The necessity to prove dishonest intention and lack of consent for establishing theft under section 378 of the Indian Penal Code.

JUDGMENT - KHARCHE S.T., J.:---Rule. Rule made returnable forthwith by the consent of the parties.

2.Heard Mr. Deshpande, learned Counsel, for the applicant and Mr. Yengal, learned A.P.P., for the respondent/State.

3.This criminal revision is directed against the judgment and order dated 15-1-2002 passed by the learned Additional Sessions Judge, Akola, in Criminal Appeal No. 24 of 2002, whereby he upheld the conviction of the appellant for the offence punishable under section 379 of Indian Penal Code awarded on 20-5-2000 by the learned 10th J.M.F.C., Akola, in Regular Criminal Case No. 148 of 1998 and modifying the sentence and imposing the sentence of simple imprisonment till rising of the Court and to pay a fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for two months.

4.Brief facts are as under:

Complainant Anita (P.W. 3) was working at the relevant time as a peon in the office of Superintendent of Police at Akola. The appellant/accused was also in the employment in the same office as Police Head Constable. It is alleged that on 10-2-1998 the complainant Anita had parked her luna on the cycle stand of the office premises. On that day, at about 5.30 p.m. she saw the accused taking away her luna without her permission and consent. She, therefore, lodged a report (Exhibit 19) at the city Kotwali Police Station. P.S.I. Ramkrishna (P.W. 6) registered the offence after recording the F.I.R. for the offence punishable under section 379 of Indian Penal Code. It is contended that Police Constables Sohel (P.W. 4) and Satish (P.W. 5) were attached to the Crime Branch and while they were proceeding on the road in Khadan area they saw the accused along with the luna bearing No. MH-30-C-9478. They, therefore, apprehended the accused, took the luna in custody and then produced him along with the luna before the police at city Kotwali Police Station. The seizure panchanama (Exhibit 14) of the luna was prepared on the same day by P.S.I. Marge. After completion of investigation, charge-sheet was presented in the Court of Chief Judicial Magistrate on 16-3-1998.

The learned Magistrate framed the charge against the applicant/accused for the offence punishable under section 379 of Indian Penal Code. The same was read over and explained to the accused to which he pleaded not guilty and therefore the trial proceeded with. Prosecution examined six witnesses, namely Gajanan (P.W. 1), Bhikaji (P.W. 2), who are the panch witnesses, Anita (P.W. 3) is the complainant, Police Constables Sohel (P.W. 4) and Satish (P.W. 5) who had chased the accused in Khadan area and P.S.I. Ramkrishna (P.W. 6) who conducted the investigation. The learned Magistrate on considering the evidence adduced by the prosecution and on hearing the arguments of both the learned Counsel for the parties had come to the conclusion that the offence punishable under section 379 of Indian Penal Code has been proved and consequently he convicted the accused and sentenced him to undergo rigorous imprisonment for six months. Being aggrieved by this order, the accused had preferred an appeal before the Sessions Judge which came to be partly allowed on 15-1-2002, who confirmed the conviction but modified the sentence and directed the accused to suffer simple imprisonment till rising of the Court and to pay the fine of Rs. 2,000/-, in default to further undergo rigorous imprisonment for two months. It is this order which is under challenge in this revision.

5.The learned Counsel for the applicant contended that the first information report (Exhibit 22) is a fabricated document on the basis of which the applicant has been falsely implicated in this trial. He contended that the Police Constables Sohel (P.W. 4) and Satish (P.W. 5) appears to have chased the applicant and taken him along with the luna to the Police Station. Both of them did not prepare any seizure panchanama of the luna on the spot. The learned Counsel pointed out that the luna was seized vide seizure panchanama (Exhibi

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