Honble YADAV, J. — One Shri B.L. Asnani, Assistant Engineer, Rajasthan State Electricity Board, Ajmer Camp at Barmer filed a report at the police station, Barmer on 14.12.1979 to the effect that his employees Gangmen were lying electric wire from Barmer to Chohtan Road in Distt. Barmer. It is further alleged that on 13.12.1979,two drums of Alluminium wires were put in village Undkha and 19 drums were put at Neemdi. When on 14.12.79, the labourers of the first informant went to village Undkha, they did not find two drums of electric wires. The Junior Engineer, Shri Ram Rakhani reached to the site on receiving information and found that two drums of electric wires were missing and tyre marks of the truck and foot marks of persons were noted on the spot. The employees of the R.S.E.B. went to village Neemdi, there also two drums of electric wires were missing and there also tyre marks and foot marks of persons were found. According to the allegations, four drums containing 10 KM of wires with approximate value of Rs.52,000/- were missing.

(2). After investigation, the police has submitted a charge-sheet under Sec.379 and 379 read with Sec.34, I.P.C. against eight accused-persons namely; Bansiram, Gordhan, Bagaram, Bhakhra Ram, Khumaram, Jagmal, Bharmal and the petitioner Khairaj. After trial, seven accused-persons were acquitted and petitioner Khairaj was convicted for the offence punishable under Sec.379,IPC and was sentenced to three years R.I. by the learned Chief Judicial Magistrate, Barmer on 6.4.84.

(3). Aggrieved against the conviction and sentence, the accused- petitioner filed an appeal before the learned Sessions Judge, Balotra-camp at Barmer. The learned Sessions Judge vide judgment dated 19.12.84 confirmed the finding of guilt recorded by the learned Chief Judicial Magistrate, Barmer and maintained the conviction.

(4). Aggrieved against the conviction and sentence, the petitioner had filed a revision petition before this Court. From close scrutiny of the evidence on record, it is apparent from both the judgments of the sub-ordinate Courts that in support of the prosecution, the prosecution agency has examined PW 1 Kishan-chand, PW 2 Achla Ram, PW 3 Bhanwar Singh, PW 4 Devi Singh, PW 5 Magharam, PW 6 Dhan Singh, PW 7 Jodharam, PW 8 Gangaram, PW 9 Arjal Khan, PW 10 Jaffar Ali, PW 11 Shankar Lal, PW 12 Bhanwar and PW 13 Bhagwara Dass. In support of the prosecution story, the prosecution agency has also produced Ex.P/1 to Ex.P/27 as documentary evidence.

(5). From perusal of the judgments given by the Sub-ordinate Courts, it is apparent that there are no eye-witnesses of the occurrence and the present accused-petitioner is convicted on sole testimony of the alleged recovery vide recovery memo Ex.p/13 which is also signed by two motbirs namely; PW 7 Jodharam and PW 8 Gangaram respectively. The aforesaid recovery was made from an open field which is situated near the house of Gordhan Ram. After careful scrutiny of evidence, learned Chief Judl.Magistrate acquitted accused Gordhan Ram but convicted the present petitioner for the offence under Sec.379, IPC on the basis of recovery alleged to have been made at his pointing out.

(6). A perusal of the judgment of the learned Sessions Judge, who affirmed the judgment passed by the learned Chief Judl. Magistrate raised a presumption against the present accused-petitioner to the effect that if the accused was not connected with the said offence, how can recovery be effected from a place, which is pointed out by him. It is pertinent to mention here that two witnesses of the alleged recovery namely PW 7 Jodharam and PW 8 Gangaram had not supported the prosecution story, and both of them have been declared hostile by the prosecution. A perusal of the statement given by the aforesaid two motbir-witnesses, it is apparent on the face of record that no such recovery was made at pointing out by the accused as alleged by the prosecution. Both the motbir-witnesses stated before the court that they

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