{1} Cri. Revision No.136/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.136 OF 2011 Shri.Yusuf Saibu Tadvi APPLICANT Age-34 years, Occ-Labourer R/o Quarter No.5, Ordinance Factory Type Bhusawal, Dist-Jalgaon Presentlly in jail VERSUS The State of Maharashtra RESPONDENT Through the Officer in Charge Bhusawal Police Station, Bhusawal, Dist-Jalgaon ....... Mr.Mukul Kulkarni, Advocate for the applicant Mrs.Yogita M.Kshirsagar, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 7 th October 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of the parties heard finally at the stage of admission. 2. Challenge in this criminal revision is to the conviction {2} Cri. Revision No.136/2011 of the applicant for an offence punishable u/s 379 of the Indian Penal Code and his sentence of SI for 6 months and to pay a fine of Rs.5000/-, in default to undergo further SI for 15 days, awarded by JMFC, Bhusawal in RCC No.216/2001 vide judgment dated 06.10.2004 and confirmed by Sessions Judge, Jalgaon vide order dated 09.06.2011 rendered in Criminal Appeal No.88/2004. 3. Such of the facts, which gave rise to file the present revision may briefly be stated thus- The applicant, while he was carrying 13 bags containing sand in a handcart outside the factory premises, was intercepted at the Ordinance Factory Gate, Bhusawal on 28.07.2001. On examination, in presence of the security staff, one of the bag found containing copper wire weighing 13 kg. When the applicant was questioned, he gave evasive replies and hence the copper wire was seized and complaint was lodged in Bhusawal police station by one Prakash Kulkarni. Pursuant to the lodging of the complaint, an offence at Crime No.46/2001 came to be registered against the applicant. Thereafter, immediately Panchanama of the seized {3} Cri. Revision No.136/2011 articles was carried out and statements of certain witnesses were recoded. On completion of the investigation, charge sheet was filed before JMFC, Bhusawal and the case was numbered as RCC No. 216/2001. It appears that charge was framed by the trial Court at Exhibit-12 against the applicant for an offence punishable u/s 379 of the Indian Penal Code. The prosecution, in support of its case, had examined in all 5 witnesses, including the complainant and Panch witnesses. It appears that though PW-3, Security Guard, did not support the prosecution on the material particulars, yet all other witnesses, deposed the incident witnessed by them, before the trial court. After the evidence of the prosecution witnesses was over, the applicant was also examined u/s 313 of the Criminal Procedure Code. Defence of the applicant was of total denial and his false implication to deprive his employer from the contract of loading on the railway platform. The trial court, accepted the evidence of the prosecution and convicted the applicant as aforestated. Even the conviction recorded by the trial court came to be confirmed by the Sessions Judge, Jalgaon in Criminal Appeal No.88/2004, which was preferred by the applicant challenging his conviction and sentence. The same is impugned in the present {4} Cri. Revision No.136/2011 criminal revision application. 4. At the outset, it may be noted that in revisional jurisdiction, this Court has very limited scope to interfere in the impugned judgments, unless any perversity or illegality is brought to the notice of this Court. Thus, powers of revisional court are very limited and this Court cannot re-appreciate the evidence and interfere with the concurrent finding given by both the courts below in its revisional jurisdiction, unless any perversity is noticed in the said judgments. 5. Learned counsel for the applicant has urged that the witnesses examined by the prosecution are the interested witnesses, as they are the officers and workers of the Ordinance Factory and hence their evidence could not have been relied on by the trial court to convict the applicant. It is further urged that the copper wire, which is allegedly seized from the possession of the applicant, is easily available in open market and hence unless it is established that the said copper wire is the material used the said Factory, it cannot be said that the applicant has stolen the same {5} Cri. Revision No.136/2011 from the said Factory. It is also urged that considering the age of the applicant, at the relevant time, the sentence is very harsh and hence it is prayed to allow the revision application and quash and set aside the conviction and sentence awarded to the applicant by both the Courts below. In the alternative it is urged that if this Court confirms the conviction of the applicant, then the sentence be modified to the term the applicant has already undergone. 6. Per contra, learned APP supported both the impugned judgments and vehemently urged for dismissal of the present revision application, considering the gravity of the offence. 7. Considering the rival submissions, it is clear that though it is urged by learned counsel for the applicant that the witnesses examined by the prosecution are interested witnesses as they are officers or workers of the said Factory, yet it has to bear in mind that the said Factory is a prohibited area for any civilian and the incident has occurred within the premises of the said factory and hence, being the prohibited area, no outsiders are expected to witness the incident, which has occurred within the Factory {6} Cri. Revision No.136/2011 premises. Hence, the submissions advanced by learned counsel for the applicant that the prosecution witnesses are interested witnesses, needs to be discarded. The applicant-accused has admitted that he was working in the said factory for the contractor. Even the evidence of the witnesses examined by the prosecution is not shaken and stand fully proved that the applicant was intercepted at the gate of the said factory while he was carrying the copper wire, which was concealed in sand bags. Thus, considering the evidence of the prosecution witnesses, which is not shaken, the presumption u/s 114 of the Indian Evidence Act, particularly, 1st illustration would go in favour the prosecution. Illustration (a) of section 114 of the Indian Evidence Act, reads thus- “114 Court may presume existence of certain facts - 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 The Court may presume - (a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; 8. Admittedly, nothing is brought on record by the {7} Cri. Revision No.136/2011 applicant-accused to rebut this presumption. Nor has he offered any explanation as to how the said copper wire, used in the said Factory, was found in his possession. Both the Courts below have noticed that the applicant was found in possession of the copper wire, which was not owned by him, however the same belonged to the Ordinance Factory. 9. Thus, I do not notice any perversity, in both the impugned judgments, which requires interference in the revisional jurisdiction of this Court. 10. Though it is urged that considering the age of the applicant-accused and the value of the stolen article, the sentence be modified, yet the fact remains that both the Courts below have taken a very lenient view while awarding sentence to the applicant. In other words, already less sentence is awarded by both the Courts below. Moreover, no special circumstances are brought to the notice of this Court to reduce the sentence awarded to the applicant. In the premise, I do not find any substance in the submission to modify and reduce the sentence of the applicant. {8} Cri. Revision No.136/2011 Therefore, the revision requires to be dismissed and the conviction and sentence awarded to the applicant requires to be maintained. 11. Consequently, the revision application is dismissed by confirming the conviction and sentence of the applicant. The bail bonds of the applicant stand cancelled. The applicant is directed to surrender before the trial court within a period of three weeks from today. If the applicant do not surrender within the stipulated time, the trial court to issue warrant against the applicant and sent him into jail to undergo the sentence. Rule stands discharged. [A.V.POTDAR, J.] drp/B11/crirevn136-11