ORDER
A.S. Godara, J.
1. This Criminal Revision Petition under Section 397 read with Section 401, Cr.P.C. has been filed against the appellate judgment dated 11-8-88 passed by the learned Addl. Sessions Judge, Bikaner whereby the judgment and order convicting the accused-petitioner under Section 411, I.P.C. was upheld but, his conviction and consequential order of sentence under Section 379, I.P.C. was set aside. A sentence of one year's R. I. was also imposed under the aforesaid section on the petitioner. His co-accused petitioner Megh Raj was, however, acquitted of offence under Section 379, I.P.C.
2. Briefly stated the facts giving rise to the present petition are that P. W. 1 Ramesh Chandra is the registered owner of Java Motor-cycle No. RJF 5353. It was on 18-8-82 at about 5.30 p.m. that he had gone to the residence of one Dharam Pal, Advocate, situated in Rani Bazar, Bikaner. He parked his motor cycle out-side the residence of Dharam Pal. When he came out of the house, HO/KO/R449/97/HVM/CSL he found his motor-cycle missing from there. Accordingly, he lodged F. I. R. No. Ex. P. I at the Police Station, Kotgate, Bikaner about the theft of his motor-cycle on which F. I. R. No. 273/82 was registered and investigation was taken up. During the course of investigation, it was on 21 -8-81 that Brij Ratan alias Sainti was found riding the motorcycle and driving it near Rani Bazar of Bikaner while accused Megh Raj was his pillion rider. P. W. 5 Ram Chandra, who was also posted at the Police Station, Kotgate, Bikaner, happened to intercept the same and, he immediately apprehended both the motor-cyclists and seized the motor-cycle vide Bx. P. 3 recovery memo. It was on 22-8-82 that the accused-petitioner was also arrested vide Ex. P. 7 by Ram Chandra, A. S. I. and, on interrogation, he gave Ex. P. 8 information purporting to be one under Section 27 of the Evidence Act to the effect that he had kept the monogram (Article I) of [Jon, imprinted in metal, on a plate in the 'Gummaria' of his house and, consequently, he led Ram Chandra and his associates to the said place of his residence wherefrom, on 25-8-82, monogram (Article 1) was recovered vide Ex. P. 4 recovery memo, P. W. I Ramesh Chandra was also present at the place of alleged recovery who immediately identified the monogram as the one which was fixed on the rear side of the motor-cycle at the time of the theft.
3. On completion of investigation, police filed a charge-sheet under Sections 379 and 411, I.P.C. against all the three accused-persons in the court of Chief Judicial Magistrate, Bikaner. The learned trial Magistrate charged Brij Ratan as well as Megh Raj under Section 379, I.P.C. while the accused-petitioner was charged under Section 379, I.P.C. and, in the alternatively, under Section 411, I.P.C. to which all of them pleaded not guilty. Consequently, the prosecution examined as many as seven witnesses in support of its case.
4. P. W. I Ramesh Chandra is the owner of the motor-cycle. P. W. 2 Padama Ram and P. W. 3 Bhanwar Lal are 'motbirs' who have supported recovery vide Ex. P. 3'of the Motor-Cycle from the possession of Brij Ratan and Megh Raj as testified by P. W. 5 Ram Chandra.
5. P. W. 5 is the Investigating Officer who recovered motor-cycle vide Ex. P. 3 from the possession of the said both the accused-persons who are not before this Court in this revision petition. Besides, he also arrested and interrogated accused-petitioner who gave him information about the monogram of the motor-cycle which was lastly recovered vide Ex. P. 4, as is supported by P. W. 4 Tola Ram as well as P. W. 6 Heera Lal.
6. Lastly, accused-persons were examined under Section 313, Cr.P.C. and they denied commission of theft of the vehicle or receiving the same and, lastly, any recovery from their possession. They did not adduce any defence evidence. Consequently, the learned Chief Judicial Magistrate, vide his judgment dated 19-3-84, convicted Megh Raj and Brij Ratan under Section 379, I.P.C. while Narayan Das petitioner was convicted under Section 379 and, alternatively, under Section 411, I.P.C. and a sentence of one year's R. I. besides a fine of Rs. 100/- and, in default of payment of fine, one month's S. I., was imposed on each of the accused-persons. Being aggrieved, Brij Ratan preferred Criminal Appeal No. 35/88 in the court of Session, Bikaner which was dismissed, on being made over to it, by the learned Addl. Sessions Judge, Bikaner vide its judgment dated 22-6-88. As regards Meghraj and Narayan Das, they preferred Criminal Appeal No. 33/88, which was also decided by the learned Addl. Sessions Judge, Bikaner vide his impugned judgment dated 11-8-88 and the learned Addl. Sessions Judge while partly accepting the impugned judgment and order of sentence acquitted Megh Raj of offence under Section 379, I.P.C. consequently setting aside his sentence. However conviction of the present accused- petitioner was maintained under Section 411, I.P.C. While maintaining the order of sentence, it was further ordered that since there were as many as six similar appeals of the present petitioner being disposed of by the same court and hence sentences of imprisonment passed in all such criminal cases under appeals were ordered to run concurrently. However, being aggrieved by the appellate judgment, this revision has been preferred, as above.
7. I have heard the learned counsel for the petitioner and the learned P. P. and have also perused and considered the legality, propriety and regularity in the impugned judgment of both the lower courts along with the impugned judgment.
8. At the out-set, it may be mentioned that so far as the appeal of Megh Raj is concerned, the same having been accepted by the lower appellate court, he stands acquitted of' offence under Section 379, I.P.C. However, conviction and sentence of Brij Ralan under Section 379, I.P.C. was affirmed by the appellate court and it does not appear from the record that whether the same was similarly challenged by way of filing a criminal revision or not.
9. As regards accused-petitioner Narayan Das. suffice it to say, that there is absolutely no evidence to show that he had received monogram (Article I) recovered from his possession, as above. Besides, it may be mentioned that P. W. I Ramesh Chandra was not required by way of test identification parade during the course of investigation to identify Article 1 along with other similar articles mixed there along with before any Magistrate. Besides, though P. W. 5 Ram Chandra, Investigating Officer, has stated that he received Ex. P. 7 information on22-8-82 pursuant to which he recovered Article 1 vide Ex. P. 4 but he also arranged presence of P. W. I Ramesh Chandra at the time of the alleged recovery and unless there was some mystery or Investigating Officer purposely wanted to avoid necessity of holding test identification parade of the recovered monogram, the presence of P. W. 1 Ramesh Chandra at the site of the occurrence was unwarranted. Besides, Ex. P. 4 recovery memo also does not support the factum of presence of Ramesh Chandra himself. In the circumstances, since from the evidence of Ramesh Chandra himself also it could not be denied that monogram similar to Article 1, which was got prepared at Jaipur, could be available in abundance and, therefore, in absence of any subsequent distinguishing mark of identification on Article 1, could not be easily identifiable. Therefore, merely on the basis of Article 1 which was never put to test identification during the course of investigation and, at the time of examination of Ramesh Chandra during the trial as well, there were no similar articles mixed with Article 1 and, therefore, Ramesh Chandra did not have any difficulty to point out the single Article 1 which is further alleged to have been recovered in his presence at the instance and on the information of the accused-petitioner. Besides, though directly not relevant, P. W. 1 Ramesh Chandra himself admitted that the motor-cycle which was stolen was seen by him on the next day of the occurrence parked out side the Police out-post Rani Bazar whereas the police has brought forward a story that the two, co-accused persons who were also so challaned and tried along with the accused-petitioner, were intercepted while they were proceeding on the motor-cycle on 21-8-82 and not before. As a result, it casts serious doubt on the probity of evidence adduced by the prosecution specially that of P. W. 5 Ram Chandra.
10. Besides, as regards recovery of Ail. 1 monogram on the alleged information Ex. P. 7 stated to have been furnished by the accused- petitioner, by P. W. 5 Ram Chandra, there are material contradictions in the statements of P. W. 5 Ram Chandra. P. W. 4 Tola Ram and P. W. 6 Heera Lal. P. W. 5 Ram Chandra has staled that the key of the 'Gummaria' where from Article 1 was recovered was simultaneously recovered from the possession of the accused-petitioner at the time of his arrest and the same was deposited in the Malkhanaol the Police Station. However, no Malkhana Record has been produced in support of this statement of Ram Chandra. Besides, there is no mention of such key in Ex. P. 4 recovery memo as well. P. W. 4 Tola Ram has stated that a person was despatched to the house of Bachchu Shrimali to fetch key of the lock placed on the 'Gummaria' but since the same could not be procured and, as a result, lock was broken. On the contrary, P. W. 6 Heera La stated that P. W. 5 Ram Chandra who gave key of the lock placed on the 'Gummaria' to Narayan and asked him to unlock the same who obliged him. Neither Brij Ratan nor Megh Raj gave any information that either of them had parted with monogram (Article I) which was fixed on the rear side of the motor cycle, as is the statement of P. W. 1 Ramesh Chandra. Therefore, there is no evidence from the side of the prosecution to prove beyond reasonable manner of doubt that the monogram which is alleged by P.-W. 1 Ramesh Chandra to have been got prepared at Jaipur and fixed on the motor-cycle, as above, was the same (Article 1) recovered, allegedly, at the instance and from the possession of the petitioner. Besides, it is also not proved beyond reasonable manner of doubt that the same was recovered pursuant to the information Ex. P. 7 given by the petitioner and that too from his possession vide Ex. P. 4.
11. Besides, monogram (Article I) is very common article and, in absence of identifiable and distinguishing features and marks as well as absence of evidence about the price of the monogram, it is not a costly item and there is absolutely no evidence that the accused-petitioner before obtaining monogram (Article I) either knew or had reasons to believe that the same was stolen one. There is no linking evidence to show that the petitioner could have obtained monogram (Article I) from Brij Ratan after alleged theft of the motor-cycle to which a monogram, as stated by P.W. 1 Ramesh Chandra, was fixed. Besides, there are also contradictions in the statements of P. W. 4 Tola Ram as well as P. W. 6 Heera Lal in regard to recovery of other stolen property from the possession of the petitioner along with monogram (Article I). P. W. 5 Ram Chandra has also purposefully pleaded ignorance in this respect. It further shows that monogram (Article 1) could not have been recovered in the manner as indicated by the prosecution witnesses, as stated above.
12. Having regard to the above discussed facts and circumstances and the improbabilities and inconsistencies brought about in the prosecution evidence, the prosecution has failed to prove that monogram (Article I) was recovered from the exclusive possession of the petitioner and that the same was stolen along with the motor-cycle recovered from the possession of Brij Ratan and, as a result, it is also not proved that the accused-petitioner, in case it is so assumed, received and possessed monogram (Article 1) either knowing or having reasons to believe that the same was stolen one as defined under Section 410, IPC.
13. Therefore, in view of the above discussion, the prosecution had failed to prove guilt of the accused-petitioner under Section 411, I.P.C. and, therefore, the impugned judgment of the trial court resulting in conviction of the accused- petitioner with consequential order of sentence and so also the impugned appellate judgment resulting in affirmation of the order of conviction .mil sentence, as above, arc contrary to evidence and based on erroneous view of the prosecution evidence resulting in perversity and, therefore, this revision deserves to be accepted.
14. Consequently, this revision petition is accepted and, as a result, the impugned judgment of the trial court as well as the appellate judgment of the learned Addl. Sessions Judge, Bikaner thereby affirming the judgment of conviction of the petitioner under Section 411, I.P.C. are hereby quashed and sentence so imposed on petitioner is set aside. In case the petitioner is in custody undergoing sentence, he shall be immediately set at liberty in case he is no longer required in any other case.
15. The revision petition is disposed of as indicated above.