RAFIQUE Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS order shall also govern the disposal of Cr. Revision No. 354/2004, Amrish alias Nana v. State and Cr. Revision No. 359/04, Pankaj v. State since they arise out of the common judgment dated 8-4-2004 passed by the learned Second Addl. Sessions Judge, Ujjain in Cri. Appeal No. 69/04, thereby dismissing the appeal of the applicants and maintaining the conviction under Sections 457 and 380, Indian Penal Code and sentencing them each to three years R.I. with fine of Rs. 500/- on each count and in default of payment of fine to undergo additional R.I. for one month, as passed by the learned Judicial Magistrate First Class, Barnagar on 27-1-2004 in Criminal Case No. 395/98.

(2.) ACCORDING to the prosecution case, on 12-9-1998, at 2.30 in the night, some unknown persons committed theft of Rs. 2,22,000 cash and some gold ornaments at the residential house of Pawankumar Agrawal at Shivaji Road, Barnagar. The matter was reported at the Police Station and the police in turn registered a Crime No. 255/98. During investigation, the theft money and ornaments were seized from the possession of the applicants. They were prosecuted for the aforesaid offences and the learned Magistrate finding them guilty of the offence punishable under Section 411, Indian Penal Code sentenced them to R.I. for one year and a fine of Rs. 250/-, in default of payment of fine to suffer further R.I. for 15 days. The learned Magistrate acquitted the applicants from the charges under Sections 457 and 380, Indian Penal Code. They went up in appeal and the learned Lower Appellate Court allowing the appeals (No. 237/04 and 241/04) on 21-12-2001, set aside their conviction under Section 411, Indian Penal Code on the ground that the learned Magistrate did not frame the charge against the applicants for the offence under Section 411, Indian Penal Code. He remanded back the case with a direction that if the Magistrate thinks it necessary, he may amend the charge and frame the charge under Section 411, Indian Penal Code and thereafter, after affording opportunity to both the parties to adduce additional evidence pass the judgment in accordance with law.

(3.) I have heard learned counsel for the parties and perused the entire record carefully.