A conviction under Section 379 IPC cannot be upheld on weak circumstantial evidence without direct supporting witnesses, especially if independent witnesses are hostile.

JUDGMENT :

A.K. Mohapatra, J.

1. Heard the learned counsel for the Petitioner as well as learned counsel for the State-Opposite Party. Perused the records as well as evidence recorded during trial.

2. The present criminal revision application is directed against the judgment dated 30.03.2016 passed by the learned Sessions Judge, Gajapati at Paralakhemundi in Criminal Appeal No.13 of 2015 confirming the judgment dated 30.07.2015 passed by the learned S.D.J.M., Parlakhemundi in T.R. Case No.974 of 2011, arising out of G.R. Case No.243 of 2011 wherein the Petitioner has been found guilty of the alleged offence and has been convicted for commission of offence under Section 379 of I.P.C. and he has been sentenced to undergo simple imprisonment for a period of one year.

3. The case of the prosecution, in brief, is that on 22.07.2011 at about 7.00 P.M., the Complainant lodged an F.I.R. before the IIC, Garabandha Police Station alleging that on 20.07.2011 at about 6.00 P.M. her son Hemanta Kumar Patra returned from his tuition and kept his bicycle in front of the shop of one S. Srinu. After purchasing some articles, when the son of the Complainant returned from the shop, he found that his bicycle is missing. After a prolonged search, the bicycle could not be found. Thereafter, an F.I.R. was lodged before the I.I.C., Garabandha Police Station which has been registered as P.S. Case No.21of 2011 for commission of offence under Section 379 of I.P.C. After completion of investigation, a charge sheet was filed against the present Petitioner and the Petitioner faced the trial. Learned trial court, after taking evidence, found the Petitioner guilty of the alleged offence. Accordingly, he has been sentenced to undergo simple imprisonment for one year.

4. Judgment of the learned trial court dated 30.07.2015 was challenged in appeal before the learned Sessions Judge, Gajapati at Parlakhemundi in Criminal Appeal No.13 of 2015 by the appellant-convict. Learned appellate court, vide his judgment dated 30.03.2016, found no infirmity in the judgment of the trial court. Accordingly, the judgment of the trial court has been confirmed by the appellate court.

5. Being aggrieved by the aforesaid two judgments, the Petitioner has approached this Court by filing the present Criminal Revision application.

6. Learned counsel for the Petitioner, at the outset, submitted that there are no eye witnesses to the occurrence. He further contended that the Petitioner has been convicted relying upon circumstantial evidence. He further stated that P.Ws. 1 to 4 and 8 are independent witnesses and the prosecution has declared them hostile. Therefore, there are no substantive evidence on record to sustain the conviction of the Petitioner for commission of a crime under Section 379 of the I.P.C. He further submitted that the entire judgment is based on surmises and conjectures. Therefore, the same is not sustainable in the eye of law.

7. Learned counsel for the State, on the other hand, supported the judgments delivered by the learned courts below. She further stated that on the basis of the materials available on record, no fault can be found with the judgment of the learned courts below thereby convicting the Petitioner for commission of a crime under Section 379 of I.P.C. Learned counsel for the State further contended that even though some of the witnesses were declared hostile, however, there are other materials on record to implicate the Petitioner. Furthermore, the evidence of the prosecution witnesses No.5, 6 and 9 are good enough to support the prosecution case and on such basis, the judgment of conviction and sentence cannot be questioned in the