PHOOLCHAND Vs. NANAKCHAND

JUDGEMENT

(1.) THE City Magistrate, Lashkar, acquitted Mohammad Khan and Nanakchand of charges of theft and abatement of theft. The complainant Phoolchand has filed this application for grant of special leave to appeal from the order of acquittal under Section 417 (3) of the Criminal Procedure Code.

(2.) THE short facts of the case are that the complainant has a flour mill, where Mohammad Khan worked as his servant. The other accused Nanakchand lived in the upper storey of the building where the flour mill was It is said that on the night in between 25th and 26th of March 1956, two big bags and 4 small bags which had marks of 'X' on them were stolen from the flour mill. The contents of the bags was eleven and half maunds of wheat. It is alleged that at the instance of Mohammad Khan wheat and the bags were recovered from the house of his father. The trial Court has acquitted Mohammad Khan on two grounds.

(3.) I am quite clear in my mind that in order to bring the evidence of discovery within the scope of Section 57, it is necessary that the party making statement should be both an accused person and he must be in the custody of the police at the time of making statement. In this view of the matter, I think the learned trial Court has rightly rejected the evidence of discovery. Moreover the wheat was recovered not from the house of the accused but from the house of his father, Gulab Khan who lives in a different house. Gulab Khan has stated that he had collected the wheat for celebrating the marriage of his daughter.