IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.800 of 2009 NARENDRA KUMAR SHARMA, SON OF LATE KAPILDEO KUNWAR, NUTAN GAS SERVICE, RESIDENT OF MOHALLA-KAVIVAR NEPALI PATH, POLICE STATION- BETTIAH, TOWN DISTRICT-WEST CHAMPARAN …PETITIONER Versus 1. STATE OF BIHAR 2. PREM KUMAR PODDAR SON OF SATYA NARAYAN PRASAD PODDAR, RESIDENTD OF MOHALLA-LAL BAZAR-POLICE STATION-BETTIAH TOWN- DISTRICT-WEST CHAMPARAN 3. RAMJEE PRASAD SON OF RAMDEO SAH, RESIDENT OF MOHALLA-JAMADAR TOLA, POLICE STATION- BETTIAH TOWN, DISTRICT-WEST CHAMPARAN …RESPONDENTS ----------- 02. 18.03.2011 Heard counsel for the parties. Petitioner is the informant of the case which gave rise to Trial No. 1013 of 1998. O.P. Nos. 2 and 3 were charged under section 411 IPC for possessing stolen LPG cylinders. Several witnesses were examined on behalf of prosecution. Defense also examined few witnesses. It appears from the very beginning that the accuseds laid claims over those cylinders. Learned trial court held them guilty under section 411 IPC. Aggrieved by the said order, O.P.Nos. 2 and 3 filed appeal being Cr. Appeal No. 57 of 1998 which was allowed. It is admitted position that the occurrence had taken place in the year 1990. Learned appellate court re-appraised the evidence and found as under in paragraph 15 of the judgment: “It is admitted fact that nine empty gas cylinders were recovered and seized from the possession of appellants, though there is controversy on the point of place of seizure. For conviction u/s 411 I.PC. it is necessary for the prosecution to prove 2 that theft was committed and the stolen article was recovered from the possession of the appellants. In this case from very beginning the appellants are claiming that all the nine empty cylinders were their and of their relative. It was duty of the prosecution to prove that the recovered empty cylinders from the possession of appellants are those which have been stolen from the godown of the informant. But the prosecution is totally silent on this point. No positive witness has been produced by the prosecution on this point. The prosecution has presumed that the empty cylinders are stolen cylinders, but there is no evidence on this point, rather there are difference of mark on the cylinders allegedly recovered by the police from the possession of the appellants and the cylinders produced in the court.” Taking into account the submissions advanced on behalf of the parties and the findings recorded in paragraph 15 in the background of the fact that the occurrence had taken place in the year 1990, this Court is of the view that the consideration of the matter by appellate court cannot be said to be patently illegal. This Court, therefore, declines to interfere. The application is accordingly dismissed. hr ( Kishore K. Mandal )