M.G. Giratkar JUDGMENT
M.G. Giratkar, J.
1. The present revision is against the judgment of conviction by the Judicial Magistrate First Class, Karanja (Ghadge), District Wardha in Regular Criminal Case No. 44/2004 by which the applicant (hereinafter referred to as 'accused') came to be convicted for the offence punishable under Section 380 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/- in default of payment of fine to suffer simple imprisonment for one month. He is also convicted for the offence punishable under Section 457 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/- in default of payment of fine to suffer simple imprisonment for one month. Being aggrieved by the judgment of conviction, the accused filed appeal before the Sessions Judge, Wardha vide Criminal Appeal No. 12/2011. Said appeal came to be dismissed thereby confirming the judgment of trial Court. Hence, the present revision.
2. Heard learned counsel Shri Gaidhane for the accused/applicant. He has submitted that there is no evidence against the accused/applicant to convict him. Learned trial Court wrongly invoked the presumption under Section 114 of the Indian Evidence Act. There is no eye witness to the incident. Hence, revision is liable to be allowed.
3. Heard Shri Gangane, learned Additional Public Prosecutor for the State/non-applicant. He has strongly supported the impugned judgments and submitted that the accused was caught/arrested by police immediately after commission of crime and he was found in possession of stolen articles, therefore, presumption under Section 114 of the Indian Evidence Act was rightly invoked by the trial Court. Accused is rightly convicted by the trial Court, therefore, present revision is liable to be dismissed.
4. The applicant was charge-sheeted for committing theft in the night. He committed theft of gold ornaments i.e. mangalsutra of about 30 gms, chaplakanti of about 30 gms, one golden ring of 4 gms and cash of Rs. 2500/-. Learned counsel for accused has submitted that there is no such report in respect of stolen cash of Rs. 2500/-. There is no explanation as to how he was in possession of Rs. 2500/-. Therefore, presumption is wrongly invoked by the trial Court.
5. Complainant P.W. 3 Chandrashekhar Keshavrao Uchake has stated in his evidence about the theft of golden ornaments and cash of Rs. 2500/-. He lodged report early in the morning on 30-4-2004. Incident of theft took place in the night of 29-4-2004 and 30-4-2004. In his report, complainant has specifically stated that Rs. 2500/- cash and golden ornaments were removed by the thief from his house. Admittedly, the report was lodged against the unknown person.
6. After lodging the report, the accused was arrested immediately in presence of P.W. 6. When accused was arrested, he was found in possession of golden ornaments and cash of Rs. 2500/-. There is no discrepancy in the amount and golden ornaments seized by the police in presence of P.W. 6. P.W. 6 Avinash Raut is an independent witness who has specifically stated that accused was arrested and that time golden ornaments belonging to the complainant and cash of Rs. 2500/- were seized from the accused. Complainant identified those articles. Accused could not give any explanation about the possession of stolen articles.
7. Section 114 of the Indian Evidence Act reads as under.
114. Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their ........