MARIANUAS TETE Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner having been convicted by the Sessions Judge, Sundargarh under S.411, Penal Code to undergo rigorous imprisonment for six months, altering in appeal the conviction and sentence passed against him under Ss.380/468, I.P.C. by the Judicial Magistrate, First Class, Panposh, in G. R. Case No.1361 of 1976, is in revision before this Court to quash the conviction and the sentence.

(2.) The petitioner was charged under Ss.380/468, I.P.C. on the allegation that P.W. 3 had opened a Savings Bank Account No. 1581 in the Bank of India, Main Road Branch, Rourkela and had obtained a Pass Book in which he was depositing money and was also withdrawing from it on occasions. The last withdrawal made by him was on 28th July, 1976. On 9-10-1976 which was the day of occurrence, P.W. 3 discovered in the morning at about 10.30 A.M. that the Pass Book was missing from his box and since he became apprehensive that somebody might be misusing his Pass Book by surreptitiously drawing money from his account, he hurried to the Bank where he found the petitioner about to leave the Bank after having withdrawn a sum of Rs. 100/-. P.W. 3 on recognising the Pass Book in the hand of the petitioner caught hold of him and took him to the Branch Manager where the petitioner allegedly made an extra-judicial confession of his having been withdrawing money from the account of P.W. 3 and also gave in writing an acknowledgment to that effect. The police was informed over the phone and after completion of investigation the charge-sheet was submitted. The petitioner having been convicted under Ss. 380/468, I.P.C. preferred an appeal. The learned Sessions Judge came to the conclusion that no case was made out against the petitioner of having committed an offence under S.468, I.P.C. So far as S.380, I.P.C. is concerned, the learned Sessions Judge came to the finding that while there is no evidence worth the name that the petitioner had committed theft of the Pass Book, yet since the Pass Book had been recovered from his possession sometime after the theft and he had offered no explanation, a presumption was liable to be drawn that he was either the thief or the receiver of the stolen property. Having found that the petitioner is not guilty, of theft, he concluded that the petitioner was guilty under S.411, I.P.C. He accordingly convicted and sentenced the petitioner under such section out of which this revision arises.

(3.) The conclusion of the learned Sessions Judge is clearly untenable. As the Sessions Judge himself records, the Pass Book itself is not an record. There is also no evidence that the Pass Book has been seized from the petitioner. P.W. 3 who is the informant had stated in the examination-in-chief that he only saw the Pass Book in the counter. In the cross-examination he stated to have found the petitioner inserting the Pass Book and the money inside his chest pocket P.W. 3 never deposed that he had taken possession of the Pass Book from the petitioner. It, however appears from the evidence of P.W. 7, the Investigating Officer that the Pass Book was seized on production by the P.W. 3. The seizure lists Exts. 6 and 7 show the Pass Book to have been seized at 5.00 P.M. at Uditnagar Out Post on production by P.W. 3. P.W. 7 also has stated that the Pass Book has been seized at Uditnagar Out Post. Thus there is no evidence that the Pass Book was in possession of the petitioner and was seized from his possession. P.W. 3 has not explained as to how he had come in possession of the Pass Book and as to how he has produced it before the Investigating Officer. In this view of the matter, the conviction of the petitioner under S.411, I.P.C. is wholly unsustainable.