Dua, J. - (1.)Kalu Ram the accused-petitioner was convicted by Shri Permanand Gupta, Magistrate 1st Class, Delhi, on 21 12.1965 under section 380, Indian Penal Code, for having committed theft at the premises of the Irwin Hospital, New Delhi, by removing coins dishonestly from the public telephone call booth and sentenced to rigorous impisonment for one year. On appeal this conviction was upheld by the learned Additional Sessions Judge but the sentence reduced to rigorous imprisonment for three months. On revision in this Court, a learned Single Judge while admitting the revision, ordered release of the petitioner on bail to the satisfaction of the District Magistrate. I am informed by counsel at the bar that the petitioner has undergone rigorous imprisonment for one month.
(2.). The facts relating to the present case are that on 3-6-1965, the petitioner was seen at about noon time removing coins with the help of a piece of wire from the public telephone call booth installed in the Irwin Hospital building. New Delhi, Iswar Dass Chowkidar, who was on duty, saw the accused removing the coins and challenged him with the help of some other persons and indeed suceeded in apprehending him. This story is supported by Ishwar Das P. W. 1 who was the Chowkidar on duty and who gave the entire story in Court with sufficient clarity. His cross-examination, though lengthy, has not elicited anything which would discredit his testimony. It was of course put to this witness that there had been some controversy between him and the accused, the suggestion being that he had got annoyed with the accused, but it was categorically denied by the witness. Surinder Nath Public Witness .2. has corroborated the evidence of P.W.I. So has Inder Nath P. W. 3. It is also in evidence that when the accused was sought to be apprehended, he tried to escape but was caught by a police constable who was coming from the opposite direction. The cross-examination of Surinder Nath Public Witness . 2 has also failed to elicit anything derogatory to his credibility. The learned counsel for the petitioner tried to make capital out of non-production of the police constable who is stated to have caught the accused when he was trying to escape, but, in my opinion, his non-production is wholly immaterial because the real witnesses to the actual theft are Ishwar Das Public Witness .I, Surinder Nath Public Witness .2 and Inder Nath Public Witness .3. The police constable could only have deposed about the fact of getting hold of the accused when he was trying to escape. Non-production of this witness, therefore, does not by any means affect the prosecution case for theft of coins for which the accused-petitioner has been convicted. Bhola Ram Public Witness . 4 has proved the recovery of Exhibits P. I to P. 3 and also preparation of the site plan and Dr. S.S. Kaushal P.W. 5 lodged the report regarding the theft in question. The evidence which is believed by both the learned Magistrate and the learned Additional Sessions Judge is unimpeachable and it has completely brought home to the accused the offence of theft charged.
(3.). The learned counsel for the petitioner has also challenged the conviction of his client by submitting that the provisions of section 342 of the Code of Criminal Procedure have not been complied with in as much as he has not been questioned about the factum of his attempting to run away, but this again, in my opinion, is of no consequence because it is the positive and affirmative evidence of the eyewitnesses which completely establishes the guilt of the accused beyond any possibility of a reasonable doubt. The circumstance of his attempting to escape and of his being caught is merely an additional factor on which it is unnecessary to rely for the purpose of founding the guilt of the petitioner under section 380, Indian Penal Code.