ABDUL KUDDUS BORBHUYAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS is an application under Section 482, Cr PC, for setting aside the judgment dated 19.12.1994 passed by the learned Sessions Judge, Cachar, Silchar in Criminal Appeal No. 16(3)/94 upholding the conviction and sentences passed by the learned judicial Magistrate, 2nd Class, Silchar in GR Case No. 3279/90 under Section 379, IPC, convicting and sentencing the accused/petitioner for three months RI with fine of Rs. 400 in default 10 days RI.

(2.) THE facts of the case briefly be stated are as follows.

(3.) ON the basis of the materials available, on record, I find that the learned courts below have discussed the evidence threadbare and there is nothing to show any infirmity or illegality in the impugned judgment and order passed by the learned Courts below. That being the position, I am not inclined to interfere with the findings of the Courts below. However, in the facts and circumstances of the case, it appeals that there was no missing entry nor the FIR was lodged soon after the missing of the bullock, it was lodged only after the recovery was made by the Police and identification being made by the informant/owner of the bullock. Therefore, the ingredients of offence of theft movable property out of possession of any person without the consent of that person are not there. Here no witness has stated that the movable property, i.e., the bullock, was taken out nom the possession of the informant. But the informant has claimed the bullock as his own only after the same was recovered by the police and he only identified the same at the police station. The conviction should be shifted from Section 379, IPC, to one under Section 411, IPC. With this modification in the conviction sentence is maintained. Petition is rejected. Stay order of conviction and suspension of sentence stands vacated. The bail bond of the accused is cancelled. He is to surrender to Court below within 30 days from today failing which the trial Court to execute the sentence as per law.