PAPAIYA Vs. STATE

JUDGEMENT

(1.) In this revision petition the petitioner has challenged his conviction under S. 411 Penal Code and in the alternative has prayed for giving him the benefit of the provisions of Probation of Offenders Act instead of maintaining the sentence imposed on him by learned appellate court.

(2.) Brief facts giving rise to this revision petition are that one Shersingh lodged a written report on March 13, 1985 at 7.00 AM at police station Kisban-garhbas alleging that one electric motor make GEC having 10 HP has been removed by somebody from his room which was having a look. On receipt of this report a case under Sections 457 and 380 Penal Code was registered. During the course of investigation one Kailash Singh was arrested on April 10, 1985. On an information having been furnished by him the electric motor was recovered from the shop of the accused-petitioner as Kala Singh had given the information that he had sold the same to the petitioner for a sum of Rs. 2503/-. Two more persons, namely. Maghsing and Dildar Singh were also arrayed as accused in the case. Charge-sheet was submitted against all the four and three of them were tried for offence under Sections 457, and 380 IPC, while the petitioner was charged for offence under Sections 457, 411 IPC. All the accused persons denied the charges and claimed to be tried. 14 witnesses were examined in support of the prosecution case. After hearing the parties trial court acquitted Kalasingh, Maghsingh and Dildarsingh but convicted the accused-petitioner under S 411 Penal Code and sentenced him to suffer rigorous imprisonment for a period of six months and a fine of Rs. 250.00, in default of payment of fine he was to undergo further rigorous imprisonment for two months. An appeal was preferred by the petitioner and the appellate court maintained the conviction but reduced sentence which has been challenged in this court.

(3.) The grievance of the learned counsel for the petitioner is that after the acquittal of the principal accused in this case, namely, the persons who are alleged to have committed the theft conviction ought not to have been maintained that of the petitioner, particularly when the information given under S. 27 of the Evidence Act by Kalasingb for recovery has not been relied upon. It is submitted that even if the prosecution story is taken on its face no offence is made out because ingredients of S. 411 Penal Code are not at all satisfied in the instant case, particularly because even the information given under S. 27 of the Evidence Act has not been found proved legally in the case as the investigating officer Rajendra Singh has not appeared in the witness box. Besides this, the case of the prosecution is that the petitioner had purchased the said electric motor from Kalasingh for a sum of Rs. 2500/ and as such he was the bonafide purchaser for value. It is further submitted that the prosecution has failed to produce any evidence to show that the petitioner had knowledge or reason to believe that the goods he received were stollen and that he received the same dishonestly. In these circumstances it is submitted that no case under S 411 Penal Code is proved against the petitioner. In the alternative learned counsel for the petitioner has submitted that the courts below have failed to properly appreciate the provisions of S. 360 Cr. P.C. and no proper reasons have been assigned under S. 361 Cr. P.C. though this court has repeatedly held that it is obligatory to assign cogent and proper reasons for refusing the benefit of Probation of ' Offenders Act or S. 360 Cr. P.C. to the accused, particularly in case where maximum sentence provided is less than 7 years.