JUDGMENT & ORDER : 1. Heard Mr. P. Saha, learned counsel appearing for the petitioner as well as Mr. R. C. Debnath, learned Addl. PP appearing for the State. 2. This is a petition under Section 397(1) read with Section 401 of the Cr.P.C. questioning the judgment dated 20.11.2013 delivered in Criminal Appeal No.16(2) of 2013 by the Sessions Judge, South Tripura, Udaipur, as it then was, affirming the finding of conviction dated 25.04.2013 in GR Case No.126 of 2009 returned by the Chief Judicial Magistrate, South Tripura, Udaipur, as he then was, (hereinafter referred to as the trial Judge). 3. On 13.03.2009 one Tapan Chakraborty, PW-13 reported theft of his Yamaha bike (G-5) bearing registration No.TR- 03-B-6388 from the varandah of his house, to the Officer-in- Charge, Kakraban PS, Udaipur. On the basis of the said written ejahar (Exbt.1), Kakraban PS Case No.44 of 2009 under Section 457/380 of the IPC was registered and taken up for investigation. The investigation was entrusted with one Mina Debbarma, Sub- Inspector, PW-5, by the Officer-in-Charge of Kakraban PS. Having completed the investigation, the final police report, chargesheeting the petitioner was filed and on taking cognizance of that police report, the charge was framed against the petitioner under Section 380 read with Section 34 of the IPC. 4. To substantiate the charge, the prosecution adduced as many as 13 witnesses including the informant (PW-13), the Investigating Officer (PW-5) and some other witnesses, particularly the witness who recorded his presence during the seizure, on preparing the seizure list (Exbt.6). After recording of the evidence from the prosecution, the petitioner was examined under Section 313 of the Cr.P.C. to have his response on the incriminating materials those emerged in the record of evidence. On appreciation, the trial court returned the finding of conviction under Section 380 read with Section 34 of the IPC and sentenced him to suffer RI for a period of 7 years with fine of Rs.10,000/- [with default imprisonment] by the order dated 25.04.2013. The said judgment was challenged by the petitioner by filing an appeal being Criminal Appeal No.16(2) of 2013. The said appeal has been dismissed by the impugned judgment dated 20.11.2013. The Appellate court, however, converted and returned the finding of conviction under Section 379/34 of the IPC in lieu of Section 380 of the IPC. No charge was framed under Section 457 of the IPC. The said appeal has been dismissed by the impugned judgment dated 20.11.2013. The Appellate court, however, converted and returned the finding of conviction under Section 379/34 of the IPC in lieu of Section 380 of the IPC. No charge was framed under Section 457 of the IPC. The sentence has been modified reducing it to 3 years rigorous imprisonment with fine of Rs.5,000/-, with default imprisonment. Now the said judgment dated 20.11.2013 delivered in Criminal Appeal No.16(2) of 2013 has been questioned in this revision petition. 5. Mr. P. Saha, learned counsel appearing for the petitioner has submitted that there is no legal evidence against the petitioner that he committed theft of the motor bike. Even the prosecution story has gone berserk for introducing three clear versions how the stolen bike was located or recovered. Mr. Saha, learned counsel has made attempts to show substantive discrepancies in the course of conjoint reading of the testimonies of prosecution witnesses and the statement of seizure as recorded in the seizure list, Exbt.6. Mr. Saha, learned counsel has emphatically stated that PW-13, the owner of the bike, did not see the occurrence nor he had direct knowledge about who had taken away the bike from his varandah but he has stated in the trial that the TSR personnel stated to him the name of the accused who had stolen away his bike. Drawing notice of this court to the seizure list, Mr. Saha has pointed out that there is no statement that the bike was recovered from the possession of the petitioner. However, on the seizure list the purported thumb impression of the petitioner is also found. 6. From the other side, Mr. R. C. Debnath, learned Addl. PP has strenuously argued that even if there surfaced three versions as to the recovery of the possession of the bike but those are usual errors, permissible in the human conduct. No person can recapitulate from his memory after long lapse of time what he exactly saw at the time of recovery of the stolen bike. According to him, such discrepancy cannot be used to acquit someone against whom otherwise there is substantive evidence and hence there being no infirmity in the judgment, this court may not interfere. 7. For purpose of appreciating the rival contentions as advanced by the learned counsel, this court has taken a purposive relook at the evidence. According to him, such discrepancy cannot be used to acquit someone against whom otherwise there is substantive evidence and hence there being no infirmity in the judgment, this court may not interfere. 7. For purpose of appreciating the rival contentions as advanced by the learned counsel, this court has taken a purposive relook at the evidence. Before the journey through the evidence begins, it would be noted that PW-2, Smti. Noorjahan Bibi, PW-3, Sri Ratneshwar Paul, PW-4, Sri Bikram Paul, PW-6, Sri Samir Das did say nothing of material importance. PW-1, Sri Gautam Das who had the chance to be present in the place of occurrence where allegedly the petitioner had taken the stolen bike has stated in the trial that one TSR contingent was on duty, to secure the road construction being carried out by the NBCC. It happened that a person appeared there with a motorbike and having noticed the TSR personnel, the motorbike was left by the side of the construction shed and the person fled away towards the jungle. On query by the TSR, he had stated that his name was Abul Hossain and he had confessed to have stolen away the motorbike from Tulamura for taking it to Bangladesh. This witness was very consistent in his cross-examination. PW-5, Smt. Mina Debbarma as the IO has stated that she seized the stolen motorbike bearing registration No.TR-03-B-6388 on preparing the seizure list (Exbt.5). She has also admitted in the evidence the other seizure list (Exbt.6). PW-7, Prabhat Chakraborty is the brother of PW-13 and has stated that the bike was seized by the police at Ramchhara ‘from the possession of Abul Hussain’. PW-8, Janardhan Bal has stated that on the day of occurrence they noticed a person going to Ramchhara with a motor bike. On seeing them, the biker tried to flee away and while fleeing away, he fell on a bamboo bush and received injury on his person. On query, he disclosed his name as Abul Hussain and confessed that he had stolen away the motorbike from Mirza area and was taking it to Bangladesh for sale. He has not given any statement in his cross-examination contrary to what has been stated in his examination-in-chief. PW-9, Bidesh Debbarma has stated that the local persons detained the petitioner for stealing the motorbike. He was handed over to the TSR camp. He has not given any statement in his cross-examination contrary to what has been stated in his examination-in-chief. PW-9, Bidesh Debbarma has stated that the local persons detained the petitioner for stealing the motorbike. He was handed over to the TSR camp. PW-10, Raju Debbarma has given a new version. He has stated that on 13.03.2009 at about 2.30 p.m. a cook of NBCC called him and informed that a person leaving a motorbike near his house along the village road, entered into the jungle but he did not turn again to the motorbike. Out of suspicion, the said cook went to the spot and opened the tool box of the bike and found the papers relating to the motorbike. The owner namely Tapan Chakraborty was known to him. Thereafter, they in order to trace out the owner called on the TSR personnel and the TSR personnel and other persons entered into the jungle and detained Abul Hussain. On interrogation, the petitioner admitted that he had stolen the bike from the house of Tapan Chakraborty. In the cross-examination, he did not give anything contrary to this proposition. PW-11, Tajul Islam was a TSR personnel. While narrating the incident which occurred on 13.03.2009 at about 2.30 p.m. he has stated that the petitioner leaving the bike behind jumped from a tilla land and had fallen on a bamboo bush and thus he received injuries on his person. PW-12, Maharam Ali did not state anything of material importance. However, PW-13 is the informant and what the informant has stated has already been noted. 8. From perusal of the seizure list (Exbt.5) dated 13.03.2009, it would appear that there is no definite statement from whose possession the bike had been recovered. However, it has been noted against the place of seizure - Ramchhara. According to Mr. Debnath, learned Addl. PP the thumb impression of the petitioner was taken on the seizure list. The seizure as occurred on 13.03.2009 was by PW-5. On 15.03.2009 some other documents like the smart card, the insurance certificate and pollution certificate etc. were seized from PW-13. The petitioner has categorically denied his involvement in the occurrence, even in his statement recorded under Section 313 of the Cr.P.C. 9. On appreciation of the evidence, the trial Judge has observed that the prosecution could bring home the charge against the accused, the petitioner herein, beyond all shadow of doubt. were seized from PW-13. The petitioner has categorically denied his involvement in the occurrence, even in his statement recorded under Section 313 of the Cr.P.C. 9. On appreciation of the evidence, the trial Judge has observed that the prosecution could bring home the charge against the accused, the petitioner herein, beyond all shadow of doubt. The said finding has been affirmed by the impugned judgment on observing as under: “On analyzing the evidence of all these 13 witnesses, it is found that the case is based on extra-judicial confession and recovery of the stolen bike from the convict-appellant. Learned Chief Judicial Magistrate while appreciating the evidence viewed that confession made without any coercion and in free mind. On the basis of that confession Learned Chief Judicial Magistrate came to the conclusion that the convict-appellant committed the offence. Extra-judicial confession is not a quality evidence. Corroboration is necessary in such a case. Here in this case, extra-judicial confession is made before the TSR personnel. So, the extra-judicial confession made before police has no evidentiary value. But the Learned Chief Judicial Magistrate relied on that evidence, i.e., the extra-judicial confession.” It has been further held that: “If it is without any enclosure and not used for human dwelling then the case against the convict-appellant under Section-380 of IPC will not be proved. The bike was recovered on the following day from the possession of convict-appellant, i.e., on 13.03.2009. There is no denying that the bike was owned by complainant of the case. The papers recovered from the tool box also established that the bike was owned by complainant. After removing the bike from the Varandah the convict-appellant was moving towards Bangladesh borer. He was caught with the stolen articles just after one day of the incident of theft.” 10. On the face of the clear finding of the appellate court, that the extra judicial confessions are of no use as those were made in the custody of the police. How has the theft been connected with the petitioner? He was caught with the stolen articles just after one day of the incident of theft.” 10. On the face of the clear finding of the appellate court, that the extra judicial confessions are of no use as those were made in the custody of the police. How has the theft been connected with the petitioner? This question remains unanswered by the appellate court and to overcome that difficulty the appellate court has observed that as the appellant confessed his guilt and there is no role of third party from whom he had received the bike, it can simply be presumed on the touchstone of the circumstantial evidence that the petitioner was a thief and not the receiver of the stolen property. This court is really surprised to note after discarding the extra-judicial confession, how that extra-judicial confession can be used against the accused person even partly. Even if it is assumed that the bike was seized from the exclusive possession of the petitioner, then there would have been no amount of doubt, but the prosecution was not successful in establishing that the bike was in the custody of the petitioner. Therefore, the element of possession of the stolen article having not been proved to the hilt, it takes a paramount importance in determining the involvement of the petitioner in the theft. 11. As already discussed and pointed out regarding the possession and regarding the use of the bike, there are three distinct and divergent versions on the record. According to the court, unless the confession is relied on, the relation of the petitioner with the bike cannot be established irrespective of other versions. If the confession is not admitted in the evidence, which according to this court, cannot be in view of Section 25 of the Evidence Act, the relation with the stolen property has to be held as not established beyond reasonable doubt. As such, the petitioner is entitled to the benefit of such doubt and accordingly he is acquitted from the charge under Section 379 read with Section 34 of the IPC. 12. In the result, the petitioner is discharged from the liability of the criminal act, in view of what has been discussed above. Hence, this petition stands allowed. Send down the LCRs forthwith.