MAIMAI SHAH Vs. STATE

JUDGEMENT

(1.) This case has come before us on a reference by a learned Single Judge of this Court who originally heard the revision and who was of the opinion that in view of the Single Judge decision reported in the case of Mula v. Emperor, 23 All LJ 924 : (AIR 1926 All 33) (A), it was desirable that it should be referred to a Bench for decision, and accordingly it has been so referred.

(2.) The applicant Maime Shah was charged by the trial court for committing house-breaking on the night between the 26th and 27th of April, 1952 into the house of one Sheo Shanker Lal Tewari in order to commit the offence of theft, The learned Magistrate, on a consideration of the evidence produced before him, was of the opinion that the charge under Section 457 I. P. C. had been satisfactorily established and accordingly he convicted the applicant on that charge.

(3.) The lower appellate Court did not agree with the finding of the trial court that the charge under Section 457 I. P. C. had been established. It was, however, of the opinion that some of the stolen property was recovered from the possession of the applicant which he knew to be stolen property and relying on that evidence he convicted the applicant under Section 411 I. P. C. and maintained the sentence of imprisonment and fine awarded by the trial court.