VINOD PRASAD, J. - (1.) THIS revision has been filed by Rajjab Ali and Sala-huddin, who were tried by ACJM, Court No. 9, Basti in Criminal Case No. 5637/06, State v. Mohd. Kaish and others, for offences under section 379/411 IPC, relating to P.S. Mahuli, district Sant Kabir Nagar. Finding charge under section 411 IPC established to the hilt, learned trial Magistrate convicted all of the three accused Mohd. Kaish, Rajjab Ali and Salahuddin for that offence and sentenced them to two years simple imprisonment with fine of Rs.500/- imposed on each of them vide judgment and order dated 26.3.2009. Default sentence was 15 days further imprisonment.
(2.) AGGRIEVED by the said conviction and sentence, two revisionists Rajjab Ali and Salahuddin preferred Criminal Appeal No. 19/09 before the Session's Judge, Basti, which was transferred to Additional Session's Judge, Court No. 1, Basti for disposal. Vide impugned judgment and order dated 9.3.2011, Ist Additional Session's Judge, Basti dismissed their appeal in full and affirmed the judgment of their conviction and sentence. Hence this revision challenging aforesaid conviction and sentence. Prosecution allegations, in brief, against the revisionists, as was alleged by the informant Vijay Pal Singh in his FIR were that on 13.3.2003 informant had gone to see a picture in late night show (9 to 12 p.m.) at Nath Nagar picture hall on his Suzuki motor cycle Max R 100 of black colour with Chesis No. 1001 F 520132 and Engine No. 1001 M 570849 and model of it was 2000. After viewing the picture when the informant came out his aforesaid motor cycle was missing. On 29.3.2003, informant lodged FIR of Crime No. 79/03, under section 379 IPC against unknown persons at P.S. Mahuli, district Sant Kabir Nagar, in respect of aforesaid theft of his motor cycle. Sub-Inspector Ram Dular Mishra investigated the registered offence, and during it's course, from the possession of the three accused aforesaid motor cycle was recovered on 30.3.2003. Usual investigation was conducted and Investigating Officer charge-sheeted aforesaid three accused for offences under section 379/411 IPC. Charge-sheet resulted in summoning of all the accused by the Magistrate. After accused had put in their appearance they were charged for the aforesaid offences which they denied, and claimed to be tried. During trial, prosecution examined Vijay Pal Singh informant P.W. 1, Constable CP 365 Jay Ram Prasad P.W. 2, Constable Moharrir Chandan Prasad P.W. 3, Om Prakash P.W. 4, Constable Ram Shabd CP No. 153 P.W. 5 as it's witnesses. Besides aforesaid witnesses prosecution also relied upon documents evidences of charge-sheet Ex. Ka 6, FIR Ex. Ka 3, written report Ex. Ka 1, GD Ex. Ka 4 and recovery memo Ex, Ka 2.
(3.) IN their statements under section 313 Cr. P.C. common defence of denial and false implication was taken up by the accused persons. Acjm, Court No. 9 Basti appreciated documentary and oral evidences and concluded that prosecution had not been able to establish charge under section 379 IPC, and therefore, acquitted all the accused for the said offence. However, it came to the conclusion that prosecution had successfully brought home the guilt for offence under section 411 IPC, and therefore, convicted and sentenced accused-revisionist for it with two years simple imprisonment with a fine of Rs.500/- on each of them. Learned Magistrate further directed that in default of payment of fine accused shall under go 15 days' additional imprisonment vide it's judgment dated 26.3.2009.;