AKBAR Vs. STATE OF M P

JUDGEMENT

(1.) This revision has been filed under Section 397 read with Section 401 of the Cr. P.C. Being aggrieved by order and sentence dated 16 - 04 - 2004 passed by the 7th Additional Sessions Judge (Fast Track) Ujjain, in criminal appeal No. 14/2004 convicting and sentencing the accused Akbar under Section 381 of the I.P.C and accused Faiz Mohmmad under section 381 of the I.P.C and sentencing both the accused to one year of rigorous imprisonment each with fine of Rs.200/ - each and in case of default of payment of the fine to undergo an additional sentence of two months rigorous imprisonment each.

(2.) Brief facts of the prosecution story are that on the date of incident i.e. On 23 - 4 - 1994, 125 quintals of wheat valued at Rs. 51,250/ - was loaded on truck bearing registration No.MBE - 1785 by complainant Dilip Kumar (P.W - 2) of Suraj Trading Company, Ghoda Nikas, Bhopal, as Muneem of the said firm. The truck driven by Akbar son of Babukhan and clearner Razak Ali was to proceed to Pithampur, at Dist. Dhar. On 24 - 4 - 1994 the truck reached Dewas, the accused Akbar stated that he wanted to visit his brother - in - law Faiz Mohmmad, who was residing at village Nogawa Ujjain, and, therefore, they stopped the truck at 9.00 p.m. in the said village and they decided to stay over night in the said village. The complainant Muneem Dilip Kumar (P.W - 2) thereupon said that he would join them at Dewas on the next day. The truck did not arrive from Nogawa, so the complainant Dilip Kumar (P.W - 2) visited the same and found the truck stationed at well of Faiz Mohmmad and truck was empty and did not contain the wheat which had been loaded on it.

(3.) On being questioned Faiz Mohmmad, stated that some thief has stolen the wheat in the night and thereupon along with the brother - in - law accused Akbar and cleaner Razak went in search of wheat, thereupon the complainant Dilip Kumar (P.W - 2) tried to get a trace in the market of Dewas, Indore and Ujjain and on not getting any information about the same he had a doubt that the driver Akbar, Razak and Faiz Mohmmad had in collusion stored or stolen the wheat. He lodged the report at Police Thana, Nogawa, vide Ex. P/2 on 24 - 4 - 1994 at 8.30 a.m. stating that the wheat has been stored in gunny bags carrying a red cross mark and crime was registered at No. 53/94 for offence under Section 379 in the alternative under Section 407 of the I.P.C. The investigation officer B.R. Dwivedi (P.W - 5) prepared spot map Ex.P/11 and received the bill for the wheat Ex.P/5, the Mandi form Ex. P/6, biltee of the truck Ex.P/7, the rent note of the truck Ex.P/4 in evidence. The statement of the accused were recorded vide Ex.P/13 and Ex.P/14 and 55 quintals of wheat was seized vide Ex.P/7 from accused Akbar from a room at the back of his house and vide EX.P/15 70 quintals of wheat was recovered from the room where animals are tied at the back of the house of accused Faiz Mohmmad. The truck was seized vide Ex.P/16 and Ex.P/17.