BANCHHANIDHI SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision is preferred against the judgement of the learned Sessions Judge, Balasore, dated 29-7-1985 in Criminal Appeal No. 127 of 1985 confirming the order of conviction passed by the trial court in G.R. Case No. 1482 of 1981 convicting the accused under S.379, I.P.C. and sentencing him thereunder to undergo rigorous imprisonment for one month.

(2.) The petitioner Banchhanidhi Singh was the owner of a cycle repairing shop near Bhograi market within Bhograi Police Station in Balasore district. On a consideration of the evidence of seven PWs examined by the prosecution, the learned Magistrate convicted the petitioner under S.379, I.P.C. for having committed theft of the bicycle of the informant Bhaskar Chandra Patra (PW 2), valued at Rs. 200/-. Out of seven witnesses examined by the prosecution, PWs 1 to 3 are the only material witnesses. PW 4 is not a material witness, as he admitted that he had only heard about the alleged incident regarding the keeping of the cycle in the zima of PW 3. PW 5 also is not a material witness as he does not state anything about the accused or about the incident which he claims to have heard. PWs 6 and 7 are the police officers.

(3.) Through the evidence of the prosecution witnesses PWs 1, 2 and 3 what all the prosecution could prove is that on the date of occurrence at about 10 a.m. as the informant (PW 2) was going on his cycle by the side of accused's cycle repairing shop the accused had stopped the informant and snatched away his cycle and immediately there after kept the cycle in the zima of PW 3, a Daroga of the market and gave the receipt, Ext. 3, in evidence of it. The prosecution is silent regarding the motive which prompted the accused to snatch away the cycle from PW 2 and keep it in the custody of PW 3. Within few hours from the time the cycle was kept in the zima of PW 3, the police seized the same from PW 3 and delivered it to the informant. The petitioner has stated prior the revision petition that some months prior to the date of occurrence he had repaired the cycle of PW 2 and PW 2 had taken away the cycle from him (the accused) without paying the repairing charges due to the accused, but promising to pay the same some time after and that as the repairing charges were still due to be paid by the date of occurrence, the accused took away the bicycle and kept it in the zima of PW 3, the market Daroga on the understanding that the cycle would be kept in the zima of PW 3 till the repairing charges of the accused were paid to him. As PWs 1, 2 and 3 could not be cross-examined, the above defence plea could not be suggested to them.