DALBIR SINGH Vs. STATE OF SIKKIM

JUDGEMENT

(1.) THIS Petition has been preferred against the impugned judgment dated 17.02.2011 of the learned Sessions Judge, Special Division-I, Sikkim at Gangtok in Criminal Appeal No. 15 of 2010 upholding the conviction and sentence passed by the learned Judicial Magistrate, First Class, North & East Sikkim at Mangan against the petitioner for the offence under Section 381 of the I.P.C., 1860.

(2.) THE brief facts of the prosecution case is that a written complaint was received from the Commandant, 8th Battalion Indo-Tibetan Border Police (ITBP) established at Pegong, Chungthang, North Sikkim, stating that a 9 mm Pistol Butt No.209 Body No.7366768, 9 mm CTN ­ 35 rounds and 2 Magazines were found missing from the "Koth" (Gun House) of ITBP at its border post at Naku, North Sikkim and that the accused/petitioner, a constable of ITBP Unit, had been caught with the arms, magazines and ammunition at Jind, Haryana and arrested by the Haryana Police. Based on such complaint, a case under Section 381 of the IPC was registered against accused/petitioner and investigation was taken up which, on completion, revealed that the accused/petitioner, who is a permanent resident of Bahadur Garh, Haryana, while being posted at 8th Battalion ITBP at Naku border post, Muguthang, North Sikkim, during the relevant time assisted one Havildar Naval Singh, who was In-charge of "Koth", in cleaning the arms stored therein. On one of such days, i.e. on 03.12.2005, the accused/petitioner allegedly stole from the "Koth" one 9 mm pistol, 2 magazines for the pistol and 35 live cartridges, which he concealed in a ruck-sack and managed to send to Muguthang unit on 05.12.2005 where he later went along with other ITBP personnel. On 10.12.2005, he left for his native village at Haryana. On 11.12.2005, the In-charge of the "Koth" discovered the arms and ammunition missing from the "Koth" and accordingly, informed the Assistant Commandant stating that he suspected the accused/petitioner of having stolen them, which resulted in the said Assistant Commandant lodging an FIR and subsequent arrest of the accused/petitioner and recovery of the arms and ammunitions from him at Haryana.

(3.) AFTER the trial, the learned trial Court found the petitioner guilty of the offence and sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs.5,000/- only for the said offence and further in default of payment of fine, to undergo further imprisonment for a period of six months.