MAHENDRA BHUSHAN SHARMA,J. - (1.) THE learned Additional Sessions Judge, Kishangarhbas, Alwar under his judgment dated January 27, 1987 while maintaining the conviction of each of the accused petitioner under Section 394 I.P.C. reduced the sentence of each of them from 4 years and 6 months RI and fine of Rs. 1,000/ - to 3 years RI and fine of Rs. 1,000/ - and in default of payment sentenced each of them to further suffer 3 months RI.
(2.) GENERALLY this court does not interfere in revision in the findings arrived at by the appellate Court as well as by the trial court, but in the instant case, so far as the accused petitioners Shamsuddin s/o Murad and Habib are concerned, their complicity in the crime is not proved beyond doubt and the finding that they committed an offence under Section 394, I.P.C. appears to be perverse. Sukhvir Singh PW 3 along with his master Mahesh Kumar PW 4 on November 14, 1985 had gone by Scooter No. RNI 3642 from Khairthal to Alwar to make recoveries of various dues. When they were at a distance of about 2 or 4 Km. at Kishangarh Road it is alleged that 2 miscreants gave Lathi blows to Mahesh who was driving the scooter and as a result of it both Sukhvir Singh and Mahesh Kumar fell down along with the scooter and one miscreant ran away with a bag containing currency notes, after picking it from the Scooter. On the report Ex. P. 5, a case was registered and investigation was commenced. Three accused appellants were arrested by the SHO on 15th November, 1985 that is the next date of the incident. They were sent to judicial custody on 21st of November, 1985 and there on 28th November, 1985 an identification parade was held by Vinay Kumar Goswami. ID the said identification parade only 2 accused petitioners were to be identified that is Samsuddin and Musddin. Both Musddin and Samsuddin were identified as accused persons. Each of three accused petitioners made discovery statements and on their statements from accused Musddin a bag containing currency notes was recovered The Magistrate placed reliance on the identification parade and the recovery of the stolen property within few days of the alleged occurrence and convicted and sentenced the accused petitioners as aforesaid and in an appeal as already stated earlier their conviction was maintained and the sentence was reduced.
(3.) THE first contention of the learned Counsel for the accused petitioners is that no stolen property was recovered from each of the accused petitioner and has not been proved to be stolen properties. The recovery of the currency notes will not connect the petitioners with the crime. His further contention is that when no numbers of the currency notes were given how could it be held to be stolen property;