RAFIQ Vs. STATE THROUGH BHALKI RURAL POLICE

JUDGEMENT

(1.) REVISION is by the accused challenging the order of conviction and sentence passed by the JMFC, Bhalki in CC 60/2009 on 6.1.2012 and also the order of the Fast Track Court II, Bidar in Appeal 3/2012 on 29.6.2012. The accused was charge sheeted for the offence under S. 457 and 380, IPC by the Bhalki rural police alleging, on 21.2.2009 in the midnight, alleging he had committed theft in the house of PW 1, of a gold chain weighing four tholas worth Rs. 60,000/ - with the help of a long stick which was fitted with a iron wire. The accused succeeded in picking up the gold chain from the house of PW 1 which was kept on the cooler. Therefore, the charge under S. 457 and 380, IPC. The prosecution examined in all eleven witnesses and got marked seven documents. After hearing, the accused was convicted for the offence under S. 457 and 380, IPC and sentenced to undergo simple imprisonment for three years and to pay a fine of Rs. 5,000/ - for the offence under S. 457, IPC and so also for the offence under S. 380, IPC. The sentence was ordered to run concurrently. Against that, appeal was preferred before the Fast Track Court II, Bidar (sitting at Bhalki). The Fast Track Court having noted that there was a gold chain in the pocket of this accused, has formed an opinion that rightly the accused has been convicted.

(2.) THE ground on which the revision is filed is, the offence alleged against the accused does not fall under S. 380 or 457, IPC, at the most, the act amounts to theft and there is neither house breaking nor he has committed house trespass. In the midnight rather he has picked up a chain with the help of a long stick. The offence would, at the most, may be theft which falls under S. 379, IPC. Accordingly, the petitioner has prayed for setting aside the order of both the courts below.

(3.) IT appears as per the case of the prosecution, in the midnight of 21.2.2009, the accused having gone near the house of PW 1, using a long stick with a bent iron wire, picked up the gold chain through the window which was kept on the cooler. S. 378, IPC defines theft as whoever intends to take dishonestly any moveable property out of the possession of any person without that person's consent moves that property in order to such tasking, is said to commit theft. The accused was also charged for the offence under S. 380 i.e., theft in a dwelling house. S. 457 deals with lurking house trespass or house breaking by night in order to commit any offence punishable with imprisonment. The ingredients of S. 457 is also not attracted in this case. At the most, the overt act attributed would be in the form of either S. 379 or 380, IPC. For the offence under S. 380, IPC punishment may extend upto seven years imprisonment and also liable to pay fine.