Baltar Singh vs State of Punjab

B.S. Yadav, J.

The prosecution case, in brief, is that PW 1 Madan Lal, owner of truck bearing registration No. PUV 4735 took his truck loaded with rice bags to the Railway godown, Jalalabad. After the truck of Madan Lal had been unloaded, Baltar Singh accused came to him and engaged him in talks about the truck. Baltar Singh then said that he wanted to see the running of the engine of the truck. Baltar Singh sat on the driver''s seat of the truck of Madan Lal. He started the engine and then drove it away. PW 3 Shingara Singh and others were also present at that time and witnessed the occurrence. PW 1 Madan Lal went to Police Station Jallabad and lodged report Ex. PA about theft of his truck. Later on Babu Singh S.I., Station House Officer, Jalalabad recovered that truck from the accused in the presence of PW 2 Phuman Singh. After necessary investigation, the accused was chargesheeted.

Baltar Singh accused when examined under Section 313 of the Criminal Procedure Code, denied the prosecution allegations and pleaded that he had earlier purchased a truck from Madan Lal and had spent about Rs. 22,000/ to 23,000/ on its repair and he was demanding that amount from him (i.e., Madan Lal) and on that account there was a dispute between them and he has been falsely involved in this case.

In this defence, the accused also led evidence to show that the truck alleged to have been recovered from him was being used by him for Kar Sewa for Gurdwara Harmandir Sahib Amritsar for a couple of months and that he had purchased it for Rs. 70,000/ from M/s. Ganga Singh Ram Chand of Delhi. He also led evidence to show that the story about the recovery of the truck was a false one. It may be mentioned here that at the time when the truck was recovered it bore registration No. PUP 306.

The learned Judicial Magistrate, Fazilka, who tried this case had found the accused guilty. Accordingly, he convicted him under Section 379 Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 200/. Sentence of imprisonment in default of payment of fine was also awarded. Feeling aggrieved, Baltar Singh accused filed appeal was heard by the learned Ist Additional Sessions Judge, Ferozepur. He upheld the conviction and sentence of the accused and dismissed the appeal. Baltar Singh accused has now filed this revision petition against his conviction and sentence.

Learned counsel for the petitioner tried to argue that Madan Lal PW 1 has not been able to establish his ownership of the truck alleged to have been taken away by the petitioner. Both the learned courts below have given a concurrent finding that the truck in question belonged to Madan Lal PW 1 and that it was taken away by the petitioner in the manner stated by the prosecution. In such circumstances, the prosecution evidence cannot be appraised again. In this respect reference can be made to State of Orissa v. Nakula Sahu and others AIR 1979 SC 663. Wherein it was remarked :

"So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under Section 439 read with Section 435 of the Code of Criminal Procedure, 1989 is as wide as the power of Court of Appeal under Section 423 of the Code, it is now wellsettled that normally the jurisdiction of the High Court under Section 439 is be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on the point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to decisions of this Court in Amar Chand Aggarwal v. Shanti Bose 1973(4) SC 10 : (AIR 1973 SCC 799 and Akalyu Ahir v. Ramdeo Ram 1973(2) SCC 583 : (AIR 1973 SC 2145). In the later case, viz. Akalu Ahir v. Ramdeo Ram (Supra) this court following its earlier decision in Amar chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of Section 435 of the Code of Criminal Procedure, 1989, which empowered it to satisfy itself as to the correctness, legality or propriety of any findings sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of an proceeding of such inferior court and spite of the fact that under Section 439 of the code it can exercise inter alia the power conferred in a court appeal under Section 423 of the Code the High Court is not expected to act under Section 435 or Section 439 as if it is hearing an appeal."

Learned counsel for the petitioner has not been able to point out any defect in the procedure or any manifest error on a point of law. Therefore, the finding of the learned courts below which are based on admission evidence cannot be upset in exercise of revisional jurisdiction of this Court.

Learned counsel for the petitioner further argued that it is the prosecution case itself that at the time of the recovery of the truck, the strip bearing engine number was not present and the chasis number had been disfigured and it is not understood how the learned trial court was able to compare the chases number of recovered truck of registration certificate of the stolen truck and came to the conclusion that the recovered truck was the same which was stolen. He was further argued that the Investigation Officer was not examined to support this recovery. I need not dilate on these arguments as the learned lower appellate court has already held the prosecution story about the recovery of the truck has doubtful. Therefore, even if it is held that the recovered truck was not the same which the accused had taken away it cannot be said that the offence of theft had not been committed. The offence of theft was complete when the accused drove away the truck of Madan Lal. Hence the accused has been rightly convicted under Section 379 of the Indian Penal Code.

However, considering the circumstances of the case I am of the opinion that the learned courts below should have given the benefit of Probation of Offenders Act to the present petitioner. From the statement of Madan Lal PW 1 and the plea of the accused it is clear that earlier a dispute had crept in between the parties over the sale of truck. According to PW 1 Madan Lal, earlier he had sold a truck for Rs. 41,000/ to the accused but he had paid only Rs. 5,000/ and when the accused did not pay the remaining amount he went to the place of the accused and brought back that truck. The plea of the accused is that he had spent about Rs. 22,000/ to 23,000/ over that truck and he was demanding that amount from PW 1 Madan Lal but he did not pay. The accused had put his case to PW 1 Madan Lal when he appears in the witnessbox but he denied it. It appears that on account of the earlier dispute the accused had taken away the present truck. The accused is a first offender.

Hence for the foregoing reasons I maintain the conviction of the accusedpetitioner but set aside his sentence of imprisonment and fine and release him on probation of good conduct for a period of two years under Section 4 of the Probation of Offenders Act on his entering into a bond in the sum of Rs. 5,000/ with one surety in the like amount and to receive sentence when called upon during the above period and in the meantime to keep the peace and be of good behaviour. The accused is also directed to pay Rs. 500/ as costs of the proceeding to the State.

The above bonds to be filed within two months from today to the satisfaction of the trial Court failing which the revision petition shall stand dismissed.