HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 925 of 1993 Appellant Rakesh Kumar Shanna, son of Shiv Narayan Shanna, aged about 27 years, R/o Vmage Gujara, P.S. Arang', District RAIPUR, (M.P.). Versus Respondent ’ State of M.P. through P.S. Bhilai Nagar, District DURG, (M.P.). ‘ AND Criminal Appeal No. 168/ 1994 Chander alias Chandrabhan, aged 27 s/o Paltu R/o Sector 2, Street 12, Qr. No. 12 F Bhilai, Distt. Durg, M.P. The State of M.P. Versus RESPONDENT RIMINAL APPEAL UNDER SECTION 37442) OF THE CRIMINAL ROCEDURE CODE. (SB: I-Ion’ble Mr. T.P. Sharma, J.) Present:— Shn‘ Rajendra Tn'pathi, Advocate for the appellant (in Cr. A. No. 925/ 1993). None for the appellant (in Cr. A. No. 168/ 1994). Shn' Suxyakant Mishra, P.L. for the State] respondénts. ORAL- JUDGEMENT (Passed on 07/07/2010) Criminal Appeal No. 925/ 1993 tiled by appellant Rakesh Kumar Sharma 85 Criminal Appeal No. alias Chandrabhan arising out of the conviction and sentence dated 27/8/93 paSsed by First Additional ) 168/ 1994 filed by appellant Chander C P Sessions Judge, Durg in Sessions Trial NO. 255/92 are being disposed of by this common judgnent. 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 the gound that he has left his address since last 15 to 16 years. In absence of any other address service upon the appellant Chander alias Chandrabhan is not possible therefore, in absence of any representation on behalf of appellant Chander alias Chandrabhan the appeal is heard finally on the basis of memorandum of appeal and record of the Court below. By filing criminal appeal No. 168/ 1994. appellant Chander aiias Chandrabhan has challenged the 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 appellant Chander alias Chandrabhan guilty for the offence punishable under Section 457 & 380 of the Indian Penal Code and Court below has convicted and sentenced the appellant Chander alias Chandrabhan rigorous imprisonment for 3 years and rigorous imprisonment for 3 years. Court below has also convicted the appellant Rakesh Kumar Sharma under Section 411 of the Indian Penal Court and sentenced rigorous imprisonment for 2 years and me of Rs. 1,000/- in default of payment of tine Additional simple imprisonment for 1 month. Conviction is impugied on the ground that without any iota of evidence suincient for conviction, Court below has convicted and sentenced the appellants as aforementioned. Brief case of the prosecution is on 2 1 / 1 1 / 90 at about 8 PM. PW3 Baldev Kumar who was present in his house situated at Sector ~2 Bhilai. He locked his house when f he came after some time, he found the lock of the house was broken and Television, ’I‘wo—in—o‘ne Tape— recorder and other articles were found stolen. Dehatinalishi was lodged vide Ex. P—4. During course of investigation accused Chander alias Chandrabhan was taken into custody, he made discloser statement of the articles vide Ex. P—l 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 seimd n‘om the possession of present appellant Rakesh Igumar Shanna vide Ex. P—2. Cash memo of television Ex; P~3A was seized from the owner of the television vide Ex. P—3. 4 6. Statemehts of the WitnesSes were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in \short ‘the Code’). After completion of the investightion charge sheet was tiled before the Judicial Magistrate First Class, Durg, who in tum committed the‘case to the Court of Sessions, Durg from where Learned Additional Sessions Judge, Durg received the case on transfer for trial. In order to prove the guiit of the appellants/accused prosecution examined as many as 7 Witnesses] Appellants/accused were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication is claimed. After affording an opportunity of hearing to the parties, learned First Additional Sessions Judge, Durg has convicted and sentenced the appellants as aforementioned. Shri Rajendra Tripathi, Advocate for the appellant Rakesh Kumar Shanna and Shri Suryakant Mishral, PL for the State/respondents are heard. Memo of appeal, judgment impugned and record of Court below relating to both thee appellants are perused. \ 11. Shri Rajendra Tripathi, learned counsel for the app§11ant Rakesh Kumar Shanna vehemently argued that in order to prove the guilt of the appellant for the offence punishable under Section 411 of the Indian Penal Code prosecution was required to prove the fact that appellant was in possession of the stolen property knowing it that same was stolen property but in the present case prosecution has not proved the fact that appellant Rakesh Kumar Shanna was in possession of the property knowing the same as stolen property therefore, in absence of such prove the conviction and sentence of the appellant Rakesh Kumar Sharma under Section 41 1 of the Indian Penal Code isnot sustainable under the law. On the other hand, learned counsel 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 onered any explanation that how he was in possession of the property. Evidence adduced on behalf of the prosecution is sunicient to prove the fact that appellant Chander alias Chandr'abhan has committed house braking at night and theft of the property &om the dwelling house. Court below has rightly convicted and sentenced the appellants as aforementioned. @ In order to appreciate the 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 of PW3 Baldev Kumar, PW4 Rohit Sarin, PW6 V.K. Sharma, PW7 Pranesh Dubey on 21/11/90 at about 8.30 P.M. in absence of the complainant lock of the house of the complainant was broken and somebody committed theft of the property kept his dweHing house. Documents Ex. P—3A reveals that complainant was Owner of Videocon television aforesaid property has been seized h‘om Rakesh Kumar Sharma __ on the basis of discloser‘statement of Ex. P—l made by co—aceused Chander alias Chandrabhan nothing has been asked to any of the witnesses on behalf of the Chander alias Chandrabhan to discredit the factum of discloser statement made by him. The evidence adduced on behalf of the prosecution is sumcient for drawing an inference that after theft of the property appellant Chander alias Chandrabhan is recent possession of costly items. In absence of any explanation on behalf of appellant Chander alias Chandrabhan Court below has rightly assumed appellant Chander alias Chandrabhan has committed house braking at night and theft of the property n‘om the dwelling house. Conviction of the appellant Chander alias Chandrabhan under Sections 457 85 380 of the Indian Penal Code is sustainable under the law. 14. As regard the question of sentence is concerned. Considering the remaining period of sentence i.e. 1 month and 7 days, again sentencing the appellant Chander alias Chandrabhan in jail would not serve any purpose. Consequently, criminal appeal No. 168/ 1994 is partly allowed and while maintaining the conviction of appellant Chander alias Chandrabhan, he is sentenced to imprisonment already undergone i.e. rigorous imprisonment for 2 years and 10 months and 23 days. Although in the present case appellant Rakesh Kumar Sharma has not adduced any defence to show his bonafides that he was in possession of alleged television without any knowledge that same was stolen property but the burden to prove such facts was on prosecution. In order to discharge its burden except conscious possession of the television with present appellant Rakesh Kumar Sharma prosecution has not adduced any evidence. On the basis of discloser statement of co-accused Chander alias Chandrabhan Ex. P—l television has been recovered n‘om the possession of appellant Rakesh Kumar Sharma 8 Although except the discloser part of the memorandum i.e. Ex. P—1 no other part is admissible in evidence but Ex. P—l reveals that he has sold two televisions to accused Rakesh Kumar Sharma and has received Rs. 13,000/-. Ex. P—4 Dehatinalishi and Ex. P—3 cash memo reveals that cost of television was only Rs. 8,000/-. It appears that present appellant has purchased two colour televisions after paying Rs. 13,000/— therefore, it is dimcult to hold that appellant Rakesh Kumar Shanna was in possession of aforesaid televisions lmowing the same it was stolen property in other words he has purchased the televisions after payment of reasonable cost. While convicting the appellant Rakesh Kumar Sharma learned Court below has not considered these material aspect of the case and thereby committed an illegality. Consequently, Criminal Appeal No. 925/ 1993 filed on behalf of the appellant Rakesh Kumar Sharma is allowed. Conviction and sentence of appellant Rakesh Kumar Sharma under Section 41 1 o'f the Indian Penal Code is hereby set aside. He be set at liberty at once. a Sd/. nn\