Rajiv @ Raju Bimi Piwal vs The State Of Maharashtra
2003 Latest Caselaw 723 Bom

JUDGMENT

J.G. Chitre, J.

1. Petitioner absent. None present for him. Shri Saste present for the State of Maharashtra.

2. Section 403 of the Code of Criminal Procedure, 1973 provides that save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision; but the court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader. Therefore, neither party has any right to be heard personally or by pleader and the facts of the present case does not show that this Court should hear either of them. As Shri Saste is present representing the State of Maharashtra, this Court heard him on the point of merit.

3. The petitioner has put a challenge to the order passed by J.M.F.C. Cantonment, Pune in R.C.C. No. 83 of 1985 whereby the learned Magistrate convicted the petitioner for the offence punishable under Section 379 and sentenced him to undergo RI for one year and to pay a fine of Rs. 3000/-, in default to suffer further RI for 9 months.

4. The petitioner was indicated for the said offence on the facts mentioned hereinunder.

5. On 15.2.85 at about 1.30 a.m. PSI Avhad from Yerawada Police Station apprehended the present appellant in Jay Javan Nagar as he was possessing one motor cycle bearing No. M.T.Z. 1098. He brought the petitioner with the said motor cycle to Yerawada Police Station. On 15.2.1985 one Abdul Hamid Zafarkhan visited the Yerawada Police Station on getting information about the said motor cycle from his friend Pillay. He identified the said motor cycle as belonging to him, a report was written, investigation proceeded and ended in trial which the present appellant faced in which he was convicted and sentenced as mentioned above. The learned Magistrate pointed out in his judgment that it has come in the evidence of PW Abdul Hamid that on 14.2.1985 he had visited one restaurant known as Mona-food for having his lunch and at that time he had parked the said motor cycle outside the said restaurant. After finishing the lunch when he came out, he noticed that the said motor cycle was stolen by somebody. He learnt from PW Manik Pillay that his motor cycle was seized by officers of Yarawada Police Station. Therefore, he went there and identification his motor cycle. His evidence has been corroborated by PW Manik Pillay and PSI Awad.

6. The petitioner was not able to show that he was the owner of the said motor vehicle. Thus, the learned Magistrate recorded the finding of conviction and sentence and passed the sentence on the petitioner. The learned Additional Sessions Judge, Pune while deciding the criminal appeal No. 322 of 1992, appreciated the evidence again and recorded the same findings. He held that the petitioner was unable to give any satisfactory explanation as to how he came in possession of the said motor cycle which was not in his possession before he committed the said theft. He confirmed the judgment and order passed by the learned trial Judge.

7. Unfortunately, neither the trial Court nor the appellate Judge pointed out in their judgments the provisions of Section 114 of the Evidence Act, 1872 (hereinafter referred to as the Evidence Act for convenience) which provides some illustrations and out of the illustration (a) provides that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In the present case, there is no direct evidence to show that anybody from the prosecution witnesses say that the petitioner committed the theft of the said motor cycle. The petitioner was unable to show that he was lawful owner or the possessor of the said motor cycle. On the contrary, PW Abdul Hamid Jafar Khan was able to show his ownership and lawful possession of the said motor cycle. The said motor cycle was stolen on 14.2.1985 and the present petitioner was found in its unlawful possession on 14.2.85. Soon after the said theft when the accused was found in recent possession of the stolen property, the inference which is to be drawn against hi is that he is the person committing theft of such property. Both the Courts below should have pointed out this provisions of law for justifying their conclusions holding the petitioner guilty of the offence punishable under Section 379 of IPC. It is pertinent to note that in a judicial process of adjudicating guilt or innocence, the conclusion drawn by the Court has to be justified on all points. A sleep shod conclusion cannot be appreciated in the arena of legal decisions.

8. Thus, with this modification, the judgment and order passed by the JMFC Cantonment Court Pune which has been confirmed by the Additional Sessions Judge, Pune stands approved and confirmed by dismissing this revision application. Thus, the revision application stands dismissed.

9. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary of this Court.