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2003 DIGILAW 388 (GAU)

Abdul Kuddus Borbhuyan v. State of Assam

2003-08-22

S.K.KAR

body2003
JUDGMENT S.K. Kar, J. 1. This is an application under Section 482, Cr PC, for setting aside the judgment dated 19.12.1994 passed by the learned Sessions Judge, Cachar, Silchar in Criminal Appeal No. 16(3)/94 upholding the conviction and sentences passed by the learned judicial Magistrate, 2nd Class, Silchar in GR Case No. 3279/90 under Section 379, IPC, convicting and sentencing the accused/petitioner for three months RI with fine of Rs. 400 in default 10 days RI. 2. The facts of the case briefly be stated are as follows. On 10.9.1990, a bullock belonged to Lalu Rabi Das after letting out for grazing did not return for which he was searching for it arid he also informed the VDP Personnel. Later on, he came to know that the Police personnel of Baskandi Police Station alongwith a bullock apprehended a person. He went there and identified the bullock as his own and came to know that the person who was apprehended by the Police alongwith the bullock was named as Abdul Kuddus Borbhuyan, son of Abdul Salem Borbhuyan. 3. An FIR was lodged to that effect and registered GR Case No. 3279/90. After investigation, the Investigating Officer submitted charge sheet under Section 379, IPC, Trial was held and the prosecution examined as many as eight witnesses. Both the Courts below after detail discussion of the evidence came to the finding that the accused petitioner was apprehended by the public on suspicion of bring in possession of stolen bullock and landed over to the Baskandi Police Station. PW 3, Sumsuddin Laskar, in his deposition stated that two persons came to sell a bullock at a very low price and he alongwith other suspected them and asked them to produce requisite documents in connection with the bullock. One of those two persons was sent to his village to bring documents but he did not return till the evening and accordingly, they handed over the accused petitioner along with the bullock to the Baskandi Police, and the Police apprehended the accused/petitioner and seized the bullock. This evidence was corroborated by oral testimonies of PWs 4, 6 and 7. There is nothing on record in their deposition to doubt about the credibility of their evidence. Further after getting information that the Baskandi Police have apprehended a person alongwith a bullock, the PW1, along with PW 2, went there and identified the bullock as his own. This evidence was corroborated by oral testimonies of PWs 4, 6 and 7. There is nothing on record in their deposition to doubt about the credibility of their evidence. Further after getting information that the Baskandi Police have apprehended a person alongwith a bullock, the PW1, along with PW 2, went there and identified the bullock as his own. Therefore, the evidence on record, it has clearly established that the accused person was found in possession of stolen property, i.e., the bullock and the accused petitioner failed to explain as to how he possessed the same. No evidence was adduced from the side of the accused/petitioner. The statements of the accused/petitioner recorded under Section 313, Cr PC, show that there was no specific plea except denial, PW 8, the Investigating Officer, has stated that on 12.9.1990, he received an FIR from PW 1 and made the GD entry and forwarded the same to the Lakhipur Police Station to register a case under Section 379, IPC. Thereafter he visited the place of occurrence, arrested the accused petitioner and seized the bullock in presence of witnesses, namely Lalu Rabi Das, Jagasish Rabi Das, Raghunandan Koll and Sirajuddin. On a query being made from the Court, this witness stated that "the alleged stolen bullock was caught with the accused at Rupaibali which is under Lakhipur Police Station. The alleged bullock was stolen, from Urrunaband TE which is under Undharbond Police Station". The evidence, of this witness has not been controverted or rebutted. Moreover, the evidence of the other witnesses affirmatively proved that they were the witnesses to the fact of apprehending the accused/petitioner along with the bullock and handing over him to the police. 4. On the basis of the materials available, on record, I find that the learned courts below have discussed the evidence threadbare and there is nothing to show any infirmity or illegality in the impugned judgment and order passed by the learned Courts below. That being the position, I am not inclined to interfere with the findings of the Courts below. However, in the facts and circumstances of the case, it appeals that there was no missing entry nor the FIR was lodged soon after the missing of the bullock, it was lodged only after the recovery was made by the Police and identification being made by the informant/owner of the bullock. However, in the facts and circumstances of the case, it appeals that there was no missing entry nor the FIR was lodged soon after the missing of the bullock, it was lodged only after the recovery was made by the Police and identification being made by the informant/owner of the bullock. Therefore, the ingredients of offence of theft movable property out of possession of any person without the consent of that person are not there. Here no witness has stated that the movable property, i.e., the bullock, was taken out nom the possession of the informant. But the informant has claimed the bullock as his own only after the same was recovered by the police and he only identified the same at the police station. The conviction should be shifted from Section 379, IPC, to one under Section 411, IPC. With this modification in the conviction sentence is maintained. Petition is rejected. Stay order of conviction and suspension of sentence stands vacated. The bail bond of the accused is cancelled. He is to surrender to Court below within 30 days from today failing which the trial Court to execute the sentence as per law. Petition rejected.