Mukesh vs State of U.P.

Kundan Singh, J.—This revision has been preferred against the judgment and order dated 27th July, 1984 passed by the Additional Sessions Judge, Ghaziabad, dismissing Criminal Appeal No. 34 of 1984, Mukesh v. State of U.P., confirming the conviction and sentence of one year under Section 411 of the Indian Penal Code, (IPC) awarded by the Additional Chief Judicial Magistrate, Ghaziabad, in Case No. 893 of 1981 State v. Mukesh by his judgment and order dated 28th February, 1984.

A first information report was lodged regarding the theft of an Ambassador Car No. DHB 8515 on 6th February, 1981. An accused, namely, Subhash was arrested in another case; while he was being interrogated by the Inspector of Police, he disclosed about the theft of the stolen car, which met with an accident and at that time the applicant was also with him. The applicant also sustained injury. On the information received from Subhash accused, the present applicant was arrested and on his pointing out, on 13th February ,1981 the car was recovered from an Ahata, in which new quarters of Ghaziabad Development Authority were under construction on the road between Bhatia Potteries and Rakesh Marg. The applicant also confessed before the police that he had stolen that car from a place near Holy Child School in Nehru Nagar about sixseven days back.

The applicant was prosecuted under Sections 380/411, IPC. The learned Magistrate, after going through the evidence on record, held the applicant guilty of the offence under Section 411 and awarded the sentence of one year''s rigorous'' imprisonment by his judgment and order, dated 28th February, 1984. Being aggrieved, the applicant preferred Appeal No. 34 of 1984 before the Sessions Judge, Ghaziabad, which came for hearing and disposal before the learned Additional Sessions Judge, Ghaziabad, who, vide his judgment and order dated 27th July, 1984, dismissed the appeal confirming the conviction and sentence of the applicant imposed by the learned Magistrate. Still feeling aggrieved, the applicant has preferred this revision, as aforesaid.

Heard learned Counsel for the applicant and the learned Additional Government Advocate.

Learned Counsel for the applicant submitted that the conviction and sentence are bad in law inasmuch as even, according to the prosecution, the car was recovered at the pointing of the applicant from a public place, which cannot be attributed to be in exclusive possession and control of the applicant and unless it is proved that the applicant had exclusive possession and control over the property recovered at his instance, no conviction can be recorded.

I have gone through the relevant papers. Raghuvir Singh, SubInspector, deposed that Mukesh was arrested on 13th February, 1981 at about 7.00 p.m. During interrogation Mukesh made certain disclosure regarding the theft of the car, on the basis of which the Ahata was surrounded and on the pointing out of the applicant the car was recovered. He stated that at that time nobody was living in that Ahata. In crossexamination he could not give out the name of the owner of the Ahata. Though there was a gate having door of iron planks, but it was not locked. Constable Virpal Singh, P.W. 4, stated in crossexamination that before his arrest, Mukesh pointed out that Ahata in which the stolen car was parked. The SubInspector of Police opened the gate of that Ahata, which was not locked and the car was recovered from the Ahata.

On the basis of the evidence it can be inferred that the applicant gave an information regarding the existence of stolen car in the Ahata accessible to all persons. The prosecution has not led any evidence to the effect that the applicant knew or had reason to know that the car was stolen property and was in exclusive possession and control of the applicant. Unless it is established that the applicant had exclusive possession and control over the stolen property (car) giving mere information or bearing knowledge of a property lying in a public place accessible to any member of public would not be sufficient to hold the applicant guilty of the offence under Section 411, IPC.

The prosecution has also not examined any witness of the locality or any independent witness to show that the applicant gave an information, which led to the recovery of the stolen car and that car was in the exclusive possession or exclusive control or he had the information which was not in the knowledge of any other person. At the most it can be inferred on the basis of legal evidence on record that the applicant give an information regarding the existence of some car lying in a public place in the absence of any legal evidence to the effect that the applicant was the person who was seen in the car or placed it inside the Ahata or having exclusive possession and control over the car, which is stolen one, it is not possible to hold the applicant guilty of the offence under Section 411, IPC. The courts below have committed error apparent on the face of record in holding the applicant guilty of the offence for the possession of the stolen car, which was not in occupation or possession or even it was not seen with him or placed by him in the Ahata. For all these reasons, the applicant cannot be held guilty for the offence under Section 411, IPC.

The revision is allowed. The conviction and sentence of one year''s rigorous imprisonment under Section 411 of the Indian Penal awarded by the trial Court and affirmed by the lower appellate Court are set aside. The applicant is on bail and need no surrender. His bonds are hereby discharged. Revision allowed.