RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.1791 OF 2001 (OLD NO.1774 of 1988) State of U.P. ……… Appellant Versus Constable Subhash Chandra Sharma R/o P.S. Maneri, District Uttarkashi Amda, District Rampur ……… Respondent Dated:November 3, 2008 Sri M.A. Khan, learned brief holder for the State/appellant Sri S.K. Aggarwal, Senior counsel assisted by Sri C.K. Sharma, learned counsel for the respondent HON. DHARAM VEER, J. This appeal, preferred by the State/appellant under Section 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 30.04.1988 passed by Chief Judicial Magistrate, Uttarkashi in Criminal Case No.862/1984, State Vs. Constable No.652 Subhash Chandra Sharma, whereby the learned Chief Judicial Magistrate acquitted the respondent under Sections 380/411 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). 2. I have heard Sri M.A. Khan, learned brief holder for the State and Sri S.K. Aggarwal, Senior Counsel assisted by Sri C.K. Sharma, learned counsel for the respondent and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.1 Christopher Hoeth lodged a F.I.R. Ext.Ka-1 in the outpost Gangotri, P.S. Maneri, District Uttarkashi on 7.6.1984 2 with the averment that he arrived at Gangotri on 05.06.1984 and proceeded to Bhojwasa on 06.06.1984. He carried a camera make Canon Automatic 35mm (Japan) with a Fuji 400 ASA Film inside-purchased in Switzerland 18 months’ ago for Rs.1,800/-. He further averted that when he reached the Tourist Rest House (under construction) at Bhojwasa, he met two people-(Watchman) Padam singh and (Police constable) Subhash Chandra. They questioned him about the camera and the place where he came from. He left the luggage and the camera in a room and had tea at Lal Baba. When he came back to pick up his luggage and camera, respondent Subhash Chandra had disappeared and his camera was missing. This incident happened at about 4:00 P.M. He suspected them in the incident. The F.I.R was scribed by K.N. Modi. This F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. Ext.Ka-14 was prepared by Constable Clerk Asharam on 07.06.1984 at 3:30 P.M. The necessary entry was also made in the General Diary, carbon copy of which is Ext.Ka-15. The prosecution has filed the copy of G.D. No.6 Ext.Ka-2 dated 06.06.1984, 3:30 P.M. of Police Chowki Bhojwasa, copy of G.D. No.16 Ext.Ka-3 dated 06.06.1984, 8:05 P.M. of Police Chowki Gangotri, copy of G.D. No.5 Ext.Ka-4 dated 07.06.1984, 7:30 A.M. of Police Chowki Gangotri, copy of G.D. No.23 Ext.Ka-5 dated 08.06.1984, 12:30 P.M. of Kotwali Uttarkashi, copy of G.D. No.26 Ext.Ka-7 dated 2:40 P.M. of Kotwali Uttarkashi. The camera of which the theft was committed on 06.06.1984 was recovered from the possession of respondent Subhash Chandra Sharma on 08.06.1984 and the recovery memo was prepared, i.e., Ext.Ka-8. The identification of the camera was conducted by P.W.5 S.D.M. Sripal Verma and the identification memo Ext.Ka-10 was prepared. Firstly, investigation of this case was entrusted to Sub Inspector 3 T.M. Singh but after that it was transferred to P.W.7 M.S. Farswan. During the course of the investigation, the Investigating Officer T.M. Singh prepared a map from where the theft was committed, i.e., Ext.Ka-12 and also prepared a map from where the camera was recovered, i.e., Ext.Ka-13. During the course of the investigation, I.O. P.W.7 M.S. Farswan recorded the statement of the witnesses and after completing the investigation filed a charge sheet against the respondent u/Ss 380/411 I.P.C. That charge sheet is Ext.Ka-11. 4. On 25.9.1984, learned Chief Judicial Magistrate framed the charge of offence punishable under Sections 380/411 I.P.C. against the respondent/accused. The charge was read over and explained to him who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Christopher Hoeth-complainant, P.W.2 Constable Asharam, who prepared the Chik F.I.R. and made necessary entry in the G.D., P.W.3 S.I. K.R. Arya, witness of the recovery, P.W.4 Head Constable Dinesh Chand Gupta, witness of the recovery of camera, P.W.5 Sripal Verma, S.D.M., who has conducted the identification proceeding of the camera, P.W.6 S.I. Naveen Chand Kathiyar, witness of the recovery of the camera, P.W.7 Investigating Officer, M.S. Farswan, who has completed the investigation and submitted the charge sheet. 6. After that the statement of the respondent/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. In reply to one of the questions, he stated that on 6.6.1984 4 he moved to Uttarkashi to appear before the Deputy S.P. but he could not reach Uttarkashi on the same day. He stayed in Gangotri at night and he reached Police Chowki Gangotri at 8:05 P.M. On 7.6.1984 in the evening, he reached Uttarkashi. On 8.6.1984 he scheduled to appear before the Deputy S.P. for leave. On the issue of leave, he had some hot talks with Deputy S.P., due to this reason Sri Dhaundiyal, Deputy S.P. annoyed with him and the Deputy S.P. wrote a departmental report against him and he was taken into the custody at once and was falsely implicated in the above case. However, in defence, he did not produce any oral or documentary evidence. 7. To further prove its case, the prosecution examined P.W.1 Christopher Hoeth, who has stated that on 6.6.1984 he visited Bhojwasa near Gangotri. There he stayed in Tourist Rest House. He left his luggage in the room which was not locked because the building was under construction. He went to drink tea to Lal Baba Ashram and came back after half an hour at about 4 P.M. He entered into his room where he found his camera missing whereas all other articles were there. Before this theft, he met watchman and constable Subhash Chandra Sharma, who like other people were asking about his camera and about his visit. After theft he did not found Subhash Chandra, who was disappeared. Next day he went back to Gangotri and made a complaint. As he could not write English so he spoke to Sri K.N. Modi, who has written the complaint. The complaint was read over to him and after that he signed on it. That complaint is Ext.Ka-1. He was summoned for identification in the Court. At the time of identification there were four cameras placed and he identified his camera which was placed in those cameras. That camera is Ext.1. After the theft and 5 before identification he did not saw his camera because he left for Pakistan. He has purchased this camera from Switzerland, cost of which was Rs.1,800/-. He handed over the photostat copy of the receipt of purchase of the camera to the Police Station concerned. This witness was cross- examined at length by the defence counsel but nothing has come out from his statement which may create any doubt in his statement. The evidence of this witness is reliable, believable and trustworthy. 8. P.W.2 is Constable Asharam, who has stated that on 6.6.1984 he was posted in Gangotri. He has proved the copy of the G.D. No.6 Ext.Ka-2. The entry was made in the G.D. by Constable Clerk Babu Lal. He has also proved the copy of the G.D. No.16 Ext.Ka-3 and G.D. No.5 Ext.Ka- 4, the entries of which were made in the G.D. by him. 9. P.W.3 K.R. Arya, who has stated that on 8.6.1984 he was posted as Station Officer in Kotwali Uttarkashi. On that day, Deputy S.P. has given a written order for search of respondent Subhash Chandra Sharma as the case of theft of camera was registered against him, who was posted in Bhojwasa at that time. The entry of this order was made in G.D. No.23 on 8.6.1984 at 12:30 P.M. by the Head Constable Dinesh Chand Gupta, copy of that G.D. is Ext.Ka-5. According to the order, he appointed Constable Chandri Prakash for the search of Constable Subhash Chandra. The entry of this was made in G.D. No.24 at 12:35, copy of which is Ext.Ka-6. Then he along with Constable Ram Pal Singh and Head Constable Dinesh Chand started searching Subhash Chandra. The entry was also made in the G.D. No.26 on 8.6.1984 at 2:40 P.M., copy of which is Ext.Ka-7. When he reached Bazaar Choki then Constable Chandri Prakash informed him that 6 Constable Subhash Chandra is in Bazaar Choki and his luggage is also there. When he reached in Bazaar Choki then Subhash Chandra met him along with one bag. Then he searched the bag of Subhash Chandra in front of Head Constable Dinesh Chand Gupta, Head Constable Sohan Pal Singh, Constable Balbir Singh, Constable Dalip Singh and S.I. Naveen Chand Kathiyar at 3:10 P.M. A camera made in Japan along with lens, a book, a diary, one pant and a radiogram which was sent to O.P. Gangotri were recovered from the possession of respondent/accused Subhash Chandra. The recovery memo of the above recovered items was prepared before the witnesses. Copy of the FARD was given to the respondent/accused and the witnesses have signed on the FARD. Recovered items were sealed on the spot and the FARD Ext.Ka-8 was prepared by him. Then he brought the respondent/accused in the police station and deposited the recovered items in the Malkhana. The entry was made in the G.D. by Dinesh Chand Gupta, copy of which is Ext.Ka-9. 10. P.W.4 is Head Constable Dinesh Chand Gupta, who has stated that on 8.6.1984 he was posted in Kotwali Uttarkashi. On that day at 12:10 P.M., incoming of respondent/accused Subhash Chandra in Kotwali was made in the G.D. Copy of the G.D. is Ext.Ka-10. The accused told him that he has come here for the leave. He further stated that he along with S.O. K.R. Arya, S.I. Naveen Chand Kathiyar and Constable Chandri Prakash moved from the police station and when they reached in Choki Bazaar then the respondent/accused came out with his bag at about 3:10 P.M. H.C. Sohan Pal Singh, Constable Balbir Singh, Dalip Singh and Ram Pal were also there. As Subhash Chandra came out with a bag then S.O. K.R. Arya stopped him on the door and made a search 7 of his bag from which a camera, a file in which two copies were capital, a diary, one radiogram, one torch, two cells, one shirt and one pant were recovered. The search was made in front of all the people and the S.O. prepared a FARD of the recovery. Camera was sealed on the spot and the FARD was signed by all the employees who were present there. Copy of the FARD was given to the respondent/accused and he signed on it. Copy of the FARD is Ext.Ka-8. Camera Ext.1, bag Ext.2, diary Ext.3, torch Ext.4, file Ext.5, Mukund Jyoti Ext.6 and copy Ext.7 were recovered in his presence and he has identified all the above said items. Along with these items they came back to the police station and deposited the above said items in the police station. 11. P.W.5 is Sripal Verma, S.D.M., who has stated that on 17.9.1984 he was posted as S.D.M. Bhatwari in District Uttarkashi. On that day, identification of camera Ext.1 was conducted by him. Constable Bijendra Singh Bisht brought the camera from the Malkhana in a sealed condition. Other three cameras were brought by Nayab Nazir of Collectorate in a sealed condition. The complainant Christopher Hoeth identified the camera rightly and then he (P.W.5 Sripal Verma) prepared the identification memo which is in his handwriting. The identification memo is Ext.Ka-10. 12. P.W.6 is S.I. Naveen Chand Kathiyar, who has stated that on 8.6.1984 he was posted as Sub Inspector in Kotwali Uttarkashi. On that day, he along with P.W.3 S.O. K.R. Arya went to Choki Bazaar. H.C. Dinesh Chand Gupta and Constable Ram Pal were also with them. From the Choki Bazaar, H.C. Sohan Pal Singh, Constable Dalip Singh and Balbir Singh were also taken with them and 8 they reached to the room where H.C. Sohan Pal Singh was living. There at 3:10 P.M., respondent/accused having a bag on his shoulder was coming out from the room. Then S.O. K.R. Arya took the search of respondent/accused and a camera was recovered from his bag, which was taken into the possession by the police and it was sealed at the spot and a FARD Ext.Ka-8 was prepared. He has identified the recovered camera as Ext.1. 13. P.W.7 is Station Officer M.S. Farswan, who has stated that firstly, investigation of this case was conducted by T.M. Singh, S.I. and after that it was entrusted to him. During the course of investigation, he recorded the statement of the witnesses, received the receipt of the camera and identification proceedings of the camera was also done. Identification of camera was conducted in the court of S.D.M., Bhatwari on 17.9.1984. After completing the investigation, he filed the charge sheet Ext.Ka-11. He further stated that he is familiar with the signatures of T.M. Singh, S.I. and the site-plan of place of occurrence, i.e., Ext.Ka-12 and the site-plan of place of recovery, i.e., Ext.Ka-13 was prepared by T.M. Singh, S.I. Chik F.I.R. Ext.Ka-14 was prepared by Constable Clerk Asharam and the entry was also made in the G.D. by him. Copy of that G.D. is Ext.Ka-15. 14. After that the statement of the respondent/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. In reply to one of the questions, he stated that on 6.6.1984 he moved to Uttarkashi to appear before the Deputy S.P. but he could not reach Uttarkashi on the same day. He stayed in Gangotri at night and he reached Police Chowki 9 Gangotri at 8:05 P.M. On 7.6.1984 in the evening, he reached Uttarkashi. On 8.6.1984 he scheduled to appear before the Deputy S.P. for leave. On the issue of leave, he had some hot talks with Deputy S.P., due to this reason Sri Dhaundiyal, Deputy S.P. annoyed with him and the Deputy S.P. wrote a departmental report against him and he was taken into the custody at once and was falsely implicated in the above case. However, in defence, he did not produce any oral or documentary evidence. 15. Learned brief holder for the State/appellant submitted that the prosecution has proved the case beyond reasonable doubt against the respondent/accused under Sections 380/411 I.P.C. and he further submitted that the judgment of the trial court is based on the presumption and surmises. I find substance in the arguments advanced by learned brief holder for the State as P.W.1 Christopher Hoeth has stated that on 6.6.1984 when he was staying in the Tourist Rest House at Bhojwasa then only two persons Padam Singh (Watchman) and Subhash Chandra (Constable) were there who were asking for his camera. After half an hour at about 4 P.M. when he came back after having tea at Lal Baba Ashram then he did not found his camera there and the respondent/accused was also disappeared from there. Next day, he went to Gangotri and lodged the F.I.R. scribed by K.N. Modi in the Gangotri outpost of P.S. Maneri, District Uttarkashi. The evidence of this witness gets corroborated from the evidence of P.W.3 K.R. Arya, who has stated that on 8.6.1984 he was posted as Station Officer in Kotwali Uttarkashi. On that day, Deputy S.P. has given a written order for search of respondent Subhash Chandra Sharma as the case of theft of camera was registered against him, who was posted in Bhojwasa at 10 that time. The entry of this order was made in G.D. No.23 on 8.6.1984 at 12:30 P.M. by the Head Constable Dinesh Chand Gupta, copy of that G.D. is Ext.Ka-5. According to the order, he appointed Constable Chandri Prakash for the search of Constable Subhash Chandra. The entry of this was made in G.D. No.24 at 12:35, copy of which is Ext.Ka- 6. Then he along with Constable Ram Pal Singh and Head Constable Dinesh Chand started searching Subhash Chandra. The entry was also made in the G.D. No.26 on 8.6.1984 at 2:40 P.M., copy of which is Ext.Ka-7. When he reached Bazaar Choki then Constable Chandri Prakash informed him that Constable Subhash Chandra is in Bazaar Choki and his luggage is also there. When he reached in Bazaar Choki then Subhash Chandra met him along with one bag. Then he searched the bag of Subhash Chandra in front of Head Constable Dinesh Chand Gupta, Head Constable Sohan Pal Singh, Constable Balbir Singh, Constable Dalip Singh and S.I. Naveen Chand Kathiyar at 3:10 P.M. A camera made in Japan along with lens, a book, a diary, one pant and a radiogram which was sent to O.P. Gangotri were recovered from the possession of respondent/accused Subhash Chandra. The recovery memo of the above recovered items was prepared before the witnesses. Copy of the FARD was given to the respondent/accused and the witnesses have signed on the FARD. Recovered items were sealed on the spot and the FARD Ext.Ka-8 was prepared by him. Then he brought the respondent/accused in the police station and deposited the recovered items in the Malkhana. The entry was made in the G.D. by Dinesh Chand Gupta, copy of which is Ext.Ka-9. The evidence of P.W.3 also gets corroborated from the evidence of P.W.4 Head Constable Dinesh Chand Gupta and P.W.6 Naveen Chand Kathiyar, S.I. 11 16. Camera of P.W.1 Christopher Hoeth, theft of which was committed on 6.6.1984 at 4 P.M. from Bhojwasa, was recovered from the possession of the respondent/accused on 8.6.1984 at 3:10 P.M. by P.W.3 K.R. Arya, S.O. along with P.W.4 Constable Dinesh Chand Gupta and P.W.6 Naveen Chand Kathiyar. The said camera was also identified in the identification proceedings on 17.9.1984 before P.W.5 Sripal Verma, S.D.M., Bhatwari, who has proved the identification memo Ext.Ka- 10. Thus, from the evidence discussed above, it is proved by the prosecution beyond reasonable doubt that on 6.6.1984 at 4 P.M. when P.W.1 Christopher Hoeth was staying in the Tourist Rest House, Bhojwasa then the respondent/accused has stolen his camera there and from there he went to Gangotri where he reached at 8:05 P.M. on the same night. The entry was made in the G.D. No.16 Ext.Ka-3 and from there in the morning on 7.6.1984 he moved to Uttarkashi for appearing before the Deputy S.P. for the leave. On the same day in the evening, he reached Uttarkashi. There he stayed in the room of H.C. Sohan Pal Singh at Choki Bazaar. The F.I.R. Ext.Ka-1 was lodged by P.W.1 Christopher Hoeth against the respondent/accused and on the message in the Police Headquarter, Uttarkashi, Deputy S.P. has given a written order to P.W.3 K.R. Arya, S.O. for the search of respondent/accused. The entry of this order was made in the G.D. No.23 on 8.6.1984 at 12:30 P.M. Copy of that G.D. is Ext.Ka-5. Constable Chandri Prakash was appointed for this purpose by P.W.3 K.R. Arya. P.W.3 K.R. Arya, S.O. along with P.W.4 H.C. Dinesh Chand Gupta and P.W.6 Naveen Chand Kathiyar, S.I. moved to the Choki Bazaar for search of respondent/accused. The entry was also made in the G.D. No.26 on 8.6.1984 at 2:40 P.M., copy of which is Ext.Ka-7. Later on the accused was arrested at 3:10 P.M. on the 12 same day by P.W.3 K.R. Arya, S.O., P.W.4 H.C. Dinesh Chand Gupta and P.W.6 Naveen Chand Kathiyar, S.I. in presence of other employees and the said camera Ext.1 was recovered from his bag. The FARD Ext.Ka-8 of the recovery was prepared at the spot. Thus, from the evidence discussed above, it is proved from the oral and documentary evidence beyond reasonable doubt by the prosecution that the said camera was stolen by respondent/accused Subhash Chandra Sharma on 6.6.1984 at 4 P.M. at Tourist Rest House, Bhojwasa and the said camera was recovered from his possession on 8.6.1984 at 3:10 P.M. at Choki Bazaar, Uttarkashi. 17. Learned brief holder for the State/appellant submitted that learned Chief Judicial Magistrate has erred in law by acquitting the respondent/accused on the basis of the presumption and surmises. He further submitted that learned C.J.M. has committed a mistake by holding that by not examining the scriber K.N. Modi and Constable Chandri Prakash who was deputed by P.W.3 K.R. Arya for the search of respondent/accused, the prosecution story has become doubtful. He further submitted that learned C.J.M. has also committed a mistake by holding that by not calling the public witnesses during the search of the respondent/accused, the prosecution case has become doubtful. The findings given by the trial court is not justified as per the evidence and is not tenable in the eye of the law. I find substance in the arguments advanced by learned brief holder for the State/appellant. 18. It has come in the evidence discussed above that the complainant who came from Switzerland to give the statement and also the scriber’s address was mentioned in the F.I.R., holding a Swiss Passport 13 No.4093355, date of issue 10.12.1980, Indian Visa No.T- 1918/83, proves that the F.I.R. was lodged by the person who was available at that time and the F.I.R. was scribed by him only due to the reason that P.W.1 Christopher Hoeth does not write English. Hence, by not producing the scriber K.N. Modi is not at all helpful to the respondent or the defence and it does not creates any doubt in the prosecution case. 19. Constable Chandri Prakash, who was simply deputed to search respondent/accused and who has given the information to P.W.3 K.R. Arya about the presence of the respondent/accused in the Choki Bazaar, is not the witness of the recovery or the witness of any important fact, so by not examining Constable Chandri Prakash does not creates any doubt in the prosecution case. The prosecution case has not become doubtful only due to the reason that the public witnesses were not examined. The independent police officers P.W.3 K.R. Arya, Station Officer and P.W.6 Naveen Chand Kathiyar, Sub Inspector and one Head Constable P.W.4 Dinesh Chand Gupta were examined who were the responsible employees of the police and have got no enmity with the respondent/accused and there are no chances and circumstances to falsely implicate the respondent/accused by these three witnesses. Hence, all the above three witnesses are reliable witnesses and their evidence cannot be discarded only on this ground that they are police officers. On the facts and circumstances, the evidence of these three witnesses are natural, reliable and inspires a confidence. By not examining the public witnesses does not creates any doubt in the prosecution story. 14 20. Sri S.K. Aggarwal, learned senior counsel for the respondent/accused argued that the accused has got some hot talks with Sri Dhaundiyal, Deputy S.P., hence he has been falsely implicated in the case. I do not find substance in the argument raised by learned senior counsel as Sri Dhaundiyal, Deputy S.P. has only informed P.W.3 K.R. Arya, S.O., Uttarkashi about the F.I.R. lodged by the complainant in Gangotri and had directed him to make search of the respondent/accused as the F.I.R. was lodged against him for the theft of the camera. In this way, Deputy S.P. has performed his duty as cast upon him and no chances and circumstances are there to falsely implicate the respondent/accused by Deputy S.P. Even otherwise, there is no evidence in the file that Sri Dhaundiyal, Deputy S.P. had any enmity with the respondent/accused. The arguments raised by learned Sr. counsel is misconceived and is not tenable in the eye of law. 21. From the evidence discussed above, the prosecution has proved the case against the respondent/accused Subhash Chandra Sharma under Sections 380/411 I.P.C. beyond reasonable doubt and he is found guilty for the above said offences. 22. Learned Sr. counsel has submitted that as now the respondent/accused is about 45 years’ old and he is in the police service and his wife and children are dependent upon him, hence, leniency must be