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1994 DIGILAW 832 (MP)

Malia v. State of M. P.

1994-11-15

RAJEEV GUPTA

body1994
JUDGMENT Petitiioner Malia has filed this revision petition against his conviction for an offence under section 380, IPC and sentence of R.I. for 2 years and fine of Rs. 500/- (in default 6 months R.I.) recorded by the Judicial Magistrate First Class, Panna in Criminal Original Case No. 37/90 through judgment dated 12.8.1991 affirmed in appeal by the Additional Sessions Judge, Panna in Criminal Appeal No. 51/91 vide judgment dt. 14.12.92. The petitioner was tried on the allegation that on 6.1 Ui9 he committed theft in the house of complainant Sonelal in village Saleha and took away cash amount of Rs. 1200/- and some silver ornaments. During the course of investigation on the information of the petitioner, the stolen ornaments were recorved. In the test identification proceeding these ornaments were identified by PW-l Sondal as the same which were taken away in the theft which took place in his house. The trial Court convicted the petitioner relying upon the evidence led by the prosecution to prove seizure of the stolen ornaments on the information of the petitioner and the evidence of indentification of these ornaments. In appeal the learned Additional Sessions Judge considered all the submissions of the petitioner/accused and after appreciating the same in the light of the evidence and material .on record affirmed the findings of the trial Court and also the conviction under section 380, IPC and sentences of 2 years R.I. and fine of Rs. 500/-. Hence this. revision. Shri S.L. Kochar, learned counsel for the petitioner though initially submitted that in the test identification memo there is no dale; in the test identification Parade sufficient number of articles were not fixed; prior to test identification parade, the articles were shown to Sanelal PW-1; but ultimately realising that all the above submission relate to facts of the case and the present proceedings being in exercise of revisional jurisdiction, confined his submission to the nature of the offence and the quantum of sentence. Shri Kochar, learned counsel for the petitioner submitted that as there was no direct evidence to implicate the petitioner with the alleged act of theft and the entire prosecution' case rests on the seizure of stolen ornaments on the information of the petitioner, the presumption to be drawn under section 114 (a) of the Evidence Act, can be at the most for an offence under section 411 IPC and the Courts below have erred in convicting the petitioner for an offence under section 300 IPC on the basis of the alleged seizure of stolen property alone, He also submitted that for an offence under section 411, IPC, the petitioner may not be sent back to jail, now after 5 years of the incident as he has already undergone jail sentence of about one month and has already deposited the entire amount of fine imposed by the trial Court. Shri D.B. Pendharkar, penal lawyer for the State submitted that looking to the facts and circumsk1nces of the case, the Courts below were right in convicting the petitioner for an offence under section 380 IPC and the sentences awarded by the Courts below cannot be said to be excessive. According to the prosecution, the then in the house of Sonelal took place on 6.11.89. The seizure of stolen ornaments took place on 23.3.90. that is after about 4 months of theft. The Law is now well settled that if there is sufficient time lag between the theft and seizure of stolen property, the presumption should normally be drawn for an offence under section 411 IPC and not for an offence under section 379/380 IPC. In the present case, the seizure of stolen property on the information of the petitioner was after about 4 months of the theft. There is no other evidence direct or indirect to indicate that petitioner Malla himself was the person who committed theft in the house of Sonelal. In view of the above lllentioi1ed facts and circumstances of the case, this Court is of the opinion that the presumption under section 114 (a) of the Evidence Act should be drawn only for an offence under section 411 IPC. The two Courts below appear to have over looked this material aspect of the case and have erred in convicting the petitioner for an offence under section 380 IPC. In the result this revision petition is allowed in part. The two Courts below appear to have over looked this material aspect of the case and have erred in convicting the petitioner for an offence under section 380 IPC. In the result this revision petition is allowed in part. The conviction of the petitioner and sentences of 2 years R.I. and fine of Rs. 500/- under section 380 IPC is set aside. Instead he is convicted under section 411 IPC and sentenced to the period already undergone by him, which is about one month, and to pay a fine of Rs. 500/- and in default or fine he shall undergo 6 months R.I. The petitioner shall deposit the amount of fine in the trial Court within 2 months from today if not already deposited.