Between vs State Of Himachal Pradesh ...
2021 Latest Caselaw 5781 HP

    IN    THE      HIGH     COURT        OF    HIMACHAL          PRADESH,            SHIMLA




                                                                      .
                       ON THE 17th DAY OF DECEMBER, 2021





                                   BEFORE
                     HON'BLE MR. JUSTICE SANDEEP SHARMA
                       CRIMINAL REVISION No. 203 OF 2012





          Between:
          SURINDER KUMAR,
          S/O SH. MASARU RAM,
          R/O VILLAGE JUNDI,





          TEHSIL ROHRU,
          DISTT SHIMLA, HP.

                         r                                                ....PETITIONER
          (BY MR. V.B. VERMA,
          ADVOCATE)

          AND


          STATE OF HIMACHAL PRADESH


          THROUGH ITS PRINCIPAL SECRETARY (HOME,
          HIMACHAL PRADESH
                                                                         ....RESPONDENT




          (BY MR. SUDHIR BHATNAGAR
          AND MR. DESH RAJ THAKUR,





          ADDITIONAL ADVOCATES GENERAL,
          WITH MR. NARENDER THAKUR,
          MR. GAURAV SHARMA AND





          MR. KAMAL KISHORE SHARMA,
          DEPUTY ADVOCATES GENERAL)
    Whether approved for reporting?. Yes.


    This petition coming on for hearing this day, the Court passed the following:




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                                                                   .
                                         ORDER

Instant criminal revision petition filed under Section 397 Cr.PC

read with Section 401 of Cr.PC, lays challenge to judgment dated

13.8.2012, passed by the learned Sessions Judge, Solan, District Solan,

HP, in Criminal Appeal No. 2-S/10 of 2011, affirming the judgment of

conviction and order of sentence dated 16.12.2010, passed by the learned

Judicial Magistrate First Class-2, Nalagarh, District Solan, H.P., in

Criminal Case No. 3/2 of 09/2004, whereby the learned trial Court while

holding the petitioner-accused guilty of having committed offence

punishable under Section 380 of IPC, convicted and sentenced him to

undergo rigorous imprisonment for a period of six months and pay fine of

Rs. 500/- and in default of payment of fine, to further undergo simple

imprisonment for a period of ten days.

2. Precisely, the facts of the case, as emerge from the record are

that in the intervening night of 13/14.10.2003 at about 2:30 AM, while

police party headed by ASI Iqbal Hussain (PW7) was on patrolling duty at

bus stand Nalagarh, a vehicle bearing registration No HP-10-2827, came,

but driver of the aforesaid vehicle after having seen the police, turned back

the vehicle. On suspicion, police party chased the aforesaid vehicle in a

government vehicle bearing registration No. HP-14-7753 and intercepted

the vehicle at a place called Simani. Though 2-3 persons travelling in the

.

vehicle in question fled away from the spot taking advantage of the

darkness, whereas driver of the vehicle i.e. petitioner-accused, came to be

nabbed by the police. Though police tried to search the remaining 2-3

persons travelling with the accused, but in vain. Police brought the vehicle

to Ramshehar, where Junior Engineer of IPH Sub Division Ramshehar i.e.

PW1 Krishan Kumar, met the police and disclosed that some persons have

committed theft of 21 gun metal gate valves, 2½" dia, 22 gun metal gate

valve 3" dia and 42 GI Unions of 3"dia, from their store. The above named

complainant identified the stolen articles, which at that relevant time, were

being transported in the vehicle being driven by the accused. Police after

having recorded the statement of the complainant under Section 154 Cr.PC

(Ex.PW1/A), wherein he disclosed the factum with regard to theft in the IPH

store at Ramshehar, lodged formal FIR Ext.PW6/A. Though police was

unable to trace out the other 2-3 persons, who had fled away from the spot,

but person namely Rattan Sen, who is owner of the vehicle also came to be

named in the FIR and he was also tried alongwith the accused. After

completion of the investigation, police presented challan in the competent

court of law, who being satisfied that prima-facie case exists against the

accused, charged them under Sections 457, 380 and 120-B of IPC, to

which they pleaded not guilty and claimed trial.

3. Prosecution with a view to prove its case examined as many as

.

seven witnesses; i.e. Krishan Kumar Sharma as PW1, Bagga Singh as PW2,

Surinder Singh as PW3, Virender Kumar as PW-4, Const. Baljeet Singh as

PW5, Surender Pal as PW6 and ASI Iqbal Hussain as PW7, whereas

accused in their statements recorded under Section 313 denied the case of

the prosecution in toto and claimed themselves to be innocent. However,

they did not lead any evidence in their defence.

4. Learned trial Court on the basis of evidence led on record by

the prosecution, vide judgment dated 16.12.2010, though acquitted the co-

accused Rattan Sen of the offences punishable under Sections 457, 380

and 120-B of IPC, but held the petitioner-accused guilty of having

committed offence under Section 380 of the IPC and accordingly, sentenced

him as per the description given herein above.

5. Being aggrieved and dissatisfied with the aforesaid judgment of

conviction recorded by the court below, accused preferred an appeal in the

court of learned Sessions Judge-I, Solan, District Solan, H.P., which also

came to be dismissed vide judgment dated 13.8.2012, as a consequence of

which, judgment of conviction recorded by the learned trial Court came to

be upheld. In the aforesaid background, present petitioner-accused has

approached this Court by way of instant proceedings, seeking therein his

acquittal after setting aside the judgments of conviction recorded by the

.

courts below.

6. Having heard the learned counsel for the parties and perused

material available on record vis-à-vis reasoning assigned in the impugned

judgments of conviction and order of sentence recorded by the courts

below, this Court finds no illegality and infirmity in the same and same

being based upon the proper appreciation of evidence led on record by the

prosecution, deserves to be upheld.

7. Though Mr. V.B. Verma, learned counsel representing the

petitioner-accused while making this Court to peruse the evidence led on

record by the prosecution, made a serious attempt to persuade this Court

to agree with his contention that both the courts below misread the

evidence, but careful examination of the statements made by all the

prosecution witnesses clearly reveals that prosecution successfully proved

on record that the accused was transporting the stolen property of the IPH

department, in the vehicle in question, and as such, the learned trial court

rightly convicted him under Section 380 of IPC.

8. PW1 Krishan Kumar and PW3 Surender, who at that relevant

time were Junior Engineer and Store Helper (respectively) in the IPH Sub-

Division, Ramshehar, categorically deposed that during the intervening

night of 13/14.10.2003, theft was committed at their IPH store, situate at

Ramshehar and on verification of the articles in the store, it was found that

.

21 gun metal gate valves, 2½" dia, 22 gun metal gate valve 3" dia and 42 GI

Unions of 3"dia have been stolen. Interestingly, both the aforesaid

witnesses never came to be cross-examined on behalf of the accused on the

aforesaid point, meaning thereby, statements of both the witnesses with

regard to theft of the articles as detailed herein above, remained

unchallenged. Otherwise also, cross-examination conducted upon these

witnesses nowhere suggests that learned counsel representing the accused

was able to shatter their testimony. Factum with regard to theft from the

store of IPH at Ramshehar, further stands proved with the perusal of copy

of BIN cards Ext.PW7/C and Ex.PW1/C. All the articles disclosed by PW1

Krishan Kumar Sharma in his statement stand duly recorded in the Bin

Cards Ext.PW1/C and Ext.PW7/C and entry regarding further

disbursement of such articles also stands recorded in the BIN cards.

Moreover, on verification of the stock of the IPH department, it was found

that the theft of the articles has been committed by someone by breaking

the lock of the store. Aforesaid statements made by the above named

material prosecution witnesses stand duly corroborated by the statement of

PW7 ASI Iqbal Hussain, who after having received information visited the

spot and prepared the site plan Ext.PW7/B and seized the broken lock and

bolt vide memo Ext.PW3/A.

9. ASI PW7 Iqbal Hussain, deposed that during the night, when

.

he alongwith other police officials was on patrolling duty at Nalagarh, one

vehicle bearing registration No. HP-10-2827 came there, but occupants of

the aforesaid vehicle after having seen the police party turned back the

vehicle. Though 2-3 occupants of the vehicle fled away taking advantage of

the darkness, but accused, who at that relevant time, was driving the

vehicle in question, was apprehended. This witness deposed that PW1

Krishan Kumar and PW3 Surender, came and reported the matter qua the

commission of theft of the articles from the IPH store situate at Ramshehar

and on search of the vehicle, 21 gun metal gate valves, 2½"dia, 22 gun

metal gate valve 3"dia 42 GI Unions of 3" dia, which were subsequently

duly identified by PW1 Krishan Kumar and PW3 Surender Singh. The

stolen property was seized vide memo Ext.PW1/E. If the statements made

by the aforesaid material witnesses PW1 and PW3 are read in conjunction

with the statement made by PW7 Iqbal Singh, it clearly proves factum with

regard to theft of the articles as detailed herein above from the IPH store at

Ramshehar. Since aforesaid articles subsequently came to be recovered

from the vehicle in question being driven by the accused and he was unable

to explain the presence of the articles in his vehicle, courts below rightly

held him guilty of having committed offence punishable under Section 380

of IPC.

10. Though Mr. V.B. Verma, learned counsel appearing for the

.

petitioner-accused tried the carve out a case that accused was mere driver

and articles recovered from the vehicle being driven by him actually

belonged to 2-3 persons, who after seeing the police fled away from the

spot, but such plea of him cannot be accepted at this stage, especially

when no such defence ever came to be taken by the accused while getting

his statement recorded under Section 313 of Cr.PC. Accused in his

statement recorded under Section 313 Cr.PC, while denying the case of the

prosecution in toto, claimed that since he refused to give lift to the police

officials, he has been falsely implicated in the case. Mr. V.B. Verma,

argued that the statements made by all the material prosecution witnesses,

as have been taken note herein above, are not contrary/contradictory, but

perusal of the same clearly reveals that all the witnesses have corroborated

the versions put forth by each other in their statements. There is

overwhelming evidence that stolen articles came to be recovered from the

vehicle bearing registration No. HP-10-2827 and at that relevant time, the

said vehicle was being driven by the accused.

11. Factum with regard to driving of the vehicle by the accused at

the time of the recovery of articles from the vehicle in question stands duly

proved on account of suggestion put to PW7 ASI Iqbal Hussain, by the

learned counsel representing the accused that police official asked the

accused to drop them in the vehicle, but when the accused refused, police

.

falsely implicated him in the case, meaning thereby,, at the time of the

recovery of the stolen articles, vehicle in question was being driven by the

petitioner-accused. Moreover, plea taken by the accused that he has been

falsely implicated since he had refused to drop the police officials cannot be

believed, especially, when such version is not corroborated /established on

the basis of material available on record.

12. Having carefully perused the entire evidence led on record, this

Court finds no illegality and infirmity in the impugned judgments of

conviction recorded by the courts below and as such, no interference is

warranted. Faced with aforesaid situation, Mr. V.B. Verma, states that it is

a fit case where petitioner can be extended benefit of Section 4 of the

Probation of Offenders Act. He states that at the time of the alleged

incident, petitioner-accused was 22 years old and by now, 18 years have

passed and in case at this juncture, he is sent behind the bars, his entire

family would suffer. He also states that there is nothing adverse on record

against him, especially with regard to his conduct after lodging of FIR,

which ultimately culminated in the trial at hand. He states that petitioner

is sole bread earner in the family and in case, he is sent behind bars, his

entire family including his old aged parents would starve. Mr. Verma also

stated that mitigating circumstance in this case is that approximately,

more than eighteen years have passed after happening of that incident and

.

eleven years have been passed after passing of the judgment of conviction

dated 16.12.2010 and the accused petitioner has already suffered much

agony/trauma during the pendency of the appeal in the court of learned

Sessions Judge Solan (H.P.), as well as in High Court of Himachal Pradesh.

13. In support of the aforesaid arguments, Mr. Verma, also invited

the attention of this Court to the judgment passed by this Hon'ble Court in

Yudhbir Singh versus State of Himachal Pradesh 1998(1)S.L.J. 58,

wherein it has been held as under:

9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of

sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to keep peace and to be of good behavior for a period of one year

from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed

to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons.

14. In this regard, reliance is also placed upon Hon'ble Apex Court

judgment Ramesh Kumar @ Babla versus State of Punjab 2016 AIR

(SC) 2858, wherein it has been held as under:

"7. Accordingly the appeal is allowed in part by converting appellant's conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place

in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed

.

that he and others went to the place of occurrence on getting information

that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such

circumstances, it is not deemed necessary to send the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life.

8. In view of aforesaid, in our view the ends of justice would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing

appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour."

15. The reliance is also placed upon the Hon'ble Apex Court

judgment Hari Kishan and State of Haryana versus Sukhbir Singh

1988 AIR (SC) 2127, wherein it has been held as under:

"8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious

consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of

offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has

observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the

extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate.

9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to section 357 Criminal Procedure Code Section 357, leaving aside the unnecessary, provides:-

"357. Order to pay compensation:

(1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when

.

passing judgment, order the whole or any part of the fine recovered to

be applied-

(a) in defraying the expenses properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is in the opinion of the Court, recoverable by such person in a civil Court;

Xxxxxxxxxxxxxx Xxxxxxxxxxx Xxxxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation. Such amount as may be specified in the

order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum

paid or recovered as compensation under this Section.

11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of

claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The

Court may enforce the order by imposing sentence in default."

16. Consequently, in view of the above, this Court sees no illegality

and infirmity in the impugned judgments passed by the courts below and

accordingly, same are upheld, but in view of the aforesaid law as well as

submissions having been made by the learned counsel appearing for the

petitioner and after taking into consideration the facts and circumstances

of the present case, I am of the considered opinion that the present

petitioner-accused can be granted benefit of Section 4 of the Probation of

Offenders Act, 1958 subject to payment of adequate compensation, which

.

would be determined after the receipt of the report of Probation Officer.

17 Accordingly, Registry is directed to call for the report of the

Probation Officer, Solan, District Solan, H.P., within six weeks and list this

matter on 14.3.2022.

    17th December, 2021                             (Sandeep Sharma),
         (manjit)                                          Judge