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2000 DIGILAW 414 (PNJ)

Ramesh v. State of Haryana

2000-04-18

V.S.AGGARWAL

body2000
JUDGMENT V.S. Aggarwal, J. - The present revision petition has been filed by Ramesh (hereinafter described as "the petitioner") directed against the judgment and order of sentence passed by the learned Sub Divisional Judicial Magistrate, Jhajjar, dated 2.5.1987 and the learned Sessions Judge, Rohtak, dated 11.5.88. The learned trial Court had held the petitioner guilty of the offence punishable under Section 411 of the Indian Penal Code. He was sentenced to undergo rigourous imprisonment for eighteen months and to pay a fine of Rs. 500/-. In default of payment of fine, he was to further undergo three months rigourous imprisonment. The appeal filed by the petitioner was dismissed by the Court of Sessions. 2. The relevant facts are that on 14.1.1984 there was a theft in the house of Amir Singh and his wife Smt. Bishamberi. The ornaments of the abovesaid couple were found to be missing in their absence. The matter was reported to the police on 19.1.1984. Amir Singh is a Patwari in the revenue department in the State of Haryana. He lives in village Subana. He left his village for the place of his posting. During his absence, his wife locked the house and went to the fields. When she returned at about 1.30 p.m., she found that the box was open and all the goods were lying scattered. Her 18 ornaments were found to be missing. The matter was reported to the police and on the basis of the said complaint a formal First Information Report was recorded. 3. It was being investigated by Sub Inspector Raj Kumar. On secret information, present petitioner was arrested. On 26.2.1984, Jag Ram, PW3, was present. The petitioner was interrogated and he disclosed that he could get recovered the ornaments concealed in his shop. The disclosure statement of the petitioner was recorded in writing, Exhibit PB. In pursuance of the said disclosure statement, he led the police party and got recovered the ornaments. The same were identified in presence of Sarpanch Balbir Singh by Amir Singh and his wife Smt. Bishamberi. The same had been made by Ram Kishan and Suraj Bhan, two goldsmiths. On these broad facts, report under Section 173 of the Code of Criminal Procedure was submitted against the petitioner. 4. The defence of the petitioner was that Amir Singh Patwari had contacts with the police. The same had been made by Ram Kishan and Suraj Bhan, two goldsmiths. On these broad facts, report under Section 173 of the Code of Criminal Procedure was submitted against the petitioner. 4. The defence of the petitioner was that Amir Singh Patwari had contacts with the police. The petitioner had dispute with Amir Singh and he has falsely implicated him. In defence, the petitioner had examined Chiranji Lal, a resident of same village Subana. He deposed that after the alleged theft the villagers were made to throw sand in front of the house of Ram Kishan. Some of the persons including the petitioner did not throw the sand. Some ornaments were recovered. 5. The learned trial Court on appraisal of the evidence of the prosecution, particularly of the two goldsmiths who had manufactured the ornaments which were identified by Smt. Bishamberi, PW2, and of the disclosure statement made by the petitioner leading to the recovery of the ornaments held that it has been proved that the petitioner is guilty of the offence punishable under Section 411 of the Indian Penal Code. He was held guilty and order of sentence referred to above was passed. 6. An appeal was preferred. The learned Sessions Judge rejected the plea of the petitioner that the ornaments could change hands and, thus, the presumption for the offence punishable under Section 411 of the Indian Penal Code could not be drawn. The learned Sessions Judge believed the prosecution version and the evidence that as a result of the disclosure statement (made by the) petitioner led to the recovery of the ornaments of Smt. Bishamberi. The appeal was dismissed. 7. Aggrieved by the said judgment and the order, present revision petition has been preferred. 8. So far as preparation of the ornaments were concerned, two witnesses were examined by the prosecution, namely, Ram Kishan and Suraj Bhan, PW5 and PW6 respectively. They identified that they had prepared the ornaments for Smt. Bishamberi. The same had been identified by Smt. Bishamberi, PW2, before Balbir Singh Sarpanch, PW4. 9. The main question that arises for determination is as to whether it can be held to have been proved that the ornaments were recovered from the possession of the petitioner or in other words the petitioner had made a disclosure statement leading to the recovery of the ornaments from his possession. 10. The prosecution had examined Jag Ram PW3. 9. The main question that arises for determination is as to whether it can be held to have been proved that the ornaments were recovered from the possession of the petitioner or in other words the petitioner had made a disclosure statement leading to the recovery of the ornaments from his possession. 10. The prosecution had examined Jag Ram PW3. He deposed that on 26.2.1984 he had gone to Kosli. He was accompanied by Diwan Singh. At about 12.30 p.m. he came to the bus stand Subana. He met the police party. They took him inside the bus stand. The petitioner had been arrested. The petitioner was interrogated. He got recorded the disclosure statement Exhibit PB that he could get recovered the ornaments from his shop. In pursuance of that disclosure statement, he led the police party and got the ornaments recovered. At the time when the witness was examined in the Court, ornaments were not produced. 11. A perusal of the statement of this solitary public witness pertaining to the disclosure statement purported to have been made by the petitioner leading to the recovery of the ornaments clearly shows that he is not reliable. During cross-examination, he admitted that he is the cousin brother of Amir Singh. The reason for joining a close relative of Amir Singh, who is the informant himself, is not understandable. In the facts of the present case, this is for the added reason that Jag Ram was a chance witness. He stated that he had suddenly come to the police station and joined the police party. It appears to be tailor-made version. 12. Not only that, at the time when this witness was examined ornaments were not produced. Strong reliance has been placed on the testimony so as to show that the ornaments were recovered on the disclosure statement of the petitioner. Thus, necessarily he had to be shown the ornaments in the Court so that he could identify that the same had been recovered from the possession of the petitioner. It had not been so done. It could not, therefore, be held that some ornaments were recovered from the important fact, the all important ingredient of Section 411 of the Indian Penal Code that the petitioner was in possession of the ornaments had not been established. Therefore, the impugned judgment and the order of sentence cannot be sustained. 13. It had not been so done. It could not, therefore, be held that some ornaments were recovered from the important fact, the all important ingredient of Section 411 of the Indian Penal Code that the petitioner was in possession of the ornaments had not been established. Therefore, the impugned judgment and the order of sentence cannot be sustained. 13. For these reasons, the revision petition is allowed and the impugned judgment and order are set aside. Instead, the petitioner is acquitted of the charge giving him the benefit of doubt. Revision allowed.