1. This is a revision filed by accused Sanjeev Kumar Saksena and Akeel Khan against the judgment dated 10.07.2002 passed by District Judge, Nainital, who has maintained the judgment and order dated 30.04.2002 passed by CJM, Nainital only to the extent of conviction and sentence of the revisionists under section 411 of the Indian Penal Code (hereinafter referred to as "IPC").
2. The prosecution case is that Jaikrishna Murti Prasad (PW1) lodged a report on 05.11.1993 with police station Mallital, District Nainital that his Maruti Van bearing registration no. UP 07 A 0606 has been stolen during the night intervening 4th and 5th November, 1993 from Pitaria near Polytechnic College, Nainital. He disclosed the identity of Maruti Van in his complaint (exhibit Ka 2) as under:
Chassis No. 757507
Engine No. 252358
Model No. 1987 and
Colour of Maruti Van vehicle as white. The matter was investigated and the final report was submitted by the Investigating Officer on 08.05.1994 as untraceable. However, on 06.09.1994 PW4 SI Dev Singh received information that one Maruti Van was parked near the shop of Rafiq son of Raees Ahmad on Water Works Road, Badaun. On receiving the information, PW4 SI Deo Singh along with complainant Jaikrishna Murti Prasad (PW1) and his father Kailash Prasad (PW2) reached the place mentioned above. Maruti Van bearing registration no. UP 02 B 0517 was seen parked near the shop of Rafiq son Raees Ahmad. When Maruti Van was encircled two persons were found sitting in the Van and the person sitting on the driver's seat was apprehended, who disclosed his name as Sanjeev Kumar Saksena. The person, who was sitting on the seat next to driver's seat slipped away from the scene whose name was disclosed by the other accused as Akeel Khan. After comparison, the Chassis and Engine numbers of the recovered vehicle, was found to be the numbers of stolen Maruti Van of Jaikrishna Murti Prasad, complainant. However, the registration number plate was changed from UP 07 A 0606 to UP 02 B 0517. During the investigation, it was found that Maruti Van was transferred in favour of one Puran Singh Yadav with false documents by revisionist Akeel Khan by getting false entry in the relevant papers and preparing the forged documents.
3. On the completion of the investigation, chargesheet under sections 379, 411, 420 IPC was submitted against the revisionists before the Magistrate, who framed charges against the accused under abovementioned sections to which both of them pleaded not guilty and claimed trial.
4. In order to prove it's prosecution has examined, PW1 Jaikrishna Murti Prasad, PW2 Kailash Prasad, PW3 Head Constable Dan Singh, PW4 Deo Singh, PW5 Inspector Harish Chandra Mishra.
5. Accused when examined under section 313 Cr.P.C. pleaded false implication, however, they did not produce any evidence in their defence.
6. Learned Magistrate after taking into consideration the entire evidence and documents on record, convicted the revisionists under section 379, 411, 420 IPC and sentenced them to undergo one year rigorous imprisonment each under sections 379, 411 IPC and three year rigorous imprisonment under section 420 of IPC with Rs. 1000/- as fine, in default thereof, they have been ordered to further undergo three months imprisonment.
7. Aggrieved by the judgment and order passed by the learned Magistrate, the revisionists preferred appeal before learned Sessions Judge, Nainital. The learned Sessions Judge after considering the arguments of learned counsel for the appellants / revisionists that there was no evidence or witness having seen any of the accused appellants stealing the vehicle from Nainital and there was no evidence with regard to offence of cheating against the appellants/ revisionists; and the fact that entire evidence adduced by the prosecution relates to recovery of the stolen property from the possession of appellants at Badaun and the prosecution has failed to prove that appellants had prepared the forged paper with regard to the registration of the vehicle and then transfer the same in the name of one Puran Singh Yadav, acquitted appellants for the offences punishable under section 379 and 420 IPC. However, with regard to the offence punishable under section 411 IPC, the appellate court maintained the sentence and conviction of the revisionists. Since aggrieved revisionists have filed the present revision before this court.
8. Mrs. Pushpa Joshi, learned counsel for the revisionists contended that conviction of the revisionists could not have been maintained under section 411 IPC also. It is argued that the prosecution has failed to prove that revisionists were in dishonest possession of the stolen vehicle knowing or having reason to believe the same to be stolen property. According to her, the mere fact that revisionist Sanjeev Kumar Saksena was sitting in the alleged vehicle does not in any way prove that he was in possession of stolen property. She further submitted that revisionist Akeel Khan was not even apprehended at the spot and no identification parade was conducted to establish that he was the same person, who was sitting with other co-accused in the vehicle.
9. Learned counsel further argued that no presumption can be raised against the revisionists that they were in the possession of stolen property. She further argued that there are material contradictions and discrepancies in the statements of PW1 Jaikrishna Murti Prasad, PW2 Kailash Prasad and PW4 Deo Singh. She pointed out that PW1 Jaikrishna Murti Prasad deposed in his cross-examination that Maruti Van had already been recovered and he was called to identify the same in the police station. He also stated that accused was not arrested in his presence. PW2 Kailash Prasad stated that he did not remember the name of the person, who was arrested at the spot and he also stated that driver had ran away from the spot and the person, who was arrested, was sitting on the seat next to the driver seat. It was pointed out that his statement is contradictory to the recovery memo exhibit Ka 3.
10. Learned counsel further argued that Rafiq son of Raees Ahmad in front of whose shop Maruti Van was alleged to have been recovered, has not been produced as witness nor any other independent person was joined at the time of alleged recovery. At the end, learned counsel for the revisionists submitted that occurrence took place about 16 years back and the revisionists have no criminal history and therefore, sentence awarded to them be reduced to the period already undergone.
11. On the other hand, Mr. Nandan Arya learned AGA submitted that revisionist Sanjeev Kumar Saksena was arrested while sitting inside the vehicle and therefore, it is well proved that he was in possession of the Maruti, which was stolen from Nainital during the night intervening 4th and 5th November, 1993. He further pointed out that PW1 Jaikrishna Murti Prasad and PW2 Kailash Prasad have categorically stated that recovered vehicle belonged to them and it was stolen from Nainital during the night intervening 4th and 5th November, 1993. Since revisionists have been found in possession of the Maruti Van, therefore, a presumption can well be drawn that revisionists have either committed the theft or received the goods knowing to be stolen. Learned AGA submitted that revisionists had failed to explain whether Maruti Van belonged to them or they are the rightful owners.
12. On careful consideration of rival submissions raised by learned counsel for the parties, I do no find any good ground to interfere with the findings recorded by the learned Appellate Court. The Appellate Court has rightly concluded that minor contradictions in the statements of the witnesses are not sufficient to create any reasonable doubt with regard to recovery of stolen vehicle from the possession of the revisionists. Neither of the witness had any enmity with the revisionists. The prosecution has been able to establish from the statement of PW1 Jaikrishna Murti Prasad, owner of the vehicle and PW4 Deo Singh that revisionist Sanjeev Kumar Saksena was found sitting in the Maruti Van, which was stolen about a year prior to the recovery. The mere fact that Kailash Prasad did not remember the name and age of the person, who was arrested does not in any way demolish his statement as recovery was made in the year 1994 and his statement was recorded in the year 1997, almost about four year after the recovery. Admittedly, PW1 Jaikrishna Murti Prasad and PW4 Deo Singh had no enmity with the revisionists, as revisionists are residents of Badaun whereas complainant belongs to Nainital. Accused revisionists were found in possession with the Maruti Van and in such circumstances a presumption can well be raised against them that they have received the goods knowing the same to be stolen as they have not been able to give any satisfactory account for their possession.
13. Since the revisionists could not furnish any explanation for the possession of the stolen Maruti Van, thus, in my view the revisionists cannot be said to have acquired the possession of Maruti Van innocently. In such circumstances illustration 'a' to section 114 of the Indian Evidence Act can very much be applied against the revisionists even if, more than a year has elapsed between the date of theft and that of date of recovery of vehicle from the revisionists. The property such as Maruti Van normally cannot change hands easily. Looking to the peculiar nature of stolen property recovered from the revisionists, this court finds no cogent reason to interfere with the conclusion arrived at by the Appellate Court with regard to the conviction of revisionists under section 411 IPC.
14. As regards to the sentence awarded to the revisionists, learned counsel for the revisionists submitted to reduce the sentence to the period already undergone, stating that alleged occurrence took place about 16 year ago and revisionists are the first offenders and revisionists have no criminal history, therefore, lenient view be taken. On the other hand, learned AGA submitted that revisionists are guilty of the offence punishable under section 411 IPC for retaining the Maruti Van which has been proved to be stolen property, therefore, no leniency shown while awarding the sentence.
15. Keeping in view the fact that both the revisionists were young when occurrence took place and they must have settled in the mainstream of the society. They have already undergone for a period of 15-16 days and remained on bail through out, let an opportunity be given to the revisionists to reform themselves. Order of conviction passed against them is maintained, however, the sentence of rigorous imprisonment of one year is reduced to the period already undergone along with fine of Rs. 15,000/- each. The amount of fine shall be deposited within six weeks from today. In default of payment of fine, the revisionists shall undergo six-month imprisonment each. Revisionists are on bail. Their bail bonds are cancelled and their sureties stand discharged. With above modification, revision is partly allowed.