IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 108 of 2004 Judgment Reserved on 22.9.2010 Date of Decision: 19th November, 2010 __________________________________________________________ Raj Kumar ….Petitioner. Versus State of HP ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Petitioner: Mr. N.K. Thakur, Advocate For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J. The petitioner challenges his conviction by the learned trial Court convicting him for offence under Section 379 read with Section 34 IPC and sentencing him for rigorous imprisonment for six months and fine of Rs. 2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month. 2. The case urged by the prosecution was that one plainer belonging to Hans Raj, complainant, was stolen by the petitioner and thereafter transported to village Giana in District Shimla where it was 1 Whether Reporters of Local Papers may be allowed to see the judgment?Yes. 2 disposed of/sold to one Surender Kumar who was also convicted for offence under Section 411 IPC. 3. The prosecution case, set out briefly, is that this plainer was installed by the complainant in his floor mill abutting the road in village Ushar Kalan. He had purchased this in the year 1981 from Jalandhar and installed the same on a hillock near his machine. On 11.9.1998 around 8.30 PM he closed his business premises and when he returned on 12.9.1998 he was informed by Sukh Dev who works in his floor mill that the plainer had been removed from the spot. Thereupon, the complainant rang up Madan Lal, Pardhan, Gram Panchayat Usnar Kalan, who also reached the spot. They made a thorough search to find out the plainer, but the same could not be traced. It seems that during the intervening night of 11/12th September, 1998 the plainer had been removed after cutting the connecting electricity wires etc. At that time, he did not suspect anybody of stealing. First Information Report No. 87/98 (Ext.PW6/B0 was registered with the Police Station. 4. During investigation, it emerged that the petitioner herein was one of the suspects as he had worked with the complainant for some time. On 22.9.1998 he was taken into custody and made a disclosure statement that he could get the plainer recovered from the house of accused Surender Kumar, who states that he had bought this from the petitioner for a sum of Rs. 10,000/-. According to the petitioner and Surender, the plainer had been transported in jeep No. HP-55-0153, which was driven by Kapil Goswami, the third accused, who has been acquitted by the learned Appellate Court. 5. Considering the evidence of the complainant Has Raj, PW1, he reiterated the facts as stated by him in the First Information Report, proved on record his statement Ext.PW1/A and the fact that the 3 accused had worked in his floor mill/machine for seven days in 1998. He suspected his involvement in the theft. It is also in his evidence that accused/petitioner was arrested on 22.9.1998 and he disclosed before the police that he could get this plainer recovered from village Giana where infact it was recovered on 24.9.1998, pursuant to the disclosure statement Ext.PW2/B made by him. It was urged before the learned Court that the statements of the witnesses could not be relied upon as they were interested witnesses and that they were full of contradictions. The evidence was considered in detailed by the learned trial Court which held that their evidence could not be discarded on the ground that they were interested witnesses etc. and that contradictions were not of such a nature which would go to the very root of the case. 6. In appeal, it was again urged that DW1 Ramesh Chand, Pardhan, Gram Panchayat Pargiah of Tehsil Thego has stated that police had not visited the house of accused Surinder Kumar in his presence and therefore, the recovery effected, could not be relied upon. In this view of the matter, there is no substance in the case set up by the prosecution. However, the learned Court holds that even if this statement was excluded; there is no explanation as to why Pardhan had signed on the recovery memo Ext.PW1/B which signatures he admits. But from the evidence of other witnesses it was established that the plainer had infact been stolen. So far as the third accused Kapil Goswami was concerned, he was acquitted, though he had been convicted by the learned trial Court. 7. A number of submissions have been made by learned counsel appearing for the petitioner primary being that it was not possible to lift the plainer weighing about 6 to 8 quintals single handedly and that the witnesses of the recovery had not supported the case of prosecution. It was also urged that Kapil Goswam driver of the transport vehicle having 4 been acquitted by giving him the benefit of doubt, the petitioner can not be implicated in the offences. 8. These submissions made on behalf of the petitioner cannot be accepted. These very points were urged before the two Courts below who have considered the evidence on record to come to the conclusion with respect to the guilt of the petitioner herein. What requires to be noticed is that the evidence of DW1 Pardhan Ramesh Chand cannot be discarded in its entirety. He cannot be said to be a person who was not well versed with worldly affairs. If his signatures had in fact been obtained in the police station and not at the time of recovery, surely he should have lodged some protest with respect to this fact either with the police or any other authority. There was no justification for him to sign in the police station knowing fully well that the rights of an innocent person were being jeopardized. If he had been forced to sign as pleaded by him, he would have very well retracted his signatures as having been obtained under pressure etc. I do not find any perversity in the appreciation of evidence by the two Courts below. This revision petition is accordingly dismissed. 9. Adverting to the question of sentencing, considering that the petitioner is a young person, before considering the question on the quantum of sentence, let report of the Probation Officer, Hamirpur be called for so as to reach this Court on or before 7th December, 2010, on which date the case be listed for further proceedings. (Dev Darshan Sud) Judge November 19th, 2010(ms)