STATE OF MYSORE Vs. SOMALA

JUDGEMENT

(1.) This appeal by the State is directed against the order dt.25-6-1970 passed by the First Class Magistrate, Aurad, in Case No.23|3 of 1970 acquitting under sub-sec. (11) of S.251A CrPC. the respondents of the offence under S.379 read with 34 of the Indian Penal Code.

(2.) The facts leading to this proceeding may briefly be stated as follows:: The respondents-accused were prosecuted by the Sub Inspector of Police, Kamalapur Police Station in Aurad Taluk for an offence under S.379 r/w 34 IPC. on the allegation that on the night between 8-1-1970 and 9-1-1970 at Dabka they, in furtherance of their common intention, committed the theft of four bullocks worth Rs. 3,000 belonging to the complainant Prabhu. The charge sheet was filed on 24-3-1970 and a charge under S.379 IPC. was framed against only respondent 1 on 8-4-1970 as the other respondent was absconding. On 6-5-1970 the second respondent was produced in Court and on 12-6-1970 a charge under S.379 r|w 34 IPC. amending the previous charge was framed against both of them. Thereafter the case was adjourned to 25-6-1970 for evidence. The order sheet in the case shows that witnesses were not present on 25-6-1970 and the Asst. Public Prosecutor requested the learned Magistrate to issue summonses to the witnesses. But the learned Magistrate rejected his request taking the view that the prosecution was not diligent and that steps should have been taken for the issue of summonses to the witnesses well in time. In the result, he acquitted the respondents holding that no evidence was adduced by the prosecution in support of the charge. It is the legality and the correctness of the said order that are assailed in this appeal.

(3.) It was contended by the learned State Public Prosecutor that the learned Magistrate was in error in acquitting the respondents under sub-sec. (11) of S.251A CrPC. without recording evidence without giving his finding that they were not guilty of the offence with which they were charged on such evidence, and in support of his contention, he relied upon the following observations of this Court in State of Mysore v. Narasimhe. gowda, (1964) 2 Mys.L.J. 241.