V.N.Varma, J. - (1.) THIS revision is directed against an order dated 22-3- L977 passed by Sessions Judge, Bareilly, confirming the conviction and sentence recorded against the applicant under Section 411 IPC.
(2.) IT appears that on the night of 11/12-8-72 a theft was committed at the house of one Gendan Lal of village Khanpur, P. S. Fatehganj, district Baneilly. In that theft Gendan Lal had lost his gun No. 81743 and some cartridges. A report about this theft was made, but nothing fruitful came out of it. On the night of 29/30-1-73 the police of P. S. Faridpur arrested some Badmashes from a grove in village Sarkara. One of the badmashes so arrested was the applicant. He was searched and a gun bearing no. 81743 was recovered from his possession. That gun belonged to Gendan Lal. Thereafter the usual investigation folio wed and eventually the applicant was sent up to stand his trial under Section 411 IPC. The applicant pleaded not guilty and denied the recovery of gun no. 81743 from his possession. He attributed his false implication due to enmity with the police. The trial court found the prosecution case proved against the applicant and so it convicted him under Section 411 IPC and sentenced him to one year R. I. Aggrieved, he went up in appeal but in vain. And hence this revision.
(3.) I have heard the learned counsel for the applicant at sufficient length and after doing so I am firmly of the view that this revision must be allowed. Even if it be assumed for a moment that stolen gun No. 81743 belonging to Gendan Lal had been recovered from the possession of the applicant, I do not think, on the basis of the evidence on record, any offence under Section 411 IPC can be said to have been made out against him. In Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39, (their Lordships have remarked that the following things must be proved before a person could be convicted of an offence under Section 411, IPC: (1) That the stolen property was in the possession of the accused ; (2) that some person other than the accused had possession of the property before the accused got possession of it; and (3) that the accused had knowledge that the property was stolen property. It was stressed on behalf of the applicant that as the prosecution has failed to prove that some person other than the applicant had possession of the gun in question before the applicant got possession of it and so the offence under Section 411 IPC cannot be said to have been made out against him. I think this contention of the applicant is not without substance. The observations made by the Supreme Court in AIR 1954 SC 39 were interpreted by our High Court in the ruling reported in Rajjaua v. the State, 1959 AWR. 361. The Court observed that in every case under Section 411 IPC, two facta have to be established by direct evidence, namely, (1) that a theft was committed and certain articles were stolen, and (2) that the stolen articles were recovered from the possession of the accused.;