EMPEROR Vs. YAMANAPPA JOTEPPA GOSAVI

JUDGEMENT

(1.) THIS is a revisional application, with regard to the conviction and sentence of three years' rigorous imprisonment passed on the three accused, under Section 412 of the Indian Penal Code, by Mr. J. R. Nazareth, the Assistant Sessions Judge of Belgaum, on February 25, 1946. There was an appeal by the accused to Mr. Honavar, the learned Sessions Judge, which he dismissed on May 7, 1946. Accordingly, the matter comes before us in revision.

(2.) THE principal point taken by Mr. Lokur on behalf of the accused is a submission made under Section 403 of the Criminal Procedure Code to the effect that the accused have been previously tried and acquitted in respect of the offence with which they are now charged. It must be said at once, that, this submission is only advanced on behalf of accused Nos. 1 and 3; because, accused No.2 was not tried in Sessions Case No.149 of 1943, which is the case craved in aid by accused Nos. 1 and 3.Section 403 of the Criminal Procedure Code provides: (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.

(3.) IN the case under review by us, the accused are charged with three separate dacoities, on or about the night of April 30, 1943, or, alternatively, with having dishonestly received or retained stolen property on the dates and places mentioned against their respective names set out below, and by looking at the schedule, it will be found that against both accused Nos. 1 and 3 there are a larger number of articles than they were charged with having received in Sessions Case No.149. The suggestion is that the onus is on the prosecution to show that they did not receive all those articles at one and the same time, with the articles with which they are charged with having received in Sessions Case No.149 of 1943, because, it is submitted, that unless this is done, they could and should have been tried in respect of all these articles in the previous case, and, therefore, are entitled to the benefit of Section 403 of the Criminal Procedure Code.