Rajasthan High Court - Jodhpur
Paresh Bhai vs State & Ors on 30 January, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
..
S.B. Criminal Revision Petition No. 414 / 2009.
Paresh Bhai S/o Lallu Bhai, B/c Choksi, R/o 378, in side Delhi
Gate, Ahmadabad (Gujrat).
----Petitioner
Versus
1- State of Rajasthan
2- Smt. Pani devi W/o Shri Premchand Jain, R/o Alana, P.S.
Jalore, L/Rs of deceased:-
2/1- Babu Lal S/o Premchand Jain, R/o Alana, At present 131,
Pramanandwadi, Takurdawara Road, Mumbai 2.
2/2- Santosh S/o Premchand Jain, R/o Alana, At present 131,
Pramanandwadi, Takurdawara Road, Mumbai-2.
2/3- Mahaveer S/o Premchand Jain, R/o Alana, At present 131,
Pramanandwadi, Takurdawara Road, Mumbai-2.
2/4- Parashmal S/o Premchand Jain, R/o Alana, At present 131,
Pramanandwadi, Takurdawara Road, Mumbai-2.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Vijay Purohit.
For Respondent(s) : Mr. R.K. Bohra, Public Prosecutor.
Mr. Rajesh Shah.
_____________________________________________________
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Order
30/01/2017
(2 of 9)
[CRLR-414/2009]
BY THE COURT:
1. FIR No. 194/1994 was lodged on 9 th August, 1994 by Ram Chandra regarding theft committed in the house of his brother - Shanti Lal by breaking open the locks and doors of the house. It was also stated that nobody was at home at that time. After due investigation, charge-sheet came to be filed against three accused persons namely, Shambhoo Singh, Babu Singh @ Gopal Singh and Chail Singh for the offences punishable under Sections 457 and 380 of the Indian Penal Code (for short 'IPC').
2. On conclusion of the trial, learned Chief Judicial Magistrate, Jalore vide judgment dated 29th October, 1999, while acquitting all the three accused of the charges under Sections 457 and 380 IPC, convicted them for the offence punishable under Section 411 IPC. In the judgment, it was also ordered that the silver and gold ingots be handed over to Smt. Pani Devi, sister of the FIR lodger - Ram Chandra and Shanti Lal.
3. During trial, the claim over the said gold ingots only was also laid by the present petitioner - Paresh Bhai, from whose possession, these ingots were recovered by the police on the basis of the information given by the accused Shambhoo Singh under Section 27 of the Indian Evidence Act, but his application was rejected by the learned trial Court.
4. Aggrieved by the order passed, the present petitioner Paresh Bhai preferred a Criminal Appeal No. 173/2002 before the learned Sessions Judge, Jalore. While allowing the appeal, it was ordered by the learned Sessions Judge, Jalore to afford adequate opportunity of hearing to both the claimants and to decide the (3 of 9) [CRLR-414/2009] claim after recording evidence of both sides. Pursuant thereto, evidence was recorded and after hearing both the sides, learned Chief Judicial Magistrate, Jalore decided the application under Section 452 Cr.P.C. vide judgment dated 27 th October, 2007; and again, the claim of the present petitioner Paresh Bhai was rejected and Smt. Pani Devi was found entitled to be given possession of the gold ingots.
5. Aggrieved by the order dated 27 th October, 2007, the present petitioner Paresh Bhai again preferred a criminal appeal (No. 6/2008) before the learned Sessions Judge, Jalore which was also rejected by him vide judgment dated 9 th February, 2009. Now the present petitioner Paresh Bhai has challenged the aforesaid orders by way of this criminal revision.
6. Heard learned counsel for the petitioner as also learned counsel for the respondents and the learned Public Prosecutor. Perused the relevant record and documents and judgments/orders impugned dated 27th October, 2007 as well as 9th February, 2009.
7. Main grievance of the learned counsel for the petitioner is that the learned Courts below have not appreciated the evidence adduced by the petitioner while deciding the application under Section 452 Cr.P.C. His contention is that the Police effected recovery of 2 gold ingots from the petitioner by threatening him to implicate in criminal matters and thus, his family members had to effect recovery by purchasing some gold from the market and also by delivering the gold of his wife obtained by her from his ancestors. It has also been argued that the petitioner made a complainant in this regard against the concerned Police Officer to (4 of 9) [CRLR-414/2009] the higher authorities but the learned Courts below have over- looked this aspect and simply relying upon the statements of NAW-1 - Bhanwar Lal Devasi, Investigating Officer of this case, have ordered to deliver the gold ingot to Smt. Pani Devi. Learned counsel for the petitioner has relied upon the judgment dated 14th May, 2014 passed by the High Court of Chhattisgarh at Bilaspur in the case of Manharan Vs. State of Chhattisgarh (Criminal Appeal No. 1181/2003).
8. Learned counsel for the respondents has argued that the whole evidence recorded during the trial of the case was properly considered and appreciated by the learned trial Court, while deciding the matter vide judgment dated 29 th October, 1999 and thereupon, it was ordered to deliver the gold ingots along with silver ingots recovered at the instance of the accused persons to the owner of the ornaments which were stolen away. Besides this, after recording evidence and giving opportunity of hearing, it was again decided by the learned Chief Judicial Magistrate, Jalore vide its order dated 29th October, 2007 that Smt. Pani Devi is entitled to have possession of the gold ingots and not the petitioner Paresh Bhai. Learned Appellate Court also came to the same conclusion vide judgment dated 9th February, 2009. Learned counsel for the respondents thus submits that successively on three occasions, Smt. Pani Devi has been found entitled for possession of gold ingots, while refusing the claim laid by the present petitioner Paresh Bhai. He has submitted that the silver and gold ornaments which were stolen, belonged to Smt. Pani Devi. Theft was committed on 9th August, 1994 and the recovery of the ingots was (5 of 9) [CRLR-414/2009] effected on 11th August, 1997. During this long gap of three years, the ornaments were converted into silver and gold ingots but the same were recovered on the basis of the information given by the accused persons under Section 27 of the Indian Evidence Act, therefore, the petitioner cannot be permitted to take advantage of this situation. Learned Courts below have thoroughly examined the evidence and arrived at the correct conclusion; hence, the present revision petition filed on behalf of the petitioner Paresh Bhai is liable to be dismissed. Learned counsel for the respondents has placed reliance on the judgment in the case of Mst. Bhuti Vs. Bhanwarlal reported in 1965 RLW P.291.
9. In light of the arguments advanced by the rival sides, I have critically gone through the orders passed by the Courts below. As per the FIR lodged on 9th August, 1994, nobody was present in the house when theft was committed and all the family members had gone to Andhra Pradesh for their business/livelihood. On receiving the information about the theft, while coming back to the place of occurrence, detailed lists of the gold and silver ornaments were produced by the complainant - Shanti Lal which were placed on record as Ex. P/14 to Ex. P/19. In support of these lists, PW-7 Smt. Pani Devi and PW-8 Manju have been examined, who have narrated the details of the stolen ornaments. Two 'Karlas' and two silver 'Todiyas' were identified during identification parade by PW- 10 Babu Lal. The Identification Parade Memo Ex. P/8 was also prepared. In light of this evidence, there cannot be two opinions that the ornaments stolen which were belonging to Smt. Pani Devi (6 of 9) [CRLR-414/2009] and her family members. It is also worth noting that the present petitioner Paresh Bhai was also examined during trial as a prosecution witness (PW-11). Though he has refused to have received any stolen article and has deposed that under threat, Police Personnel got the recovery of 2 gold ingots effected from him which had to be purchased by his family members from the market and a part of it was the property of his wife. But one of the Motbirs of recovery memo (Ex. P/9) i.e., PW-12 Tara Chand has supported the prosecution story saying that he was taken by the Police to Manak Chowk and Dehli Gate at Ahmadabad along with accused Shambhoo Singh and he got the recovery effected from the shop owner (who had been identified as Paresh Bhai) of the gold and silver articles which were given to him by Shambhoo Singh. These facts have also been fortified by the Investigating Officer PW-17 Bhanwarlal Devasi in his evidence.
10. In light of this evidence which is already on record, I do not feel satisfied with the arguments raised by the learned counsel for the petitioner that the learned Courts below have passed the impugned orders without there being any evidence led by the respondents. In my view, the evidence adduced during trial of the case is also an important piece of evidence to decide the claim over the stolen articles which were got converted into gold ingots. The conclusion arrived at by the learned Courts below on the basis of this evidence cannot be held to be baseless, even if no evidence is produced by the respondents during the inquiry conducted for disposal of the application filed under Section 452 Cr.P.C.
(7 of 9) [CRLR-414/2009]
11. In this regard, the judgment of Mst. Bhuti (supra) referred by the learned counsel for the respondents is also relevant wherein, it has been held that the statements of a witness though inadmissible against the accused during the trial of the case but the same is admissible for the purpose of disposal of the stolen property under Section 517 (old Code of Criminal Procedure) as the order for disposal of the stolen property was passed by the learned trial Court after conclusion of the trial.
12. The judgment rendered by the High Court of Chhattisgarh in the case of Manharan (supra) and relied upon by the learned counsel for the petitioner is distinguishable from the facts of the present case. In the referred case, it was held that the property seized should normally be handed over to the person from whom it was seized, unless it is otherwise proved to be belonging to a third person. Here in this case, sufficient evidence has been adduced that the stolen articles which were later on recovered in the form of gold ingots were belonging to the complainant side. So there was no occasion to hand over the gold ingots to Paresh Bhai from whom recovery was made. Secondly, as laid down in the referred judgment, following the Hon'ble Supreme Court's judgment in Pushkar Singh Vs. State of Madhya Pradesh (AIR 1953 SC 508), sufficient opportunity had been provided to the present petitioner - Paresh Bhai to explain his claim and to adduce evidence regarding the articles recovered from him. In light of this aspect, this judgment does not extent any help to the petitioner.
(8 of 9) [CRLR-414/2009]
13. On perusal of the judgment impugned dated 27 th October, 2007 as also dated 9 th February, 2009, it is evident that all the arguments advanced on behalf of the present petitioner Paresh Bhai have been elaborately discussed in the light of the evidence available on record and thereupon, learned Courts below have repeatedly come to the same conclusion that the claim laid by the petitioner Paresh Bhai over the golden ingots is not substantiated by his evidence.
14. The present petitioner Paresh Bhai has examined himself and his nephew AW-2 Govind Bhai in support of his claim but no witness has been examined from whom the gold was allegedly purchased by him to effect the recovery under the threat of Police. He has not been able to submit his account books also as regards the payment made by him for purchase of the gold from open market. The petitioner Paresh Bhai has admitted during his cross- examination that there was no enmity of the Investigating Officer with him; then, no reason appears for threatening him and unnecessarily involving him in this case by Investigating Officer. Had this been the case, it was inevitable that he could have complained against the concerned Investigating Officer. But he has admitted that he has not furnished the receipts in the Court through which the complaint was sent by him though the same are available with him. It does not inspire confidence about his statement.
15. Further, it is also a point to be noted that the claim over the gold ingots has been raised by him on 31 st July, 1998 i.e., almost after a year from the date of recovery. If the recovery was not (9 of 9) [CRLR-414/2009] genuinely made from him, there was every possibility for the petitioner to have raised the claim soon after recovery and not after a long gap of one year. Statements of the PW-12, who is Motbir of Recovery Memo (Ex. P/9) also negates the plea raised by the petitioner. All these aspects have been elaborately dealt with by the learned Chief Judicial Magistrate, Jalore as also by the learned Sessions Judge, Jalore in the impugned judgments.
16. After going through both the impugned judgments and taking note of the concurrent findings given by the Courts below, I do not find any legal infirmity in the orders for which any interference is warranted at this stage. Hence, the revision petition is found bereft of any merit and is accordingly dismissed.
(DEEPAK MAHESHWARI), J.
/Mohan/S-89