MANORANJAN DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is a criminal revision directed against the order of conviction of the petitioner under sec. 379 of the Indian Penal Code for short Tthe Code, and sentencing him to suffer R.I. for one month.

(2.) About 81/2 years ago, to be precise on 26.5.77 at 1.30 p m, or so. a Robinhood Bicycle bearing No. 68652-B belonging to P.W. 1, Arundev Sarma was kept just outside his residence. A person dressed in blue shirt lifted the cycle and escaped. The children nearby, who must be playing, noticed the activity and shouted that a person putting on a blue shirt had picked up the cycle and left the place. P W. 4, Paresh Chandra Goswami heard the hullabaloo of the children & came out and met the accused who was pushing a cycle. He went to the police and informed about the incident. The police came but the accused prevented the police to enter his quarter. The police recovered a cycle in front of the railway quarter of one Mr. Avasthi and seized it. The accused was arrested. Thereafter, it appears a written information was lodged by P.W. 1. Arun Dev Sharma, the owner of the cycle about the theft stating how the cycle was recovered mentioning the accused as the suspect. The courts below have convicted the accused person of the offence of theft relying on the sole testimony of P.W.4, Paresh, Indeed the witness is the kingpin and the conviction should be sustained if the evidence of P.W.4, Paresh could establish beyond reasonable doubt that the accused was the cycle lifter or the thief. Md. Sulaiman, learned counsel for the petitioner submits that even if the entire evidence of the prosecution including that of P.W. 4, Paresh is accepted at its face value no case against the accused person has been made out by the prosecution. Md. Sulaiman submits that P.W. 4, is the only witness who made an endeavour to connect the petitioner with the offence however, his testimony did not establish affirmatively that the accused had committed thievery. The positive prosecution case, learned counsel submits. was that the cycle lifter had a blue shirt on his person, but P.W. 4, did not say that the accused had blue shirt while he was pushing the cycle. As such, the blue shirted cycle lifter was some one else. The firm evidence of P.W. 4, Paresh is that immediately after he had heard the shouts of the children that a person putting on a blue shirt had lifted the cycle he went out to trace the thief and the stolen cycle. On the way he found that the accused was pushing a cycle.

(3.) He does not say that the accused was dressed in blue shirt. The interval was about a couple of minute. Under these circumstances, it is apparent that the accused did not lift the cycle as there is no evidence that the accused had blue shirt. The mere fact that the accused was seen pushing or paddling a cycle could not establish the case that he was the cycle lifter. One can at least reach the conclusion that the stolen cycle might have been passed on to him by the actual thief. However that is not the prosecution case. Under these circumstances I am constrained to hold that the aforesaid relevant fact missed the minds of the courts below. The contention has strong force.