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2014 DIGILAW 327 (GAU)

NUR MOHAMMAD v. STATE OF ASSAM

2014-03-19

B.D.AGARWAL

body2014
JUDGEMENT AND ORDER (ORAL) This revision application is directed against the judgment dated 15.3.2005 passed by the learned Sessions Judge, Morigaon in Criminal Appeal No. 7 of 2005 whereby the learned Sessions Judge has affirmed the conviction of the petitioner under Section 411 of the Indian Penal Code. By the impugned judgment the appellate court has sentenced the petitioner to undergo one year Rigorous Imprisonment for the said offence. Being aggrieved with the concurrent findings the accused has preferred this revision application under Section 397/401 r/w Section 482 of the Criminal Procedure Code. 2. Heard Mr. A Sharif, learned counsel for the petitioner and Mr. BJ Dutta, learned Addl. PP, Assam. I have also gone through the impugned judgment and prosecution evidence. 3. The gist of the prosecution case is that 4 (four) numbers of bullocks and cows were allegedly stolen from the cowshed of PW 3/informant in the night of 27.7.1996 and on the very next morning the stolen cows were recovered from the possession of the petitioner. Accordingly, a case under Sections 380/411 of the I.P.C. was registered and after the trial the accused was, however, convicted only under Section 411 of the IPC. In the appeal the learned Sessions Judge has observed that, in fact, the case under Section 380 IPC has been proved. Still no separate sentenced has been awarded for the said offence. 4. Altogether four witnesses were examined by the trial court. PW 1 is basically a seizure witness. PW 3 is the informant who has stated about the theft of his cows in the night of 27.7.1996. Out of four numbers of cattle one cattle returned back on its own. In this way three numbers of cattle were found in the possession of the accused. PW 3 has further deposed that the earlier in the morning he learnt about the recovery of the cows from the adjacent village by the VDP personnel and thereafter he identified the stolen cattle. PW 2 is a VDP member. He is the prime witness of the prosecution. According to this witness in the early morning of the incident he found the accused on a road and also three numbers of cattle standing nearby at a distance of 8 to 10 nals. On being enquired the accused could not give any satisfactory reply. Hence, the accused was handed over to the police along with the cattle. 5. According to this witness in the early morning of the incident he found the accused on a road and also three numbers of cattle standing nearby at a distance of 8 to 10 nals. On being enquired the accused could not give any satisfactory reply. Hence, the accused was handed over to the police along with the cattle. 5. Citing the judgment of Hon’ble Supreme Court rendered in the case of Mohan Lal -Vs- State of Maharastra; reported in (1979) 4 SCC 751 and the judgment of Calcutta High Court rendered in the case of Bharadwaj Singh -Vs- State; AIR 1952 Calcutta 616, Mr. Sarif contended that before conviction of a person for an offence under Section 411 IPC the prosecution has to establish that the accused was possessing the stolen article knowing that the article was stolen property. In other words, a person may be a bonafide purchaser of the stolen property and under that circumstances he cannot be convicted under Section 411 of the IPC. 6. In the case before me no plea was taken by the accused that the cattles were purchased by him or that he did not know that the cattles were stolen by some one else. The plea of the accused was of total denial. On the other hand, the learned Sessions Judge has given a finding that it was a fit case wherein the appellant should have been convicted under Section 380 of the IPC. I agree with the findings of the appellate court. In my considered opinion also it would be very strange that as many as four numbers of bullocks and cows would get themselves free from the shackles and would walked down together to another village. Besides this, the accused was also from a different village and the cows were found standing nearby. 7. Hence, I do not find any merit in the revision petition preferred against the conviction under Section 411 of the IPC. Though the petitioner should have been convicted under Section 380 of the IPC I cannot convert the conviction in exercise of my power under Section 397 of the Cr.P.C. 8. With regard to the quantum of sentence the learned counsel for the petitioner submitted that the incident took place about 8(eight) years ago and no person had witnessed to the petitioner from taking away the cows from the custody of the informant. With regard to the quantum of sentence the learned counsel for the petitioner submitted that the incident took place about 8(eight) years ago and no person had witnessed to the petitioner from taking away the cows from the custody of the informant. In view of this submission the sentence is reduced to 6(six) months Rigorous Imprisonment. 9. With the aforesaid modification in the sentence the revision petition stands dismissed. The petitioner is directed to surrender in the trial court immediately.