Judgment ( 1 ) ORDER : - This Criminal Revision Petition under S. 397 read with S. 401, Cr. P. C. has been filed against the appellate judgment dated 11-8-88 passed by the learned Addl. Sessions Judge, Bikaner, whereby the judgment and order convicting the accused-petitioner under S. 411, I. P. C. was upheld but, his conviction and consequential order of sentence under S. 379, I. P. C. was set aside. A sentence of one years R. I. was also imposed under the aforesaid section on the petitioner. His co-accused petitioner Megh Raj was, however, acquitted of offence under S. 379, I. P. C. ( 2 ) BRIEFLY stated the facts giving rise to the present petition are that P. W. 1 Ramesh Chandra is the registered owner of Java Motor-Cycle No. RJF 5353. It was on 18-8-82 at about 5. 30 p. m. that he had gone to the residence of one Dharm Pal, Advocate, situated in Rani Bazar, Bikaner. He parked his motorcycle out-side the residence of Dharm Pal. When he came out of the house, He found his motorcycle missing from there. Accordingly, he lodged F. I. R. No. Ex. P. 1 at the Police Station, Kotgate, Bikaner about the theft of his motorcycle on which F. I. R. No. 273/82 was registered and investigation was taken up. During the course of investigation, it was on 21-8-81 that Brij Ratan alias Sainti was found riding the motorcycle and driving it near Rani Bazar of Bikaner while accused Megh Raj was his pillion rider. P. W. 5ram Chandra, who was also posted at the Police Station Kotgate, Bikaner, happened to intercept the same and, he immediately apprehended both the motorcyclists and seized the motorcycle vide Ex. P. 3. recovery memo. It was on 22-8-82 that the accused-petitioner was also arrested vide Ex. P. 7 by Ram Chandra, A. S. I and, on interrogation, he gave Ex. P. 8 information purporting to be one under S. 27 of the Evidence Act to the affect that he had kept the monogram (Art. 1) of Lion, imprinted in metal, on a plate in the gummaria of his house and, consequently, he led Ram Chandra and his associates to the said place of his residence wherefrom, on 25-8-82, monogram (Art. 1) was recovered vide Ex. P. 4 recovery memo, P. W. 1 Ramesh Chandra was also present at the place of alleged recovery who immediately identified the monogram as the one which was fixed on the rear side of the motor cycle at the time of the theft. ( 3 ) ON completion of investigation, police filed a charge-sheet under Ss. 379 and 411, I. P. C. against all the three accused-persons in the court of Chief Judicial Magistrate, Bikaner. The learned trial Magistrate charged Brij Ratan as well as Megh Raj under S. 379, I. P. C, while the accused - petitioner was charged under S. 379, I. P. C. and, in the alternatively, under S. 411, I. P. C to which all of them pleaded not guilty. Consequently, the prosecution examined as many as seven witnesses in support of its case. ( 4 ) P. W. 1 Ramesh Chandra is the owner of the motorcycle. P. W. 2 Padma Ram and P. W. 3 Bhanwar Lal are "motbirs" who have supported recovery vide Ex. P. 3 of the Motor Cycle from the possession of Brij Ratan and Megh Raj as testified by P. W. 5 Ram Chandra. ( 5 ) P. W. 5 is the Investigating Officer who recover motor-cycle vide Exe. P. 3 from the possession of the said both the accused-persons who are not before this Court in this revision petition. Besides, he also arrested and interrogated accused-petitioner who gave him information about the monogram of the motorcycle which was lastly recovered vide Ex. P. 4, as is supported by P. W. 4 Tola Ram as well as P. W. 6 Heera Lal. ( 6 ) LASTLY, accused - persons were examined under S. 313, Cr. P. C. and they denied commission of theft of the vehicle or receiving the same and, lastly, any recovery from their possession. They did not adduce any defence evidence. Consequently, the learned Chief Judicial Magistrate, vide his judgment dated 19-3-84, convicted Megh Raj and Brij Ratan under S. 379, I. P. C, while Narayan Das petitioner was convicted under S. 379 and alternatively, under S. 411, I. P. C and a sentence of one years R. I besides a fine of Rs. 100/ - and, in default of payment of fine, one months S. I. , was imposed on each of the accused-persons. 100/ - and, in default of payment of fine, one months S. I. , was imposed on each of the accused-persons. Being aggrieved, Brij Ratan preferred Criminal Appeal No. 35/88 in the Court of Session, Bikaner which was dismissed, on being made over to it, by the learned Addl. Sessions Judge, Bikaner vide its judgment dated 22-6-88. As regards Megh Raj and Narayan Das, they preferred Criminal Appeal No. 33/88, which was also decided by the learned Addl. Session Judge, Bikaner vide his impugned judgment dated 11-8-88 and learned Addl. Sessions Judge while partly accepting the impugned judgment and order of sentence acquitted Megh Raj of offence under S. 379, I. P. C, consequently setting aside his sentence. However conviction of a present accused-petitioner was maintained under S. 411, I. P. C. While maintaining the order of the sentence it was further ordered that since there were as many as six similar appeals of the present petitioner being disposed of by the same court and hence sentences of imprisonment passed in all such criminal cases under appeals were ordered to run concurrently. However, being aggrieved by the appellate judgment, this revision has been preferred, as above. ( 7 ) I have heard and learned counsel for the petitioner and the learned P. P. and have also perused and considered the legality, propriety and regularity in the impugned judgment of both the lower courts along with the impugned judgment. ( 8 ) AT the out-set, it may be mentioned that so far as the appeal of Megh Raj is concerned, the same having been accepted by the lower appellate Court, he stands acquitted of offence under S. 379, I. P. C. However, conviction and sentence of Brij Ratan under S. 379, I. P. C. was affirmed by the appellate court and it does not appear from the record that whether the same was similarly challenged by way of filing a criminal revision or not. ( 9 ) AS regards accused-petitioner Narayan Das, suffice it to say, that there is absolutely no evidence to show that he had received monogram (Art. 1) recovered from his possession, as above. Besides, it may be mentioned that P. W. 1 Ramesh Chandra was not required by way of test identification parade during the course of investigation to identify Art. 1 along with other similar articles mixed there along with before any Magistrate. Besides, it may be mentioned that P. W. 1 Ramesh Chandra was not required by way of test identification parade during the course of investigation to identify Art. 1 along with other similar articles mixed there along with before any Magistrate. Besides, though P. W. 5 Ram Chandra Investigating Officer has stated that he received Ex. P. 7 information on 28-8-82 pursuant to which he recovered Art. 1 vide Ex. P. 4 but he also arranged presence of P. W 1 Ramesh Chandra at the time of the alleged recovery and unless there was some mystery or Investigating Officer purposely wanted to avoid necessity of holding test identification parade of the recovered monogram, the presence of P. W. 1 Ramesh Chandra at the sight of the occurrence was unwarranted. Besides, Exe. P. 4 recovery memo also does not support the facrtum of presence of Ramesh Chandra himself. In the circumstances, since from evidence of Ramesh Chandra himself also it could not be denied that monogram similar to Art. 1, which was got prepared at Jaipur, could be available in abundance and therefore, in absence of any subsequent distinguishing mark of identification on Art. 1, could not be easily identifiable. Therefore, merely on the basis of Art 1 which was never put to test identification during the course of investigation and, at the time of examination of Ramesh Chandra during the trial as well, there were no similar articles mixed with Art. 1 and, therefore, Ramesh Chandra did not have any difficulty to point out the single Art 1 which is further alleged to have been recovered in his presence at the instance and on the information of the accused-petitioner. Besides, though directly not relevant, P. W. 1 Ramesh chandra admitted himself that the motor-cycle which was stolen was seen by him on the next day of the occurrence parked outside the Police outpost Rani Bazar whereas the police has brought forward a story that the two co-accused persons who were also so challaned and tried along with the accused-petitioner, were intercepted while they were proceeding on the motor-cycle on 21-8-82 and not before. As a result, it casts serious doubt on the probity of evidence adduced by the prosecution specially that of P. W. 5 Ram Chandra. ( 10 ) BESIDES, as regards recovery of Art. 1 monogram on the alleged information Ex. As a result, it casts serious doubt on the probity of evidence adduced by the prosecution specially that of P. W. 5 Ram Chandra. ( 10 ) BESIDES, as regards recovery of Art. 1 monogram on the alleged information Ex. P. 7 stated to have been furnished by the accused-petitioner, by P. W. 5 Ram Chandra, there are material contradictions in the statement of P. W. 5 Ram Chandra, P. W. 4 Tola Ram, P. W. 6 Heera Lal, P. W. 5 Ram Chandra has stated that the key of the gummaria were from Art. 1 was recovered simultaneously from the possession of the accused-petitioner at the time of his arrest and the same was deposited in the Malkhana of the Police Station. However, no Malkhana Record has been produced in support of this statement of Ram Chandra. Besides, there is no mention of such key in Ex. P. 4 recovery memo as well. P. W. 4 Tola Ram has stated that a person was dispatched to the house of Bachu Shrimali to fetch key of the lock place on the gummaria but since the same could not be procured and, as a result, lock was broken. On the contrary, P. W. 6 Heera Lal stated that P. W. 5 Ram Chandra who gave key of the lock placed on the gummaria to Naryaan and asked him to unlock the same who obliged him. Neither Brij Ratan nor Megh Raj gave any information that either of them had parted with monogram (Art. 1), which was fixed on the rear side of the motor-cycle, as is the statement of P. W. 1 Ramesh Chandra. Therefore, there is no evidence from the side of the prosecution to prove beyond reasonable manner of doubt that the monogram which is alleged by P. W. 1 Ramesh Chandra to have been got prepared at Jaipur and fixed on the motor-cycle, as above, was the same (Art. 1) recovered, allegedly, at the instance and from eh possession of the petitioner. Besides, it is also not proved beyond reasonable manner of doubt that the same was recovered pursuant to the information Ex. P. 7 given by the petitioner and that too from his possession vide Ex. P. 4. Besides, it is also not proved beyond reasonable manner of doubt that the same was recovered pursuant to the information Ex. P. 7 given by the petitioner and that too from his possession vide Ex. P. 4. ( 11 ) BESIDES, monogram (Art. 1) is very common article, and in absence of identifiable and distinguishing features and marks as well as absence of evidence about the price of the monogram, it is not a costly item and there is absolutely no evidence that the accused-petitioner before obtaining the monogram (Art. 1) either knew or had reasons to believe that the same was stolen one. There is no linking evidence to show that the petitioner could have obtained monogram (Art. 1) from Brig Ratan after alleged theft of the motor-cycle to which a monogram, as stated by P. W. 1 Ramesh Chandra, was fixed. Besides, there are also contradictions in the statement of P. W. 4 Tola Ram as well as P. W. 6 Heera Lal in regard to recovery of other stolen property from the possession of the petitioner along with monogram (Art. 1) P. W. 5 Ram Chandra has also purposefully pleaded ignorance in this respect. It further shows that monogram (Art. 1) could not have been recovered in the manner as indicated by the prosecution witnesses, as stated above. ( 12 ) HAVING regard to the above discussed fact and circumstances and the improbabilities and inconsistencies brought about in the prosecution evidence. The prosecution has failed to prove that monogram (Art. 1) was recovered from the exclusive possession of the petitioner and that the same was stolen along with the motor-cycle recovered from the possession of Brij Ratan and, as a result, it is also not proved that eh accused-petitioner, in case it is so assumed, received and possessed monogram (Art. 1) either knowing or having reasons to believe that the same was stolen one as defined under S. 410, I. P. C. ( 13 ) THEREFORE, in view of the above discussion, the prosecution had failed to prove guilt of the accused-petitioner under S. 411. I. P. C. And therefore, the impugned judgment of the trial court resulting in conviction of the accused-petitioner with consequential order of sentence and so also the impugned appellate judgment resulting in affirmation of the order of conviction and sentence, as above, are contrary to evidence and based on erroneous view of the prosecution evidence resulting in perversity and, therefore, this revision deserves to be accepted. ( 14 ) CONSEQUENTLY, this revision petition is accepted and, as a result, the impugned judgment of the trial curt as well as the appellate judgment of the learned Addl. Sessions Judge, Bikaner thereby affirming the judgment of conviction of the petitioner under S. 411, I. P. C. are hereby quashed and sentenced so imposed on petitioner is set aside. In case the petitioner is in custody undergoing sentence, he shall be immediately set at liberty in case he is no longer required in other case. ( 15 ) THE revision petition is disposed off as indicated above. Revision allowed.