Shanker Dass vs State
2009 Latest Caselaw 4628 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                      Judgment Reserved on: 9th November ,2009
                      Judgment Delivered on: 12th November, 2009


+                           CRL.REV.P.168/2000


SHANKER DASS                                .........Petitioner
                      Through:   Mr.Rajesh Mahajan, Advocate.


                Versus


STATE                                      .........Respondent.
                      Through:   Mr.Manoj Ohri, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?          Yes

     3. Whether the judgment should be reported in the Digest?
                                             Yes

INDERMEET KAUR, J.

1. On 31.1.1986 at about 6.00 PM complaint had been lodged

by Rajender Singh, Junior Engineer CPWD reporting that a red

coloured Nissan truck DEG-6856 had illegally loaded 12 RS Joist

girders from the store premises of 1688, Kasturba Gandhi Marg.

Truck was driven by co-accused Vinod Kumar. On 1.2.1986

recovery of these girders had been effected from this truck

which was parked outside the house of the present petitioner

Shanker Dass. This stolen property belonged to the CPWD.

Complaint Ex. PW-1/A was lodged. Pursuant to this complaint FIR

Ex.PW-3/A was registered by ASI Harphool Singh.

2. Information given in this complaint was by Puran Singh,

Chowkidar, PW-2. As per his version there is no practice of

permitting articles to be taken out from godown on the basis of

any chits or slips; delivery of property was to be made by Junior

Engineer Rajender Singh who is alone competent to deliver the

property of the Department. Gurdeep Singh PW-4, on the

relevant date was posted as in charge of police station

Parliament Street. The recovery of the stolen property effected

on the following day i.e. 1.2.1986 was in the presence of

PW-4, PW-2 and PW-1. The recovery memo is Ex.PW-1/B has

been attested by all the aforestated persons. The scribe of the

document is SI Bachan Singh who has not been examined.

3. Trial Judge vide impugned dated 3.2.1993 had convicted

both the accused persons namely Shanker Dass and Vinod

Kumar under Sections 380/34 of the IPC. Vide order of sentence

dated 4.2.1993 the present petitioner had been sentenced to

undergo RI for three years and to pay fine of Rs.5000/-; in default

of payment of fine to undergo RI for six months.

4. This judgment had become the subject matter of an appeal

before the Appellate Court. The Appellate Court vide judgment

dated 10.1.2000 dismissed the appeal. On 14.1.2000 arguments

were heard on sentence and the sentence of the petitioner was

reduced from RI three years to RI for six months with a further

direction to pay the fine amount of Rs.5000/- in default of

payment of fine to undergo RI for 15 days.

5. The petitioner has since suffered his complete sentence

and is on bail.

6. The petitioner has challenged the conviction.

7. On behalf of the petitioner, it has been submitted that the

recovery memo Ex.PW-1/B is suspect; no reliance can be placed

upon this document. Admittedly, as per the version of the

prosecution, the truck was driven by co-accused Vinod Kumar;

recovery witnesses have all given contrary and inconsistent

versions; their versions do not inspire confidence. Attention has

been drawn to their testimony i.e. the testimony of PW-1 who

has in his cross-examination admitted that today he cannot

locate the house from where the property was recovered which

is at the back of the police station Tilak Nagar. PW-2 in his

examination-in-chief has stated that the police had taken them

to a house behind police station Tilak Nagar where a truck was

found present; 12 girders were lying in the truck. It is submitted

that in his entire examination-in-chief PW-2 is silent that this

truck was parked in front of the house of Shanker Dass, this

recovery stands belied. PW-4 is the only person whose stand has

been consistent but it does not conform to the version of other

two witnesses discussed supra. Attention has also been drawn

to the defence version i.e. the testimony of K.K.Bedi PW-3 who

has in his examination-in-chief deposed that on 1.10.1996 the

said truck No. DEG-6856 was lying empty; this evidence

substantiates the defence of the petitioner; prosecution has not

been able to establish that the recovery of the stolen property

had in fact been effected from the truck which was lying parked

out side the house of the present petitioner. In the absence of

this, ingredients of Section 380 IPC are not attracted; benefit of

doubt has accrued in favour of the petitioner; he is entitled to an

acquittal.

8. The defence of the petitioner has all along been that he

has no role to play in this offence; co-accused Vinod is his

employee. The recovery of this property had been effected from

the house of the maternal uncle of Vinod and this categorically

finds mention in his statement under Section 313 of the Cr.P.C.

The version of the co-accused Vinod inculpating the present

petitioner under Section 313 of the Cr. P.C. cannot be read

against the petitioner. For this proposition reliance has been

placed upon a judgment of the Supreme Court reported in

2008(3) Crimes 112 Asraf Ali vs. State of Assam. This judgment

in para nos.16 & 17 recites that in the absence of an

incriminating circumstance having been put to the accused and

he have been afforded no opportunity to explain the said

incriminating circumstance, the same cannot be used against

him. This proposition is not in dispute. This judgment, however,

does not come to the aid of the learned defence counsel on the

proposition sought be advanced by him.

9. Trial Court record has been perused.

10. The scope of revision by the High Court is limited. This

revisional jurisdiction is a supervisory jurisdiction exercised by

the Court for correcting a mis-carriage of justice. This power

cannot be equated with the power of an appellate Court, nor it

can be treated as a second appellate jurisdiction. Evidence in

normal circumstances should not be re-appreciated unless any

glaring feature is brought to the notice of the Court which would

otherwise tantamount to a gross miscarriage of justice.

11. Ex.PW-1/B is the recovery memo. This recovery memo is

dated 1.2.1996 has been attested by PW-1, PW-2 and PW-4; this

document clearly recites that in front of the gate of house

No.25/3, Ashok Nagar, Tilak Nagar, Delhi truck No.DEG-6856, 12

iron girders, RS Joist, having impression of SAIL, measuring

200x100 mm each, having length of 14 feet, on the complaint of

Rajender Singh, pursuant to the information given by Puran

Singh were recovered. This address i.e. 25/3, Ashok Nagar, Tilak

Nagar is the address of the present petitioner i.e. Shanker Dass.

12. PW-1 on oath in Court has categorically stated that on

1.2.1996 he i.e. PW-1 along with SI Bachan Singh, Assistant

Engineer K.K.Bedi went to Ashok Nagar, Tilak Nagar where truck

No.DEG-6858 was standing; Shanker Dass was residing in that

house; the 12 RS Joist iron girders Ex.P-1 to Ex.P-12 lying in the

truck were taken into possession vide memo Ex. PW-1/B. Merely

because in his cross-examination PW-1 has stated that today he

cannot locate the house, is not enough to disregard his otherwise

consistent version. This witness has come into witness box in

July 1999 whereas the recovery is of 1.2.1996 i.e. the three and

half years prior. Witness is not supposed to have a photographic

memory in order that he could recollect the details of the

location of the house; this was a normal memory lapse due to

long passage of time. PW-1 has given the detailed description of

the stolen property which had been recovered from out side the

house of the present petitioner.

13. PW-2 was the Chowkidar who had also joined the recovery

proceedings. He has also corroborated the version of PW-1; he

has not given the house number; yet otherwise his deposition is

clear and categorical; recovery has been effected from a house

behind police station Tilak Nagar; address of the house of the

present petitioner shows that it is located within the jurisdiction

of police station Tilak Nagar. This witness has also attested the

recovery memo; his oral deposition coupled with the

documentary evidence clearly establishes that the recovery of

the stolen property had been effected from the truck which had

been parked in front of the gate of the house of the petitioner.

14. So also is the version of PW-4. He has in clear terms stated

that the recovery was effected on 1.2.1996 from truck No.DEG-

6856 which is a Nissan truck of red colour, parked in front of

house of Shanker Dass and the driver of the truck Vinod Kumar

was sitting on the driver seat.

15. The version of DW-3 does not come the aid of the

petitioner. DW-3 has only stated that RS Joist iron girders were

not recovered from the house of the accused; this is also not the

case of the prosecution; the case of the prosecution is that the

recovery was effected from truck which had been parked out

side the house of Shanker Dass.

16. Admittedly the disputed property was a stolen property; it

belonged to the CPWD. The defence set up by the accused in his

statement under Section 313 of the Cr.P.C. that the stolen

property has been recovered from the house of the maternal

uncle of Vinod Kumar had surfaced for the first time on 5.4.1991

i.e. at the time when his statement was recorded under Section

313 of the Cr.P.C. This defence did not find mention in the

suggestions given to the prosecution witnesses i.e. neither to

PW-1, PW-2 or PW-4; this was an afterthought and rightly

rejected by the both the fact finding Courts below.

17. The conviction of the petitioner under Section 380 of the

IPC calls for no interference; revision petition is without any

merit; it is dismissed.

18. Trial Court record be returned.

(INDERMEET KAUR) JUDGE 12th November, 2009 nandan