The court has discretion to award punishment of imprisonment or fine or both under section 411 of the Indian Penal Code, and should weigh the mitigating and aggravating circumstances in the case.

ORDER :

This criminal revision petition has been filed against the judgment dated 13th January 2015 passed in Criminal Appeal No. 231 of 2011 by which conviction and sentence of RI for six months under section 411 of the Indian Penal Code passed in TR No. 268 of 2011 which commenced on the basis of GR Case No. 3076 of 2002 has been affirmed by the appellate Court.

2. On the basis of a written report by Ashok Kumar Roy who was serving as Sub-Inspector of Police, CISF, Unit BCCL, Dhanbad, Baghmara (Barora) PS Case No. 219 of 2002 was lodged on 1st October 2002 under section 379/411 of the Indian Penal Code. According to the prosecution, the petitioner along with another accused was found carrying bags of coal on two bicycles at around 10:00 a.m on 1st October 2002. On seeing the informant who was coming along with Assistant Commandant, the accused persons started to flee away however the petitioner was apprehended. A seizure memo was prepared which was signed by Om Dutt and Azad Singh.

3. During the trial the prosecution examined four witnesses – Om Dutt was PW2 and Azad Singh was PW3. On the basis of the materials laid before him, the learned Judicial Magistrate, First Class, Dhanbad observed that though no witness has seen the accused committing theft of coal an inference can be drawn against him as he was found carrying bags of coal. The learned Magistrate referred to section 114(a) of the Indian Evidence Act to raise a presumption against the petitioner that he was in possession of stolen property and, accordingly, convicted him under section 411 of the Indian Penal Code.

4. The appellate Court dismissed Criminal Appeal No. 231 of 2011 observing as under:

“21. The words receives and retain occur side by side and the collocation of receipt and retention of stolen property is obviously is intended to do away with the necessity of proving the presence of dishonestly at the time of its possession. From the evidence of PWs it has been proved that appellant was found carrying coal on a bicycle who was nabbed by the staffs of CISF for which he did not gave any satisfactory reply and also did not produce any document for carrying the said coal. Under such circumstances presumption u/s 114(a) of the Evidence Act will be drawn that a man who is in possession of stolen goods soon after the theft is either the thief or as received the goods knowing them to be stolen, unless he can account for his possession. Here the appellant has not furnished any account for his possession of the seized coal and this presumption is conclusive proof of the said fact.

22. It has been argued on behalf of the appellant that there must be the theft report for application of section 411 of the IPC but the same is not appears to me convincing as in colliery areas the coal is dumped and kept all round the colliery areas and it is not possible to percept easily regarding the theft of coal.

23. On careful appraisal of the statements of the prosecution witnesses as well as the documents exhibited on its behalf and also taking into account the surrounding circumstances of the case it is crystal clear that the prosecution has been able to prove the charge against the appellant u/s 411 of the IPC. There is no reason to interfere in the impugned judgment passed by the ld. Court below. The judgment passed by the court below does not suffers from any infirmity. As such, the ld. Lower Court has rightly convicted the appellant for the charge punishable u/s 411 of the IPC. As such, the impugned judgment passed by ld. Court below is upheld. Accordingly this criminal appeal filed on behalf of the appellant is hereby dismissed.”

5. On a glance at the order of sentence dated 19th September 2011 passed in GR Case No. 3076 of 2002, this Court finds that the petitioner has no criminal antecedent and sentence of RI for six months has been inflicted upon him by considering his age, character and antecedent. The learned Judicial Magistrate further observed that the petitioner was sufferi