S.N.Pathak, J.

1. This revision is directed against the judgment passed by 8th Addl. Sessions Judge, Munger, in Cr. Appeal no. 19/99 whereby appellate court confirmed the judgment of the trial court passed in GR no. 192/96 Tr. no. 305/98.

2. The trial court convicted the revisionist under sections 379 and 461 IPC and sentenced him to 3 years and 2 years SI under both the above sections. The appellate court confirmed the conviction and sentences passed under sections 379 and 461 IPC, but reduced the sentence awarded under both above sections to one year each.

3. The revisionists lawyer submitted that in the instant case, as alleged, the petitioner was seen by PW 1 flying away from the kiosk of the informant and PW 1 heard the sound of breaking (KHAT KHAT) and then he saw the accused petitioner. Nothing was recovered from the possession of the petitioner and the informant had said that certain electronic articles were thieved from his kiosk.

4. Four witnesses were examined in the trial court. PW 1 was present on the alleged night i.e. 31st January, 1996 and had heard the sound of Khat Khat. Then he saw the revisionist-accused who fled away. Thereafter in the morning the accused appeared before PW 1 and threatened him on the point of fire arm not to disclose the offence. PW 2 was informant himself. PWs 3 and 4 had learnt about the occurrence from PW1 and who failed to support the alleged occurrence of learning from PW 1. PW 4 said that there was some kind of occurrence from Kiosk of PW 2 but he did not have any personal knowledge. PW 3 was declared hostile because he did not support the fact that he had learnt anything from PW 1. So on record, there is evidence of PW 1 only. So far PW 1 is concerned, he at least supported the fact that in the relevant night he heard the sound of Khat-Khat and then he challenged the man who fled away and he was identified as accused-revisionist. In the next morning the revisionist appeared before him and threatened.

5. The defence of the accused revisionist was that there was difference between PW 1 and the accused, that is why he was falsely implicated but this defence is a defence of sorts and it will not carry any conviction in the circumstance of the case. So, at best upon the evidence on record section 461 IPC will be made out although no case under Section 379 IPC will be established because nothing was recovered from his possession nor the iO PW 5 made any attempt to recover anything. As such the conviction of the accused under section 379 IPC was legally bad. So far conviction under section 461 IPC is concerned, It is well warranted by the evidence on record. So sentence awarded against the accused-revisionist, that was perhaps harsh one. The records show that the accused-revisionist was under incarceration during the course of trial and also after conviction. So the period under-gone by him during the course of trial or after conviction, shall be treated as period of sentence. Petitioner shall be discharged from his bail bonds. The appeal is dismissed with the above modification in the order of conviction and sentence.