BASHIR AHMAD ZARGAR Vs. STATE

JUDGEMENT

(1.) THIS criminal 2nd appeal is directed against the judgment of the Addl. Sessions Judge, Srinagar dated 7-7-1976 maintaining the conviction of the accused appellant under Section 380 R. P. C recorded by the Judicial Magistrate (Judge Small Causes) Srinagar but modifying the order of sentence and reducing the term of imprisonment from eighteen months to six months and also fine to the tune of Rs. 100/ -.

(2.) BRIEFLY speaking the alleged prosecution version of the case is that on 5-10-1971 the appellant entered the shop of the complainant Mohd Yousuf Khan situate at Bohori Kadal, Srinagar, The accused broke the show-case and made away with a dozen of watches from there. During the course of investigation the accused was apprehended and two watches were recovered from his person. The remaining watches were recovered at the instance of the accused pursuant to a disclosure statement made by him to the police. One of the watches was recovered from Mehraj-ud-Din P. W. and the remainining were recovered from the house of the accused. The police submitted the charge sheet in the court of Judicial Magistrate (Judge Small Causes) Srinagar who tried the accused and convicted him under Section 380 and sentenced him to substantive term of imprisonment and also to pay a fine of Rs. 300/ -. On appeal the learned Addl. Sessions Judge upheld the conviction but reduced the sentence as mentioned above.

(3.) ON behalf of the appellant it has been argued that the conviction recorded by the trial Magistrate is liable to be set aside inasmuch as no questions in regard to the material circumstances appearing in evidence against the appellant were put to him by the trial court and that this has caused serious prejudice to the accused. It is submitted that according to the prosecution and the evidence led in the case, it was in consequence of the information given by the accused (vide his disclosure statement) that the incriminating articles were recovered. Two watches were also recovered from the person of the accused. But no questions in regard to these material circumstances appearing against the appellant were at all put to him. A further contention raised is that the appellant was of unsound mind at the time of the alleged occurrence and had been in the lunatic asylum for five months. He was under the treatment of a doctor. Although he produced a certificate of the concerned doctor in support of this fact and this was corroborated by the very P. W. this was not taken into consideration by the trial Magistrate. When this circumstance also was in evidence it was the duty of the trial court to exercise its power and discretion under Section 540 Cr. P. C. and summon the doctor in the court to substantiate this fact.