Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 489 (RAJ)

Kalu Khan v. State of Rajasthan

1997-04-09

P.C.JAIN

body1997
Honble JAIN, J.–The revision petition is directed against the Judgment dated 19.2.1997 passed by the learned Special Judge, SC/ST Cases, Merta where by the learned Special Judge while maintaining the conviction of the accused-petitioners for the offences under Ss. 457 and 380 IPC reduced sentence to three months rigorous imprisonment for the offence under Sec. 457 IPC together with a fine of Rs. 100/- and in default of payment of fine to further undergo simple imprisonment for 7 days; and to three months rigorous imprisonment for the offence under Sec. 380 IPC and a fine of Rs. 100/- and in default of payment of fine to further undergo 7 days simple imprisonment. Both the substantive sentences were ordered to run concurrently. (2) The accused-petitioners were tried for the offences under Secs. 457 and 380 IPC by the learned Addl. Chief Judicial Magistrate, Parbatsar for committing theft by house-breaking into the house of one Om Prakash during the night intervening 23rd and 24th July, 1989. The FIR of this incident was lodged by Shri Surendra Singh, the brother of house-owner Om Prakash at Police Station, Parbatsar on 24.7.1989. However, since Om Prakash and his wife had gone to pilgrimage, Surendra Singh could not submit the list of stolen articles and the same was submitted by Om Prakash when he returned from pilgrimage on 26.8.1989, which is Ex.P.3 on the record. (3) During investigation, both the accused were apprehended and in pursuance of the informations furnished by them, clothes, silver glasses, silver ornaments, Sarees and Old silver coins were recovered at their instance and from their possession. (4) After usual investigation, the police filed a challan against the accused-petitioners for the offences under Secs. 457 and 380 IPC. Thereafter charges were framed against the accused- petitioners and they pleaded not guilty to the charges. Thereupon, the prosecution examined as many as 14 witnesses in support of its case. The statements of the accused-persons were recorded under Sec. 313 Cr.P.C. In their defence, the accused-petitioners examined D.W. 1 Nasrudeen and D.W. 2 Haneef. (5) After trial, the learned Additional Chief Judicial Magistrate heard the arguments on behalf of both the sides and ultimately, vide his Judgment dated 29.6.1993, he held the accused petitioners guilty of the offences under Secs. The statements of the accused-persons were recorded under Sec. 313 Cr.P.C. In their defence, the accused-petitioners examined D.W. 1 Nasrudeen and D.W. 2 Haneef. (5) After trial, the learned Additional Chief Judicial Magistrate heard the arguments on behalf of both the sides and ultimately, vide his Judgment dated 29.6.1993, he held the accused petitioners guilty of the offences under Secs. 380 and 457 IPC and sentenced them to six months rigorous imprisonment for the offence under Sec. 457 IPC together with a fine of Rs. 200/- and in default of payment of fine to further undergo one months simple imprisonment and to six months rigorous imprisonment together with a fine of Rs. 200/- and in default of payment of fine to further undergo one months simple imprisonment. (6) The learned Addl. Chief Judicial Magistrate held that the house was broken open and theft was committed. He also believed the prosecution version that the above articles were recovered from the possesson of the accused. Om Prakash and his wife identified the above articles in the court. The above identification was found to be satisfactory and reliable by the learned Magistrate. On the basis of the recent possession, the learned Magistrate drew presumption of house-breaking and theft also. (7) Being dissatisfied with the impugned judgment dated 29.6.1993 passed by the learned Addl. Chief Judicial Magistrate, Parbatsar, the accused-petitioners filed an appeal before the learned Sessions Judge, who transferred the same for disposal to the court of the learned Special Judge, SC/ST Cases, Merta. (8) The learned Special Judge, SC/ST Cases, Merta vide his judgment dated 19.2.1977 maintained the conviction of the accused-petitioners for the offences under Ss. 380 and 457 IPC but reduced sentence to three months rigorous imprisonment together with a fine of Rs. 100/- and in default of payment of fine to further undergo simple imprisonment for 7 days for the offence under Sec. 380 IPC and to three months rigorous imprisonment together with a fine of Rs. 100/- and in default of payment of fine to further undergo simple imprisonment for 7 days for the offence under Sec. 457 IPC. Both the substantive sentences were ordered to run concurrently. (9) I have heard M/s. Ranjeet Joshi and O.P. Joshi, the learned counsel appearing for the accused-petitioners and Mr. R.S. Rathore, the learned Public Prosecutor for the State and have very carefully gone through the record of the case. Both the substantive sentences were ordered to run concurrently. (9) I have heard M/s. Ranjeet Joshi and O.P. Joshi, the learned counsel appearing for the accused-petitioners and Mr. R.S. Rathore, the learned Public Prosecutor for the State and have very carefully gone through the record of the case. (10) The learned counsel for the petitioner has challenged the conviction and sentence recorded by the learned Special Judge, SC/ST Cases, Merta on the ground that the articles, alleged to have been recovered from the possession of the accused were not put up for identification before trial and the identification made in the Court is not relevant and reliable and thus, it can not confirm the basis for sustaining the conviction of the accused. He contended that there is not an iota of evidence regarding house-breaking or having found possession of the stolen property. He submitted that the alleged stolen articles were recovered after about two months and thus, the above recovery cannot be said to be a recent recovery warranting presumption under S. 114 of the Evidence Act. (11) In the alternative, it was contended that the occurrence took place some 8 years ago and the conduct of the accused during this period has been absolutely normal. Thus, no useful purpose would be served if the accused is retained in Jail. The accused- petitioners have already suffered to agony of protracted trial for more than 8 years. In support of his contention, the learned counsel has placed reliance on Dulesingh vs. State of Raj. (1) and Khairaj vs. The State of Raj. (2) and Saiyad Mohd. Saiyad Umar vs. State of Gujarat (3). (12) On the other hand the learned Public Prosecutor has supported the impugned judgments of conviction recorded by the courts below. (13) I have considered the rival contentions made at the bar. I have also peru- sed the evidence on record. (14) From the perusal of the evidence on record, it is clear that the prosecution has fully proved beyond reasonable doubt that a theft was committed in the residential house of Om Prakash during the night intervening 23rd and 24th July, 1989. It is also not in dispute that certain articles-ornaments, clothes etc. were sto- len from the house. (14) From the perusal of the evidence on record, it is clear that the prosecution has fully proved beyond reasonable doubt that a theft was committed in the residential house of Om Prakash during the night intervening 23rd and 24th July, 1989. It is also not in dispute that certain articles-ornaments, clothes etc. were sto- len from the house. Since Om Prakash and his wife and gone to pilgrimage, the exact list of the stolen articles could not be submitted by his brother Surendra Singh, who lodged the FIR with the Police. When Om Prakash returned from pilgrimage, the exact list of stolen articles was submitted to the Police on 26.8.1989. The alleged stolen articles were recovered from the possession of the accused-petitioners on 19.9.1989. The presumption purported to be drawn under illustration [a] of Sec. 114 of the Evidence Act has to be read alongwith important time factor and the circumstances of each case. In the instant case, the list of stolen articles was submitted by Om Prakash on 26.8.1989 and the recoveries were made on 19.9.1989. The presumption under Sec. 14 of the Act can only arise if the recovery of the stolen articles was made soon after the theft and the accused is unable to account for his possession. The interval between the theft and the accused being found in possession in the instant case is very short and in the facts and circumstances of the case, a presumption under Sec. 114 of the Evidence Act can be drawn. (15) When presumption under Sec. 114 of the Evidence Act is held against the accused-petitioners, the accused-petitioners shall be deemed to have committed the offence of house-breaking because articles were stolen by breaking open the house and it was in the process of entering into the house and committing the theft. Hence, the learned courts below have not committed any error in drawing inference under Sec. 114 of the Evidence Act. (16) Regarding identification, it may be stated that there is a concurrent finding of fact of both the courts below that the evidence of Om Prakash and his wife regarding identification of their stolen articles is trust worthy and reliable. Hence, the learned courts below have not committed any error in drawing inference under Sec. 114 of the Evidence Act. (16) Regarding identification, it may be stated that there is a concurrent finding of fact of both the courts below that the evidence of Om Prakash and his wife regarding identification of their stolen articles is trust worthy and reliable. It is true that before the identification was made in the court, no test identification was held but it is a settled law that even failure to hold the test identification procee- dings will not make inadmissible the evidence of identification in Court. (17) I am, therefore, not inclined to disturb the finding of fact recorded by both the courts below, which is in accordance with law. (18) For the above reasons, I hold that the courts below have not committed any error in convicting and sentencing the accused- petitioners for the offences un- der Secs. 380 and 457 IPC. (19) It was contended by the learned counsel for the petitioners that this incident relates to the year 1989, more than 8 years have elapsed and still the accused is facing agony of protracted trial at this stage the ends of justice would not serve if the accused is detained in Jail. He, therefore, submitted that a lenient view may be taken in the matter and the accused- petitioners may be sentenced to the period of sentence already undergone by them. (20) In the facts and circumstances of the case, I am not inclined to take a lenient view in the matter as regard the punishment. The offences committed by the accused-petitioners are very serious and the petitioners are also liable for dela- ying the trial. The learned appellate court, has already reduced the substantive sentences of the accused-petitioners. (21) For the above reasons, I find no force in this revision petition and it is hereby dismissed. Let the accused petitioners be informed about the result of this revision petition. (22) The record of this case be sent back to the learned trial court forthwith.