The court's decision was influenced by the validity of the evidence presented, particularly the preparation of a memorandum under section 27 of the Evidence Act and the seizure memo, in proving the elements of the offence of theft under section 379 of the Indian Penal Code.

U.C. Maheshwari, J.

1. Though this revision was listed 29-11-2004 in motion hearing but with the consent of both the counsel for the parties is heard finally at the stage of motion hearing.

2. This revision petition is preferred under section 397/401 of the Code of Criminal Procedure by the present applicant assailing the judgment dated 4-5-1999 passed by the Sessions Judge, Sagar in Criminal Appeal No. 17/99 whereby the appeal of the applicant has been dismissed and the judgment passed by Judicial Magistrate First Class, Sagar dated 20-1-1999 passed in Criminal Case No. 66/96 by which the present applicant was found guilty and convicted under section 379 of the Indian Penal Code (for brevity I.P.C.) and awarded the sentence of 2 years rigorous imprisonment (R.I.) with fine of Rs. 500/- and in Cri. Rev. No. 859 of 1999 decided on 1-12-2004. (Jabalpur) default of the payment of the fine amount further Simple Imprisonment (S.I.) for 3 months was awarded, has been upheld. Hence, this revision petition.

3. According to the prosecution case, Mohan Singh (P.W. 3) who is a resident of village Mainwara Kala, who, is having well in his agriculture land known as Kachharwala field of the same village. In this well the electric motor pump was installed and for operation a starter was also affixed there. On dated 13-2-1996 when this complainant Mohan Singh went to his agriculture field and came to know about theft of the said Electric Motor of three horse power of Kirloskar company (hereinafter referred to as the Motor), he reported the matter to the police on 17-2-1996 whereby the F.I.R. (Ex. P/7) was lodged.

4. During the investigation, the Investigating Officer prepared the spot map and arrested the accused persons and prepared the memorandum under section 27 of the Evidence Act in relating to the present applicant and another accused namely Hari Singh. On information of the memorandum the Motor was seized and after completion of the investigation, the challan was submitted before the Court of Judicial Magistrate, First Class, Sagar; where the applicant and other co-accused were charged under section 379 of the Indian Penal Code and trial was proceeded.

5. The prosecution has examined as many as eight witnesses to prove the offence against the applicant. In defence the applicant examined one witness Khushilal (D. W. 1) After concluding the trial, the trial Court found guilty to the present applicant and the other aforesaid co-accused and convicted them as said above.

6. Being aggrieved by the judgment of the trial Court the applicant and other co-accused preferred an appeal in which the other accused Hari Singh was acquitted but applicant's conviction was maintained and so far as the applicant is concerned, the judgment of the trial Court was upheld.

7. I have heard Shri Manish Datt, the learned counsel for the applicant and Shri S. S. Bisen, the learned Government Advocate for the State/respondent. Shri Datt has assailed the judgments of the Courts below on various grounds by challenging the memorandum prepared under section 27 of the Evidence Act and the seizure memo which have not been proved by the cogent evidence and by wrong appreciation of the evidence the Courts below have found guilty of the applicant which is apparently under violation of the settled legal position; while, Shri Bisen supported the conviction and prayed for dismissal of the revision.

8. I have perused the record and carefully examined the evidence. As per my opinion, this revision petition has no merit in view of the following circumstances.

9. The memorandum (Ex. P/2) was prepared by A.S.I., K.S. Raikwar (P.W. 7) on supplying the information by applicant in presence of witnesses Raja Singh (P.W. 1), and Harnam Singh (P.W. 2) and in pursuance of this the recovery was also made vide Ex. P/3, from the house of Bhagwan Singh and in support of these documents Raja Singh (P.W. 1) and Hamam Singh (P.W. 2) were examined and both have supported to the prosecution and prove