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2016 DIGILAW 902 (RAJ)

Mohan v. State of Rajasthan

2016-06-24

SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. This revision petition is directed against judgment and order dated 4.10.02 passed by the Additional Sessions Judge No. 1, Chittorgarh, in Criminal Appeals No. 130/01 and 133/01, affirming the judgment and order dated 21.11.01 of the Judicial Magistrate, Chittorgarh in Criminal Case No. 358/98, convicting the accused petitioners for the offence under Sections 457 & 380 IPC and sentencing them to suffer three years simple imprisonment with fine of Rs. 1,000/- for each of the offences. The sentence were ordered to run concurrently. 2. The relevant facts in nutshell are that on 26.12.92, Sanjay Kumar Sharma, Senior Personnel Officer, Hindustan Zinc Limited, submitted a written report at Police Station, Chittorgarh, stating that one Shri Jorawar Singh, Engineer (Process), employed in Hindustan Zinc Limited, who resides in House No. C-42, Zinc Nagar, was on leave during the period from 21.12.92 to 25.12.92 and had gone to his native place Nawalgarh, District Jhunjhnu. On 25.12.92, when he returned to his residence, his neighbor Sanjay Gupta informed that on 21.12.92, incident of theft had occurred in his house. He informed that the door of his house was found open and therefore, for the security purposes, he has put his lock on the door. The details of articles stolen were set out in the written report submitted. 3. On the basis of the written report, the police registered the FIR for offence under Section 380 IPC and the investigation commenced. 4. After investigation, the police filed the charge sheet against the accused petitioners for offences under Sections 457 & 380 IPC. The charge sheet was also filed against Omprakash for offence under Section 411 IPC, who was declared absconder. The trial court framed the charge against the accused petitioners for offences under Sections 457, 380 IPC. The accused petitioners denied the charges and claimed I trial. 5. During the trial, on behalf of the prosecution, witnesses (PW 1 to PW 9) were examined and the documentary evidence was exhibited as Ex.P/1 to Ex.P/19. The accused were examined under Section 313 Cr.RC. No evidence was led by the accused in defence, however, they got exhibited two documents on record as Ex.D/1 & D/2. 6. 5. During the trial, on behalf of the prosecution, witnesses (PW 1 to PW 9) were examined and the documentary evidence was exhibited as Ex.P/1 to Ex.P/19. The accused were examined under Section 313 Cr.RC. No evidence was led by the accused in defence, however, they got exhibited two documents on record as Ex.D/1 & D/2. 6. After due consideration of the evidence on record and the submission of the counsel appearing for the petitioners and the Public Prosecutor, the trial court found the charges against the accused petitioners proved and accordingly, sentenced them to suffer imprisonment and fine as indicated above. 7. The appeals preferred by the accused petitioners have been dismissed by the Appellate Court. Hence, this revision petition. 8. Learned counsel for the petitioner contended that the factum of the accused petitioners entering the house of Jorawar Singh is not proved and therefore, no case is made out against them for offence under Section 457 IPC. Learned counsel submitted that the witness of recovery Radheyshyam (PW 8) has not supported the prosecution case and another witness Mohammed was not examined and thus, the recovery alleged to have been made from the possession of the accused petitioners is not proved. Learned counsel would submit that the articles recovered were not identified and thus, in absence of identification of the articles, the accused petitioners could not have been held guilty for commission of the offences. Learned counsel submitted that more than 24 years have lapsed since the occurrence of the incident, it would not be appropriate to send the accused behind the bars at this stage and therefore, if the court arrives at the conclusion that the finding of guilt recorded by the courts below, cannot be interfered with, the substantive sentence awarded by the trial court, affirmed by the Appellate Court deserves to be reduced to the period of sentence already undergone by the accused petitioners. 9. On the other hand, the learned Public Prosecutor submitted that after due examination of the evidence on record, the concurrent findings arrived at by the courts below cannot be said to be capricious or perverse and therefore, the conviction of the accused for the charges levelled against them does not warrant any interference by this court in exercise of its revisional jurisdiction. Learned Public Prosecutor submitted that the accused petitioners are habitual offenders and are found involved in commission of the offences of similar nature and other offences in the preceding years and have also been convicted in many cases. In this regard, the communication dated 23.6.16 giving details of the cases against the accused petitioners, received by the Public Prosecutor from the Police Station, Kotwali, Chittorgarh is produced for perusal of the court. 10. I have considered the rival submissions and examined the evidence on record. 11. As per the prosecution, the incident of theft had occurred on 21.12.92 in the dwelling house of Jorawar Singh while he was on leave and had gone to his native town Nawalgarh. On the basis of the deposition of Jorawar Singh (PW 3) and Sanjay Gupta (PW 4), it stands established beyond doubt that the theft was committed by breaking open the bolt and the lock of the house. Jorawar Singh (PW 3) has stated that when he returned to his dwelling house, he found many household articles missing and he had given the details of the articles stolen. It is to be noticed that the articles stolen were recovered vide recovery memo Ex.P/10 and P/13, from the accused petitioners on the basis of the information supplied by them under Section 27 of the Evidence Act (Ex.P/6, P/7 and P/12). It is true that the witness of recovery Radheyshyam has not supported the prosecution case but has not denied his signature on the recovery memo and another witness Lal Mohammed could not be examined as he died during the trial. It is settled proposition of law that the recovery made on the basis of the information supplied under Section 27 of the Evidence Act cannot be discarded merely because the same is not supported by independent witnesses. It is to be noticed that Vijenedra Vyas (PW 6) has deposed that the accused petitioners Liyakat Ali, Mohan and Sheru Shah were arrested and on the basis of the information supplied by them, the recovery of stolen articles was effected. It is to be noticed that Vijenedra Vyas (PW 6) has deposed that the accused petitioners Liyakat Ali, Mohan and Sheru Shah were arrested and on the basis of the information supplied by them, the recovery of stolen articles was effected. It is not the case of the prosecution that the Investigating Officer had any enmity with the accused petitioners and thus, the trial court and Appellate Court while relying upon the testimony of Vijendra Vyas (PW 6), have rightly arrived at the finding that the recovery of the stolen articles from the possession of the accused petitioners, stands proved. In this view of the matter, by virtue of Section 114, illustration (a) of the Evidence Act, in absence of any explanation by the accused of the way in which the stolen articles came into their possession, the presumption drawn by the courts below that the articles recovered were stolen by the accused petitioners by breaking open the lock of the dwelling house of Jorawar Singh, cannot be faulted with. It is pertinent to note that the identification of the stolen articles was made by Jorawar Singh (PW 3) before the Judicial Magistrate, First Class, Chittorgarh (Ex.D/1) and the articles have also been identified by him before the trial court during this examination and thus, the contention raised by the learned counsel for the petitioners regarding lack of identification of the articles, is also devoid of any merit. 12. In view of the discussion above, this court is firmly of the opinion that the concurrent findings arrived at by the trial court and Appellate Court that the charges against the accused petitioners stand proved beyond reasonable doubt and consequently, their conviction for offences under Sections 457 & 380 IPC, does not warrant any interference by this Court in exercise of its revisional jurisdiction. 13. Coming to the question of sentence, it is to be noticed that the accused petitioners have indulged in commission of offences of similar nature and other offences even prior to the commission of the offences in question and subsequent thereto and therefore, merely on account of the long lapse of time since the commission of the offences by the accused petitioners, this court is not inclined to take a lenient view and reduce the punishment awarded to them by the trial court, affirmed by the Appellate Court. 14. 14. In the result, the revision petition fails, it is hereby dismissed.