- (1.) KUNDAN Singh, J. This revision has been preferred against the judgment and order dated 27th July, 1984 passed by the Additional Sessions Judge, Ghaziabad, dismissing Criminal Appeal No. 34 of 1984, Mukesh v. State of U. P. , confirming the conviction and sentence of one year under Section 411 of the Indian Penal Code, (IPC) awarded by the Additional Chief Judicial Magistrate, Ghaziabad, in Case No. 893 of 1981 -State v. Mukesh by his judgment and order dated 28th February, 1984.
(2.) A first information report was lodged regarding the theft of an Ambas sador Car No. DHB 8515 on 6th February, 1981. An accused, namely, Subhash was arrested in another case; while he was being interrogated by the Inspector of Police, he disclosed about the theft of the stolen car, which met with an accident and at that time the applicant was also with him. The applicant also sustained injury. On the information received from Sub-hash accused, the present applicant was arrested and on his pointing out, on 13th February ,1981 the car was recovered from an Ahata, in which new quarters of Ghaziabad Development Authority were under construction on the road between Bhatia Potteries and Rakesh Marg. The applicant also confessed before the police that he had stolen that car from a place near Holy Child School in Nehru Nagar about six-seven days back. The applicant was prosecuted under Sections 380/411, IPC. The learned Magistrate, after going through the evidence on record, held the applicant guilty of the offence under Section 411 and awarded the sentence of one year's rigorous' imprisonment by his judgment and order, dated 28th February, 1984. Being aggrieved, the applicant preferred Appeal No. 34 of 1984 before the Sessions Judge, Ghaziabad, which came for hearing and disposal before the learned Additional Sessions Judge, Ghaziabad, who, vide his judgment and order dated 27th July, 1984, dismissed the appeal confirming the conviction and sentence of the applicant im posed by the learned Magistrate. Still feel ing aggrieved, the applicant has preferred this revision, as aforesaid. Heard learned Counsel for the ap plicant and the learned Additional Government Advocate.
(3.) LEARNED Counsel for the applicant submitted that the conviction and sen tence are bad in law inasmuch as even, according to the prosecution, the car was recovered at the pointing of the applicant from a public place, which cannot be at tributed to be in exclusive possession and control of the applicant and unless it is proved that the applicant had exclusive possession and control over the property recovered at his instance, no conviction can be recorded. I have gone through the relevant papers. Raghuvir Singh, Sub-Inspector, deposed that Mukesh was arrested on 13th February, 1981 at about 7. 00 p. m. During interrogation Mukesh made certain dis closure regarding the theft of the car, on the basis of which the Ahata was sur rounded and on the pointing out of the applicant the car was recovered. He stated that at that time nobody was living in that Ahata. In cross-examination he could not give out the name of the owner of the Ahata. Though there was a gate having door of iron planks, but it was not locked. Constable Virpal Singh, P. W. 4, stated in cross-examination that before his arrest, Mukesh pointed out that Ahata in which the stolen car was parked. The Sub-Inspec tor of Police opened the gate of that Ahata, which was not locked and the car was recovered from the Ahata.;