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2003 DIGILAW 1246 (MP)

Mehrab Singh v. State of M. P.

2003-11-14

A.K.TIWARI

body2003
JUDGMENT This revision petition is directed against the judgment passed in Criminal Appeal No. 109/1998 by the Second Additional Sessions Judge, Shajapur (M.P.). Appellants were tried for the offence punishable under section 457 and 380 of the Indian Penal Code by the Chief Judicial Magistrate, Shajapur (M.P.) in Criminal Case No. 319/1996 and were convicted under the aforementioned Sections vide judgment dated 28.4.1998 and they were sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs. 250/- each under section 457 IPC. They were also convicted and sentenced under section 380 IPC to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- each. It was also directed that in default of payment of fine, they will have to suffer a further rigorous imprisonment for three months. Feeling aggrieved by the conviction and sentence awarded to them, they preferred an appeal which was rejected vide judgment dated 1.1.1999 passed, in Criminal Appeal No. 109/1998, by the learned Second Additional Sessions Judge, Shajapur (M.P.) and the conviction and sentence awarded to the applicants were maintained. Hence, this revision has been preferred by the accused applicants. The case of prosecution stated briefly is that the complainant Gheesu Khan (PW 1) owns a shop in Room No.1 of Village Panchayat, Sunera. On the day on which incident took place, he went to his home at 8.00 p.m. in night after closing his shop as usual. When his son kamaloo went to the shop next morning, he found the lock broken. When he opened the shuter, he found that articles in the shop were lying scattered all around. He returned to home and told him about the incident. Gheesu (PW 1) reached his shop and found that some one has stolen different articles valuing about Rs. 1,800/- from the shop. He then lodged report (Ex P-1) at out-Post, Sunera. Police prepared spot-map (Ex. P-2) and police arrested applicants and the stolen articles were recovered from them. The conviction of the applicants is based on the evidence of recovery of stolen articles from their possession. The articles are said to be recovered at the instance of the applicants from their houses. There is no evidence to the effect that no one other than the applicants was residing in the respective houses from where recovery is said to be made. The articles are said to be recovered at the instance of the applicants from their houses. There is no evidence to the effect that no one other than the applicants was residing in the respective houses from where recovery is said to be made. Even if, it is assumed that the articles were in the exclusive possession of the applicant, it is still to be proved that the recovered articles are the stolen articles. It has been observed in Para No. 21 of the impugned judgment that there are certain irregularities in test identification parade, but the same has not been given any weightage, on the basis of the findings of the trial Court in Para No.9 of its judgment. Trial Court has opined that there was no need for the identification as the articles were new one and there was no identification mark on them. This approach of the trial Court is not correct. This incorrect view has been endorsed by the Lower Appellate Court also. In order to convict accused person of the offence of theft on the basis of presumption, articles said to be recovered from the possession of the accused should be proved to be stolen one. In the present case, the evidence does not establish satisfactorily that the articles said to be recovered from applicants are the same which were stolen from the shop of Gheesu (PW 1). The findings arrived at by the trial Court and approved by the Lower Appellate Court is erroneous as it is not based on the sound principle of law. The prosecution evidence is altogether unsatisfactory and could not discharge burden of proof, yet the conviction has been based on it and such a conviction cannot be sustained in law. In view of the matter, the revision is allowed and the conviction and sentence awarded to the accused applicants are set aside. Amount of fine, if paid, be refunded to the applicants.