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Criminal Revision Application No. 112 of 1967, decided on 8th July 1969.

‑Non‑examination of some of witnesses dealt with by trial Court and good reasons given for not raising adverse in terfered against prosecution‑Finding not interfered with.

S. 379‑Theft‑Sentence-- Complainant party giving injuries to accused after apprehending and tying him down‑‑Accused although armed with hatchet, refrain ing from giving any injury to complainant party‑Accused also facing trial in various Courts for over three years‑Sentence of one year's R. I. reduced to 6 months' R. I., in circumstances of case.

Mohammad Ibrahim for Petitioner.

H. A. Mohammadally for the State.

Date of hearing : 8th July 1969.

The petitioner Mohammad son of Dodo aged 35 years was convicted by the learned Civil Judge and F. C. M., Math under section 379, P. P. C., for committing theft of a pair of bullocks valued at Rs. 1,800.00 belonging to complainant Dullu. The petitioner preferred an appeal which was dismissed by the learned Second Additional Sessions Judge, Hyderabad, who by his judg ment dated 6‑5‑1969, maintained the said conviction and sentence. He has now come in revision against the said conviction and sentence.

2. The prosecution case in brief was that on 11th Febru ary 1966 at about mid‑night one Khairo, who has not been examined in this case went to P. Ws. Dullo, Maula Bux and Bachayo and informed them that a pair of bullocks belonging to Dullo was being taken away by some thieves. On getting this information the said P. Ws. chased the thief and caught him at a distance of four acres from the house of the complainant. In the process the thief was given some lathi blows and he was disarmed of his hatchet and was brought to the house of the complainant where he was tied and produced before the police on their arrival at the scene of offence the next morning. In the meantime P. W. Dullo had gone to the police station Tando Ghulam Ali situated at a distance of 3 miles and lodged his First Information Report in the course of the same night at 1 a.m. S. H. O. Abdullah after recording the First Information Report went to the scene of occurrence and found the petitioner sitting tied down there. P. Ws. Moula Bux and others were standing over him. P. W. Abdullah interrogated the accused and arrested him. Thereafter, he recorded the statement of the witnesses and prepared a mashirnama of the vardat. Two stolen bullocks which were recovered by the complainant party were also produced before the S. H. O. under mashirnama Exh. 5/B. The petitioner was thereafter challaned on the 16th of February 1966.

3. Dr. Mohammad Azeem, A. M. O. Tando Mohammad Khan examined the petitioner on 12‑2‑1966 and found the follow ing injuries on his person :‑

(1) Contusion 4" x 2" on the left side back of chest, oblique.

(2) Contusion 7' x 4' oblique 1" below injury No. 1.

(3) Contusion 4" x 1" oblique on the mid back of chest.

According to the doctor the injuries were about two days old and were caused by a blunt weapon like a lathi. The medical evidence is to that extent consistent with the ocular evidence that the appellant was chased during the night between 10th and 11th of February 1966 and given injuries in the process.

4. The version of the petitioner was that P. W. Dullo's niece Mst. Banko was in toe with him and on account of that enmity he was given blows by Dullo and others while he was passing by the village of the complainant. The petitioner in his statement under section 342, Cr. P. C. further stated that he was senseless and was falsely involved in this case.

5. The petitioner also examined D. W. Siddiq in his defence. He stated that about 10 months back at about sun‑set time he heard cries on which he went to the scene of occurrence and found Dullo and Moula Bux giving a beating to the petitioner ; after which the petitioner was tied down. The case of the defence as it was put in the cross‑examination of P. W. Bachayo was that due to the affair of Mst. Banko the accused‑petitioner was caught in the broad day light while he was passing by the village of the complainant party. It would thus be seen that the defence version was inconsistent. Even otherwise it hardly appeals to reason that the prosecution witnesses would catch hold of the appellant and tie him down after giving him injuries during broad day light. If they had done so, the petitioner could have raised cries, attracted the villagers to the scene of offence and informed them that he was being beaten and taken into custody unnecessarily. The defence of the petitioner does not appear to be reasonable or probable, and the Courts below have rightly discarded the same.

6. The evidence against the petitioner rests mainly on the testimony of P. W. Dullo, P. W. 2 Bachayo, grandson of com plainant Dullo, P. W. 3 Moula Bux son of complainant Dulla and P. W. 4 Jurio, who is also related to the complainant. Their evidence is consistent and leaves no room for doubt that the petitioner was caught in hot chase and was brought to the scene of offence where he was subsequently handed over to the police.

7. The only point on which Mr. Mohammad Ibrahim Memon, the learned counsel for the petitioner has pressed this revision is that P. W. Khairo who was the most important witness in the case and several others who are alleged to have come subsequently on cries have not been examined. This point has been dealt with by the learned Additional Sessions Judge in paragraph 9 of his judgment and I consider that he has given good reasons for not raising an adverse inference against the pro secution on account of their non‑examination. I consider that both the Courts below have dealt with the case of the petitioner in a very satisfactory manner and I find no reasons for interfer ing with their concurrent findings of facts.

8. The question of sentence, however, requires consideration. It is said in evidence that the petitioner was armed with a hatchet, yet he refrained from causing any injury to any of the prosecution witnesses. This circumstance has not received due consideration in either of the two Courts below. Both the bullocks have been recovered immediately after the incident in which it was the petitioner who suffered most as he was given three injuries by the complainant party. The petitioner has also been facing proceedings in various Courts from 11th February 1966. Taking all these circumstances into consideration I feel that a sentence of six months' R. I. would meet the ends of justice in this case. I accordingly reduce the sentence from R. I. for one year to R. I. for six months. With this modification in the sentence the revision application stands dismissed. The petitioner is on bail and must surrender to serve out the un-expired portion of his sentence.

Sentence reduced.

Petition dismissed.

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