EMPEROR Vs. SANA MATHUR

JUDGEMENT

(1.) In this case two accused were tried on charges under Secs.379, 411 and 414 of the Indian Penal Code, before the First Class Magistrate, Kaira. The learned Magistrate held that there was no direct evidence as to the commission of the offence of theft, but relying on Section 114, ill. (a), of the Indian Evidence Act, convicted the accused under Section 379 and in the alternative under Section 411 of the Indian Penal Code. The offence under Section 414, Indian Penal Code, did not, in the opinion of the learned Magistrate, fall within his jurisdiction as the certificate from the Political Agent was not obtained.

(2.) Accused No. 2 appealed to the Sessions Court but accused No. 1 did not file an appeal. On the appeal of the accused No. 2 the learned Sessions Judge came to the conclusion that the offence under Section 379, Indian Penal Code, was not made out as there was no direct evidence as to the commission of the offence. With regard to the offence under Section 411, Indian Penal Code, he came to the conclusion that a certificate of the Political Agent was necessary under Section 188 of the Criminal Procedure Code. He, therefore, acquitted accused No. 2 and made a reference to this Court to acquit accused No. 1 on the same ground. The Government of Bombay have appealed against the order of acquittal of accused No. 2.

(3.) It is urged on behalf of the Crown that the lower Court erred in acquitting the accused under Sec. 379 of the Indian Penal Code and that under Section 114, ill. (a), a presumption ought to have been drawn that both the accused were either the thieves or the receivers of stolen property. There appears to be no evidence on the record that the accused committed the theft in question, and there is considerable lapse of time from the date of the offence to the date of the alleged receipt of the stolen property and its disposal by the accused in a village in the Idar State. We think, therefore, that the acquittal of the accused under Section 379, Indian Penal Code, is correct.