Presumption of theft liability requires evidence of knowledge that the property is stolen; mere recovery is insufficient for conviction.

ORDER :

UNNI KRISHNAN NAIR, J.

1. Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. R.J. Baruah, learned Additional Public Prosecutor appearing for the State.

2. The petitioner by way of instituting the present Criminal Revision Petition, has assailed the judgment and order 03.08.2011, passed by the Court of learned Sessions Judge, Morigaon in Crl.A. 10/2011, dismissing the said appeal and thereby, upholding the judgment dated 05.04.2011 st passed by the learned Court of Judicial Magistrate 1 Class, Morigaon convicting the petitioner, herein under Section 379 IPC and sentencing him to undergo RI for 3 (three) months and to pay a fine of Rs.5,000/- (Rupees five thousand), in default, to undergo SI for 2 (two) months.

3. The prosecution case, in brief is that one Suman Swargiary lodged an FIR with the Officer-in-Charge Morigaon Police Station on 30.07.2007 and therein, had lodged that on 29.07.2007 his bi-cycle was stolen by some unknown person when he was playing football. It was further alleged that on 30.07.2007, at about 10.00 am when he had come out from college, he had seen the petitioner, herein, riding his bi-cycle, towards Morigaon town and he apprehended him and handed him over to police station. The police on receipt of the said FIR registered the case being Morigaon P.S. Case No.169/2007 under Section 379 /411.

The police on completion of investigation, filed the Charge-Sheet against the petitioner herein and one Babu Ali. The Trial Court, thereafter, framed charge under Section 379 /411 IPC against the said accused persons including the petitioner, herein. On the charge being read over and explained to the accused petitioner, the co-accused Babu Ali pleaded guilty to the charge and he was thereafter convicted and sentenced. In so far as the petitioner, herein is concerned, he had pleaded not guilty to the charges and claimed to be tried and accordingly, a trial is ensued.

During the trial, the prosecution had examined 5 (five) witnesses. Thereafter, the statement of the petitioner under Section 313 Cr.P.C. was recorded.

On conclusion of the trial, the Trial Court vide judgment dated 05.04.2011 on appreciating the evidences coming on record, proceeded to convict the petitioner herein under Section 379 IPC and sentenced the petitioner as noticed, hereinabove.

The petitioner being aggrieved with the conviction by the learned Trial Court, assailed the same by way of instituting the criminal appeal being Crl.A. No. 10/2011 before the Court of learned Sessions Judge, Morigaon. The leaned Appellate Court upon appreciating the evidences coming on record was pleased vide judgment dated 03.08.2011, to dismiss the said Appeal and thereby upholding the conviction of the petitioner herein by the Trial Court.

4. Being aggrieved, the petitioner has instituted the present Criminal Revision Petition.

5. I have heard the learned counsel for the parties and also perused the materials available on record.

6. On perusal of the evidences coming on record, it is evident that the same reveals that the stolen bi-cycle of the informant, was recovered from the petitioner, herein, on 30.07.2007.

The learned Trial Court, upon appreciating the evidences coming on record had proceeded to consider the issue as to whether the petitioner, herein, had stolen the bi-cycle, in question. On such appreciation of the evidences and by applying the provision of Section 144(a) of the EVIDENCE ACT , proceeded to draw a presumption that the petitioner, herein, had stolen the bi-cycle, in question. Such pres