HARISH KUMAR Vs. STATE

JUDGEMENT

(1.) Present revision petitions have been preferred by the petitioners to challenge the legality and correctness of the judgment dated 01.05.2017 of learned Additional Sessions Judge in Criminal Appeal No. 18/2016, whereby the findings of conviction recorded by the learned Trial Court were endorsed. By a judgment dated 28.01.2016, the learned Metropolitan Magistrate had found both the petitioners guilty of commission of offences punishable under Sections 457/380/34 IPC. The petitioners were sentenced to undergo rigorous imprisonment for three years under Sec. 457 Penal Code and Sec. 380 Penal Code with fine of Rs. 5,000.00 each. Both the sentences were to run concurrently.

(2.) I have heard the learned counsel for the parties and have examined the file. On perusal of the record, it reveals that both the accused persons were apprehended at the spot inside the shop belonging to PW1 Vicky at around 4:15 am on 24.03.2012. The petitioners did not deny their apprehension and arrest at the spot. No plausible explanation was offered by them as to why they were present at the spot at odd hours without any specific purpose. Prosecution case is that the petitioners had gained access to the shop in question with an intention to commit theft. The owner of the shop, PW1 Vicky was not present at the shop that time and the petitioners entered the shop by using implements for breaking open the lock. Not only that, the petitioners committed theft of two mobiles which were subsequently recovered from their possession. These mobiles Exhibit P-1 (collectively) were identified by PW1 Vicky in his court statement.

(3.) Testimony of PW2 Constable Sheesh Ram is crucial, to infer the petitioners' guilt. He deposed that on 23.03.2012 he and Head Constable Naval Singh were on patrolling duty and when they reached at Bhogal flyover at about 4:15 am, they saw a TSR standing opposite the shop situated at 65B and the shutter of the shop was slightly open. He stopped the motorcycle and went near the shop. At that time, a boy came out of the shop and ran away. Thereafter, on search of the shop, they found both the petitioners present inside the shop. On interrogation, the witness came to know that the petitioners had entered inside the shop for committing theft. The information was conveyed to the police station on which ASI Ganga Prasad and Constable Satish came to the spot. On search of the petitioners, two mobile phones were recovered from them. Apart from above, a rod and a lock were also recovered from possession of petitioner Veer Pal; one screw driver and one lock were recovered from the possession of petitioner Harish. Petitioners did not explain as to how these implements of breaking house came to their possession and why they were carrying it with themselves.