The court's decision was primarily influenced by the lack of direct evidence linking the accused to the theft and the discretion of the learned Magistrate in releasing the accused on probation.

1. - By the judgment dated January 14, 1980, the Chief Judicial Magistrate, Bikaner, has--(1) convicted accused Birju for the offence Under Section 411, Indian Penal Code and instead of sentencing him to imprisonment directed that he may be released on probation, and (2) acquitted accused Lachhiya of the charge for the offence Under Section 454, 457 and 380, Indian Penal Code. This appeal is preferred by the State against the said judgment.

2. According to the prosecution, the occurrence took place in between the period from October 29, 1976 to November 1,1976. It was alleged that some Thans of Canwas, regzin and foam-sheets were stolen away from the godown of Ramswaroop, situate near the Railway Station, Bikaner. A First Information Report of the occurrence was lodged by Ramswaroop on Nov. 1, 1976, at 3 p.m. at Police Station Kote-gate, Bikaner. On this a case Under Sections 454, 380, Indian Penal Code was registered. During investigation, some articles were recovered from the shop of Birju and some from the house of Lachhiya in village Chokuni. Upon completion of investigation, a charge-sheet was filed against both the accused for the offence Under Sections 454 & 380, Indian Penal Code. The case was tried by the Chief Judicial Magistrate, Bikaner, who by the judgment under appeal, acquitted accused Lachhiya and convicted accused Birju for the offence Under Section 411, Indian Penal Code but instead of sentencing him to any imprisonment directed him to be released on probation.

3. I have heard learned Public Prosecutor for the State and Shri Ajeet Mal Singhvi counsel for accused. I do not find substantial grounds to justify interference with the order of acquittal. The case is as old as November 1, 1976. A period of more than 12 years has since elapsed. There is no direct evidence to show that the theft at the godown of Ramswaroop was committed by either the accused. The case against them is based merely on the circumstance of recovery. The recovery at the instance of Lachhiya has also not been relied upon by the learned Magistrate. As regards accused Birju the learned Magistrate has said that the recovery of the articles from the shop of the accused Birju give rise to the inference that he was a receiver of stolen property. On the evidence on record, the learned Magistrate was fully justified to raise such a presumption and it is difficult to reverse the said finding and hold that the accused himself committed the theft. As regards the discretion of the learned Magistrate in releasing the accused on probation, also for this Court, I do not think that it would be proper for this court to interfere with the same in this appeal after 12 years.

4. As regards the case against Lachhiya the learned Magistrate has dis-believed the prosecution case that the recovery was at his instance, Badri Narain PW 3, a witness to the recovery has admitted that the accused was not present when the recovery was being made. This falsifies the prosecution case that the recovery was made at the instance of the accused. This witness was not declared hostile. The learned Magistrate did not feel it safe to convict the accused on the circumstance of such recovery. No other evidence was led to connect the accused with the theft.

5. For the reasons mentioned above, I do not find substance in the present appeal and the same is here by dismissed.Appeal dismissed.

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