Vijay Bahadoor Shitaldeen Kori vs State of Gujarat

A.L. Dave, J.—The revisionist was tried and convicted for offences punishable under Sections 381 and 204 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 1 year with fine of Rs. 2000/-, in default to undergo simple imprisonment for 2 months, for the offence punishable u/s 381 of the Indian Penal Code, and was further sentenced to undergo rigorous imprisonment for 2 months with fine of Rs. 500/-, in default to undergo simple imprisonment for 15 days, for the offence punishable u/s 204 of the Indian Penal Code, by learned Metropolitan Magistrate Court No. 9 while disposing of the Criminal Case No. 1596 of 1989 vide judgment and order dated 16.8.2000. The revisionist-convict challenged the said order by preferring Criminal Appeal No. 67 of 2000 before the City Sessions Court, Ahmedabad and the City Sessions Court, Ahmedabad by judgment and order dated 9.3.2001 dismissed the said appeal upholding the conviction. Hence this Revision.

The revisionist was alleged to have committed the theft of Rs. 97,617/- on 6.5.1989 from the office of the Ahmedabad Electricity Company situated at Sola Road, Naranpura, Ahmedabad. The complaint, in this regard, was filed by Mr. Ajay Patel with Naranpura Police Station, on the basis of which, offence was registered vide C.R. No. 283 of 1989 by Naranpura police. Thereafter, charge-sheet was filed on the basis of the information and material collected by the Investigating Agency. On the basis of the charge-sheet, Criminal Case No. 1596 of 1989 was registered with Metropolitan Magistrate Court, Ahmedabad. The accused came to be acquitted by the trial Court by judgment and order of acquittal dated 31.1.1991. The said order of acquittal was challenged before the High Court by preferring Criminal Appeal No. 774 of 1991. The order of acquittal passed by the learned Magistrate was set aside by the High Court by judgment dated 12.10.1998 and the case was remanded to the trial Court for fresh trial. Upon fresh trial, considering the evidence on record, the learned Metropolitan Magistrate recorded the conviction as stated hereinabove.

Learned advocate Ms. Farhana Mansuri appearing on behalf of Mr. S.A. Baqui for the revisionist submitted that there is discrepancy in the amount of theft shown in the complaint and the amount recovered from the revisionist. There is also discrepancy in the amount indicated in the complaint and the actual amount stolen. It was argued that the revisionist was described as the Peon by the complainant whereas, in fact, he worked as an Electrician. It was submitted that there was no witness to the incident and, therefore, both the Courts below erred in recording and confirming the conviction of the revisionist.

The revision is opposed by the learned Additional Public Prosecutor Mr. Maulik Nanavati.

This Court has examined the record and proceedings in the light of the contentions raised by the learned Counsel of the rival sides.

To the contention that first informant has referred to the revisionist as a Peon in the complaint, it may be noted that the fact that the revisionist was working in the office of the first informant is not in dispute and besides describing him as a Peon, he is referred to by his name by the first informant and is physically identified. As such, this discrepancy cannot be considered of any consequence to the case of the prosecution.

Upon perusal of the evidence, it is found that the amount of Rs. 92,200/- was recovered from the house of the revisionist. This find of money from the house has not been explained by the accused-revisionist, whereas, that recovery is proved through cogent evidence.

Apart from this aspect, there is find of finger prints of the revisionist by Finger Print Expert at the place of occurrence. This opinion of the Finger Print Expert has not even been challenged. The witness has not even been cross-examined.

Apart from the above aspect, there is an additional fact that the revisionist had access to the place of incident in the proximity of the time of occurrence. All these factors, put collectively, lead to a conclusion of guilt of the accused-revisionist. The trial Court has recorded these aspects and the same are confirmed by the appellate Court while dismissing the Appeal.

There is nothing to persuade this Court to disturb these two concurrent findings of competent Courts in exercise of revisional jurisdiction. The revisionist has not been able to point out any glaring error of law or fact or legal perversity and in the face of the above evidence, conviction has to be upheld.

Learned advocate Ms. Mansuri relied upon the case of Apex Court in the case of Mohan Lal and Another Vs. Ajit Singh and Another, more particularly, the observations made in paras 45 and 46 of the judgment.

In the instant case, it is not the case that the finger prints were smugged nor has the revisionist challenged the opinion of the Finger Print Expert and therefore, this judgment can be of no help to the revisionist.

The revision application, therefore, fails and the same stands dismissed. Rule discharged.