- (1.) THIS revision petition has been filed against the order dated 25.9.2012 passed by the appellate court whereby the appellate court has dismissed the appeal and confirmed the conviction and sentence of the present petitioner for the offence under Section 379 IPC.
(2.) THE short facts of the case are that the complainant has filed a complaint stating therein that his motor cycle bearing No. RJ-30-3-M-8045 has been stolen outside from his house. The complaint has been sent for investigation under Section 156(3), Cr.P.C. and after investigation charge-sheet has been filed against three persons including the present petitioner. Charge has been framed against the present petitioner for the offence under Section 379 IPC. The prosecution examined as many as 8 witnesses in support of its case and also exhibited documents. The statement of the present petitioner was recorded under Section 313, Cr.P.C. No witness was produced in defence. After hearing both the parties, the present petitioner has been convicted for the offence under Section 379 IPC and sentenced court below as under:- for offence under : One year's R.I and a fine Section 379 IPC of Rs.500.00 and in default of payment of fine to further undergo one ' month's S.I. The appeal of the present petitioner has also been dismissed. Hence this revision petition. The contention of the present petitioner is that both the courts below have committed glaring mistake by convicting the present petitioner. No recovery has been made from the present petitioner. He has been convicted only on the basis of the statement of co-accused which is not admissible evidence and is not a legal evidence. His previous conduct has also been taken into account in spite of the fact that the present petitioner has not been convicted earlier in any case. Hence present petitioner should be acquitted of the aforesaid offence. Per contra, the contention of the learned Public Prosecutor is that there is no infirmity in the impugned order.
(3.) HEARD learned counsel for the petitioner and the learned Public Prosecutor for the State and perused the record. The complaint has been filed by the complainant Ratan Lal stating that on 21.10.2009 his motor cycle was lying out side his house and in the morning it was missing. On this a case under Section 379 IPC has been registered. The present petitioner and others have been arrested. The information has been recorded of the present petitioner that motor cycle is lying at Kiratpura, Police Station Badi Sadri, but in furtherance of this information Ex.14, nothing has been recovered at the instance of the present petitioner. It is admitted case of the prosecution that on the information of co-accused Laxman, motor cycle has been recovered from the house of Laxman. Hence the recovery of motor cycle cannot be connected with the present petitioner and the information of Laxman cannot be read against the present petitioner. Further more, one information has been taken by the present petitioner Ex.P.17, in which the present petitioner has stated to identify the place from where the motor cycle has been stolen. Admittedly, the place was already in the knowledge of the investigating officer. Inspection of the site has been done by the investigating officer on 4.11.2009 and the information regarding identification of scene of occurrence has been taken of the present petitioner on 8.11.2009 which is of no value as the fact was already in the knowledge of the investigating officer.;