PANKAJ ALIAS JAGGI ALIAS DIMPLE Vs. STATE

JUDGEMENT

(1.) BY the present petition the Petitioner seeks setting aside of order dated 22nd September, 2008 passed by the learned Additional Sessions Judge, upholding the order of conviction passed by the learned Metropolitan Magistrate and modifying the sentence awarded to the petitioner from rigorous imprisonment of six months to four months.

(2.) LEARNED counsel for the petitioner contends that the learned courts below failed to appreciate the facts of the case and passed the impugned judgments on conjectures and surmises. LEARNED appellate court failed to appreciate that during the cross-examination, PW1 has categorically stated that one generator set and a bicycle were stolen from his house however he was not having any document to prove the ownership of both the articles nor any effort was made by the investigating officer to prove that the alleged recovered articles actually belonged to the Complainant. There are material contradictions in the testimonies of the prosecution witnesses. LEARNED Appellate Court has further failed to appreciate that all the documents, site plan, seizure memo, pointing out memo could not be proved during the trial. The petitioner was initially arrested in case FIR No. 11/92, PS Kirti Nagar and thereafter arrested in the present case (FIR No. 447/1991). Cross- examination of PW7 SI Rameshwar Dayal could not be conducted due to his unavailability. Thus it is contended that the testimony of this witness cannot be read in evidence. Hence the prosecution has not been able to prove its case against the petitioner. The petitioner has no criminal antecedents and is not involved in any other case except the present one. The impugned orders of the learned courts below being illegal are liable to be set aside.

(3.) BRIEFLY the facts of the case are that on 17 th September, 1991 Complainant Gian Singh got FIR NO. 447/1991 under Section 380/411/34 IPC registered at PS Paschim Vihar. The complainant in the FIR had stated that in the intervening night of 16/17th September, 1991 one generator set (Birla Yamaha) Engine No. CD 910 8141 and one bicycle Hero Ranger (Red Colour) were stolen from his house. Subsequently the petitioner and co- accused Sukhbir were arrested in another case FIR No. 11/1992 registered at PS Kirti Nagar. During the investigation of the said case, the petitioner and the co-accused disclosed the commission of the present offence and at the pointing out of the accused persons, the Birla Yamaha generator set and Hero Ranger Bicycle were recovered from the house of petitioner Pankaj @ Jaggi. Thereafter the petitioner was arrested in the present case. After investigation, charge sheet was filed. After recording the statement of prosecution witnesses and statement of accused persons under section 313 Cr.P.C., the learned Metropolitan Magistrate vide judgment dated 18th April, 2007 convicted the petitioner and co-accused Sukhbir Singh for offences punishable under Section 411 IPC and vide order on sentence dated 24th April, 2007 sentenced them to undergo Rigorous Imprisonment for six months and pay a fine of Rs. 400/- each, in default of payment of fine to further undergo simple imprisonment for two days. Aggrieved by the judgment passed by the learned Metropolitan Magistrate, the petitioner and the co-accused Sukhbir preferred an appeal. Learned Additional Sessions Judge vide judgment dated 22nd September, 2008 while upholding the conviction of the petitioner and modifying the quantum of sentence awarded to him from Rigorous Imprisonment for six months to Rigorous Imprisonment for four months, acquitted the coaccused. These judgments of the learned Additional Sessions Judge and learned Metropolitan Magistrate are impugned in the present petition.