JAMEEL ALIAS SURRA Vs. STATE

JUDGEMENT

(1.) This is a revision by Jamil alias Surra against his sentence and conviction to undergo one year R. I. under Section 457, I. P. C. The prosecution story, in brief, was that Sharafat resident of village Janglian, P. S. Shahabad, district Hardoi was sleeping at Ms house in the night between September 7|8, 1976. His father Bali Ahmad was Sleeping left side the house on a Chabutra. At about 2. 30 a. m. some thieves are said to have scaled the southern wall of the house and after getting entry into the house they picked up four bags of wheat. A lantern was burning inside the house. On hearing some noise Sharafat woke up and when he flashed his torch he found four persons, viz. , Nabi Ahmad, Munshi, Jameel and Mausam coming out of the room with bags of wheat. He raised an alarm which attracted wit nesses and then there four persons running away with Me stolen bags of wheat. In the mean time police party, which was out on patrol duty, reached there and with the help of the police Nabi Ahmad and Munshi were apprehended while the other two persona after throwing the bags of wheat managed to make good their escape. Those who ran away were Surra appellant and Mausam who were identified in torch light. Sha rafat lodged the first information report of this incident at police station Shahabad in the same night at about 3. 15 a. m. The two apprehended thieves were handed over at the police station and the four bags of wheat stolen by the thieves were also taken, possession of at the police station. Investi gation was done in the usual manner and ultimately the accused revisionist along with Nabi Ahmad, and Munshi were asked to stand their trial under Section 457, I. P. C. It appears that Mausam could not face the trial. The learned Magistrate found that the prosecution story was fully made out against the accused and as such he sentenc ed and convicted him as above. An appeal wag preferred by the revisionist but that too was dismissed by the learned Additional Sessions Judge. It is in these circum stance that he has come up in revision in this court. I have heard learned counsel for the revisionist. In my opinion this revision should be allowed. It is significant to note that except for Sharafat and a police cons table all the remaining witnesses, who were said to be eye-witnesses of this occurrence, were declared hostile including father of Sharafat, could have no reason to side with the accused. Once he said that Jamil alias Surra had not run away but was arrested on the spot, it would go to show that impli cation of Jameel alias Surra was done on some other consideration and actually he was not amongst the thieves. Bashir Ahmad (P. W. 5) is cousin of Sharafat and this wit ness categorically stated that he could not identify those who had run away. Hashim (P. W. 3) was not even as to who was arrested because We said that Surra was ar rested at the spot and Surra was known as Munshi. It is significant to note -that all the1 four bags of wheat were recovered on the spot, In this view of the matter I do not think the bald statement of Sharafat and the statement of one Constable could be deemed sufficient, under the circumstance to hold that charge against the present revi sionist was brought home to him beyond rea sonable doubt. I have already noted above how the three witnesses though declared hostile, make complicity of the revisionist extremely doubtful. After all in the dead of night mere torch light, that was said to have been used while the thieves were said to be running away, would not be sufficient for the purpose of identification of those who are said to have made good their escape. As a result, I would allow the revision, set aside the conviction and sentence awarded to Jamil alias Surra by the courts need not surrender, his bail bonds are can celled and sureties are discharged. .