Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1216 (HP)

Bhupinder Kumar v. State of H. P.

2018-07-05

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J The instant revision petition stands directed, against, the concurrently recorded verdicts, of, conviction, upon, the petitioner, for, his committing an offence punishable under Section 379 Indian Penal Code, and, whereafter, he was sentenced to undergo simple imprisonment, for a period of six months, and, to pay a fine of Rs. 1000/-, and, in default of payment of fine, he stood sentenced, to undergo further simple imprisonment, for, a period of one month. 2. The facts relevant to decide the instant case are that on 13.1.2011 at 5.45 A.M, a telephonic information was conveyed to police station Dharampur about a theft of angle iron having taken place at Dharampur and one person Bhupinder Kumar (Accused) having been apprehended by the local people on the basis of which rapat Ext. PW3/A was entered in the daily diary and a police party headed by PW-5 ASI Choli Ram accompanied by other police officials was dispatched to the spot. When the police party reached the spot where complainant Kapil Goel filed a complaint Ext. PW-1/A with the police in which it had been stated that he runs a shop known as Kapil Expo Traders Pvt. Ltd. at Dharmpur Bazar and for the last 14-15 days the angle, channel and pati kept outside the Sudhir Building were being stolen by somebody. He did not disclosed this fact to anybody and started sleeping in a truck on the road to apprehend the thief. Today i.e. on 13.1.2011 at about 5 A.M. he heard some noise and saw that Bhupinder Kumar (Accused) was loading three angle irons on his rehri. Earlier also the theft of angle irons has taken place and necessary action be taken against accused Bhupinder kumar. This rukka Ext. PW-1/A was sent to the police station through C. Sunil Kumar on the basis of which FIR Ext. PW-3/A was registered and investigation was pressed into action. The three angle irons and the rehri were taken into possession on the spot vide memo Ext. PW-1/B. Spot map Ext. PW-5/A was prepared and photograph Ext. P-1, Ext. P-3 to Ext. P-5 were got snapped. The accused person had been apprehended on the spot by the complainant and was arrested at 8.40 A.M. vide arrest memo Ext. PW-4/A. During the course of investigation the accused person gave a disclosure statement under Section 27 of the Indian Evidence Act Ext. PW-5/A was prepared and photograph Ext. P-1, Ext. P-3 to Ext. P-5 were got snapped. The accused person had been apprehended on the spot by the complainant and was arrested at 8.40 A.M. vide arrest memo Ext. PW-4/A. During the course of investigation the accused person gave a disclosure statement under Section 27 of the Indian Evidence Act Ext. PW-2/A stating that he had used a plier and a iron rod to commit theft and can get them recovered. Acting on the said information the recovery of plier Ext. P-3 and road Ext. P-2 were got effected vide memo Ext. PW-2/B and were sealed with seal N and the sample of the seal was separately taken on a piece of cloth which is Ext. PW-2/C. The photograph of the recovery Ext. P-2 was got snapped. The accused person was subsequently released on bail by the order of the Court. After the completion of entire investigation the present challan was filed in the Court. 3. The accused was charged by the learned trial Court, for his committing, an offence punishable, under Section 379 Indian Penal Code. In proof of the charge, the prosecution examined 5 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was recorded by the learned trial Court, wherein, the accused claimed innocence and pleaded false implication in the case. 4. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction, against, the accused/petitioner herein. 5. The accused/petitioner, is, aggrieved by the concurrently recorded judgments of conviction by both the learned Courts below. The learned counsel appearing for the accused/petitioner has concertedly and vigorously contended, qua, the concurrently recorded findings of conviction, by both the learned courts below, standing not based, on a proper appreciation, by them, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by them, of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in, the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 6. Hence, he contends qua the findings of conviction being reversed by this Court, in, the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 6. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction recorded, by, the learned Courts below, standing based, on a mature and balanced appreciation of evidence, on record, and, theirs not necessitating interference, rather theirs meriting vindication. 7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 8. The convict/accused, has, allegedly stolen, from, the commercial premises of the complainant, three angle irons, and, during the process of his stealing, the, aforestated stolen property, from, the commercial establishment, of the complainant, he was caught red handed, by PW-1, and, thereafter, a, report was lodged with the police station concerned. PW-1 in his testification, borne in his examination-in-chief, has qua the aforesaid factum, hence rendered, a, candid echoing, and, importantly, during the course his being subjected to, cross-examination, by the learned defence counsel, the latter omitted to put apposite suggestions, to him, for ensuring, any, denial emanating from PW-1, vis-à-vis, the aforestated factum. The effect thereof, is, qua the accused acquiescing, qua, the aforesaid factum, occurring in the examination-in-chief of PW-1. Furthermore, during, the course of PW-1, rendering, his testification, testification whereof, is, borne in his examination-in-chief, he identified the convict, to be the person, who stood caught red handed, during the process, of, his stealing angle irons, from, the commercial establishment, of the complainant. Even, the efficacy, of, the aforesaid articulations, made by PW-1, also stand established, given the learned defence counsel while holding him, to crossexamination, rather omitting to mete any appropriate suggestions, to him, for hence eliciting, any, apposite denial thereto. The effect thereof, is of the convict hence acquiescing qua the factum, of, his being the person, who stood caught red handed by PW-1, while, his pilfering the angle irons, from, the commercial establishment of the complainant. 9. The effect thereof, is of the convict hence acquiescing qua the factum, of, his being the person, who stood caught red handed by PW-1, while, his pilfering the angle irons, from, the commercial establishment of the complainant. 9. since complainant had caught, the, convict red handed, in, his pilfering angle irons, from his commercial establishment, and, thereafter, a FIR, was lodged with the police station concerned, (i) thereupon, also with, a, display of the custody, of, stolen property, being at the relevant time, hence held by the convict, and, wherefrom, its, recovery stood effectuated, through, memo borne in Ext. PW-1/B, (ii) hence with the apt effectuation, of, the apposite recovery(s) hence standing proven, (iii) thereupon, there was no necessity for the Investigation Officer concerned, to prior thereto, record any apt disclosure statement, nor any absence of recording thereof, would, constrain this Court, to bely the sanctity, of PW-1/B, whereunder the apt recovery, stood effectuated, from the person, of the convict. The effect whereof, is, qua the recovery memo, borne in Ext. PW-1/B, rather corroborating the testification of PW-1. 10. Be that as it may, even the tools, which were utilized by the convict, for ensuring his pilfering, the, angle irons, from, the commercial establishment of the complainant, were, held in his custody, at the relevant time, and, recovery(s) thereof were efficaciously proven, to, occur through, memo borne, in, Ext. PW-2/A. The effect thereof, is, qua Ext. PW-2/B, also firmly corroborating, the efficacy, of, Ext. PW-1/A, and, also the testification, of, PW-1. 11. The learned counsel for the convict has contended with much vigor, that, with the prosecution, not, placing on record, any firm material, in display, of the complainant holding ownership, of the stolen property, hence, in absence thereof, no firm conclusion being formable, qua, the complainant being owner thereof nor hence it being appropriate for this Court, to, convict the accused qua the offence charged. The aforesaid submission cannot be accepted, (i) given there being no apt meteing(s) either to PW-1 or to the complainant, by the learned defence counsel, while his holding, them to cross examination, of, any suggestion therewhom, with, any displays, therein, of, the convict being the owner, of the purported stolen property, (ii) rather when, hence, the accused acquiesces, qua, the complainant being owner thereof, (iii) thereupon the, prosecution, was not enjoined, to, prove, the factum of the complainant, holding ownership, of, the stolen property. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has appraised the entire evidence, on record, in a wholesome and harmonious manner, apart therefrom, the analysis of the material on record by the learned appellate Court, does not, suffer, from any perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. The impugned verdicts, are, hence affirmed and maintained. 13. However, the learned counsel for the petitioner/ convict prays, at this stage, to reduce the sentence of imprisonment imposed upon the petitioner/convict. He submits that the aforesaid submission, may be amenable to acceptance, given the convict, being the sole bread earner of his family. The aforesaid submission is accepted. The sentence of imprisonment imposed upon the petitioner/ convict is reduced, from, six month simple imprisonment, to, two months’ simple imprisonment. Fine of Rs. 5000/- is also, imposed upon the petitioner/convict. In default of payment of fine, the convict shall further undergo simple imprisonment, for, a period one month. The period of detention already undergone by him, is ordered to be set off, from the sentence of imprisonment, imposed, upon him. 14. Consequently, the sentence(s) of imprisonment imposed upon the convict, is modified to the extent above. Records be sent back forthwith.