Man Singh and Another vs State of H.P.

Bhawani Singh, J.—This jail petition has been moved by the accused against rejection of their appeal by the Sessions Judge, Shimla in Criminal Jail appeal No. 23-S/10 of 1988 decided on 4-4-1988.

The accused were convicted u/s 357/380 read with Section 34 Indian Penal Code and were sentenced to various terms of imprisonment for each of the offences and these sentences have been ordered to run concurrently. The learned Sessions Judge allowed the appeal of Sita Ram alias Hasta Bahadur and declined to interfere in the appeals of Man Singh alias Ram Bahadur and Vijay Pal alias Ved Bahadur who are now Petitioners in this Criminal Revision Petition.

Since it was a Jail appeal and the accused were not represented by any counsel, Shri Bhupender Bhardwaj, Advocate was appointed to defend them.

The facts, briefly are that during the night of 10th and 11th February, 1988, a theft took place in the temple of Devta Sheshairing of Village Pangi in District Kinnaur. It was found by Sonam Guru, who had a tailoring shop nearby, that the door of the temple was open. He informed Charan Dass, Chowkidar of the village of this incident who immediately informed Shri Ram Krishan Mohtimim, Shri Jai Nand Cashier and other villagers regarding theft. These people came to the spot and found the locks of the door broken. They also found that the locks of three wooden Almirah were also broken in addition to the handle of Godrej Almirah that was kept inside the wooden Almirah. The thieves had taken away currency notes, silver coins lying inside the iron box, musical instruments, "Ransingha, Karnals" made of silver and other ornaments of Silver and Gold.

The matter was reported to the Police and the investigation started immediately thereafter. The police came to the spot without wasting any time and during the course of investigation, with the help of the villagers, some articles were found lying in Pangi Nallah out of which the Gold and Silver had been removed. These articles included moulds of Copper and Brass besides wood sticks of "Charries". These were taken into possession. The police party along with S.I. Roshan Lal and Ram Krishan Mohatmim and certain other persons went to Wangtu bridge during the night of 11-2-1988 to see that the thieves did not cross the area since this bridge is the only place to connect that part of the valley with rest of the area and this was the only place through which the accused could escape. During the night, this party found four persons approaching the bridge out of whom two were having some loads on their head while the other two were following them. Two persons who were carrying loads were intercepted and were later identified as Man Singh and Vijay Pal while the other two, on seeing the police near the bridge escaped in the darkness. Sita Ram was arrested at a latter stage and since he has been acquitted by the appellate Court and there being no appeal against this acquittal, there is no need to discuss his case in this judgment.

On the personal search of the accused, Vijay Pal was found carrying Silver pieces weighing 15 Kgs. 850 grams while Man Singh was found in possession of 687 grams of Gold in the shape of Idols and currency notes of Rs. 11,346/- besides two woolen Shawls (dohrus) which were relatable to the thefts committed from the "Kuthar" of Smt. Dawa Dolma, Bal Bahadur Singh and Jagdev since two "Dohrus" and two "Partus" were found missing from the "Kuthar" of Dawa Dolma, two "Dohrus", one Golden "Trimoli", one pair of golden tops, 1/2 Kg. of Silver pieces and currency notes of Rs. 1500/- were found stolen from the "Kuthar"of Shri Bal Bahadur. Of these, one "Dohru" of Smt. Dawa Dolma and Bal Bahadur Singh were found in possession of Man Singh and 1/2 Kg. Silver pieces belonging to Bal Bahadur Singh was found in possession of Man Singh. The trial ended in the conviction of all the three accused, while the fourth was not traceable. The appellate Court acquitted Sita Ram but maintained the conviction of the present accused. Shri Bhupender Bhardwaj learned Counsel for the accused submitted that this Court may examine the whole case in the interest of justice in order to ascertain whether the prosecution has been able to establish the case against the accused. Although the evidence has been assessed by the two Courts below and they came to the same conclusion, however, the matter has been examined again with the assistance of the learned Counsel for the parties to see that the accused, who have approached this Court through jail petition, feel that no injustice has been done to them.

It appears from the evidence that the thieves came to the notice of Sonam Guru who runs a tailoring shop quite close to the temple, in question. He informed Shri Charan Dass and collected the Villagers including Ram Krishan Mohtmim, Jai Nand Cashier and Gian Parkash, Pradhan. They found the locks of the front door of the temple in broken condition three almirahs inside the temple as well as the handle of the Godrej Almirah were also found broken. Articles like "Ransingha", "Karnals", Idols, "Chharies", coins etc. were found stolen. A list of the same was prepared and the matter was reported to the Police. Investigation was lodged immediately on the receipt of their report and police visited the spot. Everyone in the Village was alert. They were looking around and in this process certain remnants of some of these articles were found in Pangi Nallah. This material is rendered useless since the precious metal is taken away; however, the Police took in possession this material also.

Then ''Nakabandi'' was reported at Wangtu Bridge during the night of 11th February, 1988. It consisted of police officials as well as others like Bal Bahadur, Jagdev, Ram Krishan and Smt. Dawa Dolma. The accused were intercepted at this place and recoveries were made from them. They were identified there as well as in the Court since they were moving in the village on the day these thefts took place.

There is no merit in the contention of the learned Counsel that the prosecution examined the interested witnesses and left out the material witnesses in this case for the reason that the witness cited by the prosecution are the victims of the offence, their statements cannot be assailed on that ground alone. Moreover, the prosecution is not required to examine all the so-called material witnesses if it has produced some of them to substantiate the allegations.

Equally untenable is the next contention of the learned Counsel that the police did not conduct identification parade in this case. It was not necessary since the accused stood identified when they were caught at Wangtu Bridge along with stolen property. No injustice has been metted out to them on this account for the reason that their involvement in the present case has been established by the prosecution quite conclusively. The articles of theft have also been identified by the prosecution witnesses and have been recovered soon after the commission of these thefts. The record of this case further discloses that the accused have also past history of committing similar thefts. Therefore, in view of the evidence that has come on the record of this case, it cannot be said that the concurrent view taken by the courts below is erroneous or suffers from any other error. I also come to the same conclusion that has been arrived at by two courts below in this case.

Accordingly, the conviction is maintained, however, on the question of sentence Shri Bhupender Bhardwaj, Advocate made compassionate plea that the accused intend to lead a good life after release from the Jail. They are Nepali nationals and want to go back to their villages to settle their (Sic there?) with their families. Although the facts of this case do not call for any compassion being shown, yet, keeping in view the submission of the learned Counsel for them, the sentences imposed on them for the various offences are reduced by one year only. Other conditions of the sentence will remain the same which have been imposed by the trial Court. In view of the aforesaid discussion, the appeal is dismissed except as to the modification of the sentence to the aforesaid extent.