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1978 DIGILAW 720 (MP)

Vijay Kumar v. State of M. P.

1978-09-25

A.R.NAVKAR

body1978
Short Note : 1. This is a revision petition under section 439 of the Code of Criminal Procedure against an order of conviction recorded by Shri R.P. Upadhyay. Additional District Magistrate J. Guna in Criminal case No. 384 of 1972, dated 24-4-1973, convicting the petitioner under section 379 IPC and sentencing him to one year's rigorous imprisonment, which is confirmed in appeal by the Sessions Judge, Guna, but sentence reduced to six months rigorous in rigorous. 2. The submission before me by the learned counsel is that the recovery of the alleged stolen articles is from Paraskumar (P.W.9) and not from Vijay Kumar Mane at all. Secondly, he submits that on the same evidence of recovery, accused Harikishan has been let off, while Vijay Kumar Mane is convicted. Therefore, on this short ground also, the applicant is entitled for an acquittal. Then he submits that when the recovery is from Paraskumar (P.W.9) and when the bag which was alleged to contain the silver pieces which wall given to Paraskumar (P.W.9) is not seized and brought before the Court, then the story of the prosecution regarding handing over of the containing silver pieces to Paraskumar (P.W.9) should be disbelieved. Held : I think that the objections raised by the learned counsel have some force and they require consideration in deciding the guilt which has been fastened against the applicant by both the Courts below. The incident is dated 8-2-1972 in the night and it happened at the M.P. State Road Transport Corporation bus stand at Guna and the report is lodged at 12.30 p.m. on 12-2-1972 by Paraskumar son of Laxmipati. Paraskumar is examined as P.W.9. In his statement he has given no explanation as to why he lodged the first information report so late when he came to know of the incident on 9-2-1972. Delay of four days creates a serious doubt in my mind regarding the genuineness of the story put forward by the prosecution. 3. The seizure memo. Ex. P/2. It mentions that in the presence of Gopaldas and Suresh Kumar, one canvas bag was produced by Paraskumar (P.W.9.) and stated that it contains 18 pieces of silver which were stolen on 8-2-1972 by Vijay Kumar Mane. The silver pieces were seized, but I fail to understand why the bag is not seized by the Police. Ex. P/2. It mentions that in the presence of Gopaldas and Suresh Kumar, one canvas bag was produced by Paraskumar (P.W.9.) and stated that it contains 18 pieces of silver which were stolen on 8-2-1972 by Vijay Kumar Mane. The silver pieces were seized, but I fail to understand why the bag is not seized by the Police. The alleged canvas bag, in my opinion is the most important evidence in this case. It would have been helpful to prove that this bag belonged to Vijay Kumar Mane and it contained 18 silver pieces but this main chain in the story of the prosecution is lacking. It will be better to say here that no witness says that this bag was handed over by Vijay Kumar Mane to Paraskumar (P.W.9) and in fact, they saw that this bag contained silver pieces alleged to have been stolen. 4. There may be a possibility that there was a chance to commit the theft of the alleged goods, but this chance could have been utilised by so many persons who were in the bus, that means, the driver, the conductor, the spare driver and other persons also. A suspicion, howsoever strong, will not make the party guilty of the offence, The offence must be brought home by connecting all the links against the accused. Here as I have mentioned above, many links are missing in the case. The statements of witnesses are contradictory to each others as far as recovery, place of handing over of the bag and opening of the bag is concerned. The bag is not seized by the police and produced by the prosecution. The recovery of the goods was made from Paraskumar (P.W.9) which were said to be contained in this bag itself. Therefore, taking into consideration all these facts, I am of the view that the conviction against Vijay Kumar Mane under section 379 IPC cannot be maintained. Revision allowed.