JUDGMENT :

Ananya Bandyopadhyay, J. :

1. This appeal is directed against Judgment and Order dated 25.8.2004, passed by Learned Sessions Judge, Bankura in Sessions Trial No. 04 of June, 2003, arising out of Sessions Case No. 11 of April, 2003, convicting the appellants under Section 414 of the Indian Penal Code, sentencing the appellants to suffer rigorous imprisonment for six months each.

2. The prosecution case emanated on the basis of a suo moto complaint by the police officer on 29.1.1999, which precisely stated on his way to Saldiha pursuing his government duty along with C-782, Mathur Ch. Garai and C-1026, Ajit Patra both of Indpur Police Station intercepted one lorry bearing registration No. WB53-3611 at Dhogra More approaching from Purulia District, which was loaded with coal. On enquiry the driver of the aforesaid lorry failed to furnish valid documents concerning the coal carried by the aforesaid lorry as well as the ownership and his driving license. On further interrogation, the driver disclosed the name of the owner of the said lorry to be Haradhan Chand, son of Manick Chand along with whom the driver procured coal from the Dobra Side under Para Police Station, District Purulia and illegally transmitted the same to Khatra of Bankura District.

3. The complainant police officer was of the conviction that the owner of the lorry along with the driver was engaged in thievery of coal and stealthily continued with such business which according to him fell within the purview of Sections 379/411/413/414 of the Indian Penal Code and Section 34 of Mines and Minerals Act. The complainant seized the lorry under a seizure list signed by the witnesses. He further seized certain sample of coal loaded in the lorry and detained the driver.

4. On returning to the police station with seized lorry and driver the complainant initiated a specific case under Sections 379/411/413/414 of the Indian Penal Code and Section 34 of Mines and Minerals Act against the driver and owner of the lorry being No. WB – 53/3611.

5. Based on the aforesaid complaint formal FIR No. 2/99 dated 29.01.99 under Sections 379/411/413/414 of the Indian Penal Code and Section 34 of Mines and Minerals Act was instituted.

6. On completion of the investigation, charge sheet being No. 11/99 dated. 30.07.99 was submitted under Sections 413 and 414 of the Indian Penal Code against the appellants. Charges were framed to which the appellants pleaded not guilty and claimed to be tried.

7. In order to prove its case the prosecution cited three witness and exhibited certain documents, defence cited one witness and exhibited one document.

8. The Learned Advocate for the appellant submitted the evidence on record did not justify the conviction of the appellants under Section 414 of the Indian Penal Code. It was further submitted the disputed coal belonged to one Fatick Kundu who purchased from “Sri Durga Coal Traders” of Dubra, district Purulia. The relevant documents concerning such coal were given to the officer-in-charge of Indpur Police Station, which were not taken into consideration.

9. Moreover, in accordance to the provision of Section 110 of the Evidence Act, the burden of proof as to ownership of the lorry shifted upon the complainant.

10. The Ld. Advocate for the appellants further submitted that in order to convict the accused under Section 414 of the Indian Penal Code it was incumbent upon the prosecution to prove the recovered coal from the lorry to be stolen property with reasons to believe to be the same to be stolen property and having voluntary assisted in stealing for disposing of or making away with it. In the instant case conviction under Section 414 of the Indian Penal Code was unjustified since prosecution failed to prove the recovered coal from the lorry to be stolen property, to be intentionally disposed of collusively and therefore, the appeal shall be allowed.

11. The Ld. Advocate for the appellant relied on the decisions cited in the following list of judgments:

a