JAMALUDDIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal by the original accused, who have been convicted by the Presidency Magistrate, 27th Court, Mulund, Bombay, of an offence punishable under section 403 of the Indian Penal Code and each of whom has been sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs. 50/-, in default, to undergo-rigorous imprisonment for seven days. They were charged with an offence under section 379 of the Indian Penal Code, but they were acquitted of that offence and instead were convicted under section 403 of the Indian Penal Code.

(2.) The case of prosecution was that on 16th July, 1972, Shaikh Mohamed Balam (P.W. 5). Sub-Inspector, Bhandup Police Station, was on patrol duty along with some policemen. At about 2.45 a.m. they came near Powai Lake. They noticed the two accused standing in the bushes at a distance of 15 paces. Three bundles containing fish were lying in front of them. The accused had apparently notted these fish from the Powai Lake which belongs to the Bombay Municipal Corporation. The accused were accordingly prosecuted for committing theft of the fish.

(3.) The defence of the accused was one of total denial. According to them, the police took them from the bus stop and falsely implicated them. On the evidence adduced before him, the trial Magistrate found that both the accused were in possession of the fish in question. He further found that the fish was the property of the Bombay Municipal Corporation, which is the owner of Powai Lake. The learned trial Magistrate, however, was of the view that the accused could not be convicted of the offence of theft. For this view, he gave the following reasons:-