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1994 DIGILAW 757 (RAJ)

Surati v. Deda

1994-09-19

R.R.YADAV

body1994
Honble YADAV, J. — The instant revision is directed against the order dated 4.8.84 passed by learned Sessions Judge , Balotra camp at Barmer in Cr. Appeal Nos. 22 and 23 of 1983 preferred by the petitioner as well as non petitioner Deda against the judgment of learned Additional Munsif and Judicial Magistrate, Barmer dated 17.1.83 in Cr. Case No. 10/79. (2). It is borne out from the record that a criminal case against non-petitioner Deda and his wife Jheema was initiated u/s. 447 and 352 IPC. After analytical discussion of oral and documentary evidence on record the learned Additional Munsif and Judicial Magistrate, Barmer vide his judgment dated 17.1.83 had extended the benefit of doubt to both the accused persons named above. While delivering the aforesaid judgment extending the benefit of doubt to non-petitioner Deda and his wife Jheema the learned Additional Munsif and Judicial Magistrate had ordered to confiscate a Tegar article 2 as according to him neither the complainant nor the accused could able to prove the title of aforesaid Tegar beyond all pale of doubt. It is true that while passing the aforesaid order for confiscation of Tegar article 2 the learned Additional Munsif and Judicial Magistrate, Barmer had ordered return of article 1 Lehar and broken pieces of Churi to Surati. (3). Against the aforesaid order and judgment dated 17.1.83 passed by the learned Additional Munsif and Judicial Magistrate, Barmer, two appeals i.e. appeal Nos. 22 and 23/ 1983 were filed before the learned District and Sessions Judge, Balotra camp at Barmer who vide his impugned judgment dated 4.8.84 in exercise of his power u/s. 454 Cr.P.C. ordered the return of Tegar article 2 to non-petitioner Deda. (4). Aggrieved against the aforesaid order dated 4.8.84 passed by the learned Sessions Judge, Balotra camp at Barmer directing to return of Tegar article 2 to non-petitioner Deda, the instant revision is filed before me. (5). Before entering into the merit of the present revision I would like to give the brief facts of the case which would be necessary for just and fair decision of the present revision. (6). (5). Before entering into the merit of the present revision I would like to give the brief facts of the case which would be necessary for just and fair decision of the present revision. (6). It was alleged by the prosecution that on 10.11.78 at about 3.30 p.m. Kana Ram PW-1 lodged a FIR at Police Station Sedwa stating therein that on 9.11.78 at about noon when his daughter Smt. Surati aged about 20 years was working in his filed then the Goats and Cows of Deda (non-petitioner) started damaging the crops standing in his filed. Mst. Surati tried to drive out the cattle of non-petitioner Deda out of the field. At that stage Deda and his wife Mst. Jhima came there and started beating Mst. Surati and they snatched away her ornaments i.e. one Tegar of gold weighing about 4 tolas article 2, one pair of Kanon Ki Toti of Silver, one Bedla of silver and one. silver Dibia. (7). On the basis of aforesaid FIR the case No. 31 for the offence u/s. 352 and 447 IPC was registered and investigation commenced. (8). Shri Kachhab Singh, Head Constable incharge Police Station Sedwa inspected the site where he found one silver Lehar (Bedla) and one piece of plastic Bangle lying in the sand and took them into his custody. The investigating officer arrested non-petitioner Deda on 14.11.78 vide arrest memo Ex.P/7 at about 3.30 p.m. He recorded the information given by accused Deda u/s. 27 of the Evidence Act at about 5.15 p.m. and prepared information memo Ex.P/8 wherein the non-petitioner Deda stated that Tegar article 2 which he snatched from the neck of Smt. Surati and had concealed in his own field, he wanted to get the aforesaid article 2 recovered. (9). In pursuance of the aforesaid information Ex.P/8 the investigating officer Kachhab Singh PW-7 recovered the Tegar at the instance of non-petitioner Deda who produced the same by digging the sand from the southern boundary of his field in the presence of motbir witnesses PW-6 Uka and PW-8 Heera Ram on the same day i.e. on 14.11.78 at about 5.30 p.m. vide recovery memo Ex.P/4. (10). After completion of investigation the investigating officer submitted challan against the non-petitioner Deda and his wife Mst. (10). After completion of investigation the investigating officer submitted challan against the non-petitioner Deda and his wife Mst. Jhima in the court of Additional Munsif and Judicial Magistrate, Banner who after trial of the case extending the benefit of doubt acquitted non-petitioner and his wife vide his judgment dated 17.1.83 and ordered for confiscation of Tegar article 2 treating it the subject matter of theft in the case. (11). Against the aforesaid order dated 17.1.1983 passed by the learned Additional Munsif and Judicial Magistrate two appeals were filed as stated above and the learned Sessions Judge, Balotra camp at Barmer dismissed the appeal filed by the petitioner and allowed the appeal filed by non-petitioner Deda whereby he ordered that Tegar article 2 may be handed over to non- petitioner Deda, against which the present revision is before me. (12). I have heard learned counsel for the parties at length and have carefully gone through the record. (13). Learned counsel for the petitioner Shri Vijay Bishnoi submitted before me that the impugned order passed by the learned Sessions Judge is perse illegal and based on conjectures and surmises which is not sustainable in the eye of law. The learned counsel for the petitioner further submitted before me that the learned Sessions Judge has misdirected himself in passing the impugned order treating that the prosecution was required to prove the information memo Ex.P/8 in the same language as given by the non-petitioner Deda. (14). The learned counsel for non-petitioner Deda Shri S.R. Singhi as well as learned Public Prosecutor Shri H.R. Panwar supported the impugned judgment given by the learned District and Sessions Judge, Balotra camp at Barmer. (15). I have given my thoughtful consideration to the rival contentions raised in the present revision at the Bar. In my humble opinion the impugned order passed by the learned Sessions Judge is not sustainable in the eye of law and is liable to be set aside. (16). A close scrutiny of the impugned judgment rendered by the learned Sessions Judge reveals that he mainly decided the controversies between the parties on the, basis of information memo Ex.P/8 and it appears to me that he was influenced with the fact that since the accused-non-petitioner Deda and his wife Jhima have been acquitted by the learned Additional Munsif and Judicial Magistrate, therefore, the non-petitioner Deda is entitled to the return of Tegar article 2. He also placed reliance on the statement of PW-4 Thakra, Surpanch, who had stated that Tegar article 2 was taken by the Investigating Officer from the neck of wife of non-petitioner Deda. At this stage it would be pertinent to mention that there are two moitbir witnesses of recovery memo Ex.P/4 i.e. PW-6 Uka and PW-8 Heera Ram and both these moitbir witnesses of the recovery memo of Ex.P/4 had supported the recovery from the field of accused non-petitioner Deda. It has been brought to my notice that the aforesaid two moitbir witnesses had supported the recovery of Tegar article 2 from the field of Deda which has not been properly discussed by the learned Sessions Judge. The learned Sessions Judge had not made any reference about the statement of witnesses recorded by the Investigating Officer u/s. 161 Cr.P.C. which are also to be taken into account while passing an order about the return of Tegar article 2. It is held that the Section 162 Cr.P.C. creates no bar against the reception of the statement recorded u/s. 161 Cr.P.C. A statement recorded u/S. 161 Cr.P.C. could be looked into for the purpose of delivery, of the properties. But in the present case the learned Sessions Judge had not made any attempt to look into the statement recorded u/s. 161 Cr.P.C. which has occasioned a mis-carriage of justice between the parties. Although the learned Sessions Judge has referred a judgment of this Court rendered in Bal Kishan & Ors. vs. State & Ors. (1), and had also made a reference about the another decision of this Court given in the case of Mst. Dhuti vs. Bhanwarlal (2), but he has not applied his judicial mind to the ratio of the aforesaid two decisions which has further resulted into miscarriage of justice and fair play. (17). Since I propose to remand the case, therefore, it would not be proper to discuss the other material brought to my notice during the course of argument lest it may cause prejudice to the parties. In the present set of circumstances I think it proper to set aside the impugned order passed by the learned Sessions Judge and remand the case back to the learned Sessions Judge for deciding it afresh on merit taking into account the ratio of two decisions of this Court i.e. Balkishan & Ors. (supra) and Mst. Dhuti (supra). (18). In the present set of circumstances I think it proper to set aside the impugned order passed by the learned Sessions Judge and remand the case back to the learned Sessions Judge for deciding it afresh on merit taking into account the ratio of two decisions of this Court i.e. Balkishan & Ors. (supra) and Mst. Dhuti (supra). (18). In the result, the instant revision is allowed and the impugned judgment rendered by the learned Sessions Judge, Balotra Camp at Barmer dated 4.8.84 is hereby set aside and the case is remanded back to the learned Sessions Judge for deciding it afresh on merit taking into account the ratio of the aforesaid two decisions rendered by this Court expeditiously preferably within a period of three months from the date of receipt of this judgment.