-1- Criminal Appeal No.1217-SBA of 2004. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.1217-SBA of 2004. Date of Decision: March 10, 2010. The State, Union Territory, Chandigarh ...Appellant VERSUS Ravinder Kumar and another ...Respondents 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? QUORUM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Rajiv Sharma, Advocate, for the appellant. None for the respondents. -.- MOHINDER PAL, J. Leave to appeal was granted and the appeal was admitted for hearing on 27.5.2004. The State Union Territory, Chandigarh, has filed this appeal impugning the judgment dated 21.3.2003 passed by the -2- Criminal Appeal No.1217-SBA of 2004. learned Judicial Magistrate Ist Class, Chandigarh, in case F.I.R. No.104 dated 18.3.2002 and F.I.R. No.105 dated 19.3.2002 under Sections 379/411/34 of the Indian Penal Code (for short `the Code') registered at Police Station Sector 11, Chandigarh, vide which Ravinder Kumar and Paul William (accused- respondents) were acquitted of the charge framed against them under Section 411 of the Code. The facts of the prosecution case are that on 18.3.2002, Dr.Girish, Senior Resident, Department of Cardiology, Post Graduate Institute of Medical Education and Research (for short `P.G.I') presented a written complaint at Police Post, P.G.I wherein it was alleged that on 17.3.2002 at 8 A.M, he had parked his motorcycle at GE Staff Parking and had gone to the hospital. However, when he returned in the morning on 18.3.2002 after finishing his duties, he could not find his motorcycle bearing registration No.KA-34-E-7762 Hero Honda Make, colour black. After receiving the complaint, F.I.R. No.104 dated 18.3.2002 was registered. On 19.3.2002 while Sub Inspector Gurjeet Kaur, Constable Jagroop Singh and Head Constable Sarwan Singh were on patrol duty on the main gate of P.G.I, they were met by Dr.Ritambhera Narang, Senior Resident, who presented a written complaint wherein it was alleged that she was using scooter of her uncle bearing registration No.CH-01-A-5923. She had parked the scooter in the Parking Ward on 18.3.2002 at 9 A.M. On -3- Criminal Appeal No.1217-SBA of 2004. 19.3.2002 she noticed that dicky of the scooter had been broken and papers stolen. The battery of the scooter had also been stolen after breaking battery box. The battery bore the number of the scooter which was painted in black ink. After receiving the complaint, F.I.R. No.105 dated 19.3.2002 was registered. On 19.3.2002, Sub Inspector Karam Singh received a secret information regarding the thefts and held a `naka' along with Head Constable Sarwan Singh, Constable Jagroop Singh and Constable Sanjay Kumar at the road leading from Khuda Lahora to Naya Gaon Bridge on the `Nala'. Soon thereafter, accused-respondent Ravinder Kumar and accused-respondent Paul William were apprehended along with motorcycle bearing registration No.KA-34-E-7762 Hero Honda Make, colour black, which was taken into possession. The motorcycle was being driven by accused Ravinder Kumar and accused Paul William was sitting on the pillion seat holding a plastic envelope in his hand. Search of the bag revealed that it contained a battery upon which registration No.CH-01-A-5923 was written in black colour. It also contained Registration Certificate, Insurance Certificate, Cover Note, Pollution Slip of Scooter No.CH-01-A-5923. The battery and the documents were taken into possession. After completion of investigation and due formalities, challan against the accused-respondents was presented in Court. Charge under Section 411 of the Code was framed against the accused-respondents. They did not plead guilty to the -4- Criminal Appeal No.1217-SBA of 2004. charge and claimed a trial. At the trial, the prosecution examined Dr. Ritambhera (P.W.1), Dr. Girish (P.W.2), M.M.H.C Jaspal Singh (P.W.3), Sub Inspector Karam Singh (P.W.4), Head Constable Kulbir Singh (P.W.5), Sub Inspector Ram Dhari (P.W.6), Kuldeep Singh (P.W.7), Head Constable Sarwan Ram (P.W.8) and Sub Inspector Gurjeet Kaur (P.W.9). In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-respondents denied the prosecution allegations and pleaded false implication. However, no evidence was led by them in defence. Learned counsel for the accused-respondents did not appear in Court when the matter was taken up for hearing in spite of the fact that the Reader of this Court had repeatedly displayed in the notice board through the Computer installed in the Court that the matter was being heard. I have heard the learned counsel appearing for the Union Territory, Chandigarh, and have gone through the records of the case with his assistance. It has been argued by the learned State counsel that the learned trial Judge, while passing impugned judgment failed to appreciate the facts of the case and the evidence on record. The prosecution evidence was sufficient to warrant conviction of the accused-respondents and the trial Court erred in not believing the same. -5- Criminal Appeal No.1217-SBA of 2004. For the reasons to be mentioned hereinafter, the impugned judgment regarding acquittal of the accused-respondents under Section 411 of the Code is not legally sound. Although it is well-settled that the High Court should be slow in disturbing the finding of the fact arrived at by the trial Court and if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, but each case has its own facts. Paramount consideration of the Court is always to avoid miscarriage of justice. A miscarriage of justice which may arise from the conviction of an innocent is no less than from the acquittal of guilty. In this case, the totality of the facts and circumstances of the case point towards the fact that the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence while acquitting the accused-respondents under Section 411 of the Code is concerned. From the testimonies of the prosecution witnesses, the case of the prosecution, as narrated above, stands proved. It is clearly established on record that the recovery of the stolen motorcycle bearing registration No.KA-34-E-7762 and battery of scooter No.CH-01-A-5923 along with Registration Certificate, Insurance Certificate, Cover Note, Pollution Slip of the said Scooter were recovered from the possession of the accused- respondents. Sub Inspector Karam Singh (P.W.4) has stated that while he was present at the `Naka' along with other police officials, -6- Criminal Appeal No.1217-SBA of 2004. they saw the accused-respondents coming on motorcycle from the direction of Khuda Lahora. The motorcycle was being driven by accused Ravinder Kumar and accused Paul William was on its pillion. On seeing the police, the accused-respondents got panicked. This aroused the suspicion of the police party. The accused- respondents were apprehended. He has further deposed that motorcycle bearing registration No.KA-34-E-7762 and battery of scooter No.CH-01-A-5923 along with other documents were taken into possession by the police at the spot. The prosecution, in support of its case, examined as many as nine witnesses including complainants Dr. Ritambhera (P.W.1) and Dr. Girish (P.W.2). These witnesses have no enmity with the accused- respondents to depose falsely against him. The theft of the motorcycle and the battery of scooter and other documents stands proved on record and these stolen goods were recovered from the possession of the accused-respondents. In these circumstances, I have no hesitation in holding that the accused-respondents have committed the offence under Section 411 of the Code, for which they were charged by the trial Court. In view of the above, the impugned judgment acquitting the accused-respondents under Section 411 of the Code is set aside. Accused-respondents Ravinder Kumar and Paul William are convicted under Section 411 of the Code and sentenced to undergo rigorous imprisonment for one year and to -7- Criminal Appeal No.1217-SBA of 2004. pay fine of Rs.2,000/- each, in default whereof to undergo further rigorous imprisonment for one month. Accused-respondents Ravinder Kumar and Paul William are ordered to be taken into custody forthwith to serve the sentence imposed upon them. They will, of course, be entitled to set off for the period they remained in custody during investigation or trial. Necessary information in this regard be sent to the Chief Judicial Magistrate, Chandigarh. March 10, 2010. ( MOHINDER PAL ) ak JUDGE