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2001 DIGILAW 1685 (RAJ)

State v. Babura

2001-10-12

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal has been filed by the State of Rajasthan against the judgment and order dated 11.1.1984 passed by the Learned Judicial Magistrate, 1st Class No. 5, Jodhpur in Criminal Case No. 117/80 by which the learned Magistrate acquitted the accused-respondents-Babura and Kesia for offence u/ss. 457 & 380 IPC, accused-respondent-Sayra and Nenuri for offence u/ss. 120-B, 457, 380, 411, 413 & 414 IPC and also acquitted accused-respondent-Jubeda for offence u/s. 411 IPC. 2. This appeal arises in the following circumstances : (i) That on 6.4.1977 PW-1 Kishan Kishore lodged a written report Ex.P/1 with Police Station Khanda Falsa before PW-12 Bhanwar Lal stating that he was living in his house situated near Jalori Gate along with his family and on intervening night of 5/6.4.1977 none was in his house and at about 6.30 p.m. when he came in the morning on 6.4.1977, he found all the goods in his house in topsyturvi state. 3. On this report police registered a case and started investigation. 4. During investigation a list of the articles stolen was given by PW-1 Kishan Kishore on the same date and the same is Ex.P/4. 5. During investigation police arrested the accused-respondents and from them police recovered some of the articles belonging to PW-1 Kishan Kishore and some of them were identified by him.After usual investigation police filed challan against the accused-respondents. 6. That on 24.9.1977, the learned Judicial Magistrate framed charges for offence u/ss. 457 & 380 against the accused-respondent-Babura and Kesia, for offence u/ss. 120-B, 457, 411, 413 & 414 IPC against the accused-respondents-Sayra and Nenuri and for offence u/s. 411 IPC against the accused-respondent-Jubeda. All pleaded not guilty and claimed trial.During trial, 19 witnesses were produced on behalf of the prosecution and statements of accused were recorded u/s. 313 Cr.P.C. and one witness was examined in defence. 7. The learned Magistrate vide judgment and order dated 11.1.1984 acquitted the accused-respondents for the offences charged against them. 8. All pleaded not guilty and claimed trial.During trial, 19 witnesses were produced on behalf of the prosecution and statements of accused were recorded u/s. 313 Cr.P.C. and one witness was examined in defence. 7. The learned Magistrate vide judgment and order dated 11.1.1984 acquitted the accused-respondents for the offences charged against them. 8. Aggrieved from the said judgment and order dated 11.1.1984, this appeal has been filed by the State and in this appeal, it has been argued on behalf of the Public Prosecutor that the prosecution has proved his case beyond reasonable doubt, therefore, the accused-respondents are liable to be convicted and the judgment and order passed by the learned Judicial Magistrate are liable to be set aside and this appeal is liable to be allowed. 9. On the other hand, the learned counsel for the respondents submits that the judgment of the trial Court is based on correct appreciation of evidence and thus, the State appeal is liable to be dismissed. 10. I have heard both and perused the record. 11. It may be stated here that during pendency of this appeal, accused-respondents-Sayra and Nenudi have died and thus their appeal was dismissed as abated by this Court vide order dated 14.5.1998. The accused-respondent-Kesia has also died and appeal of the State against him is also liable to be dismissed as abated. 12. So far as accused-respondent-Babura is concerned he was not served till 4.10.2001. On 4.10.2001 the learned Public Prosecutor submitted a report that the accused-respondent-Babura has not been heard for last 10 years, .therefore, case against accused-respondent-Babura was consigned to record. Even on merits the case of accused-respondent-Babura is considered on merits. The findings given by the learned Judicial Magistrate of acquittal appear to be based on correct appreciation of evidence and the learned Judicial Magistrate has discussed the case of this accused-respondent from page 5 to 8 in his judgment. The learned Judicial Magistrate has given cogent reasons for coming to the conclusion that the prosecution has failed to prove its' case beyond reasonable doubt against accused-respondent-Babura and I do not want to interfere in the findings given by the learned Judicial Magistrate on this count and thus, even on merits, the State appeal against accused-respondent-Babura is liable to be dismissed. 13. Now there remains to be considered the case of accused-respondent-Jubeda who was charged for offence u/s. 411 IPC. 13. Now there remains to be considered the case of accused-respondent-Jubeda who was charged for offence u/s. 411 IPC. Her case has been discussed by the learned Judicial Magistrate at page 13 of the judgment and it has been stated that only 3 sarees alleged to have been stolen were recovered from her possession by the police and the case of the prosecution is that on the information of accused-respondent-Kesiya dated 30.5.1977 Ex.P/30, three sarees were recovered from the possession of this accused-respondent through Ex.P/10 and motbir witness to that Fard was PW-3 Baldeo who has been declared hostile. Further the learned Judicial Magistrate has given cogent reasons for not accepting the case against this accused-respondent also and has stated that in Fard Ex.P/10 no time has been given and sarees were recovered not on the information of accused-respondent-Jubeda, but were recovered on the information of accused-Kesia and these articles recovered were not sealed and thus, the learned Judicial Magistrate placed no reliance on that recovery and acquitted the accused-respondent-Jubeda. 14. In these circumstances, the findings of acquittal recorded by the learned Judicial Magistrate appear to be correct one as they are based on correct appreciation of evidence and I see no reason to disent from the findings arrived at by the learned Judicial Magistrate by which he acquitted the accused-respondent-Babura for offence u/ss. 457 & 380 IPC and accused-respondent-Jubeda for offence u/s. 411 IPC. Therefore, judgment and order dated 11.1.1984 passed by the learned Judicial Magistrate 1st Class No. 5, Jodhpur do not require any interference of this Court and the order of acquittal is liable to be confirmed and the State appeal is liable to be dismissed.Accordingly, the present appeal against accused-respondent-Kesia is dismissed as abated and the present appeal against accused-respondents-Babura and Jubeda is dismissed after confirming the judgment and order dated 11.1.1984 passed by learned Judicial Magistrate 1st Class No. 5, Jodhpur, in Criminal Case No. 117/80.The appeal against accused-respondents-Sayra and Nenuri has already been dismissed as abated by this Court vide order dated 14.5.1998.Appeal dismissed. *******