GANESH SETHI Vs. STATE
LAWS(ORI)-1973-7-24
HIGH COURT OF ORISSA
Decided on July 23,1973

Ganesh Sethi Appellant
VERSUS
STATE Respondents

JUDGEMENT

S. Acharya, J. - (1.) THE Petitioner stands convicted under Section 411, Indian Penal Code and has been sentenced thereunder to undergo R.I. for one month and to pay a fine of Rs. 100/ - and in default of payment of the same to undergo R.I. for a further period of one month.
(2.) THE Petitioner was prosecuted and convicted in the trial Court along with two others for an offence under Section 411 read with Section 34, Indian Penal Code. In appeal the Court below, while acquitting the other two accused persons, discarded certain aspects of the prosecution evidence, I shall therefore deal only with the prosecution evidence and the case accepted by the Court below. The bare facts which have been accepted as established by both the Courts below and on which the Petitioner now stands convicted are that M.O.I. an India made Raleigh bicycle, belonging to p.w. 3, was stolen from the Christ College compound at Cuttack on 23 -3 -1967. On 28 -3 -1967 some of the prosecution witnesses including p.w. 4 saw this bicycle in the Nischintakoil market with the Petitioner who was moving in the market with two other companions. Due to the conduct and movement of the Petitioner and his companions in the market p.w. 4 and some others suspected that the said bicycle was a stolen one. P.W. 4 for a short while went to his house to change his dress, and when he came back he found that the Petitioner had left that place, and the bicycle was not there. He therefore went in search of the Petitioner on his p.w. 4 's motor -cycle and caught hold of the Petitioner with the bicycle, M.O.I. at some distance from the village. P.W. 4 brought the Petitioner back to the Bazar along with the bicycle and thereafter he lodged the F.I.R. at the police station. The police seized the bicycle from the possession of the Petitioner. The above -mentioned facts have been accepted and relied upon by both the Courts below. Mr. Jena, the learned Counsel for the Petitioner, contended that on the aforesaid facts all the ingredients constituting an offence under Section 411, Indian Penal Code are not established, and so the conviction of the Petitioner for the said offence cannot be sustained. As stated above, both the Courts below hold that it is established on the evidence on record that the bicycle M.O.I. recovered from the possession. If the Petitioner, belonged to p.w. 3 and it had been stolen on 23 -3 -1967. This bicycle was with the Petitioner at the Nischintakoili market on 28 -3 -1967. Very soon thereafter the Petitioner left that place with the cycle. P.W. 4 went in search of the Petitioner and found him at some distance from the market going away on that bicycle. P.W. 4 caught hold of the Petitioner and brought him back to the market along with the bicycle. The said bicycle was seized by the police from the possession of the Petitioner. The trial Court while examining the Petitioner under Section 342, Code of Criminal Procedure asked him if the evidence on record that he was escaping with the stolen bicycle from the Nischintakoili Bazar and that he was caught hold of by p.w. 4 with the said stolen cycle is correct or not. He merely stated that it was false, and he did not give any explanation whatsoever for the established fact that he was in possession of the stolen bicycle. On the aforesaid concurrent findings of fact and the total failure of the Petitioner to account for his possession of the stolen cycle within such a short period of its theft, the presumption under Section 114 of the Evidence Act can be legitimately drawn. In this connection I am supported by the decision of the Supreme Court reported in Satnarain Sao v. State of Bihar, 1972 S.C.D. 852 wherein it has in effect been held that when the Court finds that the explanation offered by an accused for his possession of a stolen property is not reasonably true, the presumption in accordance with Section 114. Illustration (a) of the Evidence Act can be immediately drawn. There is in this case hardly any evidence worth the name by which it can be said that the presumption has been rebutted by the Petitioner. In the above view of the matter I am of the opinion that the offence under Section 411, Indian Penal Code has been squarely brought home against the accused, and so his conviction under Section 411, Indian Penal Code and the sentence passed thereunder are well founded. There is therefore no merit in this revision which is accordingly dismissed. ;


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