IMPORTANT POINT
The prosecution must prove the guilt of the accused beyond a reasonable doubt for a conviction under theft.

JUDGMENT :

Arun Dev Choudhury, J.

1. Heard Mr. B. Hussain, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.

2. The present application under Section 401/397 of the Code of Criminal Procedure, 1973 read with Section 482 of Cr.PC. is filed assailing the judgment and order of conviction dated 06.04.2011 passed by the learned Additional Chief Judicial Magistrate, Morigaon in SCR No. 44/2009 under Section 406/417 of IPC and convicted the accused petitioner under Section 406 of IPC and sentenced him to undergo R.I. for 1 (one) year and to pay a fine of Rs. 5,000/-. The further challenge is the Judgment and Order dated 18.11.2011, passed by the learned Sessions Judge, Morigaon in Criminal Appeal No. 11/2011, whereby the Judgment and Order of Conviction dated 06.04.2011 was modified and the accused was acquitted from the charges under Section 406 of IPC, however, he was convicted under Section 379 of IPC and was sentenced to undergo R.I. for 1 (one) year and also to pay a fine of Rs. 5,000/- and in default S.I. for another 2 (two) months.

3. Mr. Hussain, the learned counsel for the petitioner fundamentally argues that both the decision of the learned Court’s below are ex facie illegal and perverse inasmuch as there is no iota of evidence to convict the accused either under Section 406 IPC or under Section 379 IPC and therefore, this is a fit case where this Court may exercise its revisional power to correct such patent defect and to avoid miscarriage of justice.

4. Per contra, Mr. Borthakur, learned Additional Public Prosecutor for the State respondent submits that the prosecution has reasonably been able to prove, on the basis of circumstantial evidence that the petitioner had committed an offence under Section 379 IPC and therefore, such findings of fact may not be reversed by this Court in exercise of its revisional power.

5. This Court has given anxious consideration to the submissions advanced by the learned counsel for the parties. Also perused the materials available on record including the testimonies of the witnesses, in the backdrop of argument that the decisions are perverse

6. The prosecution story in nutshell and as discernible from the FIR is that the F.I.R. was lodged by one Dimbeswar Medhi on 07.12.2007 before the Officer-in-Charge of Jagiroad Police Station alleging that on 02.12.2007 at about 12:00 noon, the accused petitioner misappropriated his money amounting to Rs. 60,000/- from the tool box of his motor cycle. Accordingly, Jagiroad P.S. Case No. 196/2007 corresponding to G.R. Case No. 1266/2007 under Section 379 of IPC was registered.

7. Investigation was initiated. However, a closure report was submitted by the Investigating Officer on 30.10.2008 being F.R. No. 70/2008 under Section 173 Cr.P.C. for want of any evidence against the accused petitioner.

8. On receipt of such Final Report, the learned Chief Judicial Magistrate, Morigaon issued notice to the informant and subsequently, the informant filed an objection petition on 25.05.2009 in the form of a complaint, which was treated as a complaint by the learned Trial Magistrate and was registered as SCR No. 44/2009 under Section 406/417 IPC.

9. The informant/opposite party No. 2, was examined under Section 200 Cr.P.C., and thereafter, the learned Magistrate took cognizance of offence under Section 406/417 IPC and process was issued against the accused petitioner.

10. During the course of trial, the complainant examined himself as PW-1 and his wife as PW-2. Statement of the accused petitioner was recorded under Section 313 Cr.P.C., however, the accused petitioner did not adduce any evidence in support of his defence.

11. After conclusion of the trial, the learned trial Court convicted the accused petitioner under Section 406 IPC and discharged the accused for the offence under Section 417 IPC and sentenced him to undergo R.I. for 1 (one) year and to pay a fine of Rs. 5,000/-. by a judgment and ord