- (1.) C. A. Rahim, J. This appeal has been preferred against the judgment and order of the Sessions Judge, Bareilly, dated 1- 8-1983 in Criminal Appeal No. 163 of 1983, dis missing the Appeal preferred against the conviction and sentence passed by the Addl. Chief Judicial Magistrate, Bareilly, on 10-5-1983 in Criminal Case No. 738 of 1983, under Section 379/411, I. P. C. and 25 (1), Arms Act and sentenced to suffer R. I. for two years and six months respectively.
(2.) THE prosecution case is that on 2-12-1982 at 8. 35 hours while the complainant was sitting in a bus, one Hari Singh picked his pocket and took away one fifty Rupees Note. He was caught but the said currency Note was passed over to one Ram Autar, his companion, who when attempted to escape both of them were arrested by constable standing outside the bus. THE said currency Note was recovered from the possession of Ram Autar. On further search one dagger was also recovered. Both the accused per sons were taken to the police station where a case was registered. During the trial the prosecution ex amined the complainant and two constables P. W. 2 Dharam Pal Singh and P. W 3 Surendra Pal Singh to prove the incident. P. W 1, the complainant has stated that the said currency Note was picked up by Hari Singh and it was recovered from the posses sion of Hari Singh. He was declared hostile as he did not support the prosecution case that the said currency Note was recovered from Ram Autar. He has stated that nothing was recovered from the possession of Ram Autar at that place. P. Ws. 2 and 3 have stated that when both the accused persons tried to escape they were arrested. From the palm of Ram Autar one fifty Rupees Note was recovered. On search one dagger was also recovered for which he could not produce any licence. The learned Magistrate relying on the evidence of P. W. 2 and P. W. 3 convicted the appellant Ram Autar under Sections 379/411,i. P. C. and 25 (1) Arms Act. An ap peal was preferred to the Court of Sessions Judge but it was dismissed.
(3.) SRI R. C. Kandpal, appearing for the appellant, has submitted that even if it is considered that one currency note was recovered from the possession of the appel lant it cannot be said that the said note was stolen from the pocket of the complainant by Hari Singh. He has also submitted that P. W. 1 has since denied that it was not recovered from Ram Autar, the owner of the said currency Note having not cor roborated his own case, the appellant is en titled to the benefit of doubt. It appears that P. W. 1 is only the link evidence by which it could have been proved that the currency Note which was stolen by Hari Singh, passed on to Ram Autar and the very Currency Note was recovered from Ram Autar. When the said link evidence is missing it cannot be said that the appellant has committed any offence under Section 379/411,i. P. C.;