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DISTRICT: JORHAT

IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE, JORHAT PRESENT: Smt. P. Kataki, A.J.S. Addl. Sessions Judge, Jorhat Criminal Appeal No. 05 of 2019

(This appeal against conviction has been filed under Section 374 of the Code of Criminal Procedure, 1973 challenging the impugned Judgment and Order dated 08.11.2018, passed by the learned Chief Judicial Magistrate, Jorhat namely Smt. Rani Boro in G.R. Case No. 1486/2018 u/s 379 IPC)

Jiten Nath ……….. Appellant

Versus

State of Assam …………… Respondent Appeal filed on: 25.01.2019 Arguments heard on: 21.08.2019 Judgment Delivered on: 02.09.2019

ADVOCATES WHO APPEARED IN THIS CASE ARE:

For the Appellant :Shri Azaz Anwar, Advocate For the State : Shri Siddique Ali, Addl. PP

J U D G M E N T

1. This appeal under Sections 374 of the Code of Criminal Procedure, 1973 is preferred by the Appellant/accused Jiten Nath against judgment and order dated 08.11.2018, passed by the learned Chief Judicial Magistrate, Jorhat namely Smt. Rani Boro in G.R. Case No. 1486/2018 u/s 379 IPC and sentencing him to undergo rigorous imprisonment for two years.

2. In order to appreciate the merit of this appeal, the essential factual details as per the version of the prosecution is that on 15.05.2018 at 8:00 p.m., the vehicle of the informant AS03E3864 Super Splendor motorcycle was stolen away from the garage of the informant. Accordingly the informant lodged FIR before Lichubari out Post on 15.05.2018. On filing FIR before the I/C Lichubari Out Post, the I/C Lichubari P.S received it and after G.D. Entry vide No. 273 dated 15.05.2018 forwarded the same to O/C Jorhat Police Station for registration of a case.

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3. The O/C Jorhat Police Station on receipt of FIR registered it as Jorhat P.S. Case No. 1113/2018 under Section 379 IPC against the accused. The Investigating Officer investigated this case and on completion of investigation charge-sheet came to be filed under Section 379 IPC against the accused.

4. On production from jail hazot, the copies of the relevant documents were furnished to the accused person as required u/s 207 of the CrPC, 1973. Thereafter, upon hearing and considering the relevant materials available on record, formal charge under Section 498-A of IPC was framed against the accused person. Particulars of charge u/s 498-A of IPC was read over and explained to the appellant/accused to which he pleaded not guilty and claimed to be tried. 5. The learned trial court framed the following point for determination:- “A. Whether the accused, on 15.05.2018 at 8:00 p.m., committed theft of

motorcycle of the informant being Registration No.AS-03E-3864 by taking it out

of the possession of the informant without his consent and hence liable to be

punished under section 379 IPC?”

6. In order to bring home the charges against the accused person, the prosecution examined as many as six (6) witnesses. After the closure of prosecution witnesses, the statement of the accused person u/s 313 Cr.P.C. has been recorded wherein the accused person pleaded his innocence. The defence plea of the accused is total denial. The plea taken by the accused is that he is falsely implicated in this case. The shopkeeper has given false evidence against him. He has been arrested from his house and he has not taken any knife and was also not present on that day. It is further stated by the accused that the POCSO case which was against him, in that case he has been acquitted by the Court. The accused person denied to adduce any defence evidence. 7. After examining the evidence on record and hearing the arguments advanced by the learned counsels for both the sides, the learned Trial court passed the impugned judgment and order dated 08.11.2018 convicting the appellant/accused person u/s 379 IPC as aforesaid. 8. The Accused Jiten Nath feeling aggrieved by the order of conviction has preferred an appeal before this Court. In the appeal, the accused person has taken the following grounds:-

(a) That the impugned judgment and sentence passed by the Ld. Court

below sentencing the accused person to rigorous imprisonment for 2 years for a charge u/s 379 of I.P.C., is not maintainable in law as well as on facts and same is liable to be set aside and quashed.

(b) That the Ld. Court below while passing the impugned judgment and order sentencing the accused person U/S 379 of IPC failed to appreciate the evidence on record both oral and documentary in proper perspective and without application of judicious mind passed the impugned judgment and order sentencing the accused and as such same is liable to be set aside and quashed.

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(c ) That Ld. Court below while deciding the issue that whether the accused

person was really involved in the offence, failed to consider the material

on record, that is ejahar, trace map, and also evidence of the prosecution

witnessed in proper perspective.

(d) That the Ld. Court below in deciding the above issue observed inter-alia

that the ejahar which was lodged on 16.05.2018 at the leisure of the

complainant i.e., a day after the alleged theft of the motorbike bearing

Regd. No. AS-03E-3864 never revealed anything regarding the recovery

of a knife which has been pivotal of the conviction of the accused person

and moreover the said bike was never recovered and henceforth the

conviction of the accused person for alleged theft could not be proved by

the prosecution and as such the said order of conviction is liable to be

set-aside, quashed and the accused person who is currently serving the

sentence be allowed set free forthwith. Furthermore, complainant or any

other prosecution witnesses have not stated in their evidence in chief as

well as in the cross examination that they witnessed the accused

committing the offence he is been convicted of or at any point of time

they have the reason to believe that the accused is involved in the

offence and such the impugned judgment and sentence is liable to be set

aside and quashed.

(e) That another pivotal point for convicting the accused person is the

statement of the PW-6 the pan shop owner who has stated that the katari

which the complainant has handed over to the police which he alleged to

have found at the place of occurrence is that of PW-6 and it has been

alleged by PW-5 that on the date of the alleged offence the kotari was

borrowed by the accused and never returned. That the said kotari which

was alleged to be found by the complainant and then handed over to the

police is an ordinary knife found at any every shop round the corner and

without ascertain the true whereabouts of the katari and merely on the

basis of suspicion the Ld. Court without application of her judicious mind

convicted the accused person and as such the impugned judgment is

liable to be set aside and quashed.

(f) That the prosecution must establish all the pieces of incriminating

circumstances by reliable and clinching evidence and the circumstances,

so proved, must form such a chain of events so complete as would permit

no conclusion other than one of guilt of the accused and in present case

the prosecution has miserably failed to do so and on that court alone the

impugned judgment is liable to be set aside and quashed and the accused

person must be set free.

(g) That the Ld. Court relied on the confessional statement by the accused before the PW-5 the I.O. of the case, where it is a rule that there is hardly any evidentiary value of the statement made by the accused before the police and in the light of which the accused person cannot be

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convicted of the alleged offence and the prosecution miserably failed to prove the charges leveled against the accused person beyond all reasonable doubt and as such the impugned judgment is liable to be set aside and quashed.

(h) For that in any other view the Ld. Court below on proper and correct appreciation of evidence on record and provision of law involved ought to have acquitted the accused appellant.

POINT FOR DETERMINATION:

9. From the materials available on record the point for determination in the instant appeal is “Whether the impugned judgment and order dated 08.11.2018, passed by the learned Chief Judicial Magistrate, Jorhat namely Smt. Rani Boro in G.R. Case No. 1486/2018 is sustainable in the law and facts of the case? “

10. I have carefully examined the impugned judgment and order dated 08.11.2018, the memorandum of appeal, the evidence and the documents on record and after hearing the arguments advanced by the learned counsels for both the sides, give my decision as follows:- 11. The learned counsel for the accused vehemently argued that the learned court below erred in law and facts in passing the impugned judgment and order dated 08.11.2018 in as much as the prosecution has failed to prove their case. Therefore, the learned counsel for the accused has submitted that the impugned judgment and order is liable to be set aside and quashed. 12. On the other hand, the learned Addl. PP for the State has argued that applying judicial mind and relying on the evidence on record, the learned trial court has rightly passed the impugned judgment and order dated 30.08.2016. Therefore, the learned Addl. PP has submitted that the appeal may be dismissed and the impugned judgment and order may be upheld. 13. In order to appreciate the rival contention set forth by the parties, let me now discuss the evidence on record. 14. PW-1 is the informant of this case who has deposed in his evidence that on 15.05.2018 at about 8:00 p.m. he had parked his Super Splendor motorcycle AS03E3864 in his garage. He left for some work with his daughter in the scooty leaving the motorcycle in the garage. When he returned home at 8:30 p.m., he searched for the motorcycle but could not find it, so he lodged FIR about the missing motorcycle. In his garage he found a knife which did not belong to them and so he handed the knife along with the documents of the motorcycle to the police. PW1 identified the knife to be the Material Exhibit-A and deposed that later he came to know that the knife belongs to the Pan Shop owner who is having a shop opposite to his house. At the time of incident, the Pan Shop was open and till today he has not received back the stolen motorcycle.

15. During cross-examination PW-1 deposed that he has not written in his FIR about the knife which was found in his garage. He has not named anyone as an accused in this FIR. His garage is just below his dwelling house. His motorcycle was locked at that time. The garage was having a shutter which was half closed. At the time of incident his wife and children were present at home.

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When the Shutter is moved it creates a sound but his family member did not hear about it. Beside his house there is house of his neighbour and there was light at that time. He does not know the name of the owner of pan shop.

16. PW-2 deposed in her evidence that informant is her husband who does not know the accused. On 15.05.2018 her husband had gone out in their scooty along with his friends to pick up her son from Jorhat Stadium. He returned home and wanted to lock the garage he called for her and when she came down steps her husband informed her that the motorcycle is not found in the garage. He asked her whether anyone has taken away his motorcycle. They came to know that their motorcycle was stolen and immediately they informed the matter to the police Station. They also found one knife which was brought by her husband from the garage and thereafter they handed over the knife and the documents of the motorcycle to the police. Exhibit-2 is the seizure list and Exhibit-2(2) is her signature. Material Exhibit-A is the knife which is seen by her in the Court. Till today their motorcycle has not been recovered.

17. During cross-examination PW-2 deposed that she does not remember the registration number of her scooty and she does not know about the knife which was found by her husband. If the accused is arrested on suspicion she does not know. She does not know the owner’s name of the pan shop.

18. PW-3 deposed in his evidence that he does not know the informant, but he knows the accused who is a Rickshaw Puller. About 4/5 months ago, one day at night Lichubari O.P. police came and took him with them. Late on the next day they released him. He does not know about the incident. Cross-examination of PW3 was declined.

19. PW-4 deposed in his evidence that he does not know the informant, but he knows the accused who is a Rickshaw Puller. He saw him pulling Rickshaw on the road. He was called by the police one day who asked him about this incident and he told them that he does not know about the incident. Why the accused was caught by the police he does not know. Cross-examination of PW-4 was declined.

20. PW-5 is the I.O. of this case who deposed in his evidence that on 15.05.2018 after getting responsibility of investigation, he visited the place of occurrence on 16.05.2018, prepared sketch map vide Exhibit-3, seized a Kotari (knife) vide Material Exhibit-A from the place of occurrence on being handed by the complainant, wherein Exhibit-2 is the seizure list and Exhibit-2(3) is his signature. Later he arrested the accused involved in this case and forwarded him to judicial custody. On finding sufficient materials, he filed charge-sheet against him under section 379 IPC. Exhibit-4 is the charge-sheet and Exhibit-4(1) is his signature.

21. During cross-examination, PW-5 stated that on 15.05.2018 the informant lodged FIR before them, when they went to the place of occurrence on 16.05.2018 the Kotari/knife was handed over to him by the informant. There are houses of Raju, Madhab and another house of Bikash in and around the place of occurrence. He has not examined Raju, Madhab and Bikash as witnesses in this case. The garage that is the place of occurrence is adjacent to the house of the informant. The knife was shown to the shopkeeper Murari Shah who is having his shop near the place of occurrence. He informed him that the knife was taken by Jiten Nath who came with another person for cutting the branches of trees. The

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accused sometimes drive the vehicle; sometimes ride Rickshaw and sometime works as a helper in the vehicle. Bulan Saikia, Buddhan Gogoi were examined as witnesses in this case. The knife was taken by the accused which is true. He denied the suggestion that the accused has been arrested on suspicion. He knows that the accused was having a case earlier under the POCSO Act. He has not found any case against him in relation to theft. He also denied the suggestion that he has arrested the accused on the advice of the informant.

22. During court question, he stated that the accused reside about 1½ k.m. away from the place of occurrence. When he questioned the accused, he told him that he had brought out the vehicle from the garage and handed the same to one Buddhan Keot and for that he had received a sum of Rs. 2,000/- from Buddhan Keot. Buddhan Keot was searched for along with the vehicle but he was not found.

23. PW-6 deposed in his evidence that he knows the informant Prasanta Kumar Mahanta as well as accused. He has a pan shop in front of house of complainant. On 15.05.2018 the accused standing in the dock had taken a knife from his shop. He told him that he need to cut the branches of the tree and will return same to him. In the evening he closed his shop and left for his shop. That day the accused did not return his knife. On the next day, he came to know that the vehicle of the informant had been stolen away. The accused was working as a driver of one person Raju, who was tenant at the house of informant. At the time of incident he was however, riding Rickshaw and when he left his job with Raju he has also asked him whether he has left driving. To his question he replied in the affirmative. The accused was also a customer of his pan shop and he on and off visits his shop for pan, etc. On the next morning of the incident he came to his shop and came to know that the vehicle of the informant was stolen away. Police also came and questioned him and took his signature on Exhibit-2, Exhibit-2(3) is his signatures. Material Exhibit-A is the knife (kotari) which is his Kotari and he has identified the same in the court on that day. Police did not show him the Kotari when he has signed on the Exhibit-2. The knife which is seen by him and that was taken by the accused from his shop on the date of incident.

24. During cross-examination PW-6 deposed that he does not know name of the accused propertly. It may be Noren Das. It is the accused only and no one else. The stolen vehicle is motorcycle. He knows the informant as a customer of his shop. After the incident he has never went to the house of informant. He was questioned by the police at his shop itself. His signature was also taken at his shop. When the accused took the Kotari/knife from him there were no other customers. He has not submitted any money receipt to the police that the Kotari belongs to him. His knife was a new knife and he has opened the shop for 4/5 months. He denied the suggestion that the Kotari is not his Kotari. He came to know about the incident on the next morning. When the accused took away his Kotari he did not go out in search of Kotari. He has no suspicion on the accused that he with his Kotari stole away the Motorcycle of the informant as he does not know whether he is the thief or Dacoit.

25. From the discussion made above, it can be seen that there are no eye –witnesses in the present case and the conviction of the accused is based on the circumstantial evidence. Now, let me examine the circumstances relied upon by

the Learned Trial Court and see whether the said circumstances form a complete

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chain establishing guilt of the accused that on 15.05.2018 at 8:00 p.m. the accused committed theft of motorcycle of the informant being Registration No.AS-03E-3864 by taking it out of the possession of the /PW-1 Shri Prasanta Kumar Mahanta without his consent.

26. The first circumstance relied upon by the Learned Trial Court to bring

home of the guilt of the accused is that he was working as a driver of one person

Raju, who was a tenant at the house of informant. At the time of incident, the

accused was riding Rickshaw and he had already left his shop with Raju. On

question of PW-6 accused replied that he has left driving. That the accused is a

Rickshaw Puller is also stated by PW-3 and PW-4.

27. In so far as the said circumstance is concerned, Raju who is the tenant in

the tenant of the house of the Complainant was not examined as a witness. Only

because the accused was worked as a driver of one Raju who was tenant in the

house of the Complainant and thereafter started pulling rickshaw, it cannot be

said that he committed theft of the motorcycle of the Complainant.

28. The second circumstance relied upon by the Learned Trial Court to bring home of the guilt of the accused is that according to PW-1, PW-5 and PW-6, there is a Pan shop near to the house of informant (PW1). On the date of incident, the accused who was a customer of the Pan shop had visited the shop of PW-6 as deposed by PW-6 in his evidence. He is a regular customer and on and off he visits the shop of PW-6. On the date of incident, he also visited the shop and took a knife/kotari from PW-6 stating to him that he would cut branches of the trees. However, the knife was not returned back to PW-6 as stated by him and he has identified Material Exhibit-A to be his knife in the Court.

29. In so far as the second circumstance is concerned, is seen that the pan shop of PW-6 is situated near the house of the Complainant PW-1, accused is a regular customer in the Pan shop of PW-6 and on the day of the incident he visited the Pan Shop. As such there is nothing unusual if the accused visited the Pan shop also on the day of the incident. There is nothing on record to sow that immediately before the incident the accused visited the Pan Shop of PW-6 and thereafter he was seen near the house of PW-1. In so far as the taking of the Kotari by the accused from PW-6 is concerned, it is seen that he does not even know name of the accused properly and there is no reason for him to give a new knife/kotari to the accused without even knowing his name. Moreover, there was no other customer when the accused took the Kotari/knife from PW-6 and when the accused took away his Kotari he did not go out in search of Kotari, which itself makes the prosecution version doubtful as to whether the accused took any knife/kotari from PW-6. Pw-6 deposed that he has no suspicion on the accused that he with his Kotari stole away the Motorcycle of the informant as he does not know whether he is the thief or Dacoit.

30. The third circumstance relied upon by the Learned Trial Court to bring home of the guilt of the accused is that the knife/Kotari was found in the garage of the informant by PW1 himself and it was handed over to the I.O. by PW1 along with the documents of the motorcycle. The Kotari Material Exhibit-A did not belong to PW-1 and as stated by PW-6 that it was taken by the accused from him on 15.05.2018 which was not returned back to him. The material Exhibit-A has been identified fully by PW-1, PW-5 and PW-6.

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31. In so far as the third circumstance is concerned, it is an admitted fact on record that the knife/kotari was not seized by the police but handed over by the Complainant/ PW-1 to the police. If the version of the Complainant/PW-1 is to be believed that he found a knife/kotari in his garage and handed over the same to the police, the most logical thing would be to mention about the said fat before the police. However, from the evidence of PW-1, it is seen that there is no mention about the knife in the FIR which was allegedly found by PW-1 in his garage and handed over to the police. PW-2 who is the wife of the Complainant (PW-1), deposed that they found one knife which was brought by her husband from the garage and handed over the knife to the police. In her cross-examination, PW-2 stated that she does not know about the knife which was found by her husband. It has come from the evidence of PW-6 that police did not show him the kotari when he signed on the Exhibit 2. It is inconceivable as to how PW-6 identified the knife/kotari (Material Exhibit A) in the Court as the same as taken by the accused from his shop to cut braches of tree in the absence of anything on record to indentify the said knife/kotari bearing any unique identification mark. PW-6 did not submit any money receipt to the police that the Kotari belongs to him. His knife was a new knife and he has opened the shop for 4/5 months.

32. The law regarding circumstantial evidence was aptly dealt with by the Hon’ble Supreme Court in Padala Veera Reddy vs. State of Andhra Pradesh and Others 1989 Supp. 2 SCC 706 wherein the Hon’ble Supreme Court has observed as under:-

“10. x x x x (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

33. In Navaneethakrishnan Vs The State by Inspector of Police [Criminal Appeal No. 1134 OF 2013], the Hon’ble Supreme Court discussed the factors to kept in consideration before convicting a person on the basis of circumstantial evidence as under:

“23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of

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circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove.”

34. I have carefully considered the evidence, materials on record and the rival contentions of the learned counsel for the parties. Admittedly, there is no eye-witness and the prosecution case is based on circumstantial evidence. The circumstances that has been culled out by the Learned Court to bring home the offence with which the accused is charge with has already been discussed hereinabove. In every case based upon circumstantial evidence, in this case as well, the question that needs to be determined is whether the circumstances relied upon by the prosecution are proved by reliable and cogent evidence and whether all the links in the chain of circumstance are complete so as to rule out the possibility of innocence of the accused.

35. There is no doubt that conviction can be based solely on the circumstantial evidence. But it should be tested on the touchstone of the law relating to circumstantial evidence. The Supreme Court in C. Chenga Reddy & Ors. vs. State of A.P.[ (1996) 10 SCC 193] held as under :-

"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of [pic] evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."

36. In Shivu and Anr. vs. Registrar General, High Court of Karnataka & Anr. [(2007) 4 SCC 713], after referring to a catena of cases based on circumstantial evidence the Hon’ble Supreme Court held as under:-

"12. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. {Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99; Eradu v. State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v.

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State of Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985 (Supp.) SCC 79), Balwinder Singh v. State of Punjab (1987) 1 SCC 16 and Ashok Kumar Chatterjee [pic]v. State of M.P (1989 Supp. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt."

37. The Learned Trial Court while placing reliance of the above three circumstances, to bring home the guilt of the accused failed to consider that the place where the house of the Complainant is situated is a busy area and there is a Pan Shop nearby. Though the incident must have taken place in the evening, nobody witnesses the accused going towards the house of the Complainant. Thus, it cannot be said with certainty that the knife allegedly found in the garage of the Complainant belonged to PW-6 and it was dropped by the accused at the garage of the Complainant. It has come on record that the place of occurrence is having full light and there are houses. Further, from the evidence of PW-1 it has also come on record that the garage where the stolen motorcycle was parked is just below his dwelling house, his motorcycle was locked at that time. And the garage was having a shutter which was half closed. However, his wife and children were present at home at the time of incident did not hear any sound when the shutter was moved.

38. The stolen motorcycle in the present case was not recovered from possession of the accused. Infact, the stolen motorcycle could not be recovered at all by the police. Only because PW1, PW2, PW5 and PW6 stated the motorcycle was stolen, it cannot be said that the same was stolen by the accused even when there are no circumstances pointing towards the guilt of the accused.

39. From the impugned judgment and order, it is seen that the Ld. Trial Court relied upon the evidence of PW-5 wherein he stated that accused has admitted before him that he has taken out the motorcycle from the garage and handed over to Buddhan Keot for which he was given Rs. 2,000/- by the said Buddhan Keot to bring home the guilt of the accused. Even if any such confession was made by the accused before PW-5, the said confession is inadmissible in evidence in view of the provisions of Section 25 of the Evidence Act which states that no confession made to a police officer, shall be proved as against a person accused of any offence. In State of Punjab v. Barkat Ram [AIR 1962 SC 276], the Hon’ble Supreme Court observed as follows:-“19. The police officer referred to in Section 25 of the Evidence Act, need not be the officer investigating into that particular offence of which a person is subsequently accused. A confession made to him need not have been made when he was actually discharging any police duty. Confession made to any member of the police, of whatever rank and at whatever time, is inadmissible in evidence in view of Section 25”. Even otherwise, the fingerprint on the kotari /knife was not collected to see if the same can be in any way connected with the accused. Buddhan Keot could not be arrested by the I.O. If all the Material Exhibit A knife would have been used for opening the lock of the motorcycle, there was bound

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to be some bending or other marks caused to the knife, however, Material Exhibit A knife as seen from the deposition of PW-6 is brand new. Thus, there is no way to accept the prosecution case that the accused dropped the kotari/ knife at the garage of the Complainant in the absence of any corroboration and it was the who through the kotari opened the motorcycle which was locked at the time of incident and took it out from the possession of the informant causing wrongful loss to the informant.

40. From the evidence on record, it is seen that there is nothing on record to prove beyond reasonable doubt the involvement of accused in the alleged offence of theft of the motorcycle of the Complainant. The case on hand which is based on circumstantial evidence, the circumstances from which the conclusion of guilt of the accused is drawn by the Leaned Trial Court has not been fully proved and is not conclusive in nature. Moreover, the chain of circumstances is not complete without a snap pointing to the hypothesis that except the accused, no one had committed the theft of the motorcycle of the Complainant on 15.05.2018 from his garage.

41. Even the allegation in the Ejhar is to the effect that on 15.05.2018 at 8 pm, the super splender motorcycle bearing registration no. AS-03-E-3864 belonging to the Complainant /PW-1 Shri Prasanta Kumar Mahanta was stolen from the garage of his house. In the Ejhar dated 15.05.2018 there is no allegation whatsoever against the appellant/ accused Jiten Nath. Infact, the appellant /accused Jiten Nath is not even named as an accused in the Ejhar dated 15.05.2018. After completion of investigation, the IO submitted the charge-sheet against the present Appellant/ accused Jiten Nath u/s 379 IPC.

42. The offence of theft is defined in Section 378 in The Indian Penal Code as under:

“378. Theft.—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. “

The punishment for theft is provided under Section 379 in the Indian Penal Code which reads as under:

“Punishment for theft.—Whoever commits theft shall be pun-ished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

43. The essential ingredients for an offence under Section 408 IPC are: (a) moving a movable property of a person out of his possession without his consent (b) the moving being in order to the taking of the property with a dishonest intention. Before the offence of theft is made out , it has to be established that (i) the accused was not legally entitled to the property stolen and the complainant was wrongfully deprived of the property (c) the means employed to take possession were unlawful and (d) taking was without consent. Thus, (a) the absence of the person's consent at the time of moving, and (b) the presence of dishonest intention in so taking and at the time, are the essential ingredients of the offence of theft.[K.N. Mehra Vs State of Rajasthan AIR 1957SC 369]

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44. From the evidence on record, it can be seen that in the present case, Prosecution failed to prove beyond reasonable doubt that it is accused who committed theft of the motorcycle and handed over the same to Buddhan Keot and as such cannot be held to be guilty of the offence under Section 379IPC. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.

45. Accordingly, this Court is of the view that the conviction and sentence under Section 379 IPC, against the accused cannot, therefore, be upheld, it is liable to be set aside.

ORDER

46. In view of the aforesaid discussion, the appeal is allowed on contest. The judgment and order dated 08.11.2018, passed by the learned Chief Judicial Magistrate, Jorhat namely Smt. Rani Boro in G.R. Case No. 1486/2018 convicting the appellant/ accused Jiten Nath u/s 379 IPC is set aside.

47. Send back the case record alongwith a copy of this judgment to the Ld. Trial Court immediately.

48. Signed, sealed and delivered in the open Court on this the 02nd day of September, 2019 in Jorhat.

(Smt. P. Kataki)

Addl. Sessions Judge, Jorhat

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