The failure of prosecution to prove theft and criminal trespass resulted in the acquittal of the appellant, emphasizing the requirement of demonstrating intent and action beyond mere presence.

JUDGMENT :

GITA GOPI, J.

1. The appellant was convicted on 25.3.2009 by the learned Additional Sessions Judge, 3^rd Fast Track Court, Mehsana in Sessions Case no.148 of 2008 with Sessions Case no.171 of 2008.

1.1 The conviction was under Section 379 of the Indian Penal Code, 1860 (IPC) with sentence of two years rigorous imprisonment and fine of Rs.2,000/-, in default of payment of fine, further six months rigorous imprisonment.

1.2 Further, the conviction was also under Section 447 IPC with sentence of three months rigorous imprisonment and fine of Rs.100/- with the default stipulation that in failure to pay the fine, fifteen days further rigorous imprisonment had to be served.

1.3 The learned Judge had given benefit of set off. However, the sentence was to be served consecutively.

1.4 The appellant was acquitted for the offence punishable under Section 413 read with Section 114 of IPC and Sections 3 and 7 of the Prevention of Damage to Public Property Act, 1984.

1.5 Along with the appellant, four other accused were tried. The accused – Zala Malbha Jalamsinh faced Sessions Case no.171 of 2008 under supplementary charge-sheet. Sessions Case no.148 of 2008 was against four accused including the present appellant, while Sessions Case no.171 of 2008 was only against accused – Zala Malbha Jalamsinh. Both the Sessions Cases were tried together. Except the present appellant, rest of the accused came to be acquitted under all charges.

2. The complaint was filed by the Security Inspector of Project Department of ONGC. When he was duty on 20.3.2008, he received a telephone message from Police Sub-Inspector of Santhal Police Station informing him that Arvindji Udaji, Lalaji Udaji, Govaji Dalsangji, Jasaji Dalsangji and Mansinh Jalamsinh Zala were committing offence of theft by taking away iron pipes of ONGC from Well no.36, Balol. As per the complaint, having received the message, the complainant along with the police personnel went to the alleged place and they saw few persons cutting pipes and angles. However, seeing the complainant and the policemen, those persons ran away in a Matador, but the present appellant was apprehended by the police at the alleged place.

3. The investigation was conducted, which ended in filing of charge-sheet in the Court of learned JMFC, Mehsana. The matter was committed under Section 209 Code of Criminal Procedure, 1973 to the Sessions Court.

4. Learned advocate Mr. Robin Prasad submitted that the learned Trial Court failed to appreciate the facts of the matter, where it has come clearly on record that if at all the presence of the appellant was found at the place of offence, he was in the capacity of a labourer. Advocate Mr. Robin Prasad submitted that secret information which was received by the appellant did not include the name of the present appellant, which itself suggests that he was not at the place alleged with the intention to commit any theft. Advocate Mr. Robin Prasad submitted that real culprit had ran away from the place, who the complainant as well as the witness and the police could not apprehend them, while the appellant had no reason to run away from the place since he had not come with any intention of theft. Advocate Mr. Robin Prasad submitted that in a defence, witness has been examined to prove that he was actually working with the witness.

4.1 Advocate Mr. Robin Prasad submitted that no ingredients of Section 378 IPC would be attracted since in the case of no intention to dishonestly tak