P.N.Harkauli - (1.) TEJ Narain, applicant, was convicted under Section 411 IPC and sentenced to nine months rigorous imprisonment by the learned Judicial Magistrate, Kanpur. He preferred an appeal. The learned Sessions Judge dismissed his appeal and maintained his conviction. He, however, reduced the sentence to three months R. I. Against this judgment of the learned Sessions Judge TEJ Narain has filed this application for revision.
(2.) I have heard learned counsel for the parties and I am of the opinion that this revision application has to be allowed. A perusal of the judgment of the learned Sessions Judge will show that he had convicted the applicant on the finding that a 'Pital Balti' stolen from the complainant's house was recovered from the shop of one Mool Chand on the pointing out of the applicant. Some other articles were also alleged to have been recovered from the possession of or on the pointing out of Tej Narain but the learned Sessions Judge did not accept that part of the prosecution case. The learned counsel for the applicant contended that there was no evidence to show that the Balti in question was recovered from the possession of the applicant. The argument is sound. The only evidence which the prosecution has produced is that on the pointing out of Tej Narain, applicant, and one Kedar Nath a gunny bag bundle was recovered from the shop of Mool Chand in which the Balti in question was found. The recovery memo Ex. Ka-4 as also the statement of the Investigating Officer Sri Chandra Pal Singh (PW 8) show that the bundle in question was recovered on the pointing out of two persons i. e. the applicant and Kedar Nath and it is not specified either in the recovery memo or in the statement of the Investigating Officer as to which of them pointed out the bundle first. It is, therefore, not possible to say as to on whose pointing out the bundle was in fact recovered. In this state of evidence, it must be held that it cannot be said that the bundle containing the Balti was recovered in consequence of the information supplied by the applicant. Section 27 of the Evidence Act therefore, cannot come into play. I am supported in this view by a nuling of this Court in Poshaki v. State, AIR 1953 Alld. 526.
(3.) IT must, therefore, be held, that the prosecution has failed to prove that the Balti was recovered in consequence of information given by the applicant. Apart from that even if it was assumed that the Balti was recovered in oonsequence of the information supplied by the applicant still that alone is not sufficient to prove that the, applicant tad placed the bundle containing the Balti at the shop of Mool Chand and if that is so, it cannot be said that the applicant was in possession of the same. Even if the applicant pointed cut the bundle it can only show that the applicant knew that the bundle was there. It is not sufficient for proving conclusively that the applicant; had put the bundle there and so was in possession thereof.;