- (1.) B. K Sharma, J. This is a revision against the judgment and order dated 13th December, 1985 passed by the IIIrd Additional Sessions Judge, Ballia, Sri U. C. Misra in criminal appeal No. 63 of 1985 whereby he dismissed the appeal against the judgment and order dated 2nd April, 1988 passed by Sri V. N. Shukla, the then C. J. M Ballia in criminal case No. 380/84. State v. Ram Suresh Tewari under Section 380, IPC and confirmed the conviction of the accused Ram Suresh Tewari for the offence under Section 380, IPC and the award of the benefit of the Probation Act by the learned CJM.
(2.) HEARD the learned Counsel for the parties. The learned Counsel for the accused revisionist has pointed out that the appel late court himself noticed discrepancy between the prosecution story in the writ ten FIR lodged in the case and the prosecution evidence led at the trial court and that he also found the testimony of the two eye-witnesses, Mahesh PW-2 and Sri Gopal PW-3 doubtful and yet he upheld the conviction of the accused-revisionist for offence under Section 380, IPC. He has also argued that there was a cross case and a cross FIR and the cross version was not considered by the courts below. The accused revisionist and the in formant Bhagawati are resident of the same village and their houses are admit tedly in the vicinity of each other. The prosecuton story was that in the night in between 7th/8th May, 1983, the infor mant's bullock was tied in a room of the house, that when it was 1. 30 a. m. the ac cused revisionist committed theft of the said bullock and on developing suspicion the informant found the accused revision ist Ram Suresh Tewari holding the bullock with its mouth tied so as to prevent it from crying, that on the alarm his son Tark-eshwar reached there and the witnesses Mahesh and Sri Gopal also came there and the informant had arrested the accused revisionist and kept him in a custody in the house in the night and in the morning he took him to the police station and lodged him there and also lodged his FIR about the case. In support of this case there is evidence of the informant which is cor roborated by the spot arrest of the accused revisionist which the accused revisionist admits even though he claims that he had not committed theft of the bullock and that He has was not caught with the bullock. He has been taken to the police station with the help of the Chowkidar and lodged there. The learned Sessions Judge has rightly not attached importance to the dis crepancy between the FIR and the prose cution evidence at the trial keeping in view the fact that the scribe was a third person who was not well educated. The learned Counsel for the revisionist has not pointed out any grave discrepancy between the FIR and the prosecution evidence at the trial.
(3.) THE appellate court taking into ac count the distance between the house of Mahesh PW-2 and Sri Gopal PW-3 and the scene of occurrence felt that these wit nesses might not have come to the spot at the time of the arrest but he took note of the fact that these persons had no enmity with the accused revisionist and could have reached there subsequently and seen the accused in custody and found the mouth of the bullock tied with rope. In a revision the evidence is not re assessed. Inter ference could be made only when there is glaring illegality which is not shown in this case.;