JUDGMENT

Mohammad Hamid Hussain, J. - This is a revision by three applicants against their conviction under section 411 read with S. 34 I.P.C. and the sentence of one year awarded to each of the applicants.

2. The prosecution case in brief is that on 26th November, 1968 a bale of cloth was lifted from outside a godown in Lalta Building in Mohalla Sarai Rafi. A report of this theft was lodged with the police. On 28th November, 1968 the bale of cloth was recovered by the police from a rickshaw driven by the applicant Mohammad and on that rickshaw, at that time, applicants Sheoraj Itwari and Khem Singh were also sitting. The three applicants and Khem Singh were accordingly prosecuted and convicted by the Magistrate under section 411 /34 I.P.C. and each of them was sentenced to one year's R.I. On appeal the learned Sessions judge acquitted Khem Singh but upheld the conviction and sentence of the three applicants.

3. Sri P.C. Chaturvedi, learned counsel for the applicants, has contended that the conviction of the applicants under section 411 I.P.C. with the aid of S. 34 I.P.C. is wholly illegal and none of the three applicants can be said to be in possession of the bale of cloth. He has further con- tended that the lower appellate court has sought to hold the three applicants in possession of the bale of cloth on the basis of the testimony of on-Ganga Ram (P.W. 5) who stated that the three applicants had come to him in the night and had offered to sell a bale of cloth at cheap price but he refused to purchase the bale of cloth on the suspicion that it might be stolen property. The learned counsel has contended that the bale of cloth had not been seen by Ganga Ram and, therefore, it could not be said certainly that the applicants had gone to Ganga Ram to sell the particular baba of cloth which had been stolen and sub- sequently recovered.

4. Sri Gupta, learned counsel for the State has placed before me the statement of Ganga Ram (P.W. 5). Ganga Ram has stated that about a year before the alleged theft, at about 9 P. M. he was sitting in his shop, the doors of which were closed, that there was a knock at the door of his shop and he opened the door and then the three applicants came inside the shop and asked him to close the doors of the shop from inside and thereafter the three applicants offered to sell a bale of cloth to him at a cheap price, but he refused to purchase the bale of cloth thinking that it might be stolen property and thereafter the applicants went away. The statement of this witness read as a whole does not inspire confidence. This witness asserted that although his residential house was a couple of furlongs from his shop but in order to keep watch he used to sleep at his shop. If the applicants had come merely to talk and settle the sale of bale of cloth, then it was not necessary for them to ask Ganga Ram to close the doors of the shop from inside before they disclosed the mission on which they came, i. e. to offer for sale the bale of cloth at cheaper price. The witness asserts that he got suspicious that the bale of cloth offered for sale was probably the stolen property. Inspite of getting suspicious, he took no action to inform the police about the applicants having come and offered to sell a bale of cloth at cheaper price. Curiously enough, the Sub-Inspector on the very next day, came on his own to the shop of this witness and then Ganga Ram told the Sub-Inspector of the three applicants having come to him on the previous night and having offered to sell a bale of cloth at a cheaper price. The statement of this witness as stated above does not inspire confidence. The identity of the bale of cloth offered for sale by the applicants has not been established with the one recovered. Except for the statement of Ganga Ram (P.W. 5), there is nothing to show as to who out of the three applicants was in actual physical possession of the bale of cloth at the time of it recovery. The applicants could not be convicted unde