PRAMOD SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) CONCURRENT findings recorded by both the Court below finding the Petitioner guilty under Section 411 of the Indian Penal Code (IPC), are being challenged in this revision.

(2.) FACTUAL matrix are that in the intervening nights of 20/21st December, 1991, four number of M.S. Tee pipes of Minor Irrigation Department, kept in godown, were removed, for which, it is alleged that Nathuni Tiwary and Nesar Gaddi informed Upendra Nath Singh, Junior Engineer, Minor Irrigation Department, Mohania, about apprehension of the Petitioners with stolen pipe. It is alleged that when said Upendra Nath Singh (P.W. 2) visited village Awauri, he noticed four pipes in the khalihan of a person and Petitioners sitting there, who, on interrogation, disclosed their names. He took Petitioners to Police and submitted a written report pursuant to which, first information report was drawn up and investigation commenced. The production list too was prepared by the Police and on conclusion of investigation, Police laid charge sheet before the Court. Though charges were framed against the Petitioners both under Sections 379 and 411 IPC, the trial Court finding Appellants not guilty under Section 379 IPC, recorded verdict of guilt only under Section 411 IPC for which they were sentenced to suffer rigorous imprisonment for a term of one year. When matter was carried in appeal, the lower appellate Court too upheld the findings recorded by the Court below, dismissing the appeal and hence this revision.

(3.) CONTENTION raised at Bar on behalf of the Petitioners was that though the sheet anchor of the prosecution case was the information disclosed by Nathuni Tiwari and Nisar Gaddi about apprehension of the Petitioner with stolen pipe of the department, these two witnesses were never examined at trial and, if they are left out of consideration, no one claimed to have witnessed apprehension of the Petitioners with the stolen pipes. As stated, Upendra Nath Singh (P.W. 2) was not a witness to apprehension of the Petitioners with the stolen goods. It is stated at Bar that even Sohail Gaddi, one of the two witnesses, who were projected as persons before whom seizure was effected from possession of the Petitioners, had turned volte face to the State and, if narration made by these witnesses was considered to be true, the Police, under coercion, had obtained his signature on the seizure memo. It has been brought to my notice that even Upendra Nath Singh (P. W. 2) would admit in most explicit terms that the pipe in question did not bear identification mark, and even though 87 number of pipes were stacked in the godown, no one counted them so as to confirm theft of pipe in question. One more disturbing feature which, in the prosecution case can be noticed, was that though theft was committed in the intervening nights of 20/21st December, 1991, no case of theft was ever lodged by the Department. I have noticed that even through contradiction taken from P.W. 3 was not placed before the Investigating Officer, the appellate Court committed error of record about such attention having been drawn. Regard being had to these vital infirmities that have crept in the prosecution case, though I am not oblivious that it is a revision against concurrent findings recorded by Courts below, I have no hesitation in holding that the findings recorded by Courts below are against the weight of mass of evidence, and in that view of the matte, findings recorded by the Courts below are set aside and the Petitioners are acquitted of the charges levelled against them. They are also discharged from the liability of the bail bonds. This application is accordingly allowed.