ANIL PRASAD @ ANIL KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS revision is directed against judgment dated 10.7.2000 passed by 2nd Addl. Sessions Judge, Nawada in Cr. Appeal No. 58/96/12/98, confirming the judgment of the trial Court rendered by the Judicial Magistrate, 1st Class, Nawada in GR case No. 202/92, trial No. 346/ 96.

(2.) The revisionists were convicted for the offence under Sections 457 and 380, IPC and sentenced to undergo RI for 2 years and one year respectively. Revisionist -Umesh Mahto, was further convicted under Section 411, IPC and sentenced to undergo RI for six months. It has been submitted that the accused persons entered into the house of the informant in the night of 3/4.3.1992 and committed theft of certain articles. However, the case under Section 457. IPC is not made out as it was not proved that the accused persons had committed lurking house trespass. Three accused, namely, Anil Prasad, Bhushan Prasad and Sanjay Prasad are not named in the written report of the informant which gave rise to the present case whose names figured later and who are collateral of the informant and they have been falsely implicated as they were putting pressure upon the informant to marry off his aged daughter. There is contradiction in the statement of PW 8 (informant) and his daughter (PW 4) regarding the manner of alleged theft in his house. Moreover means of identification which was alleged to be earthen lamp was not produced nor the IO could be examined who could testify to having found Dibia in the house of the informant. On the aforesaid grounds, the order of conviction recorded by the two courts below has been challenged.

(3.) IT was vehemently submitted by the revisionists ' lawyer that the offence under Section 457 is not attracted. In this connection, written report of the informant is worth reference. Informant woke up on the sound of knocking of door etc. and then he found accused Umesh and Ajay into his house who were lifting steel box etc. So, it appears that the informant had detected the accused. whoever may be, whether two persons or other revisionists also. the moment they entered into the house. So, the alleged offence under Section 457, IPC was not well substantiated or proved. However, so far offence under Section 380. IPC is concerned. the materials on record are sufficient in the opinion of the two courts below and simply because. this court can take a different view it can not interfere in revision. So far offence under Section 411, IPC is concerned, Umesh was charged for the offence under Section 380, IPC also. According to the evidence of PW 8 (informant) he was seen in his house in the alleged night alongwith other accused persons who were named in the written report. So. he could not legitimately be charged for the offence under Sections 411 and 380, IPC both nor he could be convicted under both sections.