THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 83 of 2009 ORDER: The accused Nos. 2 and 3 in C.C.No.884 of 2006 on the file of the Special Judicial First Class Magistrate (Prohibition and Excise) Visakhapatnam, who were convicted for the offence under Section 411 of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs.5,000/- each in default to undergo simple imprisonment for one month each, the said conviction has been confirmed in Criminal Appeal No.27 of 2008 on the file of the Metropolitan Sessions Judge- cum-I Additional District and Sessions Judge, Visakhapatnam, are the revision petitioners herein. The case of the prosecution is that the scooters belonging to P.Ws.1, 2 and 3 were committed theft of and on a complaint given by them, the police have registered the case and on 05.09.2005 at about 5.00 p.m. the accused No.2 along with accused No.1 was said to be coming on a scooter and they were apprehended and they did not produce any document and consequently the property was seized and found to be the case property on the complaint of P.W.1. It appears that as per the confession of A-2, they have gone to the house of A-3 and from the possession of A-3, the police have seized the scooters M.Os.2 and 3. Therefore, they are liable for prosecution for the offence under Section 379 of IPC or in the alternative Section 411 of IPC. After framing the necessary charges, the accused pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 6 were examined and Exs.P-1 to P-8 and M.Os.1 to 3 were marked. After the evidence of prosecution was over, the accused were examined under Section 313 of Criminal Procedure Code, 1973 and no evidence was adduced on behalf of the accused persons. After considering the evidence on record, the learned Magistrate convicted the accused and accordingly sentenced them, which were confirmed by the lower appellate Court. The point for consideration is whether the accused were found in possession of the stolen property? POINT: The learned counsel for the revision petitioners relying on a decision reported in Shera v. Emperor[1] contends that there is no proof that the property in possession of the accused is a stolen property and that they have got knowledge that it was a stolen property, the evidence of P.W.4, who is a stock witness for the police cannot be believed and consequently, the conviction and sentence imposed by the lower Courts is not proper. In order to sustain a conviction under Section 411 of IPC, possession of the property, which is said to have been stolen, is necessary to be established by the prosecution. P.Ws. 1 to 3 have specifically stated that they are the owners of the scooters and they have been stolen. They identified M.Os.1 to 3 as the properties respectively belonging to them. The factum of theft, therefore, cannot be doubted and it is not the case of the revision petitioners that the property belongs to them. The only question, therefore, the first ingredient that the scooters M.Os.1 to 3 were subject matter of theft and were stolen, is proved beyond doubt from the evidence of P.Ws.1 to 3. So far as the recovery is concerned, it is true that P.W.4 may be a witness of the police in several cases. But the fact remains that the accused were said to have been apprehended when they were coming on the scooter M.O.1 and thereafter as per the confession of A- 2, the scooters M.Os.2 and 3 were seized from the possession of A-3. Therefore, the stolen property was found in possession of the accused persons. They can only be found innocent if they can give any explanation as to how the came into possession of the property and the failure of which will entitle an inference is drawn that they are the receivers of the stolen property when the actual factum of theft is not proved. In this case, it is not the claim of any of the revision petitioners that the property belongs to them and that they own them. The evidence of P.W.4 though may be interested, the evidence of the Investigating Officer clearly goes to show about the apprehension of the accused and both the Courts below have accepted the evidence of P.Ws.4 and 6. Therefore, there is no infirmity in the conviction and sentence imposed against the revision petitioners and there are no merits in the revision petition. Accordingly, the Criminal Revision Case is dismissed confirming the conviction and sentence imposed by the Courts below. The lower Court is directed to take steps for apprehension of the accused persons. ________________________ N.R.L. NAGESWARA RAO, J Date: 01-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 83 of 2009 DATE: 01-11-2011 MR [1] AIR (30) 1943 Lahore 5