N. L. TIBREWAL, J. - (1.) ADMIT the learned counsel for the petitioner and the learned PP. submit that the revision be disposed of at this stage. The learned counsel for the petitioner has argued that from the findings of the Courts below the offence under Section 454 IPC is not made out, and for the offence under Section 380 IPC he should be given the benefit of probation.
(2.) THE facts of the case are that a report was lodged on 23-12-1976 by the complainant Jaldhari stating therein that eighteen days prior to the lodging of the report, some persons committed theft of ornaments from his house after breaking the locks. In the report he made accusation against the petition, as well as, one co-accused Mangal. After registration of the case, the police did not file any charge sheet against Mangal. However charge sheet was filed against the petitioner in the Court of the learned Magistrate. The petitioner was charged under Sections 454 and 380 IPC The learned Trial Court after completion of the trial held the petitioner guilty of both the offences and sentenced him to undergo one year RI and a fine of Rs. 100/-under each count. In default of payment of fine further SI for three months was awarded under each count vide judgment dated 26-8-87. The appeal preferred by the petitioner was also dismissed by the learned Additional Sessions Judge No. 1, Alwar vide judgment dated 2. 2. 91. The argument of the learned counsel for the petitioner is that the petitioner has been convicted simply on the evidence of the recovery of ornaments on his information under Section 27 Indian Evidence Act. He further submits that even if the prosecution evidence is taken on its face value, the offence under Section 454 is not made out. He submits that the petitioner is the real brother of the complainant Jaldhari and there was some dispute about division of the ornaments between the two brothers. This fact has also been mentioned by the learned Additional Sessions Judge in his judgment. The learned counsel for the petitioner further submits that the incident is of the year 1976 and now more than 14 years have passed since then, as such, taking into consideration all the facts and circumstances, it is in the interest of justice, to grant probation to the petitioner. From the facts of the case it appears that the report was lodged on 23-12-1976 while the incident of theft had taken place 8-10 days prior to it. The learned Additional Sessions Judge has disbelieved the statement of PW 12 Chote Lal to the effect that he had seen the petitioner and Mangal coming out from the house of Jaldhari-complainant in the night of the alleged incident. The learned Additional Sessions Judge, on the basis of the information given by the petitioner under Section 27 Indian Evidence Act and the recovery of ornaments on the basis of the said information, held the petitioner guilty under Section 454 as well as 380 IPC. After going through the judgments of the courts below, I am of the view that merely on the basis of the recovery of ornaments on the information of the petitioner, no presumption can be drawn for the offence under Section 454 IPC. After having dis-believed the statement of PW 12, Chotelal, there remains no evidence that the petitioner committed the offence of lurking house-tress pass or house breaking in order to commit any offence or of theft. Therefore, the conviction of the petitioner under Section 454 I. P. C. cannot be sustained.
(3.) SO far the offence under Sec. 380 IPC is concerned, both the Courts below have held that the petitioner got recovered the ornaments after giving information under Section 27 Indian Evidence Act and that the said ornaments belonged to the complainant. The findings of the courts below with regard to the offence of commission of theft is, therefore, based on evidence and I do not find that any illegality has been committed by the Courts below in convicting the petitioner under Section 380 IPC. The conviction of the petitioner under Section 380 IPC is, therefore, maintained. Now the question of sentence - The incident is of the year 1976 and 14 years have passed since then. The petitioner is the real brother of the com-plainant Jaldhari and there was some dispute between the brothers about the division of the ornaments. The petitioner is not a previous convict and there is no material on the record to decline him the benefit of probation. The prayer of the learned counsel for the petitioner to grant benefit of probation is, therefore, reasonable. Having regard to the circumstances of the case including the nature of the offence and the character of the offender, I direct that the petitioner shall be released on probation of good conduct on his entering into a bond of Rs. 2000/- with one surety of the like amount to the satisfaction of the Trial Court with a stipulation to appear and receive sentence as and when called upon during the period of six months and in the meantime to maintain peace and be of good behaviour. The revision is, therefore, partly allowed. The conviction and sentence of the petitioner under Section 454 is set aside. Conviction of the petitioner under Section 380 IPC is maintained, but he is given the benefit of probation as indicated above. . ;