Md Manir Hussain vs State Of Assam

This Criminal Revision Petition under Section 397/401/482 Cr.P.C has been preferred against the judgment and order, dated 08.12.2008, passed by

the learned Additional Sessions Judge (F.T.C) No. 1, Kamrup, Guwahati, in Criminal Appeal No. 25/08 upholding the judgment and order passed by

the learned Chief Judicial Magistrate, Kamrup, Guwahati, dated 17.05.2008, passed in G.R. Case No. 1873/2005, under Section 379 IPC whereby the

accused petitioner herein is convicted and sentenced to undergo simple imprisonment for one year.

The petitioner’s case, in a nut-shell, is that one Sri Nitumoni Bora, lodged an F.I.R. with the Officer In Charge of Chandmari P.S., on

07.04.2005, alleging that on that day, when he went to the office of the Small Scale Industry at Guwahati, leaving his motor cycle, bearing Registration

No. AS -01N-0772, in the bike stand of the office, the accused petitioner moved his bike with an intention to take it away dishonestly without his

consent. It was further alleged in the F.I.R that at the relevant time, the informant came out from his office and having noticed the accused petitioner

moving his bike, questioned him. It was also alleged that immediately, the accused petitioner started to run away, but the informant chased him after

and ultimately, got him apprehended. Few keys of motor cycle were also recovered from the possession of the accused petitioner, one of which, the

petitioner used for opening the lock of the informant’s bike.

Based on the F.I.R. Chandmari P.S. Case No. 116/2005, under Section 379 IPC, dated 07.04.2005, was registered and after completion of

investigation, the police submitted charge sheet under Section 379 IPC against the accused petitioner herein.

After completion of investigation, the police laid a charge-sheet under Section 379 IPC against the accused petitioner. Thereafter, on perusal of the

materials on the case diary and hearing the learned counsel of both the sides, the learned Chief Judicial Magistrate, Kamrup at Guwahati framed

charge under Section 379 IPC. The charge was read over and explained to the accused petitioner to which he pleaded not guilty and claimed to be

tried. Thereafter, the prosecution in order to prove the charge, examined 5 (five) witnesses, while the defence cross-examined them at length. After

closing the evidence of the prosecution side, the statement of the accused petitioner was recorded under Section 313 Cr.P.C. The accused pleaded

innocence and declined to examine any witness in defence. In his said statement, the accused petitioner took the plea that on the day of occurrence,

he went to the said office to appear in an interview to avail the benefit of Kalpataru Scheme riding his motorcycle. Then the informant, due to heavy

rush, brought him down from the 3rd Floor of the office and assaulted him, accusing him of being a thief and started shouting. The informant and

public assaulted him and handed over to the police. After conclusion of trial, the learned Chief Judicial Magistrate, Kamrup at Guwahati convicted and

sentenced him as stated above, vide the impugned judgment and order, dated 17.05.2008, passed in G.R. Case No. 1873/2005 and on appeal, the

learned Additional Sessions Judge (FTC) No. 1, Kamrup at Guwahati affirmed the judgment and order passed by the learned Chief Judicial

Magistrate, Kamrup at Guwahati vide the impugned judgment and order, dated 08.12.2008 passed in Criminal Appeal No. 25/08.

Aggrieved, the accused petitioner has preferred the instant criminal revision petition challenging the legality and correctness of his conviction and

sentenced as stated above.

The accused petitioner remained unrepresented today, although advance notice was published in the Cause List of the Court. Keeping in

consideration that the instant Revision Petition is pending from the year 2009, i.e., for more than eight years, Mr. I. A. Hazarika, the learned

Advocate, is hereby appointed as Amicus Curie to defend the case of the accused petitioner to ensure expeditious disposal of the case.

Copy of the revision petition and documents appended thereto are furnished to the learned Amicus-Curie.

Heard Mr. I. A. Hazarika, learned Amicus-curiae. Also heard Mr. B. Gogoi, learned Additional Public Prosecutor, appearing for the State-

respondent.

Mr. I. Hazarika, learned Amicus Curiae, submits that the Courts below did not appreciate the evidence on record from proper perspective and took

into consideration of the irrelevant portions of the evidence produced by the prosecution. Mr. Hazarika contended that the learned Trial Court has

ignored the evidence that the accused petitioner did not move out the motor cycle of the informant without any dishonest intention to attract the

offence of theft and, as such, holding of the accused petitioner guilty of the charge under Section 379 was not proper.

Mr. B. Gogoi, learned Additional Public Prosecutor appearing for the State-respondent submits that on marshalling through the evidence on record

led by the prosecution in the case, it is clearly established that the accused petitioner with dishonest intention removed away the motor cycle out of the

possession of the informant, which fact is reinforced by the evidence of recovery of keys of motor cycle used for such dishonest purpose. Mr. Gogoi,

therefore, submits that keeping in consideration of the abundance of incriminating of evidence on record, the learned Sessions Judge has not

committed any illegality while upholding the judgment of conviction of the accused petitioner under Section 379 IPC.

Perused records.

Be it mentioned that an essential ingredient of the offence of ‘theft’, which is defined in Section 378 IPC, is that the movable property,

which is the subject matter of theft should have been moved out of the possession of any person without his consent. Section 379 IPC prescribes the

punishment for theft.

In the instant case, it appears that P.W.-1, Nitumoni Bora, the informant and P.W.-2 Bhrigu Kumar Bora, his (P.W.-1) companion, went to the

office of the Small Scale Industries at Bamunimaidam, Guwahati to avail loan under Kalpataru Scheme leaving the motorcycle of P.W.-1 within the

office compound. Both of them, thereafter, stepped up into the office and after consulting some office staff, when they came out of office to make

photocopy of some documents, and after doing so, when they were returning, P.W.-1 noticed two persons inclusive the accused petitioner standing

nearby to his motorcycle touching it, whereupon he questioned him as to why he touched his motorcycle, to which he replied in the negative and

further replied that he kept his motorcycle outside. The accused petitioner was noticed of wearing one helmet indicating the possibility of him owning

and parking of his motorcycle somewhere near the place of occurrence and further, as P.W.-1 has not claimed that the accused petitioner’s

helmet was belonged to him, it has to be presumed that it was belonged to the accused petitioner and used to wear while riding his motorcycle.

However, their (P.Ws 1 and 2) evidence reveal that the accused petitioner was caught after a chase, while the other person, who was with him

managed to escape.

Their evidence also reveal that on being reported the incident by some unknown person, the police arrived and took away the accused petitioner along

with the motorcycle of the P.W.-1. Thereafter, P.W.-1 lodged the F.I.R. vide Ext. 1 and the public recovered 4(four) number of keys out of the

possession of the accused petitioner, out of which one key was found usable in respect of the motorcycle of P.W.-1. The police seized his motorcycle

by Ext. 2, the seizure memo, but there is no evidence on record that 4 (four) motorcycle keys were seized by P.W.-5 ASI Pran Gopal Chakravarty,

the investigating officer of the case, but one key was seized by Ext. 5, the seizure list, which remained unexhibited in the case. Therefore, it appears

that the seizure memo vide Ext. 5 is not proved in this case. The evidence of P.W.-3 Sanchiram Payeng and P.W.- 4 Bharat Barman, both

independent witnesses, reveal that they did not witness the actual occurrence as they arrived at the place of occurrence hearing public commotion and

found the accused petitioner already severely beaten up by the public. Thus, there is clearly no evidence to show that the accused petitioner did make

any attempt to remove the informant’s (P.W.-1) motorcycle dishonestly out of his possession from the public place and as such, the plea of

innocence of the accused petitioner has to be accepted.

Considered thus, this court is of the opinion that there is no consistent and convincing evidence to hold the accused petitioner guilty of the offence

of theft as defined in Section 378 IPC beyond all reasonable doubt. Be it mentioned that the Supreme Court in Asish Vs. State, reported in (2002) 7

SCC 317, held that mere suspicion, however strong it may be, cannot take the place of legal proof.

Consequently, the revision stands allowed. The impugned judgments and orders are set aside and the accused petitioner is set at liberty.

Revision petition is disposed of.

The Court records its appreciation for the assistance rendered by learned Amicus-curiae, Mr. I. A. Hazarika. The learned Amicus-curiae be paid

an amount of Rs.7,000/-as remuneration.

Send Back the LCR along with a copy of this judgment and order.