Orissa High Court
Smt. Sabitri Sharma vs State Of Orissa on 24 November, 1986
Equivalent citations: 1987CRILJ956
ORDER K.P. Mohapatra, J.
1. The petitioner has challenged the order of conviction and sentence for an offence Under Section 411 of the Indian Penal Code ('I.P.C.' for short).
2. The facts of the case may be stated in brief. P.W. 2, an employee in the office of the Revenue Divisional Commissioner, Sambalpur, was living in R.D.C. Colony, Sambalpur. In the month of Nov. 1979 he lost a pregnant cow which had gone out for grazing with a cowherd boy (P.W. 4). Although P.W. 2 searched and reported the fact to the residents of the colony he did not lodge a missing report at the police station. On 10-2-1980 the cow with a new born heifer was found in the house of one Halayudh Nanda serving as an Assistant Settlement Officer and residing in the nearby ttLO. Colony. When P.W. 2 along with his companions (P.W. 1 and others) met Halayudh Nanda, the latter gave out that he had purchased the cow from the petitioner for a consideration of Rs. 400/-. He could not, however, produce a written document. He also promised to return the cow to her. On the same day P.W. 2 lodged F.I.R, (Ext.l) at the police station. The cow with the new born heifer, as a matter of fact, was seized from the petitioner's cowshed on the same day and charge-sheet was submitted against her Under Section 379,1.P.C.
3. The petitioner asserted t,hat the cow and heifer belonged to her. After considering the evidence adduced by the prosecution, however, the learned Judicial Magistrate, Sambalpur, held that the pregnant cow belonging to P.W. 2 was stolen and was recovered from the house of the petitioner who failed to prove its ownership. Accordingly, instead of convicting her Under Section 379, I.P.C. he convicted her Under Section 411, I.P.C. and imposed a sentence of fine of Rs. 1000/-, in default to undergo simple imprisonment for a period of 3 (three) months. The learned Additional Sessions Judge, Sambalpur, upheld the finding and sentence.
4. I have carefully considered the reasonings adopted by the learned courts below to reach the aforesaid conclusions which are supported by reliable evidence on record. P.W. 2, the owner of the cow, had no difficulty to identify the same. Similarly P.Ws. 1, 3 and 4 supported that the cow belonged to P.W. 2. As against such evidence the petitioner examined a former domestic servant to prove her ownership of the cow whose evidence was rightly rejected. Therefore, there is no difficulty in upholding the findings of fact that the cow, which gave birth to the heifer and was seized from the cowshed of the petitioner, belonged to P.W. 2.
5. In the absence of any evidence whatsoever the learned Judicial Magistrate was justified in holding that the petitioner a Marwari woman did not commit theft of the cow. But in my view both the learned courts, below committed an error of law, as rightly contended by Mr. B. Pujari, learned Counsel appearing for the petitioner, in convicting her Under Section 411, I.P.C. In order to establish a case Under Section 411, I.P.C. the following ingredients must have to be satisfied:
(i) The property was stolen.
(ii) It was dishonestly received or retained by the accused.
(iii) The accused knew or had reason to believe that the property was stolen property.
(iv) Some person other than the accused was in possession of the stolen property before the accused obtained possession.
None of these ingredients has been established by the prosecution against the petitioner. On consideration of the F.I.R. (Extl), as well as, the evidence of P.Ws. 1, 2, 3 and 4 it is apparent that the pregnant cow was missing. There was neither an allegation nor an apprehension much less any proof that it was stolen from the possession either of P.W. 2 or of his cowherd (P.W. 4). P.W. 2 did not submit either a missing report or a theft report at the police station immediately after he detected that the cow was either missing or stolen. Nearly three months thereafter, i.e., on 10-2-1980 the cow with a new born heifer was found in the house of one Halayudh Nanda in a nearby colony. If at all any suspicion was to be cast on any person for possession of the cow which was missing for a long time it could be done against Halayudh Nanda who was found to be in possession thereof on the first occasion. Curiously enough, Halayudh Nanda was not examined by the prosecution to explain his possession to the effect that he was an innocent purchaser of the cow from the petitioner. As a matter of fact he had no document to show that he had purchased the cow from her. Since he was not examined by the prosecution the link between him and the petitioner is missing. Therefore, there is no evidence to the effect that Halayudh Nanda had purchased the cow from the petitioner. The statement to this effect made by P.Ws. 1 and 2 must, therefore, be considered as hearsay evidence. Now coming to the petitioner, there is no doubt that the cow with the new born heifer was seized from her cowshed as deposed to by her neighbour (P.W. 5). There is, however, no evidence on record to show that she had received the cow and the heifer dishonestly either knowing the same to have been stolen or having reason to believe that they were stolen property. The mere act of possession will not give rise to the inference that the person in possession is the receiver of the stolen property. No inference can also be drawn Under Section 114 of the Evidence Act in the absence of proof that the property found in possession of another had earlier been stolen. May be, the petitioner possessed the cow and the heifer innocently. It may also be that Halayudh Nanda, finding himself in a tight corner on some pretext or other, kept the cow and heifer in her custody. May be, she was the innocent purchaser of the cow. These possibilities and probabilities cannot be lost sight of while considering her complicity in a case Under Section 411,1.P.C where the evidence does not reveal fulfilmentbf the ingredients of the offence. On these considerations, I am unable to mentally accept the proposition of the learned courts below to the effect that the case Under Section 411,1.P.C. against the petitioner was proved beyond reasonable doubt. On the other hand, this is a fit case in which she should be given the benefit of doubt.
6. Before parting with the case I must make it clear that the cow and the heifer belonged to P. W. 2 and were rightly delivered to him. No orders should, however, be passed by any authority for recovery of the cow and the heifer from the custody of P.W. 2.
7. For the aforesaid reasons and in disagreement with the learned courts below, I allow the criminal revision, set aside the order of conviction and sentence passed against the petitioner Under Section 411, I.P.C. and set her at liberty. Fine if realised shall be refunded. Bail bond is cancelled.