Sri. Harihar Rout vs State of Orissa

P.K. Mohanti, J.—This criminal revision has been preferred against the judgment of the learned Sessions Judge of Balasore upholding the conviction of the Petitioner u/s 380, Indian Penal Code and a sentence of R.I. for two months.

Prosecution case was that an electric motor belonging to the Sabira Rice Mill was stolen on the night of 22-2-1971 First information Report was lodged by P.W. 4 Arjun Nayak, a clerk of the said Rice Mill on 24-2-1971 at 2.30 p.m. It was alleged that on 23-2-1971 at about 9 a.m. while the Officer-incharge of Balasore Sadar Police Station (P.W. 6) was returning after investigating into a case, he found the Petitioner going towards Balasore carrying an electric motor wrapped in a torn cloth on his bicycle. On suspicion the electric motor along with the bicycle of the Petitioner was seized under the seizure list Ext. 2 in presence of witnesses and the Petitioner was taken to custody. The particulars of the electric motor as mentioned in the seizure list were found to tally with those given in the F.I.R. After investigation the Petitioner was charge-sheeted u/s 380, Indian Penal Code.

After the trial, the Petitioner denied the occurrence of theft and the seizure of the electric motor of whom P.W. 6 is the Police officer who seized the electric motor, P.Ws. 1 and 2 are two constables who witnessed the seizure, P.W. 3 is the Manager of the Sabira Rice Mill, P.W. 4 is an employee of the said Rice Mill and P.W. 5 is the person who had sold the electric motor to the Rice Mill.

That there was a theft of the electric motor from the Rice Mill on the night of 22-2-1971 is amply proved by the evidence of P.Ws. 3 and 4. The evidence of these two witnesses went unchallenged as the Petitioner declined to cross-examine them. P.W. 5 testified that the electric motor in question had been sold by him to the Sabira Rice Mill on 1-9-1968. In view of the evidence of the above witness there can be no doubt that the Sabira Rice Mill was the owned of the electric motor and it was stolen from its possession on the night of 22-2-1971. The evidence of P.Ws. 1, 2 and 6 clearly establishes that the electric motor was seized from the possession of the Petitioner on 23-2-1971 at about 9 a.m.. Their evidence about the seizure also remained unchallenged as the Petitioner declined to cross-examine them. The electric motor was not produced in Court at the time of trial for identification by the witnesses but the fact remains that the particulars of the motor as given in the seizure list tally with those given by P.Ws. 3, 4 and 5. There is therefore, no room for doubt that the electric motor which was seized from the possession of the Petitioner belonged to the Sabira Rice Mill and it was removed from its possession on the night of 22-2-1971. The Petitioner did not offer any explanation as to how he came by the electric motor.

On the basis of the above evidence and on the presumption u/s 114(a) of the Indian Evidence Act, the trial Court convicted the Petitioner u/s 380, Indian Penal Code and inflicted the sentence as indicated above. On appeal the learned Sessions Judge upheld the conviction and sentence.

Section 114 of the Indian Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, Illustration (a) as follows:.

That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.

This illustration does not show when the presumption whether a person as a thief or a receiver of the stolen property is to be drawn. This would however depend upon the facts and circumstances of each case. For instance, if a person is found near about the place of commission of theft immediately before or after the commission of the crime and is subsequently found to be in possession of the stolen property of which he fails to give any satisfactory explanation, the presumption may be drawn that he was thief. But if the only evidence against him is his recent possession of the stolen property, the better presumption would be that he was a receiver of the stolen property. Vide State of Orissa Vs. Udaya Padhan and Others, .

There is absolutely no evidence to show that the Petitioner himself committed the theft or that he was seen moving at or about the place of occurrence at the time, when the theft was committed, it may be that somebody also committed the theft of the electric motor and subsequently handed over the same to the Petitioner. In the absence of any other evidence, direct or circumstantial, connecting the Petitioner with the actual commission of the theft it is not possible to sustain the conviction u/s 380, Indian Penal Code But, as the Petitioner was found to be in possession of the electric minor on the day following the occurrence and he did not account for his possession there is no escape from the conclusion that he was a receiver of the stolen property and as such is liable for the offence u/s 411, Indian Penal Code.

The learned Magistrate did not frame an alternative charge against the Petitioner u/s 411, Indian Penal Code. There is however, no legal bar for altering the conviction to one u/s 411, Indian Penal Code in view of the provision of Section 237 of the Code of Criminal Procedure, 1898 which corresponds to Sub-section (2) of Section 221 of the new Criminal Procedure Code, I would accordingly set aside the conviction u/s 380. Indian Penal Code and instead convict the Petitioner u/s 411, Indian Penal Code.

Taking into consideration the circumstances of the case including the nature of the offence it is desirable to release the Petitioner u/s 4 of the Probation of Offenders Act. I set aside the sentence imposed on the Petitioner and direct that he be released u/s 4 of the Probation of Offenders Act on his entering into a bond of Rs. 500/- with one surety for the like amount to appear in the trial Court to receive the sentence, whenever called upon to do so, within a period of six months and during that period to keep the peace and be of good behaviour. The learned trying Magistrate is directed to take the necessary bond from the Petitioner and the surety bond from a surety to his satisfaction. The Petitioner is allowed one month''s time from the date of receipt of the records in the lower Court to furnish necessary bonds. The bail bond executed by the Petitioner will enure till then and will be deemed to be cancelled after the above directions are carried out. On the Petitioner''s failure to furnish the bond within the time allowed he should be taken to custody and produced before the trial Court to receive the sentence.

The records be despatched immediately.

Ordered accordingly.