JUDGMENT :

1. The instant application is directed against the judgment dated 22nd January, 2014, passed by the learned Sessions Judge, Bokaro, in Criminal Appeal No.145 of 2013, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence dated 13.08.2013, passed by the learned Sub-Divisional Judicial Magistrate, Bokaro in G.R Case No.539 of 2008, corresponding to T.R. No.92 of 2013, whereby the petitioner has been convicted and sentenced for the offence under Section 414 of the IPC and was directed to undergo R.I. for two years with fine of Rs.5,000/-and in default of payment of fine, he was further directed to undergo S.I. for three months, has been affirmed.

2. The prosecution case in brief is that the informant is a CISF personnel having CISF no.801140055 of crime and investigation branch under CISF unit BSL Bokaro. It is stated that on 24.04.2008 at 8.20 hours one CISF personnel Pankaj Kumar Tiwary saw a Maruti Van bearing registration No.JH09A-5952 inside the gate no.5 which was on way to come out from the said gate in suspected situation, then that CISF personnel went near the vehicle and he saw the vehicle loaded with brass and copper materials, thereafter, along with other CISF personnel Asif Eqbal, they made query with the driver of the said vehicle but he could not give a satisfactory reply. The driver was Guljar Ansari, S/O Jamaluddin Ansari of village Tupkadih, P.S. Jaridih, Bokaro who was intercepted along with stolen materials and the materials aforesaid were seized. On further query the accused disclosed that one person namely Kaushal of Sec-8, B.S. City was accompanying him but that fellow was not found there. The prosecution party got the accused medically examined, obtained the property certificate from BSL regarding the theft materials which was seized by Sri Ram Nath Mishra, AGM, BSL and the seized materials were valued approximately Rs.67,100/-. The arrested accused along with seized materials, seizure list handed over to Harla police for registration of FIR and further proceeding. This is the case of the prosecution.

3. On the basis of written report, Harla P.S. Case No.42 of 2008 was registered under Section 414/34 of the IPC against this petitioner and one co-accised, Kaushal. After investigation, police submitted charge-sheet and charge was framed against the petitioner for which he pleaded not guilty and claimed to be tried.

4. On the basis of evidences, both oral and documentary placed before him and the trial court hold the petitioner guilty for the offence punishable under Section 414 of the IPC and sentenced him as aforesaid.

5. Being aggrieved the petitioner challenged the aforesaid order before the learned Sessions Judge, Bokaro and the learned appellate court after dealing with the evidences placed before him and after hearing the arguments adduced by the parties sustained the conviction.

6. Learned counsel for the petitioner submits that no case is made out under Section 414 of the IPC. He further submits that as per the deposition of prosecution witness, P.W.-1 who is the seizure list witness, he was not present at the place of occurrence. He further submits that from the deposition of P.W.-2, it transpires that theft has not been proved. As a matter of fact there was no report of any theft as such convicting the petitioner for the stolen property is not sustainable in the eyes of law. From the order of learned trial court in para-15 of its order, it appears that the D.W.-1, Intekhab Ansari, who is said to be owner of the said vehicle had stated that he was having no knowledge as to what material was loaded and from where it was loaded in the said vehicle. The learned trial court only on the basis that the driver of the taxi who is brother of D.W.-1 could not produce a valid paper of the seized property, the petitioner has been convicted.

As a matter of fact the prosecution has failed to establish as to whether the seized property was actual