Hon’ble Naheed Ara Moonis, J.—The instant criminal appeal has been preferred against the judgment and order dated 26.2.1982 passed by the First Additional Sessions Judge, Bijnor in S.T. No. 467 of 1980 (State v. Abdul Aziz) whereby convicting the appellant under Section 459 I.P.C. with sentence of seven years rigorous imprisonment.

2. Heard Sri Vishal Mohan Gupta, learned Advocate as Amicus Curiae on behalf of the appellant and the learned A.G.A. Sri R.D. Yadav on behalf of the State and perused the record.

3. The prosecution case in short conspectus is that the First Information Report was lodged by Chhatra Pal Singh (P.W. 1) on 16.1.1980 at 11 a.m. in respect of the incident occurred at about 3/4 a.m. in the night that one person scaled in his house from the side of the lane after climbing upon his roof. He heard the cracking sound of opening the door, he woke up and had seen in the light of oil lamp (dibiya) that Abuld Aziz the appellant was there he at once caught him and started shouting. At his shouting Ram Pal Singh (P.W.2) Ishwari Singh (P.W.3) soon thereafter came at the spot. Ram Pal Singh was having torch in his hand. The appellant was assaulting with knife on his left hand on account of which he lost his grip and the appellant escaped after climbing over the roof. The complainant as well as the witnesses tried to nab him but he could not be apprehended. Both the witnesses have identified clearly and when they returned back and went inside the Kothari found that gold ornaments weighing three tolas worth Rs. 3000 were found missing, which had been stolen by the appellant Abdul Aziz. The stolen articles can be identified by the complainant and his wife Vinod Kumari on production. The complainant had sustained knife injury over his left hand. The report was scribed by Nanhey Singh on the basis of which the First Information Report was registered as case Crime No. 2 under Sections 459 and 380 I.P.C. at police station Afzalgarh, district Bijnor. The criminal law was set in motion on the registration of the First Information Report. The chick report was prepared by Head constable Kallu Singh (P.W. 4) on 16.1.1980 at 11 a.m. Exhibited as Exhibit Ka. 5, which was entered into G.D. Exhibited as Exhibit Ka. 6. The blood stained shirt of the complainant was taken into custody, which was kept under sealed cover of which a recovery memo was prepared exhibited as Exhibit Ka. 2. The injured complainant was sent to Afzalgarh for medical examination. There he was medically examined at about 11.45 a.m. on the same day by Dr. Mohan Lal Sharma. The following injuries were found on the person of the complainant Chhatra Pal Singh, P.W. 1;

I. Incised wound 5 xm x 1 cm. X muscle deep on the medial surface of left fore arm 22.5 cm. Above to the left wrist joint.

II. Incised wound 2 cm x .3 cm. x skin deep on the left palm 18 cm. below to the tip of the middle finger.

III. Incised wound 3 cm x .7 cm x skin deep on the medial surface of left fore arm 7 cm. above to the left wrist joint.

IV. Incised wound 3 cm x .5 cm x muscle deep on the medial surface of left fore arm 10 cm. Above to the left wrist joint.

V. Incised wound 3 cm x .3 cm x skin deep on the medial surface of left fore arm 12 cm. above to the left wrist joint.

VI. Incised wound 4 cm x 1 cm x muscle deep on the medial surface of left fore arm 15 cm above to the left wrist joint.

VII. Incised wound 3.5 cm x 1 cm. X muscle deep on the medial surface of left fore arm 16 cm. above to the left wrist joint.

4. The injures were found simple in nature caused by some sharp object and duration about six hours before.

5. The investigation was handed over to Lalman Singh, S.I. P.W.5 who recorded the statement of Head Constable Kallu Singh (P.W. 4), Constable Chakradhar Prasad, Chhatrpal, Safique Ahmad. He recorded the statement of injured Chhatrpal (P.W.1) in the hospital and received the injury report. The Investigating Officer went at the place of occurrence at 3.30 p.m. where he re