Mandhata Singh, J.
1. Heard learned Counsel for the petitioner and the State.
2. This revision application has been filed against the judgment dated 18-7-2009 passed by the Additional Sessions judge-F.T.C-II, Bhagalpur in Cr. Appeal No. 16 of 1994, by which he has dismissed the appeal affirming the judgment of conviction and order of sentence dated 31-01-1994 passed by the Judicial Magistrate, 1st Class, Bhagalpur in Trial No. 315/1994, G.R. No. 726/1991 in which he had convicted the petitioner under Section 414 of the Penal Code and sentenced him to undergo simple imprisonment for three years.
3. Briefly stated one Md. Sakil was arrested in connection with Mojahidpur P.S. Case No. 04/1991 for the offences under Sections 307, 302, 324/34 and 120B of the Indian Penal Code. He made some confession before the police that was recorded also and in that only he gave statement that one Sallan Mian had taken some cash and one Motor cycle from Raj Distributor, Tatarpur as ransom that was handed over to Kalicharan Yadav by him, a member of his gang. Kalicharan yadav died in counter with police. Thereafter it came in occupation of the Piayu Mian one of the accused of this case. After death of Sallan Mian the same Motor cycle came in the occupation of Chhotka Laddua, one of the members of the gang and it was being kept in the house of Islam Mian this petitioner.
4. On the basis of the aforesaid information the house of the said Md. Islam (petitioner) was searched in presence of local people after observing all the legal formalities wherefrom Motor cycle in question having its Engine No. E-78455 recovered.
5. After concluding the trial the learned Judicial Magistrate concluded the conviction vide his judgment dated 31.1.1994 and awarded sentence, which is affirmed by the learned Additional Sessions Judge-Fast Track Court No. II, Bhagalpur in Criminal Appeal No. l6ofl994.
6. A single point has been raised i.e. seizure of the Motor cycle from the petitioner's house if can be taken for his involvement as concluded for conviction and sentence for the offence under Section 414 of the Penal Code.
7. Before discussing the merit it is pertinent to mention here that presumption under Section 114(a) of the Evidence Act has been made applicable to involve the petitioner.
8. In all four witnesses are examined in the case. They are Md. Abbas (P.W.I), Md. Asique Mistri (P.W.2), both on the point of seizure. P.W.3 Safruddin Khan and P.W.4 Kamleshwar Pandey, both are police officials, member of raiding party also. Seizure list prepared in the case is proved along with the signature of P.W.I and thumb impression of P.W.2. There is denial of P.Ws.1 and 2 about their presence at the stage of seizure of Motor cycle on their (raiding parties) behalf but that has been compensated by P.Ws.3 and 4, they are police officials having no adverse interest against the accused, nor any inimical relation.
9. Discussing all the witnesses seizure from petitioner has been found proved, thereafter presumption of Section 114(a) of the Evidence Act comes to play some role. Admittedly, if seized Motor cycle is stolen one presumption goes against this petitioner but its being stolen is denied with a further submission that if that is seized soon after the theft then only presumption about the petitioner being thief or receiving after knowing that to be stolen goods.
10. Prosecution case to the extent is true that a Motor cycle may not be taken into possession without its purchase and registration in the District Transport Office. For plying stolen Motor cycle several misdeeds are committed by the involved person but in the instance case prosecution has come with a definite case that one Md. Sakil arrested in connection with Mojahidpur P.S. Case No. 4/1991 and made some confession for the incident of that case and in that continuation made confession about recovered Motor cycle. It was Sallan Mian who taken the Motor cycle along with some cash from one Raj Distributor, Tatarpur as ransom and handed over the Motor cycle to one Kalicharan Yadav, a member of his gang. Kalicharan Yadav died in counter with police. Thereafter Motor cycle came in occupation of Piayu Mian, one of the accused of this case. Further it is said that after death of Sallan Mian, Motor cycle came in the occupation of Chhotka laddua, who had kept the Motor cycle in the house of this petitioner.
11. This much confession made before the police is admissible for two purposes only, first relating to recovery and second taking the same as prosecution case, that may be said that the contents of confessions cannot be taken against the accused but can be taken against the prosecution because of the reason that it is for the prosecution to stand on his own feet while establishing his case. This much is relevant for accepting the presumption of Section 114(a) of the Evidence Act and escape is given for presence from where stolen article is recovered i.e. to the effect that (unless he can account for its possession) that mean to say that this presumption is rebuttable. Another point which can be taken to deny presumption only concerns with this case that if Motor cycle was stolen one, not recovered soon after the theft. Petitioner is not said to be the owner of the vehicle, rather his house was being used by co-accused Chhotka Laddua without any reference as what was the consideration for keeping this Motor cycle to his house whether petitioner was member of gang of which Chhotka Laddua was one of the members or having his share in Motor cycle or there was any paper concerning seized Motor cycle. In this case remaining of the Motor cycle is explained by the prosecution itself.
12. Further another point is about non-recovery of the Motor cycle soon after theft. In the instant case even after acceptance of prosecution case that sallan Mian is the person who took the Motor cycle may be stolen but it had come to Chhotka Laddua only after happening of several incidents. It was originally given to Kalicharan Yadav. After his killing it was given to Piayu Mian and after the death of Sallan Mian, Motor cycle came in possession of Chhotka laddua.
13. So, taking into presumption also fixing of any liability upon the petitioner cannot be accepted. This much of the aspect has neither been taken into consideration by the trial court nor by the appellate court.
14. Accordingly, this revision application is allowed, judgment of conviction and order of sentence passed by the trial court in G.R. No. 726/91, Tr. No. 315/1994 as well as judgment of the appellate court passed in Cr. Appeal No. 16 of 1994 are set aside and the petitioner is acquitted of. As the petitioner Md. Islam is in jail, he is directed to be set at liberty forthwith, if not required in any other case.
15. Let the order be communicated to the concerned court below through fax at the cost of the petitioner.