H.C.P. Tripathi, J. - (1.) Applicant Babbu was convicted by a Magistrate First class, Rampur, of an offence Under Sec. 392 IPC and sentenced to two years' rigorous imprisonment. On appeal his conviction and sentence were upheld by the learned Sessions Judge of Rampur. Hence this revision.
(2.) The facts of the case in short are as follows: One Sri Sheo Dutt Dwivedi (PW 1) was going to the railway station Rampur on 24 -12 -1964 at about 9.30 p.m. when four unknown persons surrounded him on the public road and robbed him of his belongings by show of force and decamped with the booty. Sri Dwivedi lodged a report at police station, Civil Lines, Rampur, immediately thereafter in which he gave a list of his stolen property. The Applicant was arrested by some villagers and brought to the police station on 30 -12 -1964. On interrogation he offered to point out the spot and hand over the property stolen from Sri Dwivedi. Accordingly he took the police party along with Mawasi and Shyam. Lal (PWs 2 and 3) to a place near Gandhi Samadhi which was covered by bushes and took out certain items of property which were duly sealed at the spot. Later on they were put for identification and were identified by Sri Dwivedi as belonging to him. The learned Magistrate was of opinion that as the stolen property was recovered within six days of the commission of the robbery at the instance of the Applicant he must be held to be one of the robbers responsible for depriving Sri Dwivedi of his belongings.
(3.) Learned Counsel for the Applicant has argued that on the facts found established by the courts below the Applicant cannot be convicted for an offence Under Sec. 392 IPC as there is no evidence to show that he was one of the four persons who are alleged to have robbed the victim. It is urged that Sri Dwivedi had nowhere stated to have identified the Applicant at the time of the occurrence as one of those four robbers. It is urged further that as the stolen property was recovered from an open place the Applicant cannot be held to be in possession of the same and therefore, no presumption could be drawn against him Under Sec. 114 of the Evidence Act. Reliance was placed in support of this contention on a decision of the Supreme Court in the case of Trimbak v/s. State of MP : AIR 1954 SC 39.;