STATE OF RAJASTHAN Vs. BIRJU

JUDGEMENT

(1.) BY the judgment dated January 14, 1980, the Chief Judicial Magistrate, Bikaner, has - -(1) convicted accused Birju for the offence Under Section 411, IPC and instead of sentencing him to imprisonment directed that he may be released on probation, and (2) acquitted accused Lachhiya of the charge for the offence Under Section 454, 457 and 380, IPC. This appeal is preferred by the State against the said judgment.

(2.) ACCORDING to the prosecution, the occurrence took place in between the period from October 29, 1976 to November 1,1976. It was alleged that some Thans of Canwas, regzin and foam -sheets were stolen away from the godown of Ramswaroop, situate near the Railway Station, Bikaner. A First Information Report of the occurrence was lodged by Ramswaroop on Nov. 1, 1976, at 3 p.m. at Police Station Kote -gate, Bikaner. On this a case Under Sections 454, 380, IPC was registered. During investigation, some articles were recovered from the shop of Birju and some from the house of Lachhiya in village Chokuni. Upon completion of investigation, a charge -sheet was filed against both the accused for the offence Under Sections 454 and 380, IPC. The case was tried by the Chief Judicial Magistrate, Bikaner, who by the judgment under appeal, acquitted accused Lachhiya and convicted accused Birju for the offence Under Section 411, IPC but instead of sentencing him to any imprisonment directed him to be released on probation.

(3.) AS regards the case against Lachhiya the learned Magistrate has dis -believed the prosecution case that the recovery was at his instance, Badri Narain PW 3, a witness to the recovery has admitted that the accused was not present when the recovery was being made. This falsifies the prosecution case that the recovery was made at the instance of the accused. This witness was not declared hostile. The learned Magistrate did not feel it safe to convict the accused on the circumstance of such recovery. No other evidence was led to connect the accused with the theft.