K. C. Agrawal, J. - (1.) THIS is a private party's revision filed against the judgment of the Sessions Judge, Allahabad dated 25-8-1976 allowing the appeal filed by the opposite party.
(2.) BRIEFLY stated the facts are that the opposite party was in the service of the Military Department and was posted in the Fort at Allahabad. He was at the relevant time working in 508 Army Base Workshop. On July 22, 1972 at about 1-30 P.M. when he reached at gate no. 2, Arun Kumar Chauki-dar (PW 2) felt suspicious and thereafter Hari Mathur (PW 1) and R. K. Mittal, (PW 3) were sent. Thereafter a personal search of the applicant was taken and three articles tied with his feet were recovered. These articles were timing shaft, floating bush and rocker arm, which were the parts of motor cycle. Thereafter Hari Mathur (PW 1) wrote a first information report and lodged the same with the police at 4 P.M. The applicant and the articles recovered from his possession were handed over to the police. The case was investigated by Qazi Ikhlaq Husain and thereafter a charge-sheet was submitted against the applicant for the offence under Section 379 I.P.C. The applicant denied the charge and asserted that he had been falsely implicated due to enmity with Hari Mathur (PW 1) as he had refused to repair his scooter. To support its case the prosecution produced Hari Mathur (PW 1), Arun Kumar Chaukidar (PW 2) and R. K. Mittal (PW 3). The Chief Judicial Magistrate finding that the applicant was guilty of the offence under Section 379 I.P.C. convicted him for the said offence and sentenced him to rigorous imprisonment for six months. In appeal the learned Sessions Judge reversed the findings of the Chief Judicial Magistrate holding that the prosecution failed to prove that the applicant had committed the offence under Sec. 379. On this finding the Ld. Sessions Judge acquitted him of the said charge. Aggrieved by the aforesaid judgment and order of the learned Sessions Judge, the present revision has been filed by the Union of India in the capacity of a complainant. The first question that was urged by the learned counsel for the applicant was that the learned Sessions Judge committed an error in holding that as the applicant failed to prove that the articles found from the possession of the opposite party belonged to Central Government, therefore, he could not be convicted for the theft. Section 378 of the Indian Penal Code defines theft as "whoever intending to take dishonestly any moveable property out of the possession of any person without that person's consent moves that property in order to such taking is said to commit theft." It would be seen that the offence of theft consists of dishonestly taking of any movable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself and wrongful loss to the other. In fact, the five essential ingredients of this offence are :- (i) an intention to take some move-able property ; (ii) the taking must be dishonest; (iii) it must be from the possession of another ; (iv) without his consent and (v) in pursuance of it the property must be moved. Hence for proving an offence under Section 379 I.P.C. it is not necessary that the person who files the complaint should establish that he was the owner of the theft property. Therefore, the submission of the learned counsel for the applicant that the learned Sessions Judge was wrong in holding that as it was not proved that the articles recovered from the possession of the opposite party was Government property the offence under Section 379 is not made ' out, is well founded. What was relevant was possession and not ownership. Had he considered the case from this angle, the court below was required to decide whether the property found from the possession of the opposite party was taken out of the possession of the Central Government. Learned coursel " for the appplicant, however, in that connection pointed out that the evidence of prosecution witnesses Hari Mathur and R. K. Mittal (PW 1 and 3 respectively) goes to show that the articles mentioned above were being taken out by the opposite party and that he was apprehended during the course of it. Counsel for the applicant urged that learned Sessions Judge committed an error in not believing the statements of these two witnesses by holding that there were contradictions in the statements of these witnesses. I was taken through the statements of Hari Mathur (PW 1) and R.K. Mittal (PW 3). I am in agreement with the learned counsel for the applicant as I was unable to find such contradictions in their statements which could shake their testimony. But as the present revision has been filed against the order of acquittal passed by the learned Sessions Judge it will not be within the jurisdiction of this court sitting in revision to set aside the order of acquittal passed in favour of the opposite party merely because another view is possible to be taken, on the evidence adduced by the prosecution.
(3.) ANOTHER aspect of the matter, which needs to be emphasised here is that Arun Kumar Chaukidar (PW 2) was the person who first checked the opposite party while he was coming out of gate of the Army workshop. He was produced as a witness by the prosecution. He, however, did not support the prosecution story and gave a version different to that stated by Hari Mathur and R. K. Mittal. The learned Sessions Judge referred to the aforesaid aspect of the matter and being of the opinion that as he was not declared hostile, the opposite party could not be convicted on the basis of the statements made by PW 1 Hari Mathur and PW 3 R.K. Mittal. So long as this finding of the learned Sessions Judge exists the acquittal of the opposite party cannot be disturbed. The learned counsel for the applicant urged that what the court below was required to find was whether the opposite party had committed the offence of theft and, therefore, the learned Sessions Judge ought to have considered the evidence of Hari Mathur and R. R. Mittal on its merits and should not have discarded the same simply because it did not tally with that of Arun Kumar Chaukidar (PW 2). Be that as it may, it appears to me that Arun Kumar was not prepared to tell the truth to the court, the proper course for the prosecution was to have made a prayer to the court to permit it to cross-examine Arun Kumar. As it did not do so, the prosecution has to thank itself. In view of this it cannot be said that the view taken by the learned Sessions Judge calls for interference in the present revision. It has been held by the Supreme Court in R. N. Raju v. Bonapalli Peda Appedu(AIR 1975 SC 1854), that the revisional jurisdiction when invoked by a private complainant against an order of acquittal can be exercised only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of a gross mis-carriage of justice. The revisional jurisdiction cannot be invoked merely because the lower court has not appreciated the evidence properly. Applying the law enunciated by the Supreme Court in the above case, I am unable to interfere in this revision and to quash the order of acquittal passed in favour of the opposite party. In the result, the revision fails and is dismissed. Revision dismissed.;