Mohd. Waseem v. State of Uttarakhand

Naithani filed an FIR at Police Station Kotdwar, District Pauri Garhwal on 05.09.2016. According to it, on 04.09.2016, his motorcycle bearing Registration No.UK12D 2144 was stolen. Based on which, Case Crime No. 240 of 2016 was lodged under Section 379 IPC and investigation proceeded. According to the prosecution, on 07.09.2016, the stolen motorcycle was recovered from the possession of the appellant when he was riding on the motorcycle. 2 There were two other co-accused, from their possession also, counterfeit currency notes and arms, etc. were recovered, of which, under Section 411 IPC was also added. Based on other recoveries, other cases were also lodged against the co-convicts. After investigation, charge sheet was submitted against the appellant and two others for the offences under Section 379 and 411 IPC, which is basis of the case. Based on different charge-sheets, different cases were lodged and the trials were jointly proceeded. On 23.04.2019, charge-under Sections 379, 411, 403, 465 IPC were frame against the appellant and others, to which, they denied and claimed trial.

3. After hearing the parties, the appellant has been acquitted of the charge under Sections 403, 465 IPC and he has been convicted for the offence under Section 411 IPC and convicted there under.

4. In order to prove its case, the prosecution examined ten witnesses, namely, PW1 Dhirendra Naithani, PW2 Sub Inspector Vijay Singh, PW3 Sub Inspector Omveer Singh, PW4 Constable Rahul, PW5 Sub Inspector Sunil Rawat, PW6 Head Constable Amit Rana, PW7 Sub Inspector, Chandra Mohan, PW8 Head Constable, Devi Lal, PW9 Sub Inspector, Anit Kumar and PW10 Sub Inspector, Satendra Bhati.

5. Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). He has denied the prosecution case. According to him, he has been falsely implicated. 3

6. After hearings the parties, the learned Court below, by the impugned judgement and order, convicted and sentenced the appellant, as stated hereinbefore. Aggrieved, the instant appeal.

7. Heard learned counsel for the parties and perused the record.

8. Learned counsel for the appellant would submit that the appellant has not challenged his conviction. The only request is that it is offence under Section 411 IPC, therefore, the appellant may be released on probation of good conduct. The appellant is not a previous convict. This is his first offence.

9. Learned State counsel would submit that the record does not reveal any previous conviction of the appellant.

10. In the instant case, PW1 Dhirendra Naithani is the informant. According to him, his motorcycle was stolen on

04.09.2016 of which he has given a report.

11. PW2 Sub Inspector, Vijay Singh is the person who had recovered the stolen motorcycle from the appellant. He has stated about it. According to him, on 07.09.2016, upon information having been received, the appellant and other were intercepted and the motorcycle was recovered from the appellant. He has also proved the document which were prepared by him at the time of alleged recovery.

12. PW3 Sub Inspector, Omveer Singh and PW4 Constable, Rahul, PW5 Sub Inspector Sunil Rawat, PW6 Head 4 Constable Amit Rana, are also the witnesses of recovery. They have supported the statement of PW2 Sub Inspector, Vijay Singh.

13. PW7 Sub Inspector, Chandra Mohan had conducted investigation in the instant matter and submitted charge-sheet against the appellant and the co-accused under Section 379 and 411 IPC.

14. PW8 Head Constable, Devi Lal has proved chik FIR and other documents of the police station.

15. PW9 Sub Inspector, Anit Kumar investigated Case Crime No.254 of 2016, under Section 465 IPC and Case Crime No.296 of 2016, under Section 403 IPC and submitted charge- sheets. It may be noted that these FIRs were lodged post recovery of motorcycle and other articles from the appellant and the co- accused.

16. PW10 Sub Inspector, Satendra Bhati also investigated the connected offences which were lodged post recovery of the articles and he submitted the charge-sheet.

17. PW2 Sub Inspector Vijay Singh, PW3 Sub Inspector Omveer Singh, PW4 Constable Rahul, PW5 Sub Inspector Sunil Rawat and PW6 Head Constable Amit Rana had stated about recovery that was made from the appellant.

18. case. No arguments have been made on the merits of the 5

19. Learned counsel for the appellant would submit that it is the first offence of the appellant; he is a permanent resident of District Pauri Garhwal, therefore, instead of sentencing him, he should have been given the benefit of probation.

20. Learned State counsel would submit that record does not speak about previous conviction of the appellant.

22. It is a case of theft and recovery of a motorcycle. Having considered, this Court is of the view that instead of sentencing at once to any punishment, the appellant may be released on the probation of good conduct.

23. The conviction of the appellant under Section 411 IPC is upheld. But, instead of sentencing him at once to any punishment, let the appellant be released on his entering into a bond with two sureties to appear and receive the sentence whenever called upon during the period of six months and in the meantime to keep a peace and be a good behaviour.

24. Impugned judgment and order in the case is modified to the extent, as indicated above.

25. The appeal stands disposed of accordingly. Sanjay (Ravindra Maithani, J.)

25.02.2025