Ramachandra Purohit vs State of Orissa

P.K. Mohanti, J.—This criminal revision arises out of an order of conviction u/s 379, Indian Penal Code and a sentence of R.I. for three months.

The facts are these:

On 5-7-1969 at about 7 p. m. P.W. 2 Laxmi Narayan Misra went to the N.C.C. office at Berhampur and parked his Hercules cycle under a tree in front of the N.C.C. Guard room. While he was going upstairs for some work, the Petitioner went there with an old wear well Deluxe cycle, parked it under the same tree and went for urination. Then he took away the cycle of P.W. 2 leaving his old cycle there. On the next day the Petitioner along with one Bidyadhar Das went to the Cycle Mart of P.W. 1 Sahadeva Behera at village Narendrapur and offered to sell the stolen cycle for a sum of Rs. 40/ - to Rs. 50/ - stating that they were in urgent need of money. P.w. 1 suspected the cycle to be a stolen one since the Petitioner and his companion offered to sell it at a much lower price. He reported the matter to the Gramarakhi who took the Petitioner along with the cycle to Chhatrapur Police Station. On the F.I.R. lodged by P.W. 2 investigation was taken up and in due course the Petitioner and the said Bidyadhar were charge-sheeted by the Police under Sections 379/411/34, Indian Penal Code.

At the trial, the Petitioner and the said Bidyadhar were jointly charged u/s 379, Indian Penal Code. Bidyadhar pleaded guilty to the charge and on his own admission he was convicted u/s 379, Indian Penal Code. The trial proceeded against the Petitioner and ultimately he was convicted and sentenced as aforesaid. On appeal, the conviction and the sentence were confirmed.

The Petitioner denied the charge and contended that on 6-7-1969 Bidyadhar offered to sell the cycle to him at Narendrapur Hat. He refused to purchase and took Bidyadhar to the Cycle mart of P.W. 1.

It is urged in this criminal revision that the order of conviction is not borne out by the evidence on record.

The order of conviction is based mainly on the direct evidence of PWs. 2, 3, 5 and 10 about the factum of theft and the circumstantial evidence of PWs. 1 and 9 about the attempt to dispose of the cycle to P.W. 1. P.w. 2 is the owner of the cycle. P.w. 3 was Guard in the N.C.C. office. P.w. 5 is a peon of Berhampur Municipality. P.w. 10 is a police constable. These witnesses fully supported the prosecution case as narrated above. The Petitioner''s plea that the other accused offered to sell the cycle to him at Narendrapur Hat has not been substantiated by any evidence.

According to P.W. 2, when he went upstairs to transact some business there, the Petitioner came to the N.C.C. office compound, parked his wear well cycle by the side of the Hercules cycle and after making water went away with the Hercules cycle leaving the old wear well cycle there. His evidence is corroborated by PWs. 3, 5 and 10. The evidence of PWs. 3 and 10 shows that P.W. 2 shouted when the Petitioner removed the cycle from the spot. They identified the Petitioner in 2 T.I. parade to be the culprit. Merely because the Petitioner was mixed with persons who were not similarly dressed at the T.I. parade, that itself is not sufficient to justify the inference that the identifying witnesses must have seen the Petitioner before the T.I. parade. The evidence of PWs. 1 and 9 clearly establishes that the Petitioner went with Bidyadhar and offered to sell the stolen cycle at a low price. On enquiry by P.W. 1. the Petitioner first said that he belonged to village Pratappur, but subsequently denied that he was a resident of that village. This conduct is, therefore, highly incriminating. The stolen cycle (M.O.I.) has been identified by P.W. 2 as his own. The wear well Deluxe cycle which was left by the Petitioner at the spot belongs to P.W. 4 and the Petitioner had committed theft of the same, when Bhaskar Rao, the servant of P.W. 4. had gone with it to make some purchases. The evidence of the witnesses has not been materially shaken by cross-examination. Nothing was suggested as to why PWs. 3, 5 and 10 who are public servants would falsely implicate the Petitioner. It appears from the judgment of the appellate Court that the evidence of the witnesses ''was not challenged by the Petitioner at the time of hearing of the appeal. The direct evidence of the witnesses coupled with the fact that the Petitioner was found in possession of the stolen cycle on the day following the occurrence and that he made an attempt to dispose of the same at a much lower price clearly establish the charge u/s 379, Indian Penal Code against him. The mere fact that the other accused was convicted u/s 379, Indian Penal Code on his own admission cannot exonerate the Petitioner in view of the unimpeachable evidence appearing against him.

The learned Counsel appearing for the Petitioner invited my attention to some defects in the examination of the Petitioner u/s 342, Code of Criminal Procedure and contended that the Petitioner has been highly prejudiced thereby. It appears that in the questions put to the Petitioner the number of the stolen cycle was mentioned as W-69403 instead of D.B. 18519 and the date of theft was also mentioned as 8-7-1969 instead of 5-7-1969. In the F.I.R. (Ext. 1) and the seizure list (Ext. 4) the number of the stolen cycle has been correctly mentioned as D.B. 18519. P.w. 2 identified the cycle (M.O. I) ai his own and the Petitioner did not claim ownership of the same. The date of theft was mentioned in the F.I.R. as 5-7-1969. During his evidence in Court P.W. 2 also stated that his cycle was stolen on 5-7-1969. The Petitioner was defended by a lawyer. P.w. 2 and the other witnesses have been cross-examined with reference to all the incriminating circumstances appearing against the Petitioner. Having gone through the records and having heard the learned Counsel for the parties at length, I am of the view that the Petitioner has not been prejudiced in any way by the defective examination u/s 342 Criminal Procedure Code.

The order of conviction is unassailable. The sentence does not appear to be severe. Incidents of cycle theft are very rampant now-a-days and it was just a stray chance that the Petitioner was caught red-handed in this case. Having regard to the nature of the offence and the circumstances in which the Petitioner was caught, he does not deserve the benefit of the Probation of Offenders Act.

In the result, the criminal revision is dismissed, the conviction and the sentence being confirmed. The Petitioner should surrender to his bail bond.