C. Honniah, C.J.
1. The accused was charged with having committed offences punishable under Sections 380 and 454, Indian Penal Cede, on the allegation that he committed house trespass by breaking the lock of house of Girraj (P.W 2) and committed theft of a 'Borla' and some articles worth about Rs. 250/- on December 7, 1970.
2. The prosecution, in support of its case, relied on circumstantial evidence. The courts below accepted the recovery evidence and on that basis convicted the accused under Section 380, Indian Penal Code and sentenced him to rigorous imprisonment for six months and to pay a fine of Rs. 100/-.
3. In this revision petition, it is contended that there was enmity between the accused and the prosecution witness Girraj (P.W. 2) and that is why a false case was foisted against him. It is admitted on behalf on the prosecution that there was enmity between Girraj (P.W 2) and the accused. The 'Borla' concerned in the case was got recovered at the instance of the accused on December 18, 1970 from a place near the place where the earlier recoveries were made. Relying upon this circumstance, it is contended by the learned Counsel for the accused, that the recovery of 'Borla' at the instance of the accused, cannot be relied upon. There is a good deal of force in this contention. If the accused had hidden the 'Borla' in question, which was the subject matter of theft about which a complaint had been lodged, the same would have been recovered on December 15, 1970. But from the fact that it was recovered on December 18, 1970 very near the place where some articles were recovered earlier, itself, creates good deal of suspicion whether at all this 'Boila' was recovered at the instance of the accused.
4. Apart from this, the theft, according to the prosecution, was committed on December 7, 1970 and the complaint was lodged on December 14, 1970. Some explanation has been given by Smt. Anguri, wife of P.W.2 Girraj stating that her husband had gone to attend some marriage, and therefore, after the return of her husband a complaint was lodged. The evidence in this case is that Girraj (P.W. 2) returned to the village on December 11, 1970, but even then the complaint was lodged on December 14, 1970 This also cannot be true because the first information report reached the court on December 23, 1970. There is no satisfactory explanation why the first information report reached the court so late, It appears to me that the comlpaint in this case must have been lodged long after the alleged recovery, obviously, to implicate the accused in a false case as there was enmity between the accused and Girraj (P.W. 2). The courts below totally misread the evidence, with the result that they have reached a wrong conclusion.
5. I, therefore, allow this revision petition, set aside the order of conviction and sentence passed against him and acquit aim. He is on bail and need not surrender to the bail bonds.
6. The articles recovered shall be returned to P.W. 2 Gir Raj.