P.N Harkauli, J. - (1.) NAZAR Ali and Kaluwa alias Kallu have preferred this revision against the Judgment and order passed by the learned Additional District Judge, Moradabad. Nazar Ali applicant was convicted under Sections 411 and 215, IPC and was sentenced to one year's R. I. on the first count and six months' R.I. on the second count. Kallu, applicant was convicted only under Section 411, IPC and sentenced to one year's R. I.
(2.) THE case against the applicant was that on 24th October, 1968 one Kallu, son of Ghulam Qadar, resident of village Barbala, Police Station Moondha, district Moradabad was staying in his Gher smoking his Hukka. The two applicants, who belong to another village, reached there and their attention was attracted by the two buffaloes of Kallu, son of Ghulam Qadar and they remarked that the buffaloes were quite good. That night Kallu slept inside his Gher after tethering the buffaloes outside. About midnight Kallu, son of Ghulam Qadar was awakened by the barking of dogs and then he found that the two buffaloes, which he had tethered outside his Gher, were missing. He raised an alarm, whereupon some other persons of the village collected and they went in search of the buffaloes. When they reached village Rampur they saw Nazar Ali, applicant who had a reputation of being a thief of cattle. They told Nazar Ali about the theft of the buffaloes. Nazar Ali demanded Rs. 800/ - for the return of the buffaloes. Kallu, son of Ghulam Qadar arranged for the money and the next day at about noon one Jumma arrived and a sum of Rs. 750/ - was given to him. Jumma then told them that the buffaloes would be found in the evening in Rampur Bheema. So that evening Kallu, son of Ghulam Qadar went to the place indicated and he found his buffaloes there in a grove. At that time Jumma returned a sum of Rs. 130/ - to Kallu and told Kallu not to lodge a report. However, on the advice of an M.L.A. Kallu lodged a report, which resulted in the prosecution and conviction of the applicants. The learned Counsel for the applicants contended that in this case there was no evidence to show that either of the two applicants was in possession of the buffaloes and, therefore, even if the learned Sessions Judge was right in holding that the buffaloes were stolen property even then an offence under Section 411, IPC could not be said to be proved against the applicants. This contention appears to me to be correct. There is no evidence on the record to show that either of the applicants was in possession of the buffaloes. The mere fact that Nazar Ali, applicant offered to get the buffaloes restored to Kallu, son of Ghulam Qadar cannot necessarily lead to the inference that the applicants or either of them was in possession of buffaloes. The mere circumstance that Nazar Ali offered to get the buffaloes restored is not conclusive to show that the applicants were in possession for this circumstance is also consistent with the hypothesis that Nazar Ali may have known who was in possession of the buffaloes and he may have offered to help Kallu, son of Ghulam Qadar. In these circumstances, it appears to me that it cannot be said that the charge under Section 411, IPC is made out against the applicants.
(3.) BUT the evidence, which has been believed by the trial Court as well as the appellate Court, establishes that Nazar Ali offered to get the buffaloes restored. There can also be no doubt that Nazar Ali must have known that the buffaloes were stolen property and, therefore, his demanding gratification to help Kallu, son of Ghulam Qadar to recover his buffaloes without making any attempt to get the person who had stolen the buffaloes or the person who was retaining them to be prosecuted and convicted clearly amounted to an offence under Section 215, IPC. So, I am of opinion that the conviction of Nazar Ali, applicant under Section 215, IPC was correct and must be maintained.;