IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.4 OF 2002 Gaurab Bisht S/o Debendra Singh Bisht, R/o Post Office Colony, Pauri, Distt. Pauri Garhwal, Uttaranchal … Revisionist Versus The State … Respondent Sri UPS Negi, Adv. for the revisionist Sri Amit Bhatt, Addl. G.A. for the State Dated: July 26, 2010 HON. DHARAM VEER, J. This criminal revision, preferred by the revisionist under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 23.05.2000 passed by CJM, Pauri in Criminal Case No.871/99, State Vs. Gaurab Bisht and also against the judgment and order dated 15.12.2001 passed by the Sessions Judge, Pauri in Criminal Appeal No.2 of 2000, Gaurab Bisht Vs. State. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the facts of the case are that P.W.1 Abdul Naim lodged an FIR on 31.5.1999 at PS Pauri with the averments that the Motorcycle No.UP-11 A 0262 Model 1991 black colour, Engine No.1265963, was registered in the name of Ravindra Kumar. He had purchased that motorcycle but that was not transferred in his name on papers. The motorcycle was standing outside the Collectorate Compound on the side of road and it was seen last 10 PM in the night and theft thereof was committed at about 4 PM in the morning. With these averments, the FIR Ex.Ka-1 was lodged, on the basis of which PW3 H.M. Brijmohan prepared the Chik FIR Ex.Ka-4 and also made entry in the G.D., i.e. Ex.Ka-5. Investigation was entrusted to PW5 SI R.V. Sharma. On 1.6.1999 at about 5 PM, the said motorcycle was recovered by the police from the possession of the revisionist/accused in presence of complainant PW1 Abdul Naim and the recovery memo Ex.Ka-2 was prepared. During investigation, the IO 2 recorded the statements of witnesses prepared the site plan of the place of occurrence Ex.Ka-8 and also the site plan of the place where the motorcycle was recovered Ex.Ka-9 and after completing the investigation, the filed the charge sheet Ex.Ka-10 against the revisionist/accused. 4. Learned CJM, Pauri Garhwal framed the charges against the revisionist-accused u/s 379/411 IPC on 7.7.1999. The charges were read over and explained to the revisionist who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Abdul Naim, complainant, PW2 SI Jai Prakash Tomar, who recovered the motorcycle, PW3 H.C. Brijmohan, who prepared CHIK FIR and made entry in GD, PW4 Shyam Lal and PW5 SI RV Sharma, IO of the case. 6. After that the statement of the revisionist-accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. However, he did not produce any documentary evidence but in oral evidence he produced DW1 Alim Raja in his defence. 7. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned CJM, Pauri Garhwal vide judgment and order dated 23.05.2000 convicted and sentenced the revisionist-accused u/s 379 IPC for one year’s S.I. with fine of Rs.1,000/- and in default of payment of fine, two months’ further S.I. was awarded. Against the said judgment and order-dated 23.05.2000, the revisionist- accused preferred an appeal before Sessions Judge, Pauri Garhwal, which vide judgment and order dated 15.12.2001 partly allowed the appeal thereby confirmed the conviction of the revisionist u/s 379 IPC, however his sentence of one year’s S.I. was reduced to the sentence already undergone, but the sentence of fine as awarded by the trial court was also made affirmed. Feeling aggrieved, the revisionist-accused has preferred the present revision. 8. To prove its case the prosecution has examined PW1 Abul Naim who in his examination in chief, reiterated the story as narrated in the FIR. In cross-examination, he stated that the registered owner of the motorcycle is his nephew and there are two keys of the motorcycle. One key 3 remains with him while the second key remains with his nephew. At the time of lodging of the report, his nephew was not present there and he had gone somewhere out. Later on he came to know that the revisionist/accused had gone after taking the keys but this fact was not in his knowledge at the time of lodging the FIR. 9. PW2 SI Jai Prakash Tomar who stated that on 1.6.1999 he was posted as SI at PS Pauri. On that day he along with SHO Shishpal Singh, H.C. Brijmohan, Constable Parmal Singh and Constable Tejpal Singh was on the law and order duty. He received information from informant about the said motorcycle and that motorcycle was recovered at about 5:15 PM from the possession of the revisionist/accused in presence of complainant Abdul Naim. Thereafter the recovery memo Ex.Ka-2 was prepared. 10. PW3 H.C. Brijmohan who has proved the CHIK FIR prepared by him Ex.Ka-4 as well as the entry made in the GD Ex.Ka-5. He was also present along with SI Jai Prakash at the time of recovery of the motorcycle. 11. PW4 Shyam Lal who stated that the said motorcycle was purchased by Abdul Naim for which a receipt Ex.Ka-7 was also executed and he also signed on that receipt. 12. PW5 SI R.V. Sharma, IO of the case who prepared the site plans Ex.Ka-8 of the place of occurrence and Ex.Ka-9 of the place where the motorcycle was recovered. During investigation he recorded the statements of witnesses and on completing the investigation he filed the charge sheet Ex.Ka-10. 13. After that the statement of the revisionist-accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. However, he did not produce any documentary evidence but in oral evidence he produced DW1 Alim Raja in his defence. 14. DW1 Alim Raja stated that he is the registered owner of the motorcycle in question. The motorcycle was not transferred in his name till May 1999, however the motorcycle was purchased in the March 1999. There were two keys of this motorcycle, one was with him and other one was with his uncle Abdul Naim. The motorcycle was used to stand in front of Collectorate. The revisionist was known to him who was his neighbourer. 4 Prior to his incident, 1-2 times the revisionist had taken the motorcycle fro him. On 30.5.99 in the evening, the revisionist requested him for the key of that motorcyle on which he gave the keys to him. On 31.5.1999 at about 2:30 AM, he had gone to Nazibabad for repairing the Truck. The Police had not enquired anything about this motorcycle from him. 15. Sri UPS Negi, learned counsel for the revisionist argued that the offence of Theft is not proved against the revisionist beyond reasonable doubt by the prosecution. I find substance in this argument. Theft has been defined under Section 378 IPC, which is as follows: “378. Theft- Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.” 16. From a perusal of the evidence of PW1 Abdul Naim, it transpires that he stated in the cross-examination before the trial court that he did not know before lodging of the report that the revisionist/accused had taken the key of the motorcycle demanding the same from his nephew DW1 Alim Raza. Even DW1 Alim Raza stated that on 30.5.99 in the evening, the revisionist/accused requested him for the key of that motorcyle on which he gave the keys to him. Even prior to this incident, for 1-2 times the revisionist had taken the keys from DW1 Alim Raza. On the same day i.e. on 31.5.199 at 2:30 AM he went to Nazibabad. Thus, from the above-said evidence it reveals that the revisionist had taken the motorcycle from the real owner of the motorcycle who is DW1 Alim Raza with his own consent and, therefore, the offence of Theft of motorcycle is not at all made out against the revisionist inasmuch the revisionist had not taken the motorcycle without the consent of the DW1 Alim Raza, rather it has specifically come into evidence that the revisionist took the motorcycle with the consent of DW1 Alim Raza with his own consent. Thus it cannot be said that the revisionist committed any Theft of motorcycle. 17. In view of the above discussion, I find that the prosecution has miserably failed to prove its case against the revisionist beyond reasonable doubt for the offence punishable under Section 379 IPC and the revisionist is entitled for benefit of doubt. 5 18. For the reasons as aforesaid, the revision is allowed. Judgment and order dated 23.05.2000 passed by CJM, Pauri and the judgment and order dated 15.12.2001 passed by the Sessions Judge, Pauri are quashed. The revisionist is acquitted for the charge punishable u/s 379 IPC. 19. Lower court record along with copy of judgment be sent back. (Dharam Veer, J.) July 26, 2010 Rajeev Dang