1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 73 of 2004 Judgment reserved on 5.8.2008. Date of Decision: August 13, 2008. ________________________________________________________ Tenzin Chogal @ Abbu. …. Petitioner. Versus State of H.P. … Respondent. ---------------------------------------------------------------------------------------- Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the Petitioner : Mr. Surinder Saklani, Advocate vice Mr. Ajay Sharma, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer. ______________________________________________________________ Surinder Singh, J. The petitioner was convicted by the learned trial court under sections 457 and 380 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/- under Section 457 I.P.C., and to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/- under Section 380 I.P.C. In default of payment of fine, he was further sentenced to simple imprisonment for a period 15 days on each count. His appeal was dismissed by the learned sessions Judge, as such, he has filed the present revision petition. In brief, the facts on which the petitioner was put on trial are that a theft broke in the office of Education Department of Tibetan Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Government in exile at Dharamshala. On 23.3.2002, PW3 Phinstok Tassi Peon came to the office and found the window panes broken and all the articles inside the office were helter and skelter. The Joint Secretary Tashi N. Rikka was informed telephonically. He reached the spot and reported the matter to the police and FIR Ex.PW9/B was registered. PW10 ASI Duni Chand took up the investigation and visited the spot. He took into possession the wooden plank Ex.P2, table glass Ex.P3 and three iron rods Exts.P4 to P6, broken piece of window pane Ex.P7 and lock Ex.P8 vide memo ExPW2/A. Photographs of the spot were also taken and he prepared the site plan Ex.PW10/B. The appellant was arrested on 26.8.2002 as per the arrest document on record. The appellant pointed out the spot from where theft was committed during the intervening night of 22nd /23rd July, 2002. He also made the disclosure statement that he had kept the stolen articles viz. VCR, Camera and cassettes etc. in his room in south Delhi to which he can get it recovered. He led Police to his residence at Delhi and recovery of VCR Ex.P10, Camera Ex.P11, Video Cassette Ex.P12 and CD cassettes Ex.P13 to P19, M.Disk Ex.P20 to P24, Charger Ex.P25 and one Nihan ( an instrument) Ex.P26 were effected and were taken into possession vide memo Ex.PW7/B. The laptop was pledged by the appellant with PW6 Thinlay Namgyal for Rs.15,000/-. Police recorded the statements of the witnesses and challan was presented in the court for its trial. 3 The petitioner was charge-sheeted for the aforesaid offences, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and respondent was also examined under Section 313 Cr.P.C. He expressed his ignorance about the circumstances put to him and according to him, a false case was foisted against him. At the end of trial, he was convicted and sentenced as aforesaid. His appeal was dismissed by the learned Sessions Judge and conviction and sentence passed against him was affirmed. It is contended in the appeal that both the courts below has mis-appreciated the evidence and also did not take note of the material contradictions on the record and further that the recovery of the alleged articles pursuant to his disclosure statement could not be proved and both the courts below overlooked the aforesaid facts, as such, the case did not stand proved against the petitioner, therefore, prayed for quashing and setting aside the aforesaid judgments. Shri Ajay Sharma, learned counsel for the petitioner has forcefully argued that both the courts below have legally and factually committed an error in holding the petitioner guilty for the alleged offence. Shri J.S. Guleria, learned Law Officer for the State has supported the impugned judgment and the reasoning given by both the courts below and prayed for dismissal of the petition. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record. 4 It is a fact that the window panes of the academic block and the site of the door and its glasses were found broken by PW3 Phintsok Tassi, the Peon of the Education Department. He informed PW1 Tsering Phuntsok, the Joint Secretary, who visited the spot. On reaching the spot, PW1 also noticed the aforesaid condition of the offence and lodged the FIR. According to PW10 ASI Duni Chand, he visited the spot, took into possession the broken glasses, three iron rods etc. from the spot and also took the photographs. The petitioner made the disclosure statement Ex.PW7/A on 1.9.2002 to HC Kushal Kumar in the presence of PW5 Tenzing Gawa and Phunstock Shering with respect to the VCR and camera etc, which were alleged to have been kept at his residence in House No.C-32, Duggal Colony, Khanpur Road, Deoli village, South Delhi, along with one Nihan (an instrument) which he could recover. Pursuant to that, he got recovered VCR Ex.P10, Camera Ex.P11, Cassette Ex.P12 and other articles as per the recovery memo Ex.PW7/B in the presence of the witnesses PW7 Tenzing Gawa and Phunchok Shering. PW7 Tenzing Gawa has stated that the VCR, camera was found missing from the office of Tibetan Library, which was got recovered by the petitioner from his residence at Delhi in his presence, pursuant to his statement Ex.PW7/A, he proved the signatures on the disclosure statement as well as recovery memo. Further he has stated that the video cassettes, CDs, M.Disk charger and one Nihan were also got recovered vide memo Ex.PW7/B by the petitioner. He identified all those articles during the trial of the case. In his cross-examination, he has stated that the petitioner had led 5 the police to his residence at Delhi while effecting the recovery of the aforesaid articles. The appellant has not claimed any of the articles mentioned above to be his own. Further PW6 Thinlay Namgyal has stated that the Laptop was pledged by the petitioner for Rs.15,000/- with him. Next day of its pledging his wife found it to be of the Tibetan Education Department as she found some document therein pertaining to them. She told him to inform the Tibetan Education Department. The said computer Ex.P1 was identified by PW4 Thuten Lungeric, Minister of the Tibetan Education Department alongwith its bag Ex.P9 to be their own. PW5 Smt. Tassi Kyizom, has corroborated his version. The above facts make it clear that the computer Ex.P1 was pledged with PW6 above by the petitioner which was identified by PW4 to be their own. The petitioner did not render any explanation from where he acquired the possession of this computer before it was pledged. His case is denial simplicitor. He also could not count for the other articles which were recovered from his residence nor he claimed it to be of his own. He did not offer any explanation worth the name to dislodge the version of the prosecution witness discussed above. The statement of the petitioner leading the police party to the place of concealment of the stolen articles and discovery thereof proves the commission of offence charged against the petitioner beyond a reasonable doubt. Therefore, in the above circumstances, I do not find that both the courts below have committed any error while appreciating the evidence of the witnesses adduced on the record. After examining 6 the legality and propriety of the impugned judgments of the courts below, I do not find it a case of worth interference, accordingly the revision petition is dismissed. The petitioner is hereby directed to surrender before the learned trial court to serve out the sentence passed against him, within one month from today, failing which, the learned trial court shall take appropriate steps in accordance with law to commit him to jail to serve out the sentence passed. (Surinder Singh) Judge. August , 2008. (Pds)