THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 200 of 2009 ORDER: The accused Nos.1 and 3 in C.C.No.771 of 2005, who were convicted for an offence under Section 379 of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo rigorous imprisonment for a period of six months, which has been confirmed in Criminal Appeal No.19 of 2006 on the file of the I Additional District and Sessions Judge, West Godavari District at Eluru, are the appellants herein. The case of the prosecution is that on 27.07.2005 at about 4.00 A.M. when P.W.1 was keeping his goats near the cattle shed, he noticed the accused having come on a motorcycle bearing No.AP.11- L-5779 and he woke up on hearing the cries of the goats and found that the accused are trying to take away two goats and as he woke up, the accused left the place and the motorcycle was also left at the scene of offence. Thereafter on a complaint given by P.W.1, a case was registered and investigated into. The police have seized two dead goats on the complaint of P.W.1 and the motorcycle belonging to A-1 was also seized and produced before the Court. Thereafter, the revision petitioners along with another (A-2) were tried for an offence under Section 379 of IPC. On behalf of the prosecution, P.Ws.1 to 3 were examined and marked Exs.P-1 to P-4 and M.O.1. After considering the evidence on record, the lower Court found the accused guilty for the offence under Section 379 of IPC and accordingly convicted and sentenced them. The contention of the learned counsel for the revision petitioners is that an offence under Section 379 of IPC is not made out since the accused have not taken the goats and even the motorcycle was also left at the scene of offence, as per the evidence of P.W.1 and also as per the evidence of the Investigating Officer and it is only an attempt of theft, which has been prevented due to cries of P.W.1 and consequently the offence under Section 379 cannot be said to have been established. As can be seen from the evidence of P.W.1, on hearing the cries of the goats, he woke up and found the accused and they tried to tie two goats to the motorcycle and as he woke up, they left the motorcycle and goats at the scene of offence. However, the goats were found dead by the Investigating Officer subsequently. Therefore, it is quite clear that when they were in the preparation of the commission of the offence, P.W.1 has woken up and consequently it was not a case where the property of P.W.1 was removed from his custody in order to attract the offence under Section 379 of IPC and it is only a case of an attempt and consequently in view of the evidence of P.Ws.1 and 3 and also the motorcycle of A-1 was found at the scene, the conviction of the appellants is converted to one under Section 379 read with Section 511 of IPC instead of Section 379 of IPC. The learned counsel for the revision petitioners represents that the accused have suffered imprisonment for nearly more than two weeks and there is no record of any previous conviction of the accused persons. Therefore, in view of the above circumstances, the period already undergone by the accused persons is treated as the period of sentence for the said offence. Accordingly, the Criminal Revision Case is disposed of. ________________________ N.R.L. NAGESWARA RAO, J Date: 08-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 200 of 2009 DATE: 08-11-2011 MR