H.C.P.TRIPATHI, J. - (1.) RAM Prasad, Nathoo Lal and Badri were convicted by a Magistrate First Class under Section 380 I.P.C. and sentenced to one year's rigorous imprisonment and Rs. 20/ - as fine each. In default of payment of fine, each of them was ordered to undergo rigorous imprisonment for a period of one month. Their convictions and sentences were affirmed on appeal by the learned Sessions Judge of Pilibhit. Hence they all came up in revision to this Court. The revision of Ram Prasad and Nathoo Lal was, however, dismissed summarily and their case is, therefore, not before me.
(2.) ACCORDING to the prosecution, in the night of 17/18th October, 1961, a burglary was committed in the house of one Ram Dulaiey in village Bithaura Kalan in which his ornaments were stolen away. A report of the occurrence was lodged on 18.10.1961 at police station Kotwali at 2 -20 in the afternoon on the basis of which a case was registered and investigation followed. On 19.10.1961 applicant Badri was arrested and his house was searched. Nothing, however, incriminating could be found from the house. When questioned about the theft committed in the house of Ram Dularey, Badri is alleged to have taken the Sub -Inspector and the witnesses to a sugarcane field of Mulu wherefrom he took out five pieces of ornaments and handed them over to the Investigating Officer. He again took them to a pond which was full of Jalkumbhi and from there took out a packet containing certain pieces of clothes. All these articles were put in sealed covers and a recovery memo regarding the same was prepared in the presence of the witnesses. Subsequently, these recovered articles were identified by prosecution witnesses as belonging to Ram Dularey and his family members which had been removed during the theft committed at his house. On these facts the learned Magistrate convicted the applicants under Section 380 I.P.C. and the Sessions Judge has concurred with him.
(3.) LEARNED counsel for the applicant has argued that as the articles were recovered from an open field and from a pond which was accessible to any member of the public, it cannot be held in law that they were in exclusive possession of the applicant or that he had kept them there. Learned counsel argues that in this view of the matter the conviction of the applicant under Section 380 I.P.C. is not sustainable.;