HIGH COURT OF CHHATTISGARH AT BILASPUR Appellant ResDoadeat Crimmal Aoneal No. 925 of 1993 Rakesh Kiunar Sharma, son of Shlv Narayan Shanna, aged about 27 years, R/o VUlage Gujara, P.S. Arang, District RAIPUR, (M.P.). Versus State of M.P. fhrough P.S. Bhilai Nagar, District DURG, (M.R). «.:„»; APPBIAANT AND CrtailBal Aoneal No. 168/1994 Versus RESPONDENT Chander alias Chandrabhan, aged 27 s/o Paltu R/o Sector 2, Street 12, Qr. No. 12 F BIulai, Distt. Durg, M.P. TheStateofM.P. •v^m CRIMINAL APPEAL UNDER SBCTION 374(2t QF^THB CMMINAL PROCEDURE CODB. (SB: Hon'ble Mr. T.P. Sharma, J.) Presenfc- Shri Rajendra Tripathi, Advocate for the appellant (in Cr. A. N0. 925/ 1993). None for the appellant (m Cr. A. No. 168/1994). Shri Siuyakant Mishra, P.L. for fhe State/respondents. ORAL- JUDGBMBNT (Passed on 07/07/2010) 1. Cruninal Appeal No. 925/ 1993 ffled by appellant / Rakesh Kumar Sharma & Criminal Appeal No. ~**I- ; 168/1994 filed by appellant Chander alias Chandrabhan arising out of the conviction and sentence - dated 27/8/93 passed by First Additional •^ Sessions Judge, Durg in Sessions Trial N0. 255/92 are being disposed of by this common judgment. 2. Regularly warrant has been issued against the appellant Chander alias Chandrabhan in criminal appeal No. 168/1994 but warrant has not been served upon the appellant on fhe ground that he has left his address since last 15 to Ifiryears. In absence of any other address service upon fhe appeUant Chander alias Chandrabhan is not possible fherefore, in absence of any representation on behalf of appeUant Chander alias Chandrabhan the appeal is heard finally on the basis of memorandum of appeal and record offhe Court below. 3. By filing cnminal appeal No. 168/1994 appellant Chander alias Chandrabhan has challenged fhe legality and propriety of the judgment of conviction and order of sentence dated 27/8/93 passed by First Additional Sessions Judge, Durg in Sessions Trial No. 255/92 whereby & where under after holding the appeUant Chander alias Chandrabhan guilty for the offence punishable under Section 457 & 380 of the Indian / - Penal Code and Court below has convicted and ls»*- sentenced the appellant Chander aUas Chandrabhan rigorous tmprisonment for 3 years and rigorous imprisonment for 3 years. Court below has also cbnvicted fhe appellant Rakesh Kiimar^haiuia^yndQ' ^^ss /^^ i ^ i / %1 ISF W flffill Section 411 of the Indian Penal Court and sentenced rigorous imprisoiunent for 2 years and fine of Rs. 1,000/- in default'of payment of fine Additional simple imprisonment for i month. 4. Conviction is impugned on the groimd fhat without any iota of evidence sufficient for conviction, Court below has convicted and sentenCed the appellants as aforementioned. 5. Brief case of the prosecution is on 21/11/90 at about 8 P.M. PW3 Baldev Knmar who was present in his house situated at Sector -2 BhiJai. He locked his house when he came after'some time, he found the lock of fhe house was broken and Television, Two-in-one Tape- recorder and other articles were found stolen. Dehatinalishi was lodged vide Ex. P-4. During course of investigation accused Chander alias Chandrabhaa was taken into custody, he made discloser statement of the articles vide Ex. P-1 including the television. On the basis of such discloser statement one television and order book receipt relating to Annop Chandra and Tilok Chandra Jewelers were seized from the •'»*>- possession of present appellant Rakesh Kimiar Sharma vide Ex. P-2. Cash memo of television Ex. P-3A was seized from the owner ofthe television vide Ex. P-3. 6. Statements of the witnesses were recorded luider Section 161 ofthe Code of Criminal Procedure, 1973 (in short the Code').. After completion of the investigation charge sheet was filed before the Judicial Magistrate Ftrst Class, Diirg, who in tum coinmitted the case to fhe Court of Sessions, Durg from where Leamed Additional Sessions Judge, "Durg received the case on transfer for trial. 7. In order to prove the guilt of the appellants/accused prosecution examined as many as 7 witnesses. Appellants/accused were exainined luider Section 313 of the Code where they denied fhe circumstances appearing against them, innocency and false tmplication is claimed. 8. After affording an opportumty of hearing to the parties, learaed First Additional Sessions Judge, Durg has convicted and sentenced fhe appeUants as aforementioned. 9. Shri Rajendra Tnpathl, Advocate for the appellant Rakesh Kumar Sharma and Shri Suiyakant Mishral, P.L.forthe State/respondents are heard. '-«»- 10. Memo of appeal, judgment impugned and record of Gourt below relating to both fhe appeUants are perused.• ^) :1llj!l l'UI igl 11. Shri Rajendra Tripattu, leamed counsel for fhe app,eUant Rakesh Kumar Sharma vehemently argued that in order to' prove the guilt of the appellant for fhe offence purushable under Section 411 of the Indian Penal Code prosecution was required to prove the fact that appellant was m possession of the stolen property knowtng it that sanie was" stolen propeity but in the present case prosecution has not proved fhe fact that appellant Rakesh Kumar Sharma was in possession of the property knowing the same as stolen property therefore, m absence of such prove the conviction and sentence ofthe appellant Rakesh Kumar Sharma iinder Section 411 of the Indian Penal Code is not sustalnable under the law. 12. On the other hand, leamed coiinsel for the State/respondents opposed the appeals and submits that just after commission of the theft, on 22/3/91 appellant was found in possession of stolen property. He has not offered any explanation that how he was in possession of the property. Evidence adduced on behalf / - of £he prosecution is suffident to prove the fact that '»»- appeUant Chander alias Chandrabhan has committed house braking at night and fheft of the property from the dwellir^ house. Court below has rightly convicted and sentenced the appeUants as aforementioned. '••W'S*^lSsiSilliliSWSS!,','3S,ipSiSSSS^slSi'. •i«ft!6 ;t'{ fisi !tf^1Bi! 13. In order to appreciate fhe argument advanced on behalf of the parties, I have examined the evidence adduced on behalf of the prosecution. In the present case as per evidence ofPWS.Baldev Kumar, PW4 Rohit Sarin, PW6 V.K. Sharma, PW7 Pranesh Dubey on 21/11/90 at about 8.30 P.M. tn absence of the complalnant lock of the house of the complflinant was broken and somebody committed theft of the property kept his dweUing house. Documents Ex. P-3A reveals that complainant WSLS owner of Videocon televlsion aforesaid property has been seized from Rakesh Kumar Sharma on the basis'of discloser statement of Ex. P-1 made by co-accused Chander alias Chandrabhan nothtr^ has been asked to any of the witnesses on behatf of fhe Chander alias Chandrabhan to discredit the factum of discloser statement made by him. The evidence adduced on behalf of the prosecution is si.ifiicient for drawing an inference that after theft of fhe property appellant Chander alias Chandrabhan is recent possession of costty items. In absence of any explanation on behalf of appeUant Chander alias '-"». Chandrabhan Court below has rightly assumed appellant Chander alias Chandrabhan has committed house braklng at night and fheft of the properly from tKe dwelling house. Conviction of the appeUant •'^'--:':L<T@S2 •^-^. ,< st: ijgi »M».!||,, Chander alias Chandrabhan under Sections 457 & 380 of the Indian Penal Code is sustamable under the law. 14. As regard the question of sentence is concemed. Considering the remainmg period of sentence i.e. 1 month and 7 days, agaia sentencing the appellant Chander alias ChandrabharT'in jaU would not serve any purpose. Consequently, cruninal appeal No. 168/1994 is partly allowed and wtiile maintaining the conviction of appellant Chander alias Chandrabhan, he is sentenced to imprisonment already undergone i.e. rigorous imprisonmeiit for 2 years and 10 months and 23 days. 15. Although in the present case appellant Rakesh Kiuaar Sharma has not adduced any defence to show his bonaddes that he was m possession of aUeged television without any knowledge that same was stolen property but fhe burden to prove such facts was on prosecution. In order to discharge its burden except conscious possession of the telerision with present / - appellant Rakesh Kumar Sharma prosecution has not -»»- adduced any eyidence. On fhe basis of discloser statement of co-accused Chander alias Chandrabhan Ex. P-1 television has been recovered from the possession pf appellant Rakesh Knmar Sharma. ,.-^':s> t'Ste.- M » s K '\:i^..^e"- ^ '^^^ fc!&|S, ISt'i^'Blj, AJthough except the discloser part of fhe memorandum i.e. Ex. P-1 no other part is adimssible in evidence but Ex. P-1 reveals fhat he has sold two televisions to accused Rake'sh Kumar Sharma and has received Rs. 13,000/-. Ex. P-4 Dehatincdishi and Ex. P-3 cash memo reveals that cost of television was only Rs. 8,000/-. It appears .fhat present appeUant has purchased two colour televisions after paying Rs. 13,000/- therefore, it is difiicult to hold that appellant Rakesh Kumar Sharma was in possession of aforesaid televisions knowing the same it was stolen property ia other words he has piu-chased the televisions after payment of reasonable cost. WIule convlcting the appellant Rakesh Kumar Sharma leamed CoLirt below has not considered these material aspect of the case and thereby cominitted anillegality. Consequently, Criminal Appeal No. 925/1993 ffled on behalf of the appeUant Rakesh Kumar Sharma is allowed. Conviction and sentence of appellant Rakesh Ki.unar Sharma imder Section 411 of the Ipdian Peiial Code is hereby set aside. He be set at / - liberty at once. ~»>«- Sd/- T.P. Sharma Judge