P.N.Goel - (1.) THIS appeal is directed against the order dated 9-2-1974 passed by the Additional Munsif-Magiistrate, Mainpuri in criminal case no. 250 of 1973 acquitting the respondents of an offence punishable under sec. 379 IPO and directing the two buffaloes to be handed over to Ram Lakhan, respondent no, 1.
(2.) THE case arose out of a complaint filed by Vijai Singh, resident of village Dwarikapur, police station Kurra, district Mainpuri. Vijai Singh alleged that one buffalo and one she-buffalo were stealthily taken away from the house on the night intervening 19th and 20th July, 1970. He further alleged that the 3 respondents were found in possession of the said cattle on 20-7-1970 by Ram Bharo-sey, Lakshmi Narain and Tulsi Ram. By order dated 1-2-1974, the learned Magistrate expunged the statement of Vijai Singh. He further held that the evidence of Lakshmi Narain and Tulsi Ram was that of chance witnesses. He further remarked that Lakshmi Narain and Tulsi Ram may be inimical to tie respondent and that there was probability that the respondents were implicated on account of partibandi and enmity. The grievance of the appellant's counsel is that the case was not properly tried and, therefore, the order of acquittal was not justified.
(3.) LEARNED counsel for the parties have been heard. The present case will be governed by the provisions of the old CrPC, 1898. An offence of theft punishable under sec. 379 is to be tried as a warrant case. The offence punishable under sec. 411 IPC is also to be tried as a warrant case. The record of the court below shows that Vijai Singh, PW 1, was examined on 19-4-1971, that Lakshmi Narain and Tulsi Ram, PWs 2 and 3 were examined on 31-7-1971. On that day Vijai Siingh was further examined. Then on 12-10-1971 Vijai Singh, Lakshmi Naraia and Tulsi Ram were cross-examined under sec. 256 CrPC. The record then shows that on 21-11-1973, the case was adjourned to 21-12-1973 for further evidenced the complainant. On 21-12-1973 the case was adjourned to 1-2-1974 for complete evidence under sec. 256 CrPC. On 1-2-1974 no person was present on behalf of the complainant. Therefore, no further evidence was produced. The Magistrate fixed 5-2-1974 for orders. Then the Magistrate passed further order that the respondents' counsel urged for the disposal of the case, that the case was fixed for further cross-examination of Vijal Singh on application 54-C, dated 22-7-1972, that on that date the complainant could not be cross-examined on account of his absence, that therefore, the statement of Vijai Singh could not be read and be expunged. The case was ordered to be put up on 5-2-1974 for judgment. On 5-2-1974, the Magistrate was on leave. Hence the judgment was pronounced on 9-2-1974.;