Ismail Khan vs State Of Bihar

Heard learned Advocate for the petitioners as well as learned APP for the State.

The petitioners are convicted for committing offence under Section 379 of the I.P.C. and they were sentenced to suffer rigorous imprisonment for six months for the offence under Section 379 of the I.P.C.

The order of conviction and sentence passed in G.R. Case No. 314 of 1990, Tr. No. 819 of 2003 (arising out of Pothiya P.S. Case No. 39 of 1990), by the learned Sub Divisional Judicial Magistrate, Kishanganj, dated 23rd July, 2003 was affirmed by the learned Additional District & Sessions Judge-I, Kishanganj, in Criminal Appeal No. 29/80/2003. The convicts have assailed the order of conviction and sentence under Section 379 of the I.P.C., which was affirmed by the appellate court in the instant revision.

It is submitted by the learned Advocate for the petitioner that over an incident, which allegedly took place in the night on 14th April, 1990, the informant lodged a complaint in the local Police Station on 18th April, 1990, alleging, inter alia, that the petitioner along with accused Baudha Khan @ Raja Khan and Kalwa Khan had cut down green bamboos from the bamboo grove of the informant in the night on 14th April, 1990. At that point of time the informant was sleeping in his room. Hearing the sound of cutting of bamboo he and his cousin brother proceeded towards the place whereafter the said sound was coming. Under the torch light, they found that the accused persons were cutting the bamboos from his bamboo grove and they already took away 71 numbers of bamboos from the said bamboo grove. On the basis of said complaint, Police registered Kishanganj P.S. Case No. 98 of 1990, dated 14th April, 1990 and took up the case for investigation. On completion of investigation, Police submitted charge-sheet against the petitioners under Section 379 of the I.P.C. against accused Baudha Khan and Kalwa Khan @ Raja Khan under Section 379/411 of the I.P.C. The accused persons appeared before the trial court to face trial.

During trial prosecution examined in all eight witnesses. Amongst them P.W.4 Radheshyam Sharma, is the informant. PW.1 and PW.6 are the witnesses to the seizure list. PW.5 and PW.7 were tendered by the prosecution. Remaining witnesses are in the nature of hearsay. Therefore, except PW.4, who is the informant, there is no other eye witness of the occurrence. It is stated by PW.2 that from the house of accused Kalwa Khan, 11 numbers of bamboos, from the house of Bodha Khan, 14 numbers of bamboos and from the house of Khurshid Khan, 10 numbers of bamboos were recovered. It has come in evidence that there are other bamboo groves in the village and there is a local market where bamboos are sold and purchased.

It was the primary duty of the prosecution to prove that the place from where bamboos were stolen was owned by the defacto complainant on the date of occurrence and there was bamboo grove on the said plot of land. The Investigation Officer failed to conclude any evidence with regard to ownership of the plot to show that the informant was the owner of the said plot and there was bamboo grove therein and bamboos were stolen from the said bamboo grove.

In the absence of such evidence, this Court fails to understand as to how the learned courts below held that the accused persons/petitioners committed offence of theft of bamboos from the bamboo grove, owned by the defacto complainant.

For the reasons stated above, I am not in a position to concur with the findings of the learned courts blow and the order of conviction and sentence against the petitioner under Section 379 of the I.P.C. is set aside.

The accused persons are acquitted from the charges set at liberty and released from their respective bail bonds.

The instant revision is thus allowed.