Dharam Pal vs State of Haryana

M.L. Singhal, J.

The prosecution case in brief is that on 25.2.1997, Shri Narender Mohan Monga, Mining Officer, Gurgaon inspected the mines of village Kota and found Dharam Pal accused resident of village Kota getting stones extracted from the mines belong to Haryana Mines and Mineral Department with the help of 67 labourers. No contract had been given for the extraction of stones front he mines to Dharam Pal accused at village Kota. None had authorised him to extract the stones. On seeing government jeep approaching Dharam Pal, and the labourers, they ran away. Shri Monga reported the matter to H.C. Allah Baksh. On the basis of that report, case FIR No. 85 dated 26.2.1997 was registered under Section 379 IPC at PS Tauru. Dharam Pal accused was arrested. After investigation, he was challaned.

Dharam Pal accused was charged under section 379 IPC by the Magistrate on 19.9.1997. He pleaded not guilty to the charge and claimed trial. On the conclusion of the trial, Judicial Magistrate First Class, Nuh found the charge proved against the accused. He accordingly convicted him thereunder and sentenced him to undergo RI for 6 months and to pay fine of Rs. 2000/, in default of payment of fine, he ordered him to undergo further SI for one month.

Aggrieved from this order dated 14/15.7.1998 convicting and sentencing him passed by the learned Magistrate, Dharam Pal went in appeal to the Court of Session. Learned Additional Sessions Judge, Gurgaon dismissed the appeal vide order dated 1.4.1999.

Dharam Pal accused has come up in revision to this Court against the order of Additional Sessions Judge, Gurgaon dismissing his appeal against conviction and sentence passed upon him by the learned Magistrate.

I have heard the learned counsel for the petitioner and have gone through the record.

Learned counsel for the petitioners submitted that there is no corroboration to the statement of Shri Narender Mohan Monga PW2 and his lone statement should not form the basis for conviction. It was further submitted that the petitioner should not have been convicted under section 379 IPC as he is not shown to have transferred the alleged stones to his possession as he had allegedly run away from the place of occurrence. It was further submitted that the stones/mines were not shown to have been owned by the Mining Department of the State of Haryana. Suffice it to say, mines or minerals vest in the Mines Department of the State of Haryana. When the mines/stones were extracted from the mines dishonestly with a view to take it from the possession of the Mining Department, the offence of theft was committed. Offence of theft has been defined in Section 378 IPC in the following words :

"Section 378 Theft : Whoever intending to take dishonestly any moveable property out of the possession of any person without that person''s consent moves that property in order to such taking, is said to commit theft."

It is thus clear where there is dishonest removal of property out of the possession of a person in possession of that property with a view to its being taken, theft is constituted thereby.

Ownership of all mines and minerals in the State of Haryana vests in the State Government. Since mines of village Kota had neither been leased nor anyone had been given permit or licence to extract mines from the said mines, Dharam Pal was found extracting stones from the mines of village Kota. He had employed 67 labourers. He was seen breaking the said lines. Learned Counsel for the petitioner submitted that if there was any offence of theft, that offence was against the labourers because the labourers were extracting the mines. Suffice it to say, Dharam Pal was found standing with them and supervising the operation of extracting the mines.

It was submitted that Dharam Pal accused was not put up at test identification parade. Suffice it to say, Shri Narender Mohan Monga, Mining Officer has stated that they all had known Dharam Pal as he had earlier been coming in contact with them. He was already facing criminal prosecution. He had seen Dharam Pal from a distance of 3540 yards. He had identified him. Accused did not claim any identification during investigation. Learned Counsel for the petitioner could not point out any illegality or infirmity in the appreciation of evidence by the two courts below.

In my opinion, the petitioner was justifiably convicted by the courts below. Petitioner could not be released or probation of good conduct as he was committing theft of the stones belonging to the government. Sentence imposed upon him appears to be little excessive. Some consideration should have been shown to him while imposing sentence as the value of the stolen property was paltry. So, the sentence imposed upon the petitioner is slashed and brought down to 3 months RI. Sentence of fine shall remain unaltered together with the default clause.

Subject to this reduction in sentence, this revision fails and is dismissed.

Revision dismissed.