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2017 DIGILAW 178 (HP)

Om Parkash v. State of Himachal Pradesh

2017-03-15

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this revision petition, petitioner/ accused has challenged the judgment passed by the Court of learned Additional Sessions Judge(I), Kangra at Dharamshala, in Criminal Appeal No. 19-P/2003 dated 05.12.2007, vide which learned Appellate Court while dismissing the appeal so filed by the present petitioner, upheld the judgment passed by the Court of learned Addl. Chief Judicial Magistrate, Palampur, in Criminal Case No. 168- II/2001 dated 26.05.2003, whereby learned trial Court while convicting the accused for commission of offence punishable under Section 379 read with Section 34 of Indian Penal Code alongwith co-accused Mehar Singh, sentenced both of them to undergo rigorous imprisonment of two years and to pay fine of Rs.1000/-and in default of payment of fine, both to undergo simple imprisonment of 15 days. 2. At this stage, it may be stated that when this revision petition was filed by the petitioner, he had appended with the revision petition a copy of judgment passed by the Court of learned Addl. Chief Judicial Magistrate, Palampur in Criminal Case No. 176-II/2002 decided on 02.06.2003, vide which also the present petitioner alongwith co-accused Mehar Singh was convicted for commission of offence punishable under Section 379 read with Section 34 of Indian Penal Code. However, as far as the present revision petition is concerned, it arose out of Criminal Case No. 168-II/2001 decided by the Court of learned Additional Chief Judicial Magistrate, Palampur, on 26.05.2003 and a certified copy of the said judgment was later on placed on record vide Cr.M.P. No. 1383 of 2016. 3. Brief facts necessary for the adjudication of present petition are that as per the prosecution, on 04.04.2001 reporter Chander Shekhar alongwith his friends Abhishek Sood and Kapil Sood had gone to Neugal Cafe Palampur in their Esteem Car bearing registration No. HP-37- 0054 around 9.15 P.M. The car was parked by Chander Shekhar outside Neugal Cafe and accused persons who were travelling in Van bearing registration No. PCM No. 131 and were following the car of Chander Shekhar, also reached near Neugal Cafe and also parked their Van outside the Neugal Cafe. The accused persons entered Neugal Cafe, consumed a bottle of beer and thereafter, left the Cafe. At about 10.30 P.M. when complainant Chander Shekhar alongwith his friends came outside Neugal Cafe, they found that their vehicle was missing. The accused persons entered Neugal Cafe, consumed a bottle of beer and thereafter, left the Cafe. At about 10.30 P.M. when complainant Chander Shekhar alongwith his friends came outside Neugal Cafe, they found that their vehicle was missing. The complainant apprehended his suspicion on those two persons who were occupants of Van PCM No. 131, which had followed them. As the complainant could not find his vehicle despite searching for it, he lodged a complaint at Police Station Palampur, where his statement under Section 154 Cr.P.C. was recorded. Further, as per the prosecution, in the course of the search of missing car on 05.04.2001 when the police party alongwith complainant Chander Shekhar, Arvind Kumar and Abhishek Sood were present at Bhattoo, one car similar to the stolen car of the complainant came, which was being driven from the side of Bhattoo. This car was stopped for the purpose of inquiry. The same was driven by accused No. 1, whereas present petitioner Om Parkash was also sitting in the said car. The car in issue was having fictitious number plate affixed to it bearing No. DL-2CK-5835. When the said car was checked by the police, number plate of the stolen car of the complainant bearing No. HP-37-0054 as well as registration certificate and insurance of the said car were recovered. The stolen car was produced by the petitioner before the police in presence of the witnesses which was accordingly taken into possession by the police. Maruti Van in which the accused had followed the complainant was also taken into possession from village Bundla and the said car was also got recovered by the accused. 4. After the completion of investigation, challan was presented in the Court. As a prima facie case was found against the accused, they were charged for commission of offence under Section 379 read with Section 34 of Indian Penal Code, to which, they pleaded not guilty and claimed trial. 5. On the basis of evidence produced on record both ocular as well as documentary by the prosecution, learned trial Court held that the prosecution was able to prove the charges against the accused persons beyond the shadow of reasonable doubt and learned trial Court accordingly convicted the accused persons. 5. On the basis of evidence produced on record both ocular as well as documentary by the prosecution, learned trial Court held that the prosecution was able to prove the charges against the accused persons beyond the shadow of reasonable doubt and learned trial Court accordingly convicted the accused persons. While arriving at the said conclusion, it was held by the said Court that statement of PW-1 Chander Shekhar, PW-2 Abhishek Sood as well as Investigating Officer S.I. Balraj Singh, who entered the witness box as PW-3, categorically proved that the car of complainant PW-1 Chander Shekhar bearing registration No. HP-37-0054 was in possession of PW-1 on the material date and the accused persons after following the complainant in Van bearing registration No. PCM-131 upto Neugal Cafe stole the same. Learned trial Court also took note of the fact that the stolen car was recovered from the possession of the accused and even Maruti Van No. PCM-131 was recovered from Bundla-Kandi road on the instance of the accused persons. Learned trial Court further held that the prosecution witnesses were put to lengthy cross-examination by the defence but their testimony remained unshattered and the accused persons had failed to offer any cogent explanation as to how they were in possession of a stolen car. On these basis, it was concluded by learned trial Court that there was direct evidence on point of recovery and circumstantial evidence clearly pointed out towards the guilt of the accused persons qua the commission of theft. 6. In appeal, judgment of conviction so passed by learned trial Court was upheld by learned Appellate Court. While confirming the judgment passed by learned trial Court, learned Appellate Court held that there was sufficient material on record which proved that the accused persons had removed vehicle bearing registration No. HP-37-0054 dishonestly from Neugal Cafe parking without the consent of the owner of the car i.e. PW-1. Learned Appellate Court further held that it stood proved on record that the stolen car was recovered from the possession of the accused and even the van in which the accused had followed the complainant had been recovered at their instance. Learned Appellate Court further held that it stood proved on record that the stolen car was recovered from the possession of the accused and even the van in which the accused had followed the complainant had been recovered at their instance. Learned Appellate Court further held that there was no merit in the contention of learned counsel for the petitioner that the accused had not been properly identified as the accused were found in possession of the stolen property and, therefore, it was for them to justify as to how they came in possession of the same and they had miserably failed to justify as to how they had come in possession of the stolen car and in these circumstances the only conclusion which could be drawn was that they had removed the vehicle and it was for this reason that they were in possession of the vehicle. Learned Appellate Court also held that there was no need of test identification parade as both the accused had been seen by the complainant and other witnesses initially at Neugal Cafe and subsequently they had seen them at Bhattoo when they came there in the stolen vehicle. Learned Appellate Court also did not find merit in the contention of the present petitioner that the prosecution witnesses were interested witnesses on the ground that there was no suggestion put to both these witnesses that they have any enmity with the accused to implicate them in a false case. On these basis, learned Appellate Court upheld the judgment of conviction passed by learned trial Court and dismissed the appeal filed by the present petitioner. 7. Feeling aggrieved by both the said judgments, the petitioner has filed the present petition. 8. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgments passed by both the learned Courts below. 9. The findings returned by both learned Courts below to the effect that stolen car was found in the possession of the accused persons, could not be rebutted during the course of arguments by learned counsel for the petitioner. 9. The findings returned by both learned Courts below to the effect that stolen car was found in the possession of the accused persons, could not be rebutted during the course of arguments by learned counsel for the petitioner. Similarly, learned counsel for the petitioner also could not point out that the findings returned by both learned Courts below to the effect that Maruti Van bearing registration No. PCM-131 in which as per the complainant and his friend, accused persons had followed the complainant was a perverse finding. In fact, I have gone through the records of the case and the findings so returned by both learned Courts below for the recovery of the stolen vehicle qua the possession of the accused and the recovery of Maruti Van bearing registration No. PCM-131 at the instance of the accused is totally borne out from the material produced on record by the prosecution. Even during the course of arguments, learned counsel for the petitioner could not point out as to how and under what circumstances, the petitioner was in possession of the stolen vehicle alongwith other co-accused. 10. Therefore, in my considered view, there is no perversity with the findings returned by learned trial Court that the accused in fact had stolen Esteem Car bearing registration No. HP-37-0054 from the possession of its owner i.e. PW-1 on the fateful evening and that the same was recovered from the possession of the present petitioner and his co-accused subsequently. Neither there is any material on record nor during the course of arguments, learned counsel for the petitioner could substantiate that the complainant was either having any enmity or animosity with the accused and that the accused was wrongly implicated by the complainant. 11. The learned counsel for the petitioner was also not able to point out any material particular which had been over-looked by the learned Courts below. 12. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation 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. 13. 12. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation 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. 13. It has been 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. 14. It has been reiterated by the Hon’ble Supreme Court in Shlok Bhardwaj Vs. Runika Bhardwaj and others, (2015) 2 SCC 721 , that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence. 15. Accordingly, in view of the discussion held above, in my considered view, judgment of conviction passed against the present petitioner by learned trial Court and upheld by learned Appellate Court does not call for any interference. 16. Therefore, in view of what has been discussed above, I do not find any merit in the present revision petition. As already held above, there is no perversity in the judgments passed by the learned Courts below. These judgments have been passed by appreciating all the material on record and the judgments are neither cryptic nor it can be said that the conclusion arrived at are not borne out from the material placed on record by the prosecution. Therefore, as there is no merit in the present revision petition, the same is accordingly dismissed.