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2003 DIGILAW 405 (BOM)

Manoj Ramesh Mishra v. State of Maharashtra

2003-04-07

S.T.KHARCHE

body2003
JUDGMENT - KHARCHE S.T., J.:---Rule. Rule made returnable forthwith by the consent of the parties. 2.Heard Mr. Deshpande, learned Counsel, for the applicant and Mr. Yengal, learned A.P.P., for the respondent/State. 3.This criminal revision is directed against the judgment and order dated 15-1-2002 passed by the learned Additional Sessions Judge, Akola, in Criminal Appeal No. 24 of 2002, whereby he upheld the conviction of the appellant for the offence punishable under section 379 of Indian Penal Code awarded on 20-5-2000 by the learned 10th J.M.F.C., Akola, in Regular Criminal Case No. 148 of 1998 and modifying the sentence and imposing the sentence of simple imprisonment till rising of the Court and to pay a fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for two months. 4.Brief facts are as under: Complainant Anita (P.W. 3) was working at the relevant time as a peon in the office of Superintendent of Police at Akola. The appellant/accused was also in the employment in the same office as Police Head Constable. It is alleged that on 10-2-1998 the complainant Anita had parked her luna on the cycle stand of the office premises. On that day, at about 5.30 p.m. she saw the accused taking away her luna without her permission and consent. She, therefore, lodged a report (Exhibit 19) at the city Kotwali Police Station. P.S.I. Ramkrishna (P.W. 6) registered the offence after recording the F.I.R. for the offence punishable under section 379 of Indian Penal Code. It is contended that Police Constables Sohel (P.W. 4) and Satish (P.W. 5) were attached to the Crime Branch and while they were proceeding on the road in Khadan area they saw the accused along with the luna bearing No. MH-30-C-9478. They, therefore, apprehended the accused, took the luna in custody and then produced him along with the luna before the police at city Kotwali Police Station. The seizure panchanama (Exhibit 14) of the luna was prepared on the same day by P.S.I. Marge. After completion of investigation, charge-sheet was presented in the Court of Chief Judicial Magistrate on 16-3-1998. The learned Magistrate framed the charge against the applicant/accused for the offence punishable under section 379 of Indian Penal Code. The same was read over and explained to the accused to which he pleaded not guilty and therefore the trial proceeded with. After completion of investigation, charge-sheet was presented in the Court of Chief Judicial Magistrate on 16-3-1998. The learned Magistrate framed the charge against the applicant/accused for the offence punishable under section 379 of Indian Penal Code. The same was read over and explained to the accused to which he pleaded not guilty and therefore the trial proceeded with. Prosecution examined six witnesses, namely Gajanan (P.W. 1), Bhikaji (P.W. 2), who are the panch witnesses, Anita (P.W. 3) is the complainant, Police Constables Sohel (P.W. 4) and Satish (P.W. 5) who had chased the accused in Khadan area and P.S.I. Ramkrishna (P.W. 6) who conducted the investigation. The learned Magistrate on considering the evidence adduced by the prosecution and on hearing the arguments of both the learned Counsel for the parties had come to the conclusion that the offence punishable under section 379 of Indian Penal Code has been proved and consequently he convicted the accused and sentenced him to undergo rigorous imprisonment for six months. Being aggrieved by this order, the accused had preferred an appeal before the Sessions Judge which came to be partly allowed on 15-1-2002, who confirmed the conviction but modified the sentence and directed the accused to suffer simple imprisonment till rising of the Court and to pay the fine of Rs. 2,000/-, in default to further undergo rigorous imprisonment for two months. It is this order which is under challenge in this revision. 5.The learned Counsel for the applicant contended that the first information report (Exhibit 22) is a fabricated document on the basis of which the applicant has been falsely implicated in this trial. He contended that the Police Constables Sohel (P.W. 4) and Satish (P.W. 5) appears to have chased the applicant and taken him along with the luna to the Police Station. Both of them did not prepare any seizure panchanama of the luna on the spot. The learned Counsel pointed out that the luna was seized vide seizure panchanama (Exhibit 14) on 10-2-1998 itself in presence of panch witnesses Gajanan (P.W. 1) and Bhika (P.W. 2), but both of them did not support the case of prosecution and turned hostile. Both of them did not prepare any seizure panchanama of the luna on the spot. The learned Counsel pointed out that the luna was seized vide seizure panchanama (Exhibit 14) on 10-2-1998 itself in presence of panch witnesses Gajanan (P.W. 1) and Bhika (P.W. 2), but both of them did not support the case of prosecution and turned hostile. 6.The learned Counsel for the applicant further contended that on 10-2-1998 Anita (P.W. 3) had lodged the report (Exhibit 22) at the Police Station in which she did not mention the name of the accused and, therefore, the evidence of the prosecution witnesses is totally inadequate to come to the conclusion that the offence under section 379 of Indian Penal Code has been proved against the accused beyond reasonable doubt. He contended that the impugned orders of conviction passed by both the courts below are not sustainable in law and the impugned order passed by the Additional Sessions Judge deserves to be set aside and the applicant is entitled for acquittal. 7.The learned A.P.P. contended that the prosecution has satisfactorily established through the evidence of Anita (P.W. 3) that it is the accused who has stolen away her luna on 10-2-1998 and he was spotted out along with the said luna in Khadan area by Police Constables Sohel (P.W. 4) and Satish (P.W. 5). He contended that though the panch witnesses to the seizure panchanama turned hostile, the seizure panchanama of luna has been duly proved through the evidence of these witnesses. He also contended that admittedly the luna seized vide seizure panchanama (Exhibit 14) belongs to the complainant Anita and, in the circumstances, the impugned orders passed by both the courts below are sustainable in law and the revision is liable to be dismissed. 8.I have given thoughtful consideration to the contentions canvassed by the learned Counsel for both the parties. In order to appreciate the rival contentions, it would be useful to reproduce section 378 of Indian Penal Code, which reads as under: "378. 8.I have given thoughtful consideration to the contentions canvassed by the learned Counsel for both the parties. In order to appreciate the rival contentions, it would be useful to reproduce section 378 of Indian Penal Code, which reads as under: "378. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." In order to attract section 378, it is necessary for the prosecution to establish that taking away of the property was with dishonest intention and secondly the property must be taken in possession without the consent of the person, who is the owner of the property. It is not in dispute that the panch witnesses Gajanan (P.W. 1) and Bhikaji (P.W. 2) did not support the prosecution case and both of them were declared hostile, so far as the seizure panchanama (Exhibit 14) of the vehicle in question is concerned. The seizure panchanama was drawn in city Kotwali Police Station and not in the Khadan area where the accused along with the luna is said to have been apprehended by Police Constables Sohel (P.W. 4) and Satish (P.W. 5). 9.It is relevant to note that Anita had lodged the report at the Police Station on 11-2-1998 wherein she has only mentioned that her luna was taken away or stolen by somebody and, therefore, on suspicion she had lodged the report (Exhibit 22) at city Kotwali Police Station. If this report is lodged on 11-2-1998 then one is unable to ascertain as to how the name of the accused appears in the first information report cum statement of Anita recorded by the Investigating Officer on 10-2-1998. Thus, there are reasons to believe that this F.I.R. (Exhibit 19) is not a genuine F.I.R. and, in the circumstances, the discrepancy brought on record goes to the root of the case and the version of Anita that her luna was stolen by the applicant cannot be implicitly relied on in order to show that the applicant with dishonest intention had taken away the said luna in the evening of 10-2-1998 from the premises of the office of Superintendent of Police, Akola. 10.The infirmity that has been brought on record is that even the seizure panchanama (Exhibit 14) cannot be relied on to show that the luna was seized from the possession of the applicant/accused. The panch witnesses Gajanan (P.W. 1) and Bhikaji (P.W. 2) have resiled from their earlier statements recorded in the panchanama that the luna was seized from the possession of the applicant. In those circumstances, the seizure panchanama is said to have been proved through the evidence of those two Police Constables Sohel (P.W. 4) and Satish (P.W. 5) as well as P.S.I. Ramkrishna (P.W. 6). Perusal of the panchanama (Exhibit 14) would reveal that it does not bear the signatures of Police Constables Sohel and Satish. This panchanama was prepared by P.S.I. Marge, who has not been examined by the prosecution to prove this document and in such circumstances the probative evidentiary value of the seizure panchanama has been impaired. At the most, the contents of the seizure panchanama would show suspicion against the applicant/accused. But suspicion, howsoever grave, cannot take the place of proof and benefit of doubt must go to the applicant/accused. 11.There is absolutely no evidence to show that the applicant/accused with a dishonest intention had removed the said luna from the premises of the office of Superintendent of Police and, therefore, I am of the considered view that both the courts below have lost sight of the aforesaid circumstances. Having regard to the facts and circumstances brought on record and on considering the evidence of the prosecution witnesses, it would reveal that the prosecution has failed to establish that the applicant/accused had committed the theft of the said luna and consequently I am of the view that both the courts below have committed an error in coming to the conclusion that offence under section 378 of Indian Penal Code has been duly proved. 12.In the result, the findings of conviction recorded by both the courts below against the applicant/accused is set aside and the revision is allowed. The impugned order passed by the Additional Sessions Judge is set aside and the applicant/accused is acquitted of the offence punishable under section 379 of Indian Penal Code. Fine, if paid, be refunded to the applicant. Rule is made absolute in above terms. Revision allowed. -----