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Himachal Pradesh High Court · body

2018 DIGILAW 745 (HP)

Sunil Kumar v. State Of Himachal Pradesh

2018-04-25

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Being aggrieved and dissatisfied with the judgment dated 2.1.2015, passed by learned Additional Sessions Judge-II, Shimla, District Shimla, H.P., in Criminal Appeal No.84-S/10 of 2014/13, affirming the judgment of conviction and sentence, dated 7.1.2013, passed by learned Judicial Magistrate, 1st Class, Court No.6, Shimla, H.P., in Case No.112-2 of 2010/06, whereby learned trial Court while holding petitioner ( for short ''accused'') guilty of having committed the offences punishable under Sections 457 and 380 of the Indian Penal Code ( for short ''IPC'') , convicted and sentenced him as under:- Sr.No. Section Imprisonment 1. 457 IPC To undergo simple imprisonment for a term of two years and to pay fine of Rs. 1000/- and in default of payment of fine, to further undergo simple imprisonment for three months 2. 380 of IPC To undergo simple imprisonment for one year and to pay fine of Rs. 1000/- and in default of payment of fine, to further undergo simple imprisonment for three months. 2. Briefly stated facts, as emerge from the record are that Vikram Thakur (PW-2) , who was running a shop in the name and style of M/S Thakur General Store at Shogi, got his statement (Ex.PW2/A) recorded under Section 154 of the Code of Criminal Procedure, on the basis of which, formal FIR Ex.PW7/A, came to be registered against the accused, alleging therein that on 27.7.2006, at about 9:30 PM, he had locked his shop, but on the next day i.e. on 28.7.2006, at about 6/6:15 AM, when he came to his shop, he found shutter of his shop broken. He further complained that as many as 13 sets of mobile phones i.e. 4 mobiles of Nokia, five of reliance and four of Tata, were found to have been stolen. Complainant further alleged that some miscreant committed theft of the mobile sets from his shop by lurking house trespass. Complainant also stated to the police that out of the stolen mobiles, SIM of three mobiles sets, were active and he kept on calling on the said mobiles and ultimately, he could made contact on mobile No.93188-09342 and the person on the other side revealed his name to be Ranbir Singh and also disclosed his address. Aforesaid person, namely Ranbir Singh, disclosed that on 20.9.2006, he had purchased mobile from one Surinder, whose real name was lateron disclosed to be Sunil. Aforesaid person, namely Ranbir Singh, disclosed that on 20.9.2006, he had purchased mobile from one Surinder, whose real name was lateron disclosed to be Sunil. On the basis of aforesaid complaint, police commenced its investigation. After completion of the investigation, police presented the challan in the competent court of law i.e. Judicial Magistrate, 1st class, Court No.6, Shimla, H.P. 3. The learned trial Court being satisfied that a primafacie case exist against the accused as well as other coaccused namely Pankaj, Rohit Kumar and Jatinder Kumar, framed charge against them under Sections 457, 380, 414 read with Section 34 of IPC, to which they pleaded not guilty and claimed trial. 4. Learned trial Court on the basis of the evidence made available on record by the prosecution, acquitted the accused Pankaj, Jitender and Rohit Kumar of the charges framed against them, whereas held accused Sunil guilty of having committed the offence punishable under Sections 457 and 380 of IPC and accordingly convicted and sentenced him, as per the description given hereinabove. 5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned trial Court, petitioner-accused preferred an appeal under Section 374 of the Code of Criminal Procedure, in the court of learned Additional Sessions Judge-II, Shimla, which came to be registered as Criminal Appeal No.84-S/10 of 2014/13, however fact remains that same was dismissed, as a consequence of which, judgment of conviction recorded by the learned trial Court came to be upheld. In the aforesaid background, petitioner-accused has approached this Court by way of instant proceedings, praying therein for his acquittal, after setting aside the judgment of conviction recorded by the learned Courts below. 6. Mr. Jeevesh Sharma, learned counsel representing the petitioner, while referring to the impugned judgments, passed by the learned courts below, strenuously argued that same is not sustainable in the eye of law, as the same are not based upon the correct appreciation of the evidence and as such, same deserves to be quashed and set-aside. He further contended that bare perusal of the impugned judgment of conviction recorded by the learned courts below, clearly suggest that learned courts below have not dealt with the evidence available on record in its right perspective, as a result of which, erroneous findings to the detriment of the accused have come on record. 7. Mr. He further contended that bare perusal of the impugned judgment of conviction recorded by the learned courts below, clearly suggest that learned courts below have not dealt with the evidence available on record in its right perspective, as a result of which, erroneous findings to the detriment of the accused have come on record. 7. Mr. Sharma, while making this Court to travel though the entire evidence led on record by the prosecution, made a serious attempt to persuade this Court to agree with his contention that there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no much reliance could be placed by the learned courts below on their statements while ascertaining the guilt, if any, of the petitioner-accused, who has been falsely implicated in the case. He further contended that bare perusal of the judgment passed by the learned trial Court, itself suggest that the disclosure statement made by the accused under Section 27 of the Indian Evidence Act, was not accepted by the learned courts below and as such, there was no occasion for the learned courts below to arrive at conclusion that police effected recovery from the room of the accused at the behest of other co-accused. He further contended that if the statements of prosecution witnesses are read juxtaposing each other, it creates doubt with regard to the presence of the accused in the room from where allegedly mobile phones were recovered. Mr. Sharma, further contended that both the courts below have fallen in grave error while omitting to take note of the fact that bills, if any, qua the mobile phones possessed by the complainant were not produced before the Court and as such, learned courts below had no occasion to arrive at a conclusion that mobile phones allegedly stolen by the accused belong to the complainant. Mr. Sharma, while inviting attention of this Court to Ex.PW2/D i.e. Fard, further contended that petitioner has been falsely implicated in the case, because recovery has been not proved, in accordance with law, as has been categorically stated by learned courts below in its judgment. 8. Mr. Mr. Sharma, while inviting attention of this Court to Ex.PW2/D i.e. Fard, further contended that petitioner has been falsely implicated in the case, because recovery has been not proved, in accordance with law, as has been categorically stated by learned courts below in its judgment. 8. Mr. Sharma further contended that evidence adduced on record by the prosecution with regard to recovery, is also not trustworthy because all the recovery witnesses gave altogether different version with regard to presence of the accused and recovery, if any, of mobile phones made from his room. Lastly, Mr. Sharma, contended that though it is apparent from bare reading of the statements made by the prosecution witnesses that no case is made out against the petitioneraccused, but in case this Court intends to concur with the findings returned by the learned courts below, sentence awarded by the court below being excessive needs to be reduced taking note of the age and occupation of the accused. Mr. Sharma, further contended that accused, who is a painter by occupation works on daily wage, has a family to support and as such, it would be very harsh to the family in case, he is allowed to remain behind the bars strictly in terms of the judgment passed by the learned courts below. 9. Mr. Dinesh Thakur, learned Additional Advocate General, while supporting the impugned judgment of conviction recorded by the Courts below, strenuously argued that there is no scope of interference of this Court, especially in view of the concurrent findings of fact recorded by the learned Courts below. While refuting the aforesaid submissions having been made by learned counsel representing the petitioner, Mr. Thakur, invited attention of this Court to the statements made by the prosecution witnesses, to demonstrate that all the material prosecution witnesses have stated in once voice that they had purchased mobile phones from the accused, who had stolen the same from the shop of the complainant. Mr. Thakur, further contended that as per Section 378 of IPC, complainant was only required to prove that he was lawful owner of the property allegedly stolen by the accused and as such, there is no force in the arguments of learned counsel representing the petitioner that no bills with regard to mobile phones allegedly stolen by the accused, were made available to the courts below. Mr. Mr. Thakur, further contended that statements having been made by the prosecution witnesses i.e. PW-1, PW-4, PW-5 and PW-6, clearly suggest that petitioner-accused sold the mobile phones, allegedly stolen by him from the shop of the complainant to the persons i.e. prosecution witnesses, who were residing in the same village, where the petitioner-accused used to reside. Mr. Thakur, also contended that this Court while exercising power under Section 397 of Code of Criminal Procedure, has limited jurisdiction to interfere in the concurrent findings of fact and law recorded by the Coutts below. 10. I have heard learned counsel for the parties and carefully gone through the record. 11. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon''ble Apex Court in Krishnan and another Versus Krishnaveni and another , (1997) 4 SCC 241 ; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:- 8.The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1) . However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order." 12. Having carefully perused the impugned judgment of conviction recorded by the courts below vis-a-vis evidence adduced on record by the prosecution, this Court is not persuaded to agree with the contention of the learned counsel for the petitioner that the learned courts below have failed to appreciate the evidence in its right perspective, rather this Court having perused the entire evidence available on record, has no hesitation to conclude that prosecution successfully proved beyond reasonable doubt that on the date of alleged incident, petitioner-accused not only broke the lock of the shop of the complainant, rather he committed theft by stealing 13 mobile phones. 13. Pw-1, Ranvir Singh, deposed before the Court below that on 16/17.09.2006, accused Surinder Kumar, who was present in Court had sold one mobile set having SIM No.93188-09342 and on 20.09.2006, he received a telephonic call on this number and his address was inquired. He further deposed before the court below that subsequent to aforesaid inquiry, 2-3 persons approached him and he disclosed that he has purchased mobile phone from the accused. He further stated that he identified the accused Surinder during the investigation, but lateron his name came to be revealed as Sunil and mobile phone was taken into possession vide memo Ex.PW1/A, whereupon he also identified his signatures. Aforesaid statement made by this witness, if read in its entirety juxtaposing the statement made by the complainant under Section 154 of Code of Criminal Procedure, it corroborates the initial version put forth by the complainant that since SIM of three sets, out of 13 sets were active and he had made a call on mobile No.93188-09342. 14. Pw-2, Vikram Thakur (complainant) also stated before the Court below that when he made call on Sim No. 93188-09342, the person on the other side revealed his name as Ranbir and disclosed that he had purchased the mobile phone from the accused. 15. Pw-4.Surinder, PW-5, Krishna and PW-6, Surya also stated that they had purchased the mobile sets from the accused Surinder Kumar. Cross-examination conducted on these witnesses, nowhere suggest that defence was able to shatter their testimonies, rather all the prosecution witnesses, as referred hereinabove, stuck to their statements made in examination-in-chief. 16. Pw-3, Puran Singh, stated that search of the room of accused was conducted in his presence, wherein various mobile sets were recovered. Cross-examination conducted on these witnesses, nowhere suggest that defence was able to shatter their testimonies, rather all the prosecution witnesses, as referred hereinabove, stuck to their statements made in examination-in-chief. 16. Pw-3, Puran Singh, stated that search of the room of accused was conducted in his presence, wherein various mobile sets were recovered. He further stated that mobile sets were recovered under the bed of the accused in his presence and were taken into possession vide memo Ex.PW2/D and same were identified by the complainant, Vikram(PW-2) . If the statements of these witnesses are read in its entirety, especially PW-3, PW-4, PW-5 and PW-6 they have categorically stated that mobile sets were recovered from the room of the accused and those were duly identified by the complainant in their presence. 17. Pw-10, ASI Chanchal Singh, also corroborated the version put forth by all the prosecution witnesses, as discussed hereinabove. True, it is that in cross-examination, PW-10 admitted that there are many shops adjoining to the shop of the complainant, but he quantified that since it was night hours, none of other shop keepers witnessed the alleged incident and as such, there was no occasion for him to associate independent witness. It is not in dispute that alleged incident of lurking house trespass and theft took place during night hours and as such, story put forth by the prosecution that incident was not witnessed by the adjoining shop keepers cannot be brushed aside. Since, theft took place during night hours and same was not witnessed by any independent witness, there was no occasion for the prosecution to cite independent witness, otherwise also in the case at hand, there is no interested witness, save and except complainant (PW-2) , who alleged that on 28.7.2006, he found locks of his shop broken and 13 mobile sets missing from his shop. Save and except PW-2, all the prosecution witnesses are independent witnesses, who categorically stated before the court below that they purchased mobile sets from the accused. Save and except PW-2, all the prosecution witnesses are independent witnesses, who categorically stated before the court below that they purchased mobile sets from the accused. In the case at hand, it is not in dispute that complainant (PW-2) at the time of making initial report, reported to the police that 13 mobile sets have been stolen from his shop and undisputedly, 7 mobile sets were recovered from the room of the accused, whereas four persons i.e. PW-1, PW-4, PW-5 and PW-6 admitted that they had purchased the mobile phones from the accused Sunil. 18. Perusal of Ex.PW2/B further reveals that recovery was effected on the basis of the disclosure statement made by the accused. As per the testimony of PW-10, ASI Chanchal Singh, he on the basis of information furnished by the accused, searched his room in the presence of complainant ( PW-2) and PW-9 and accordingly memo Ex.PW2/C was prepared. Learned Court below taking note of the statement having been made by PW-2 under Section 154 Cr.P.C Ex.PW2/A, statement of PW-11, Inspector Chaman Lal, FIR Ex.PW7/A, and site plan of occurrence Ex.PW7/A prepared on 28th July, 2006 arrived at a conclusion that place from where theft was committed was already known to the investigating agency and in such fact situation, statement, if any, made by the accused under Section 27 of the Indian Evidence Act, is not relevant. 19. Though, this Court having perused the overwhelming evidence available on record, sees no reasons to agree with the contentions of Mr. Jeevesh Sharma, learned counsel for the petitioner that recovery is not proved, in accordance with law. In view of the aforesaid findings returned by the learned trial court, it is quite apparent from the statements having been made by other prosecution witnesses that investigating agency having received initial information from PW-1, Ranbir Singh, searched the house of accused from where 7 mobile sets allegedly stolen by the petitioner from the shop PW-2 i.e. complainant came to be recovered. Since, factum with regard to theft committed by the petitioneraccused had come to the notice of complainant PW-2, on the date of alleged incident after having talked to PW-1, he rightly discussed the factum with regard to the same to police and as such, there is no force in the arguments of Mr. Since, factum with regard to theft committed by the petitioneraccused had come to the notice of complainant PW-2, on the date of alleged incident after having talked to PW-1, he rightly discussed the factum with regard to the same to police and as such, there is no force in the arguments of Mr. Jeevesh Sharma, learned counsel for the petitioner that police had prior knowledge with regard to the room, where the stolen property was allegedly kept by the petitioner. 20. Leaving everything aside, this court having perused the overwhelming evidence led on record by the prosecution, to demonstrate that mobile phones allegedly stolen from the shop of the complainant (PW-2) were recovered from the room of the petitioner, has no hesitation to conclude that statement, if any, made by the petitioner-accused under section 27 of the Indian Evidence Act, has no relevance and even if the same is ignored and not taken into consideration, result would remain same that 7 mobile phones allegedly stolen from the shop of the complainant were recovered from the room of the accused. 21. Having carefully perused the statements made by the material prosecution witnesses, this court is not inclined to agree with the contention of learned counsel for the petitioner that there are material inconsistencies and contradictions in the statements of prosecution witnesses, rather this Court is of the view that all the material prosecution witnesses corroborated the story put forth the prosecution beyond any doubt. It stands duly proved on record that the petitioner/accused committed theft of 13 mobile phones from the shop of the complainant after breaking its lock and as such, learned court below rightly came to the conclusion that the petitioner has committed the offence punishable under Sections 457 and 380 of the Indian Penal Code. 22. Since, prosecution was not able to lead cogent and convincing evidence to prove involvement, if any, of other coaccused namely Pankaj, Rohit Kumar and Jatinder Kumar, they rightly came to be acquitted and no benefits, if any, can be drawn from their acquittal by the accused, against whom prosecution successfully proved the case under section 457 and 380 of the Indian Penal Code 23. Consequently, in view of the detailed discussion made hereinabove, this Court sees no reason to differ with the judgments of conviction recorded by the learned courts below, which otherwise appear to be based upon the correct appreciation of the evidence as well as law on the point and as such same are upheld. 24. However, this Court taking note of the fact that alleged incident had taken place in the year, 2006 i.e. 12 years back, whereafter case remained pending adjudication before the different forums including this Court and petitioner, who is a painter by occupation has a family to support, deems it fit to reduce the sentence awarded by the learned courts below, which otherwise appears to be excessive in the facts and circumstances of the case and as such, this Court modify the sentence awarded by the learned courts below to six months qua all the offences allegedly committed by him. Order dated 13.5.2015, passed by this Court, whereby sentence imposed by the court below was suspended, is hereby vacated and the petitioner-accused is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court subject to the modification made hereinabove. Accordingly, the present criminal appeal is dismissed alongwith pending application(s) , if any.