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2021 DIGILAW 520 (HP)

Som Dutt & Ors. v. State Of H P

2021-08-06

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The petitioners herein (for short "accused") faced charge(s) for the offences constituted under Section 379 read with Section 34 of the Indian Penal Code, hence before the learned Judicial Magistrate, First Class, Karsog, District Mandi, Himachal Pradesh. 2. Upon the afore drawn charge(s) against the accused, the learned trial Judge recorded findings of conviction, vis-a-vis, all the accused, and, vide order of 28.1.2012 the learned trial Court imposed upon the accused sentence of simple imprisonment for three months and to pay fine of Rs.3000/-, and, upon default(s), if any, of payment(s) of fine, the learned trial Court ordered that the accused shall undergo simple imprisonment for one month each. 3. All the accused became aggrieved from the afore made verdict of conviction and consequent therewith sentence becoming imposed upon each of them, and, obviously instituted a Criminal Appeal bearing No. 11 of 2012 before the learned Additional Sessions Judge, Mandi, Camp at Karsog. 4. The appellate Court through its verdict recorded on 8.6.2012 proceeded to dismiss the appeal preferred before before it, by the accused, and, obviously declined to make any interference with the verdict of conviction, and, the afore consequent therewith sentence(s) as become imposed by the learned trial Court. 5. The accused became aggrieved from the afore concurrent verdict(s), as, become recorded by both the Courts below, and, have instituted the instant petition before this Court. 6. The brief facts of the case are that ASI Sunder Singh alongwith HC Gian Chand, HHC Devi Singh, C Vichater Singh No. 484, HHG Lala Ram No. 6/6-18 and HHG Nnd Lal No. 6/6/97 was on patrolling duty on the intervening night of 17.9.008 and 18.9.2008 at place Dhungru Nallah at Pangna Pehgal Road. A red coloured Indigo car reached on the spot at about 1.20 a.m was stopped by complainant ASI Sunder Singh. Accused Manoj Kumar alias Manoj Kaushal was its driver, and, he was accompanied by accused Bula Ram in the car. The car was without Registration Certificate. Accused Bula Ram apprised the police that for remolding the tyres of tractor which is being brought behind the car, they are going to Sundernagar. A tractor carrying trolley also reached on the spot. Accused Dalip Kumar was driving this tractor. Accused Som Dutt and Ranjan Kumar were also sitting on the tractor. Accused Som Dutt told the police that tractor belongs to him. A tractor carrying trolley also reached on the spot. Accused Dalip Kumar was driving this tractor. Accused Som Dutt and Ranjan Kumar were also sitting on the tractor. Accused Som Dutt told the police that tractor belongs to him. Documents of the tractor were with Bula Ram. An affidavit showing that original owner Sunil Kumar had sold this tractor to accused Som Dutt was found in these papers. Complainant checked the tractor and trolley. He found that tractor was bearing No. HP-35-B-9310 and trolley was bearing registration No. HP-27-0458. This registration number was written on the Dalla of the trolley which was kept inside the trolley. On inquiry as to why tractor and trolley have different registration numbers, the accused disclosed to the complainant that trolley was parked on the side of the road at Phegal, and, was worth Rs.65,000/-, so they took away (stole) the trolley. During investigation the Investigating Officer seized the vehicle. After completion of the investigation, formal challan under Section 379 read with Section 34 IPC was presented before the Court. 7. The learned counsel appearing for the accused has limited his address, before this Court, only with respect to both the Courts below rather committing a grave fallacy in recording concurrent findings of conviction, and, theirs imposing consequent therewith sentences (supra), upon the accused, in as much, as despite PW-7 (Rajesh Thakur), not being recorded as owner in the Registration certificate appertaining to the tractor bearing No. HP-27-0458, yet his being associated in the relevant investigations, by the Investigating Officer. He submits that hence his testification is discardable. He obviously submits that since the stolen property was hence Res Nullius, thereupon, the prosecution case becomes completely faltered and staggered. 8. However, the aforemade submission cannot be accepted by this Court, as PW-6 in his testification, as, comprised in his examination-in-chief, has made vivid echoings therein, that the initial owner of the afore stolen property, was one Rattan Singh, and, the afore Rattan Singh through an affidavit mark ST, hence alienated the stolen property to one Nikka Ram, whereafter the afore Nikka Ram alienated the stolen property, through an agreement of sale Borne in mark ST-1, to Rajesh Thakur. Imperatively hence PW-7 Rajesh Thakur though not becomes reflected in the Registration certificate to be owner thereof, he became yet lawful owner thereof through the afore made un-rebutted testimony, as occurs, in the examination-in-chief of PW-6. 9. Imperatively hence PW-7 Rajesh Thakur though not becomes reflected in the Registration certificate to be owner thereof, he became yet lawful owner thereof through the afore made un-rebutted testimony, as occurs, in the examination-in-chief of PW-6. 9. Further more, the stolen property does not become Res Nullius, nor the counsel for the accused can make any submission, that hence this Court being constrained to record findings of acquittal, vis-a-vis them. 10. Be that as it may, since the Police patrol nabbed the stolen property and also arrested the accused, from the site of occurrence besides when an eye witness to the occurrence, upon his stepping into the witness box as PW-3 (Gurdass), did unflinchingly prove Ex.PW-3/A the apposite recovery memo, whereon his signatures also exist, (i) thereupon, the prosecution has been able to fortifyingly prove the commission of the charged offences hence by the accused. 11. However the other submission addressed by the learned counsel for the petitioner, is, that since the accused were unknown both to the Investigating Officer and also to the eye witness, thereupon, the identification of the accused only in Court, without prior thereto any valid Test Identification Parade being conducted by the Investigating Officer concerned, does not firmly establish their identity, and also does not firmly prove their involvement in the charged offences. 12. However, even the afore made submission cannot be accepted by this Court, as the memos Ex. PW-2/ A and PW-2/B, as became respectively, drawn by the Investigating Officer, under Section 27 of the Indian Evidence Act, 1872 do evidently carry thereon(s) the undenied valid signatures of the accused. Moreover on Memo Ex. PW-2/A there also exist the valid signatures of witnesses thereto namely Om Dutt and Gauri Shankar, and, on memo Ex.PW-2/B the signatures of witnesses thereto namely Om Dutt and Sohan Lal do also exist. Since one signatory to the afore memo(s) stepped into the witness box as PW-2, and, though he resiled from his previously recorded statement in writing. However, his reneging from the previous statement recorded in writing, does not scuttle the evidentiary vigour of the afore drawn memo(s), as upon his becoming declared hostile, and, thereafter his being cross-examined by the learned Public Prosecutor, he does not deny the validity of his signatures hence existing on the memos (supra). However, his reneging from the previous statement recorded in writing, does not scuttle the evidentiary vigour of the afore drawn memo(s), as upon his becoming declared hostile, and, thereafter his being cross-examined by the learned Public Prosecutor, he does not deny the validity of his signatures hence existing on the memos (supra). The aforemade admission of PW-2, does completely, as contemplated under Sections 91 and 92 of Indian Evidence Act, belittles the effect, if any, of PW-2 resiling from his previous statement recorded in writing, rather his admission qua his making valid signatures, on the memos (supra), does boost a conclusion, that he has therethrough admitted all the recitals carried therein. Therefore, the afore recitals prove the charge drawn against the accused. 13. Accentuated vigor to the afore inference become garnered from the fact that, upon, both the afore drawn memo(s) the unrebutted signatures of the accused also exist. The accused did not proceed to contest the factum of occurrence thereon(s) of their valid signatures. Consequently omission or failure, if any, of the Investigating Officer to, during his holding investigation into the alleged offences, conduct a valid Test Identification Parade for his there through hence ensuring a credible identification in Court of the accused, does not bestow any benefit to the accused nor also hence their purported identification only in Court by the prosecution witnesses concerned also does not suffer from any legal frailty. 14. In view of the above, the present petition is dismissed and, the Impugned judgment is maintained and affirmed. Records be sent back.