Ashok Kumar vs State of Union Territory of Chandigarh

P.K. Jain, J.

Criminal Revision No. 236 of 1996 and Criminal Revision No. 253 of 1996 are directed against the judgment dated 27.3.1996 passed by the Additional Sessions Judge, Chandigarh whereby the conviction of the petitioners for an offence under Section 382 I.P.C. recorded by the Judicial Magistrate, Chandigarh vide judgment date 21.1.1994 has been confirmed, although sentence has been reduced and each of the three petitioners has been ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/ which fine stands already deposited.

The necessary facts for the disposal of these revision petitions are that the complainant Suresh Kumar along with his wife Smt. Kanta and children has been residing in House No. 2456, Sector 40C, Chandigarh. On the night intervening 5/6th of May, 1990. he allong with his wife and children was sleeping in his house. His two servants were sleeping in the rear courtyard of the house. At about midnight one of his servants knocked at the gate to take drinking water. When Smt. Kanta opened the door, three Sikh young boys entered the house. They were of the age group of 18 to 20 years and their height was about 5''6'' to 5''8". Two of them who were having knives in their hands caught hold of him and the third who was having pistol type article in his hand caught hold of his wife. They asked them to hand over whatever Smt. Kanta had. She took off and delivered her gold chain, gold earrings and gold ring to those boys. Then they opened the almirah of the store and took out an amount of Rs. 7000/Rs. 8000/ in cash lying therein. They extended a threat and escaped. One of their accomplices was standing outside the house to whom they could not recognize.

On the receipt of the information regarding the incident, S.I. Harbans Lal of Police Station Sector 39, Chandigarh reached the spot, recorded the statement of Suresh Kumar Ex.PA, made his endorsement Ex.P.3/A thereunder on the basis of which formal F.I.R. was recorded, carbon copy of which is Ex.PW.3/B.

On 6.9.1990, petitioner Ashok Singh was apprehended in case FIR No. 4 of 1990 for an offence under Section 25 of the Arms Act, registered at Police Station Sector 36, Chandigarh. During interrogation he disclosed having committed the theft at the house of the complainant Suresh Kumar on the aforesaid intervening night. He further disclosed that the ear rings fell to his share which he had kept in his jhuggi. In pursuance of the disclosure statement, the pair of the earrings was recovered and was taken into possession after converting the same into a sealed parcel. On 11.9.1990, the complainant Suresh Kumar produced the petitioners Ramesh Kumar and Sandeep before the police. Ramesh Kumar produced one gold ring from the left pocket of his pant and the petitioner Sandeep produced one gold chain from the pocket of his shirt and handed over to the police. These articles were taken into possession after converting the same into sealed parcels vide two separate recovery memos. During investigation the recovered case property was got identified before the Executive Magistrate in accordance with the procedure laid down. After completing the investigation, a chargesheet was submitted against all the three petitioners.

A charge under section 382 I.P.C. was framed against all the petitioners to which they pleaded not guilty and claimed trial.

6.In support of its case, the prosecution examined seven witnesses including Suresh Kumar complainant (PW1) and Smt. Kanta Rani (PW.2) who are star witnesses of the prosecution. Inspector Harbans Lal (PW.3), A.S.I. Surinder Kumar (PW.4), S.I. Balwan Singh (PW. 5) are connected with the arrest of the petitioners, recovery of the stolen articles and identification of the case property by the complainant and his wife before Shri Ashwani Kumar Sharma (PW. 7), the Executive Magistrate, Estate Office, Chandigarh.

In their statements recorded under Section 313 Cr.P.C., the petitioners denied the allegations of the prosecution and pleaded false implication. They denied the recovery of any article as alleged by the police. No evidence in defence was produced by them.

On an appraisal of the evidence produced before him, the trial Magistrate convicted all the three petitioners for an offence under Section 382 I.P.C. and sentenced each of them to undergo rigorous imprisonment for two years and to a fine of Rs. 500/. The fine was paid. The appeal filed against the conviction and sentence was partially allowed by the Additional Sessions Judge. The conviction was confirmed and sentence was reduced as stated above. Feeling aggrieved the petitioners have come to this court under Section 401 of the Code of Criminal Procedure.

I have heard learned counsel for the parties and have perused the record.

The sole argument advanced at the Bar by Shri D.S. Chimni, Advocate, the learned counsel for the petitioners is that on the basis of the evidence produced by the prosecution, no offence under Section 382 I.P.C. is made out and the petitioners could be convicted only for an offence under Section 411 I.P.C. It has been contended by the learned counsel that the occurrence in question took place on the intervening night of 5/6th May, 1990, petitioner Ashok Singh was arrested on 6.9.1990 and the remaining two petitioners were arrested on 11.9.1990 i.e. the petitioners were arrested and recoveries were effected after about four months of the incident. In these circumstances, the learned counsel has argued that at the most a presumption can be raised that the petitioners were found to be in possession of stolen property having the necessary knowledge to that effect and they could be convicted for an offence under Section 411 I.P.C. It has been further argued by the learned counsel that the petitioners are first offenders and there is no criminal history against them and as such they should be treated under Section 360 of the Code of Criminal Procedure or under the provisions of the Probation of Offenders Act, 1958.

On the other hand Shri Gautam Dutt, learned counsel for Union Territory, Chandigarh has argued that the complainant Suresh Kumar (PW. 1) and his wife Smt. Kanta (PW2) have specifically identified the accused to be the persons who had robbed the latter of her gold ornaments at the point of knives and pistol type article and that the petitioners had committed a theft of Rs. 7000/Rs. 8000/ from an almirah of the store of the house of the complainant and thereafter they had escaped after extending a threat. The learned counsel has argued that the necessary ingredients of Section 382 I.P.C. have been fulfilled and proper sentence has been imposed upon the petitioners.

I have given my careful thought to the respective arguments advanced at the Bar.

It may be stated at the cost of repetition that the incident in question took place on the intervening night of 5/6th May, 1990. First Information Report was recorded on the statement (Ex.PA) made by the complainant Suresh Kumar (PW1) on the same night, and on the basis of that statement, First Information Report of this case was registered. In this entire statement, Suresh Kumar never disclosed that any of the three culprits or their fourth associate standing outside his house was ever his employee. He never met the police after this incidence before 6.9.1990 when petitioner Ashok was arrested in a case under the Arms Act. If any of the petitioners had been in the employment of the complainant and if Suresh Kumar and his wife had recognized that employee to be one of the those three culprits, they could have intimated the police at least after one to three days of the incident when they had composed themselves. But admittedly they never went to the police, nor disclosed that any of these culprits was one time an employee of the complainant. This story appears to have been put forward only to avoid the necessity of test identification parade in respect of the petitioners to be the persons who had committed theft at the house of the complainant.

It may be clarified that although the testimony of Suresh Kumar (PW1) and Smt. Kanta (PW. 2) is wholly acceptable regarding the commission of theft of jewellery and cash in their house on the day of the occurrence by three Sikh young persons and also relating to the identification of the case property to be the same which had been taken away by the culprits on that day, yet their testimony regarding identification of the petitioner Sandeep to be one of their employees or that the other two petitioners are the same persons who had committed theft at their house, is not acceptable. The obvious reason is that as regards Sandeep, his name was not disclosed either by the complainant or his wife and as regard the other, no request for test identification parade was made to the Magistrate nor any such test identification parade was ever held during investigation. The testimony of both these witnesses regarding identification of these three petitioners for the first time in the court is not acceptable in the eyes of law.

The necessary conclusion from the above discussion is that the petitioner Ashok was arrested on 6.9.1990 and he was found to be in possession of stolen gold earrings. It is further established that the other two petitioners were arrested on 11.9.90 and each of them was found to be in possession of stolen gold ornaments of Smt. Kanta. In their statements recorded under Section 313 Cr.P.C., the petitioners have not given any explanation as to how they came into possession of the stolen property. The fact that the petitioner Ashok had concealed the stolen gold earrings in his hut is enough to presume that he was in possession of stolen property with the knowledge that the same was stolen one. Similar presumption is to be raised against the remaining two petitioners who had been produced by the complainant before the police on 11.9.90 and the stolen jewellery of Smt. Kanta was produced by them before the police. Therefore, the petitioner can be said to be guilty of an offence under Section 411 I.P.C. only. By no stretch of imagination it can be said that they are guilty of an offence under Section 382 I.P.C. Both the courts below fell in error in appreciating the evidence available on the record.

As regard the sentence, it is not disputed at the Bar that all these three petitioners are not previous convicts, nor there is any criminal history against them. They are of the age group of 18 to 20 years. The offence under Section 411 I.P.C. is punishable with a maximum imprisonment of three years. I do not find any reason for not invoking Section 360 of the Code of Criminal Procedure to the present case.

For the reasons mentioned above, these revisions succeed in part. The conviction of all the three petitioners under Section 382 I.P.C. is set aside and they are convicted for an offence under Section 411 I.P.C. The sentence imposed upon them is also set aside. Each of the three petitioners is directed to be released on probation of good conduct on his entering into a bond in the sum of Rs. 500/ with one surety in the like amount, for one year, to appear and receive sentence as and when called upon during such period by the court and in the meantime to keep peace and be of good behaviour. The amount of fine paid by the petitioner is converted as the costs of litigation payable to the State.