IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No.2 of 2002 Judgment reserved on:4.9.2008. Decided on: September 08, 2008. Soni …Petitioner. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr.N.K.Thakur, Advocate. For the respondent: Mr Vikas Rathore, Deputy A.G. Kuldip Singh, Judge: This judgment shall dispose of Criminal Revision No.2 of 2002 filed by the petitioner against judgment dated 20.12.2001 passed by learned Sessions Judge, Chamba in Criminal appeal No.5 of 1999 partly allowing the appeal of the petitioner against the judgment of conviction and sentence dated 18.2.1999 passed by learned Additional Chief Judicial Magistrate, Chamba in Criminal Case No.56- II of 1997/93. Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… 2. The prosecution case, in brief, is that four accused including petitioner were prosecuted for having committed offence punishable under Sections 457, 380 read with Section 34 IPC arising out of F.I.R. No.155 registered on 28.12.1989 at Police Station, Sadar Chamba. 3. The further case of the prosecution is that on the complaint of PW-1 Tajveej Singh FIR No.155 dated 28.12.1989 Ext.PW-1/A came to be registered at Police Station, Sadar, Chamba. The complainant reported to the police that theft had been committed in his house in the intervening night of 27 and 28 December, 1989. The complainant and his wife disclosed the articles, ornaments they had lost in the theft. One Chattar Singh of Village Kiyani also disclosed to the police that he had also lost some articles. It was revealed during investigation that accused had hired Car No.8191 from Amarjeet of Nurpur, went to Kiyani during the intervening night of 27 and 28 December, 1989 and had committed theft. The police arrested Rajinder Kumar alias Gindi and Soni Kumar. They made disclosure statements and recoveries were made. The involvement of other accused, namely, Dhod alias Shonki and Bandi alias Prem was also found in the commission of offence. Therefore, after completion of investigation challan was presented in the Court. Rajinder Kumar alias …3… Gindi accused died during the pendency of the case. The remaining accused were charged under Sections 457, 380 read with Section 34 IPC to which they pleaded not guilty. The prosecution examined 17 witnesses. The evidence of the prosecution was closed by the order of the Court on 5.6.1998. The accused were examined under Section 313 Cr.P.C. and they denied the prosecution case but led no evidence in defence. The learned Additional Chief Judicial Magistrate on 18.2.1999 acquitted accused Dhod alias Shonki and Bandi alias Prem but convicted the petitioner under Sections 457, 380 IPC. He was sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1000 under Section 457 IPC, in default of payment of fine he was directed to undergo further imprisonment for a period of two months. He was also sentenced rigorous imprisonment for a period of one year and fine of Rs.1000 under Section 380 IPC, in default of payment of fine he was ordered to undergo rigorous imprisonment for a period of two months. Both the sentences were ordered to run concurrently. The petitioner against conviction and sentence dated 18.2.1999 filed appeal and learned Sessions Judge, Chamba on 20.12.2001 acquitted the petitioner under Section 457 IPC but maintained his conviction and sentence under Section …4… 380 IPC. The petitioner, by way of this revision petition, has assailed judgment dated 20.12.2001 in this Court. 4. I have heard Mr.N.K.Thakur, learned counsel for the petitioner, Mr.Vikas Rathore, learned Deputy Advocate General, for the respondent / State and gone through the record. Mr.Thakur, learned counsel for the petitioner, has submitted that learned Sessions Judge has erred in maintaining conviction, sentence of petitioner under Section 380 IPC. He has submitted that prosecution has miserably failed to prove case against the petitioner under Section 380 IPC. The learned counsel for the petitioner has submitted that disclosure statement Ext.PW-3/F does not inspire confidence and the recovery made vide recovery memo Ext.PW-1/C on the basis of disclosure statement Ext.PW-3/F is suspicious and does not prove the case against the petitioner. He has submitted that house of the petitioner was searched on 12.1.1990 and in these circumstances there was no question of petitioner making disclosure statement on 19.1.1990. It has been submitted that PW-11 Vijay Kumar under the pressure of involvement in the case made the statement that recovery was made at the instance of petitioner. The learned counsel has also submitted that PW-1 complainant Tajveej Singh is an alleged witness of recovery memo Ext.PW-1/C, therefore, …5… identification of ‘Kara’ by complainant later in the S.P. Office is meaningless. The learned Deputy Advocate General has submitted that prosecution has proved the case beyond reasonable doubt against the petitioner. The two Courts below have concurrently held that the petitioner has committed offence punishable under Section 380 IPC. The scope in revision is limited and concurrent finding of fact recorded by two Courts below cannot be disturbed merely on the ground that other view is also possible from the evidence on record. 5. PW-1 Tajveej Singh has proved F.I.R. Ext.PW- 1/A. He has stated that jewellary and articles Ext.P-1 to Ext.P-4 were identified by him in S.P.Office. He identified ‘Kara’ Ext.P-2 of his wife which was taken into possession vide recovery memo Ext.PW-1/C. Ext.PW-3/F is the disclosure statement of petitioner. PW-7 Smt.Veena Kumari, wife of Tajveej Singh, in her statement has stated that she has seen ‘Kara’ Ext.P-2 which was stolen. PW-3 Manak Chand has stated that disclosure statement Ext.PW- 3/F dated 19.1.1990 of Soni Kumar was recorded in his presence and signed by him. In cross examination, nothing favourable to the defence could be extracted from PW-3 regarding disclosure statement Ext.PW-3/F. The recovery memo Ext.PW-1/C is signed by PW-1 Tajveej …6… Singh, PW-11 Vijay Kumar, PW-12 Satpal and PW-13 Suresh Kumar. PW-11 Vijay Kumar has stated that on 22.1.1990 Soni accused came to his shop along with police. The accused had sold one ‘Kara’ to him for Rs.3000. The accused told the police that he has sold the ‘Kara’ in his shop. At that time he came to know that it was a stolen article. He handed over the ‘Kara’ Ext.P-2 to the police which was sealed. The recovery memo Ext.PW-1/C bears his signatures. He has submitted that other witnesses were Satpal and Suresh Kumar. PW-12 Satpal has identified his signatures on recovery memo Ext.PW-1/C and he has also identified ‘Kara’ Ext.P-2. He has corroborated the statement of PW-11 Vijay Kumar. PW-13 Suresh Kumar has identified his signatures on recovery memo Ext.PW-1/C, he has also identified ‘Kara’ Ext.P-2. He has pointed out towards accused Soni who came along with the police on 22.1.1990 and told the police that he had sold Churi to Vijay. Thus, the disclosure statement Ext.PW-3/F of accused Soni and on the basis of disclosure statement recovery of ‘Kara’ Ext.P-2 vide recovery memo Ext.PW-1/C has been fully established. The learned counsel for the petitioner has submitted that the house of accused was already searched on 12.1.1990 and, therefore, there was no question of his making disclosure statement on …7… 19.1.1990. The ‘Kara’ was not recovered from the house of the accused, it was recovered from the shop of PW-11 Vijay Kumar, therefore, search of the house of the accused on 12.1.1990 had no nexus with the disclosure statement made by accused Soni on 19.1.1990 regarding ‘Kara’. The learned counsel for the petitioner has also submitted that once the ‘Kara’ was allegedly recovered in presence of PW- 1 Tajveej Singh complainant on 22.1.1990 then identification of ‘Kara’ in the S.P.Office later on was of no consequence, rather it creates suspicion regarding the recovery. PW-1 has signed the recovery memo Ext.PW- 1/C. He has nowhere stated that at the time of recovery of ‘Kara’ he had not identified the same. It appears many articles were recovered and, therefore, the Investigating Agency thought it proper to get the articles identified collectively and in that context PW-1 Tajveej Singh has stated that he identified the ‘Kara’ in the S.P. Office. This part of the statement of Tajveej Singh in no way affects the prosecution case. The two Courts below on the basis of material on record have concurrently held that the petitioner has committed offence under Section 380 IPC. The learned counsel for the petitioner has failed to point out that the view taken by two Courts below is not possible from the material on record. In State of Maharashtra …8… versus Jagmohan Singh Kuldip Singh Anand and others, (2004) 7 SCC 659, the Supreme Court has held that the provisions contained in Sections 395 to 401 Cr.P.C. read together do not indicate that the revisional powers of the High Court can be exercised as a second appellate power. The High Court is required to exercise self restraint in a revision under Section 397. In State of Kerala versus Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452, the Supreme Court has held as follows:- “… In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re- appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated …9… by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice…..” The learned counsel for the petitioner has failed to bring his case within the parameters laid by Supreme Court in Puttumana’s case (supra). 6. No other point was urged. 7. The result of the above discussion, the revision fails and is accordingly dismissed. Bail bonds of the petitioner cancelled. Sept. 8, 2008. ( Kuldip Singh ) (soni) Judge.