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2015 DIGILAW 1279 (GAU)

Imran Ali (MD. ) v. State of Assam

2015-10-01

PARAN KUMAR PHUKAN

body2015
JUDGMENT AND ORDER : Paran Kumar Phukan, J. 1. This revision is directed against the judgment and order dated 21.06.2005 passed by the learned Sessions Judge, Morigaon in Criminal Appeal No. 13/2005 dismissing the appeal preferred by the petitioner against the judgment of conviction of the petitioner under Section 379 IPC passed by the learned Sub-Divisional Judicial Magistrate, Morigaon in G.R. Case No. 367/2004. 2. The factual aspects of the case in brief are that on 21.06.2004, the informant Indreswar Bora leaving his motor cycle near a PCO, situated at Dharamtul Chariali proceeded to Nagaon and at about 3.30 pm, when he came back, he did not find the motor cycle and he came to know that his motor cycle was taken by somebody from that place. He immediately filed written FIR on the basis of which case was registered. During investigation motor cycle was recovered. The accused was apprehended and after completion of investigation Charge-Sheet was submitted against him. 3. Trial commenced before the learned Sub-Divisional Judicial Magistrate. Prosecution examined 7 witnesses. Defence examined none and took the plea of total denial. On conclusion of trial, the accused petitioner was found guilty under Section 379 IPC and he was accordingly convicted and sentenced as stated above. In appeal, the judgment of the Trial Court was affirmed. Hence, this revision. 4. Learned Additional Public Prosecutor, submitted that there was concurrent finding of facts arrived at by both the Courts below which cannot be interfered with in the revision. It is a settled proposition that concurrent findings arrived at by the Courts below is not to be interfered with in revision unless it is shown that evidence on record was misread by the Courts or it was not properly considered. 5. In the instant case, learned counsel appearing on behalf of the petitioner could not pin point any part of the evidence which has not been discussed by the Trial Court or by the Appellate Court. There is also nothing to show that any material part of the evidence was misread by the Courts which resulted in failure of justice. Defence took the plea while cross-examining the witnesses that the motor cycle was purchased by the accused from one Ramen Medhi. 6. In the backdrop of the aforesaid contention, I have gone through the evidence of the witnesses examined by the prosecution. Defence took the plea while cross-examining the witnesses that the motor cycle was purchased by the accused from one Ramen Medhi. 6. In the backdrop of the aforesaid contention, I have gone through the evidence of the witnesses examined by the prosecution. Evidence on record reveals that the accused petitioner was caught red handed by the informant PW1 soon after the occurrence. PW1 left his motor cycle near the PCO at Dharamtul and on his arrival from Nagaon, he found the same missing from that place. He immediately made enquiries and came to know that it was taken away by somebody to a garage at Telahi, where the mechanic of the garage was asked to start the motor cycle by the thief, as he was unable to do so without the key. PW1 having come to know about it from the mechanic immediately proceeded towards Dalbari side with one Ganesh Choudhury and found the motor cycle along with the accused petitioner. Police was informed. The accused was apprehended. 7. Evidence of PW1 is corroborated by the other prosecution witnesses, PW2, PW3, PW4, PW5 and PW6, all independent witnesses having no axe to grind against the accused. PW6 is the mechanic, who initially started the motor cycle brought by the accused petitioner to his garage. His evidence is that the accused petitioner introduced himself as the owner of the motor cycle and disclosed that the key was lost and he asked PW6 to start the motor cycle without key. On being so asked PW6 started the motor cycle and thereafter, he saw the accused leaving his garage and proceeding towards Dalbari. After sometime, the owner came to his garage and he narrated the facts to him. The owner PW1 proceeded towards Dalbari and PW6 also followed where they found the accused pillion riding the motor cycle. The rider ran away. The accused was apprehended with the motor cycle. The Investigating Officer also arrived at the spot soon after the occurrence and he seized the motor cycle on the spot and arrested the accused petitioner. There is no doubt regarding the identity of the accused petitioner and evidence reveals that the accused was the person who initially brought the motor cycle by dragging the same to the garage of PW6 for starting the same. 8. There is no doubt regarding the identity of the accused petitioner and evidence reveals that the accused was the person who initially brought the motor cycle by dragging the same to the garage of PW6 for starting the same. 8. All the prosecution witnesses are reliable and trustworthy and defence could not elicit any material contradictions in their evidence. They have no reason to falsely implicate the accused in the case. It has been established that the motor cycle was stolen from the place where it was kept by the owner and after a few hours, it was recovered from the possession of the accused petitioner who could not give any explanation regarding possession of the motor cycle which identity has been established. 9. Having heard the learned counsel appearing for both the parties and having gone through the evidence on record, there is no doubt that the accused petitioner committed theft of the motor cycle. On close scrutiny of the evidence and the records, I do not find any infirmity in the judgment of the learned Sessions Judge, Morigaon. Consequently, the same stands affirmed. 10. Learned counsel appearing on behalf of the accused petitioner submitted that the offence was committed in the year 2005. At that time, he was aged about 26 years and it was his first offence. Considering the submissions, the age, antecedent etc. of the accused petitioner and the facts and circumstances of the case, instead of sentencing the accused to imprisonment, I sentence him to pay fine of Rs. 5,000/- in default, to imprisonment for 3 (three) months.