BHOOP SINGH Vs. STATE

JUDGEMENT

(1.) BHOOP Singh and Bhikambar have filed this revision against their conviction and sentence of three months R. I. and a fine of Rs. 50/- in default one month's R. I. each under Section 879 I. P. C.

(2.) THE brief facts necessary for the appreciation of the point, which is sufficient for the disposal of this revision, ate as follows: The applicants were prosecuted under Section 427 I. P. C. for cutting the drop belonging to one Smt. Chameli and thereby causing her a loss of about Rs. 150/. Originally their trial took place before Sri K. C. Bansal, a Special Magistrate lab Class, Aligarh, who finding the case against them established convicted and sentenced them to a fine of Rs. 10/- each. On appeal the learned Addl, Sessions Judge opining that on the prosecution allegations a prima facie case under Section 892 or 879, I. P. C. was made out, act aside the judgment and order of the learned Magistrate and remanded the case to him for a fresh trial according to law, alter framing a proper charge. After the case was received on remand it was transferred to the court of Sri Nagar Singh, Special Magistrate 1st Class for trial. That learned Magistrate framed a charge under Section 892, I. P. C. but instead of proceeding with the recording of the prosecution evidence de novo he brought their earlier examinations-in-chief on the record, and allowed the applicants to cross-examine them. The applicants cross-examined those witnesses and also produced witnesses in their defence. The learned Magistrate after considering the entire evidence found the applicants guilty under Section 892, I. P. C. , and he, therefore) convicted and sentenced them to six months' R. I. and a fine of B'. 50/. in default one month's R. I, each. On appeal the learned Additional Sessions Judge altered their conviction from Section 892, I. P. C. to Section 879, I. P. C. and also reduced their substantive imprisonment from six months R. I. each to three months' R. I. each, and with these alterations dismissed their appeal. Hence this revision.

(3.) ON behalf of the applicants the main point urged before me was that as the procedure adopted by the learned Magistrate, i. e. of not examining the prosecution witnesses de novo, but in placing reliance upon their statements contained in their earlier examinations-in-chief, was illegal and has resulted in prejudice to the applicants, their conviction and sentence were unsustainable and were liable to be sat aside. After hearing the learned Counsel for the parties I am satisfied that this contention is well founded.