Farooq Hasan, J.
1. This revision petition is filed under Section 397 read with Section 401 Cr. PC against the judgment dated July 2, 1979 passed by the Additional Sessions Judge Sri Ganganagar whereby he upheld the conviction and sentence passed by the Chief Judicial Magistrate in case No. 35 of 1975.
2. Briefly stated the facts of the case are that a report was lodged by Shri Hakikat Rai Overseer (PW 6) at Police Station Sri Ganganagar on November 1, 1974 against Shri Palasingh Angrej Singh and Butasingh. It was alleged in the report that in the intervening night of October 31, and November 1, 1974 he was informed that the Government bricks which were lying by the side of Bhagsar minor are being stolen and the bricks are taken by a tractor. On receiving this information PW 6 went on the spot and found that about 1500 to 2000 bricks being stolen. PW 6 Shri Hakikatrai along with other persons followed the traces of tyres of the tractor and while following they found two bricks lying near the village Variam Kheda. Ultimately they reached near the Dhani of Palasingh where tractor No. PNO 5901 was found & its trolly was loaded with bricks. On that day i.e. 1-11-74 accused-petitioners were also standing by the side of the tractor and it was asked from them that who brought these bricks. On this the accused-petitioner admitted the guilt while saying that they have brought the bricks. On this the said report was lodged at the Police Station and a case under Section 379 IPC was registered and investigation was started. After completing the investigation a challan was filed in the court of Munsif and Judicial Magistrate Sri Ganganagar against the accused-petitioners as well as against Shri Angrejsingh who is said to have been the owner of the tractor. The learned Munsif and Judicial Magistrate Sri Ganganagar by his order dated March 3, 1975 discharged accused Angrejsingh and after completion of the trial convicted the accused-petitioner and sentenced them for three months’ rigorous imprisonment. Aggrieved by this order of conviction, the petitioner filed an appeal but without any success. Hence this revision.
3. Heard learned counsel for the parties and perused the record.
4. The learned counsel for the petitioners raised the following contentions:
(i) that the order of conviction is illegal, improper and incorrect ;
(ii) that there was no evidence against the accused petitioners to connect them with the crime;
(iii) that as per prosecution, the bricks were taken in a tractor which was owned by Angrejsingh who was discharged at the initial stage by the trial court and after his discharge the case against the present petitioners became doubtful; and
(iv) that the bricks were found in open place and no presumption can be drawn against petitioner Palasingh.
5. The learned Public Prosecutor on the other hand contended that the bricks were found in the possession of Palasingh. It was further contended that prior to the lodging of report at the Police Station PW 6 along with other persons went on the spot and he found the tractor trolly loaded with the stolen bricks where both the accused-persons were standing by the side of the tractor. Then again during the course of investigation when this witness (PW 6) went on the spot along with the Investigating Officer, the same bricks were found outside the Dhani of accused palasingh. Under these circumstances the conviction of both the accused-petitioner is not bad in law.
6. I have considered the arguments advanced by both the learned counsel. The learned Munsif and Judicial Magistrate after trial held that so far as the direct evidence of the eye witnesses regarding theft is concerned, is not reliable. The learned Magistrate also did not place reliance on the alleged extra judicial confession made by the accused but he convicted the petitioner on the basis of the recovery of the bricks which were found out side the house of Palasingh petitioner. It is thus clear that conviction of petitioner Butasingh is not correct, when the order of conviction is based solely on the ground that the stolen bricks were found out side the house of Palasingh petitioner. The only evidence which was produced against petitioner Butasingh was that before lodging the report when PW 6 along with other persons went at the Dhani of Palasingh they found the tractor trolly loaded with stolen bricks. They also found the accused-petitioners standing by the side of the tractor. The complainant party asked the accused-petitioner as to who brought these bricks. On this the accused-petitioners replied that it was they who brought the bricks. This version of the prosecution has been disbelieved by the trial court Under these circumstances when part of this evidence is disbelieved by the trial court, then it is impossible that the remaining part should be accepted against the accused-petitioner to this effect that the accused-petitioners were standing by the side of the tractor at the time when the complainant party reached on the spot prior to the lodging of the report at the Police Station. It was an impossibility that after reaching on the spot and finding the stolen bricks loaded in the tractor trolly and also the accused standing by the side of the trolly, nothing was being asked from the accused-petitioners. So when the replies of the one accused-petitioners are disbelieved by the trial court then presence of the accused-petitioners cannot be believed by this court.
7. As discussed above, the only evidence which was relied upon by the trial court as well as the appellate court was with regard to bricks which were found first in the tractor trolly and then lying on the ground just opposite to the Dhani of Palasingh. As stated earlier this was the only evidence on the basis of which the accused petitioners are convicted. I am of the opinion that this evidence is also not believable due to the reason that if the complainant (PW 6) along with other persons have seen the accused with the tractor loaded with stolen bricks then it was an impossibility that the accused could have unloaded the bricks in front of his house. It is humanly impossible because no body will like to keep an incriminating evidence against himself. If any such incriminating evidence is there, every body will like to destroy the same so that no inference of guilt can be drawn against him. It is just possible that some body might have unloaded the tractor trolly which was loaded with the stolen bricks is the case of the petitioner. In the instant case discharge of Angrejsingh who was the owner of the tractor is also fatal for the prosecution. How the owner of the tractor was involved, what relation the present accused-petitioners had with that tractor, whether the tractor was used by Angrejsingh or by the present accused-petitioners, but the relevant facts which could have been investigated and evidence on this point ought to have been collected by the Investigating Officer, but no such evidence is collected by the Investigating Officer nor any such evidence was produced by the prosecution at the trial. As per the statement of the prosecution witnesses and the site plan prepared by the Investigating Officer the stolen bricks were first seen in the tractor trolly standing on an open space & afterwards the bricks were seen lying on the open space. Evidence with regard to possession of these bricks was neither collected at the time of investigation, nor produced at the time of trial. It was also incumbent upon the prosecution to have collected or produced such an evidence. If a stolen property is lying at an open space, no presumption can be drawn against the persons residing near that open land. There must be a direct evidence of possession either constructive or physical before connecting the possessor with the crime. The learned trial court was not justified in convicting the accused after placing reliance in the evidence which cannot be read against the present accused-petitioners.
8. As discussed above, PW 6 Hakikatrai followed the traces of the tractor and then he found the tractor trolly loaded with the stolen bricks in front of the Dhani of accused-petitioner Palasingh. PW 6 Hakikatrai at the time when he found the tractor trolly loaded with the bricks was accompanied by 7 to 8 persons, one of them was a police employee. I fail to understand as to why the tractor and its trolly which was loaded with the stolen bricks were not seized and why these persons left the place where the tractor was found. PW 6 Hakikatrai could have deputed a person of his Department so that the person actually committing the theft might not fled away with the tractor and its trolly which was loaded with the stolen bricks. This is also a circumstance which disbelieves the prosecution version.
9. I have gone through the judgment passed by both the lower courts. In the judgment it has not been mentioned that which of the prosecution witnesses was believed and which of the evidence of the prosecution was sufficient to convict the accused. I am of the view that there was no evidence of possession of the stolen property and that was the reasons that both the subordinate courts did not mention the evidence specifically in their judgment.
10. Looking to the facts and circumstances of the case as discussed above, I am of the opinion that there was no sufficient evidence before the trial court to convict the accused-petitioners under Section 379 of the Indian Penal Code.
11. In view of the foregoing, the revision petition is accepted, the order of the trial court dated August 19, 1977 and that of the Additional Sessions Judge dated July 2, 1979 are set aside. The accused-petitioners are acquitted from the charge under Section 379 IPC. They are on bail. Their bail bonds are cancelled. They need not surrender.