. Consequently, the petition is dismissed. Copy of this order be sent to Chief Judicial Magistrate, Chandigarh for compliance. ---------------