KAMAL Vs. STATE OF MP

JUDGEMENT

(1.) This revision has been presented by the accused/applicant being aggrieved of the judgment passed by learned First Additional Sessions Judge, Barwaha, District West Nimar in Criminal Appeal No.141/03 on 31.07.2003 thereby, confirming the judgment passed by learned J.M.F.C., Sanawad in Criminal Case No.422/97 on 24.04.2003 thereby convicting the accused/applicant under Section 379 of the I.P.C. for a period of 3 months R.I. and to pay fine of Rs.2,000-00 with default stipulation.

(2.) Facts material for the disposal of this revision are that on 16.07.1997 the complainant PW-1 Virendra Kumar Jain resident of Bediya found that his cultivator was missing which few days back he had placed in front of Patel Ginning Factory. He made a search for the same and as he could not find it he reported the matter to the police on 24.04.1997. F.I.R. Ex.P/1 was recorded. During investigation the accused/applicant after arrest was interrogated by the police. He on 24.07.1997 at 3:45 PM gave information to the police that cultivator was concealed by him in the field of cotton and soyabean covered under the said produce. He also led the discovery and on the same date around 4:00 PM discovered it. It was seized vide Ex.P/5. After the recovery of the cultivator a test identification parade of the same was got conducted. The complainant identified the same as belonging to him which was stolen from his possession. The accused/applicant was accordingly charge sheeted in the Court of J.M.F.C., Sanawad. The learned J.M.F.C. framed the charge for offence under Section 379 of the Indian Penal Code for stealing the cultivator from the possession of the complainant Virendra Kumar Jain on 16.07.1997. The accused pleaded not guilty and he claimed his false implication on account of political rivalry. The prosecution evidence was put in the case. No evidence was put up from the side of the accused/applicant. At the conclusion of the trial learned Trial Court found the accused/applicant guilty under Section 379 of the I.P.C. for the above theft and, therefore, convicted and sentenced him as already stated at the outset. He took the matter in appeal. The learned A.S.J. as already seen above dismissed his appeal, hence, this revision.

(3.) So far as question of property in question being stolen property is concerned, the complainant PW-1 has in his deposition stated that it was stolen from his possession at the relevant time. Vide Para 7 of his statement in cross-examination a challenge to that statement has been made and, therefore, it is needed to be seen whether the property in question is proved to be a stolen property beyond reasonable doubt. In that connection evidence of test identification is required to be considered. According to the complainant he had identified the same during test identification parade vide Ex.P/6. PW-6 Baliram Surpanch has deposed that he conducted test identification of the cultivator in question. He had put during test identification other 4 cultivators similar to the cultivator in question. Therein, the complainant Virendra Kumar identified his cultivator by going through its number. However, PW-1 complainant Virendra Kumar in his deposition has not stated that he had identified the cultivator by going through its number. It is a matter of common knowledge that such cultivators are commonly available, therefore, the evidence of test identification being suspicious does not land needed support to the testimony of the complainant Virendra Kumar to the required standard. Thus needed compliance of the provisions of Section 9 of the Evidence Act is found missing.