Gurbachan Singh v. State

Order Pronounced on: October 21. 2011 + CrI. Rev.(P) No.631/2008 SURJEET SINGH Through: versus STATE OF NOT DELHI Through: Petitioner Mr.S.Nanda Kumar, Mr.Satish Kumar, Mr.R.Satish Kumar and Ms.Seema Singh Sul<la, Advocates Respondent Mr.Rajesh Mahajan, Additional Standing Counsel (CrI.) for State. CrI. Rev.(P) No.635/2008 GURBACHAN SINGH & ORS. Petitioners Through: Mr.Subhash Chandra, Advocate versus THE STATE Respondent Through: Mr.Rajesh Mahajan, Additional Standing Counsel (CrI.) for State. CORAM: HON'BLE MR. JUSTICE SUNIL GAUR

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Reporter or not?

¶3Whether the judgment should be reported in the Digest? Crl.Rev.(P) Nos.631/2008 & 635/2008 No. Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. SUNILGAUR. J.

¶1The impugned order of 11.11.2008 in the above two captioned revision petitions is common one and pertains to one incident. With the consent of parties, both these petitions were heard together and are being disposed of by this common order.

¶2Petitioners-Gurbachan Singh @ Raju and Surjeet Singh were accused of committing theft of truck No. DEL 7405 by getting it towed away from Azadpur Mandi, Delhi, by a crane hired from one Mohd. Kaiam, who had deputed his crane with a driver Mohd.Vakil and before the said truck could be taken out of the gate of the Mandi, the truck owner-Vishwanath, noticed that his truck was being towed away by the crane he raised the alarm and the petitioners present in the truck which was towed away were apprehended at about 8:00 p.m. on 17.5.1999.

¶3Both the petitioners had faced trial for the offence under Section of the IPG in FIR No. 282/99, registered at Police Station Jhangir Puri, Delhi in relation to this incident and though Vishwnath (PW-3), the owner of the truck, which was being stolen away, had not supported the prosecution version but the trial court had relied upon the deposition of Mohd. Kaiam (PW-2) owner of the crane who had stated that the petitioners had hired his crane for ?800/- and Mohd. Vakil, driver of the crane, had corroborated it, to convict the petitioner for the offence of attempting to steal the truck in question and had inflicted the punishment of rigorous imprisonment for one year with fine, which was unsuccessfully challenged in appeal.

¶4The same very contentions which were advanced before the Appellate Court have been reiterated by learned counsel for the petitioners. The contradiction regarding the time of this incident or about the hire charges being paid or not pale into insignificance in view of the Crl.Rev.(P)Nos.631/2008 & 635/2008 fact that the petitionerswere arrested at the spot and so it becomes immaterialthat the complainantPW-3 has not stated that the petitioner was present in the truck which was being stolen away. However, he had narrated as to how this incident happened. In any case there is clinching evidence of driver of the crane i.e. Mohd. Kalam (PW-2) which sufficientlyincriminates the petitioners.

¶5Ido not find any substance in the contention of the petitioners that simply because the arrest memo etc. are not witnessed by any independent person, the investigation of this case becomes tainted, as now-a-days public persons seldom come forward to become witnesses and so on this account, the prosecution case cannot be thrown out. Simply because owner of the truck has omitted to depose that the petitioners were inside the truck which was being stolen away, the otherwise reliable evidence of the crane driver PW-2 cannot be discarded.

¶6Upon perusal of the impugned order, I find that it is well reasoned and has aptly dealt with the submissions advanced on behalf of the petitioners and Ifind no illegalityor infirmityin the impugned order. Thus the conviction of the petitioners is upheld. However, on the quantum of sentence, I find that the trial court had called for the report of the Probation Officer who had recommended grant of probation to the petitioner-Surjeet Singh. Still, the trial court did not deem it proper to extend the benefit of probation to the petitioner in view of the nature of offence committed and the fact that 5-6 cases were pending against petitioner-Gurbachan Singh.

¶7It does find mention in the order on the point of sentence of the trial court that petitioner-Gurbachan Singh had remained behind bars for about one and half months and that he is the sole bread earner of his Crl.Rev.(P)Nos.631/2008&635/2008 Page 3 of4 family and has to maintain his parents. Regarding petitioner-Surjeet ingh rt standsnoted in the said orderthat he was aged 51 yearsand that he has family responsibilitiesto shoulderand has to maintainhis parentsand thathe had alsoremainedbehindbarsfor aboutafortnight ppellate Court has not considered the feasibility of releasing the pet,bonerson probationas no submissionswere made on the quantum ofsentence aspect.

¶8It cannotbe lostsightof that this incidenttook placeadecade ago and that there is no previousconviction to the discreditof the • petitionersand that they have faced the agony of these protracted proceedings.This Court has been assured by learnedcounselfor th^ petitionersthatalong periodofsufferanceoffacingthese proceedings and period of imprisonmentalreadysufferedwould surelyserve as a deterrent. So, to now send the petitioners behind bars to serve reminderof the sentence, would serve no purpose. Thus, instead of granting probationaftera lapse of considerabletime, the appropriate courseto adopt would be to reducethe substantivesentenceimposed upon the petitioners,to the periodalreadyundergoneby them.

¶9In the light of what is observed above, both the petitions are disposed of, while maintaining the conviction of the petitioners,the^ substantivesentence is reduced to the period already undergone by; them, subject to deposit of enhancedfine of ?5000/- each before the tnal court within four weeks, failing which the petitionersshall have to undergo SI for five months each.

¶10The trialcourtbe apprisedofthis orderto ensureits compliance. IIL GAUR) JUDGE October 21, 2011 hk Crl.Rev.(P)Nos.631/2008&635/2008 pgg^^ ^

IN THE HIGH COURT OF DELHI AT NEW DELHI % Order Reserved on: September 23. 2011