The absence of independent witnesses during the recovery of stolen property raises reasonable doubt, making conviction unsafe.

ORDER :

Praveer Bhatnagar, J.

By way of filing present criminal revision petition under Section 397 read with Section 401 Cr.P.C. the petitioner has assailed the judgment dated 28.02.2023 passed by learned Additional Sessions Judge No.3, Ajmer in Criminal Appeal No.05/2021 (CIS No.50/21), whereby, the learned appellate court while dismissing the appeal of the accused-petitioner has upheld the judgment of conviction and order of sentence dated 02.02.2021 passed by learned Additional Chief Judicial Magistrate No.1, Ajmer in Criminal Case No.6036/2018, whereby, the revisionist-petitioner was convicted and sentenced as under:-

2. Brief facts of the case are that on 16.03.2018 complainant Ajay Kumar Jain lodged a written report at police station Sadar Kotwali, Ajmer stating therein that on 16.03.2018 at around 03:00 AM when he was going to the Temple, his car Maruti-800 bearing registration No.RJ01-C-9744 standing outside the house from last four days was stolen by someone. On the aforesaid report, an FIR No.56/2018 was registered and after usual investigation, charge-sheet under Section 379 I.P.C. was filed against the present petitioner.

3. The Learned Magistrate framed charges against the petitioner for the above offence and upon denial of guilt by him, commenced the trial. During the course of trial, the prosecution in order to prove the offence, examined as many as 8 witnesses and exhibited 10 documents. The accused, upon being confronted with the prosecution allegation, in his statement under Section 313 Cr.P.C., denied the allegation and claimed to be innocent. Then, after hearing learned counsel for the parties and upon meticulous appreciation of the evidence, learned trial court convicted the accused for the offence under Section 379 I.P.C. vide judgment dated 02.02.2021. Aggrieved by the judgment of conviction, he preferred an appeal, which was dismissed by the learned appellate court vide judgment dated 28.02.2023 affirming the judgment passed by the trial court. Hence, this revision petition is filed before this court.

4. It is argued by learned counsel for the petitioner that the name of the accused-petitioner was not mentioned in the FIR and the vehicle in question was recovered from an open place, which is available for public use. It is also argued that a bare perusal of the statements of PW-6 Udai Singh and PW-7 Moinuddin makes it clear that the accused-petitioner was brought on production warrant and no vehicle was recovered from him. It is further argued that the learned trial court while appreciating the evidence should keep in mind the two cardinal principles that the guilt against the accused must be proved beyond reasonable doubt and the burden on the accused is not so heavy to prove the plea taken by him as it lay on the prosecution. The burden can be discharged by the accused merely showing the preponderance of probability in favour of the plea taken by him. It is prayed that the judgments passed by learned courts below may be set aside and revision petition may be allowed.

5. Learned Public Prosecutor supported the judgments passed by learned courts below and opposed the revision petition.

6. Heard learned counsel for the parties and perused the material available on record.

7. In order to prove the fact regarding theft of maruti car bearing registration number RJ-01-C-9744 on midnight of 15.03.2018 to 16.03.2018, prosecution has relied upon the testimony of Ajay Kumar (PW-1), who is the registered owner of the stolen car. PW-1 Ajay Kumar in his statement before the Court has clearly stated that he parked his vehicle outside his house and came out at 03:00AM on 16.03.2018 and found his maruti car bearing registration number RJ-01-C-9744 missing. He has further stated that written complaint i.e. Ex.-P1, bears his signature.

8. PW-2- Mudita Jain, wife of PW-1- Ajay Kumar, has corroborated the version of PW-1- Ajay Kumar. Therefore, this fact was