T.V. Nalawade, J.

1. The revision is filed against the judgment and order of Criminal Appeal No.78/1998 which was pending in Sessions Court Nanded. The appeal was filed by the present petitioner against the judgment and order of the Judicial Magistrate, First Class, Nanded delivered in Regular Criminal Case No.930/1995. The Judicial Magistrate First Class had convicted and sentenced the petitioner for offence punishable under section 411 of the Indian Penal Code. This conviction and sentence is set aside by the Sessions Court but the petitioner is convicted and sentenced for offence punishable under section 124 of the Bombay Police Act. Both the sides are heard.

2. Complainant Prabhakar Tak is owner of jewellery shop by name Balaji Jewelers and it is situated in Nanded city. The incident of theft took place in his shop on the night between 28-8-1995 and 29-8-1995. The thieves created hole in the wall of the shop and after breaking open the shop, they committed theft of valuable articles like silver pots, silver ornaments and gold ornaments. On the basis of his report, crime came to be registered at CR No.169/1995 in Bhagyanagar Police Station Nanded for offences under sections 457, 380 etc. of the Indian Penal Code.

3. During the course of investigation accused No.1 Narsing Sukalwad came to be arrested. He gave statements under section 27 of the Evidence Act on two occasions like on 13-9-1995 and 15-9-1995. On the basis of the first statement police recovered gold ingot of 17 grams and sliver ornaments of about 4 kg from the shop of the present petitioner who also owns a jewellery shop. On the basis of the statement given on 15-9-1995 police recovered one more gold ingot weighing 117.450 grams from the shop of the petitioner.

4. It is the case of the prosecution that the recovery made on the basis of first statement dated 13-9-1995 is of the articles which were stolen from Balaji Jewelers and the recovery made on the basis of statement made on 15-9-1995 is in respect of theft committed by accused Nos.1 to 3 on the same night from three other places.

5. Charge sheet was filed against the petitioner for offence punishable under section 411of the Indian Penal Code and against the other accused it was filed for offences punishable under sections 457, 380, 34 of the Indian Penal Code. The learned Judicial Magistrate First Class convicted and sentenced all the accused for these offences. Accused No.1 preferred appeal against the said decision bearing Appeal No.83/1998. One accused had undergone the sentence as he was under trial prisoner but the other two accused who were convicted for offence under sections 457, 380 read with 34 of the Indian Penal Code had preferred the appeal. The learned Sessions Judge allowed the appeal filed by Narsing and Ashok and the conviction and sentence given to them for aforesaid offences is set aside.

6. The learned Sessions Judge has held that the evidence is not sufficient to prove that articles recovered from the shop of the petitioner on the basis of the statement made by the accused Narsing under section 27 of the Evidence Act are of Balaji Jewelers and the property cannot be called as stolen property as identity of the articles is not proved. The complainant of the present case was examined but it is held that the recovery made from the present petitioner on the basis of statement of Narsing cannot be connected with the theft which had taken place in Balaji Jewelers. Though this finding is given and present petitioner is also acquitted of the offence punishable under section 411 of the Indian Penal Code, he is convicted and sentenced for offence punishable under section 124 of the Bombay Police Act, 1951.

7. It is the case of the prosecution that at four places theft was committed by accused Nos.1 to 3 on that night but only one witness is examined to show that theft of some articles from Balaji Jewelers was committed. The judgment delivered by the Sessions Court and even of the learned Judicia