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Himachal Pradesh High Court · body

2016 DIGILAW 757 (HP)

Vikram Thakur v. State of Himachal Pradesh

2016-05-11

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. This revision petition has been filed against judgment dated 25.03.2008 passed by learned Additional Sessions Judge, Fast Rack, Kullu, in Cr. Appeal No. 20/07, vide which it has dismissed the appeal filed against the judgment of conviction passed against the present petitioner by the Court of learned Judicial Magistrate First Class, Manali, dated 18.06.2007 in criminal case No. 219-1 of 2006/29-II of 2006. 2. The case of the prosecution was that complainant Narayan Dass Saini, who is a contractor, was constructing a building of Rajesh Kumar resident of village Shami-nullah on contract basis at Jagatsukh in District Kullu. For this purpose, lintel was to be laid on 17.05.2006. On 10.05.2006 Rajesh Kumar paid an amount of Rs.80,000/- to the complainant and on 15.05.2006 Rajnish Kumar and accused were called to Manali by Rajesh Kumar as the lintel was to be laid. Both of them came to Manali and stayed with the complainant in room No. 116 of Morang Hotel. After having dinner, they slept in the said hotel at Morang. The complainant had kept Rs.37,000/- in the pocket of his pant, which he hanged in the almirah of the room. At about 3.45 A.M. in the morning, he heard some noise and woke up and the accused was found missing from the room. He was searched outside the hotel but was not found. On suspicion, the complainant checked the pockets of his pant and Rs.37,000/- which he had kept in the same were found missing. Accordingly, he woke up Rajnish Kumar and they both of them went out to search the accused. However, they could not find him. As per the complainant, as the accused had stolen an amount of Rs.37,000/- from his pant, this incident was reported at Police Station Manali by way of FIR No. 105/2006 dated 16.05.2006. The accused was apprehended at Sarkaghat by the police and during the search of the person of the accused currency notes worth Rs.32,000/- were recovered in the presence of witnesses Rajesh Kumar and HHC Satpal Singh. These currency notes were identified to be the stolen money by the complainant. The recovered notes were kept in parcel and the accused was arrested from Sarkaghat and brought to Manali. He was challaned for the commission of offence under Section 380 I.P.C. As he pleaded not guilty, trial was held. 3. These currency notes were identified to be the stolen money by the complainant. The recovered notes were kept in parcel and the accused was arrested from Sarkaghat and brought to Manali. He was challaned for the commission of offence under Section 380 I.P.C. As he pleaded not guilty, trial was held. 3. The prosecution examined four witnesses to prove its case. PW-1 Narayan Dass Saini corroborated the case of the prosecution on oath and asserted that he was constructing the building of Rajesh Kumar and had received Rs.80,000/- from him for the purpose of laying down lintel of the building. As per him, on 15.05.2006 he alongwith PW-3 Rajneesh and accused Vikram Thakur were staying in the same room of Hotel Morang Model Town Manali. He woke up between 3.30 or 3.45 A.M. and found that accused Vikram Thakur was not in the room. He searched his pant and found that currency notes worth Rs.37,000/- which he had kept in his pant were missing. Thereafter, the accused was searched by him and PW-3 till morning but unsuccessfully. Accordingly, he reported the matter to the police and FIR was registered. The police also could not trace the accused for 1-2 days. Thereafter, police came to know that the accused was at Sarkaghat. He alongwith police reached Sarkaghat and there they met the accused at the Bus Stand of Sarkaghat where he was apprehended by the police and during his search currency notes of Rs.500/- were recovered, which he admitted as the notes belonging to him. 4. PW-2 HHC Satpal has established that the recovery of Rs.32,000/- was made from the possession of the accused at Sarkaghat on 19.05.2006 where he had gone alongwith ASI Ram Saran, Rajesh and complainant. He has also deposed that the money recovered from the pocket of the trouser of the accused was kept in a cloth packet and sealed with seal ‘T’ and the same were taken into possession vide seizure memo Ext. PW1/B. He has also identified the currency notes in the Court and had stated that the currency notes were the same which were recovered from the accused. 5. PW-3 Rajneesh Kumar has also corroborated the story of the prosecution and he has stated that he alongwith complainant and the accused were staying in the room in hotel Morang and they went to sleep after having their meals. 5. PW-3 Rajneesh Kumar has also corroborated the story of the prosecution and he has stated that he alongwith complainant and the accused were staying in the room in hotel Morang and they went to sleep after having their meals. He was woken up at 4.00 A.M. by the complainant to enquire about the accused. He has further stated that he alongwith complainant searched for the accused in the hotel but to no avail, When the complainant checked the pockets of his trouser, he found that the currency notes in his trouser were missing. Thereafter, the matter was reported to the police. 6. PW-4 ASI Ram Saran has stated that on 16.05.2006 the file of the case was handed over to him for investigation. On 19.05.2005, search of the accused was carried out at Sarkaghat and accused happened to meet them near Bus Stand. On search, an amount of Rs.32,000/- was recovered, which was identified by the complainant belonging to him. 7. On the basis of the material placed on records by the prosecution, learned trial Court convicted the accused and sentenced him to undergo simple imprisonment for a period of one year and to pay fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for a period of three months under Section 380 I.P.C. 8. This judgment was challenged before learned Appellate Court. However, learned Appellate Court also upheld the conviction of the accused. It only modified the sentence by reducing the imprisonment to six months simple imprisonment. 9. Mr. Narender Sharma, learned counsel for the petitioner has strenuously argued that judgments passed by the learned Courts below are totally perverse and cannot be justified either on facts or on law. As per him, the prosecution had miserably failed to prove the case against the accused beyond reasonable doubt. 10. Mr. Sharma vehemently argued that the findings arrived at by both the learned Courts below were not borne out from the records of the case and as per him, both the learned Courts below have failed to appreciate that there were major contradictions between the statements of PW-1 and PW-3. He contended that the accused was implicated in a false case and he had not committed any theft as was alleged against him. No recovery was ever effected from him at Sarkaghat as alleged. He contended that the accused was implicated in a false case and he had not committed any theft as was alleged against him. No recovery was ever effected from him at Sarkaghat as alleged. This according to him, is evident from the fact that the prosecution witnesses have given different versions with regard to the time at which the accused was apprehended at Bus Stand Sarkaghart. He has further contended that according to the prosecution, the accused apprehended at Bus Stand Sarkaghat. If that was so, Mr. Sharma contended, then why did the police not associate any independent witness when the accused was searched. Bus Stand is not a secluded place. This according to him, created serious doubt about the truthfulness about the version of the prosecution witnesses and these aspects of the matter as per Mr. Sharma were completely ignored by the learned Courts below. Therefore, as per him, both the judgments passed by both the learned Courts below were liable to be set aside. 11. On the other hand, Mr. V.S. Chauhan, learned Additional Advocate General has contended that there is nothing perverse or wrong in the judgments which have been passed by both the learned Courts below. According to Mr. Chauhan, the findings arrived at by both the learned Courts below are substantiated from the material that was placed on record by the prosecution. He argued that the accused had no where suggested in defence that he was not sleeping with the complainant and PW-3 in the same room on the night when the money was stolen from the trouser of the complainant. Mr. Chauhan has further argued that the accused has not been able to justify his absence all of a sudden in the pitch of the night from the room where he was sleeping with the complainant and PW-3 when the theft took place. Further, the accused has not been able to justify as to what was the source of money which was found in his person on search at Sarkaghat. The alleged contradictions, which have been pointed out by the learned counsel for the petitioner, according to Mr. Chauhan are minor and they do not affect the veracity of the case of the prosecution. 12. I have heard learned counsel for the parties and have also gone through the records of the case. 13. The alleged contradictions, which have been pointed out by the learned counsel for the petitioner, according to Mr. Chauhan are minor and they do not affect the veracity of the case of the prosecution. 12. I have heard learned counsel for the parties and have also gone through the records of the case. 13. In my considered view also, there is neither any infirmity nor any perversity with the judgments which have been passed by the learned Courts below. Indeed, it has not been denied by the accused that he was with the complainant and PW-3 and was sleeping in the same room on the night when the theft of Rs.37,000/- took place and money was stolen from the trouser of the complainant. There is no cogent explanation from the accused as to why he left the room during night hours without informing either the complainant or PW-3. He further has not justified or substantiated as to what was the source of money which was found from his person by the police when he was appreciated at Sarkaghat. Besides this, statements of the prosecution witnesses are trustworthy and they do inspire confidence. The defence has not been able to impinge the credibility of the same. 14. The learned counsel for the petitioner has also not been able to point out any material particularly which has been over-looked by the learned Courts below. 15. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon reappreciation of evidence. The High Court in revision cannot in absence of error on a point of law, re-appreciate evidence and reverse a finding of law. 16. It has been further held by the Hon’ble Supreme Court that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals. 17. The Hon’ble Supreme Court in Ram Briksh Singh and others Vs. Ambika Yadav and another, (2004) 7 Supreme Court Cases 665, has held that Revisional Court can interfere with the findings of lower court where the Courts below have overlooked material evidence. 18. 17. The Hon’ble Supreme Court in Ram Briksh Singh and others Vs. Ambika Yadav and another, (2004) 7 Supreme Court Cases 665, has held that Revisional Court can interfere with the findings of lower court where the Courts below have overlooked material evidence. 18. Thus it can be safely inferred that this Court has to exercise its revisional powers sparingly. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case especially when the learned Appellate Court has already reduced the quantum of sentence. 19. In view of the above discussion, I am of the considered view that there is neither ay infirmity nor nay perversity with the judgments passed by the Courts below and there is no merit in the present petition and the same is accordingly dismissed.