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2001 DIGILAW 450 (RAJ)

State of Rajasthan v. Kishna

2001-03-20

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This state appeal has been filed against the judgment and order dated 1.12.89 passed by the Munsif and judicial Magistrate, First Class, Abu Road in Criminal Case No. 18/84 by which the learned Magistrate has acquitted the accused respondent of the charges under Sections 457 and 380 Indian Penal Code It arises in the following circumstances : P.W.1 Mohan Lal lodged a report (Ex.P.1) on 4.12.83 in the Police Station Abu Road stating that there was a cabin of Pan in the street of Ramji Mandir and in the night of 3.12.83, P.W.1 Mohan Lal after putting a lock on the cabin went to his house and early in the morning at about 6.30 a.m. when he came to the cabin, he found the lock of the cabin opened and also found a 2-in-1 tape-recorder of Sony Brand missing. On this report, the police registered a case and chalked out a FIR Ex.P/5 and during investigating the accused-respondent was arrested by P.W.5 Laxrnan Singh on 6.12.83 and on 7.12.83, the accused-respondent gave an information Ex.P.7 and in consequence to that information, a tape-recorder was recovered in the presence of two motbirs P.W.3 Nana and P.W.4 Narayan and Fard Baramadgi of the Tape Recorder is Ex.P.5. 2. After usual investigation, challan was presented against the accused respondent in the Court of Magistrate. 3. The learned Magistrate on 4.6.87 framed charges for offences under Sections 457 and 380 Indian Penal Code against the accused-respondent who pleaded not guilty and claimed trial. 4. After recording evidence and after taking statement of the accused respondent under Section 313 Criminal Procedure Code The learned Magistrate vide his judgment and order dated 1.12.89 acquitted the accused respondent of the charges under Sections 380 and 457 Indian Penal Code, inter alia holding that so far as motbirs of the Fard Baramadgi Ex. P.5 P.W. 3 Nana and P.W.4 Narayan are concerned, they have been declared hostile and since independent witnesses do not corroborate to the statement of P.W.5 Laxman Singh, the learned Magistrate came to the conclusion that the prosecution has failed to prove its case against the accused respondent and he has, therefore, acquitted the accused respondent as stated aforesaid. 5. Aggrieved by the judgment and order dated 1.12.89, the present appeal has been filed by the State. 6. 5. Aggrieved by the judgment and order dated 1.12.89, the present appeal has been filed by the State. 6. The learned Counsel for the appellant has argued that the reliance can be placed on the statement of P.W.5 Laxman Singh I.O., who prepared Ex.P.5 and also got the tape recorder recovered from the possession of the accused respondent at his instance. 7. On the other hand, the learned counsel for the respondent has opposed the appeal. 8. In my opinion, the impugned judgment and order dated 1.12.89 passed by the learned Magistrate does not suffer from any infirmity and illegality. There is no dispute on the point that both the witnesses to the recovery Fard Ex.P.5, namely P.W.3 Nana and P.W. 4 Narayan Lal have been declared hostile. 9. The most striking feature apart from the fact that both the witnesses to the Fard Recovery have been declared hostile is that P.W.5 Laxman Singh I.O. and who recovered the tape-recorder at the instance of' accused-respondent, has himself stated that the tape-recorder was got recovered by the accused- respondent near a river. It means the place from where the recovery has been made in an open place and thus, the above statement of P.W.5 Laxman Singh is also not sufficient for convicting the accused-respondent for offence under Sections 457 and 380 Indian Penal Code for the simple reason that the recovery was made from an open place and accessible to all and sundry and in these circumstances, it is difficult to hold positively that the accused-respondent was in possession of the tape-recorder and this being so, the fact of this recovery alone cannot be regard as conclusive proof that the accused- respondent was in possession of this tape-recorder. 10. For the reasons mentioned above, I have no reason to dissent from the finding arrived at by the learned Magistrate and the present appeal is liable to be dismissed and the judgment and order passed by the learned Magistrate is liable to be confirmed. 11. Accordingly, this State appeal is dismissed after confirming the judgment and order dated 1.12.89 passed by the learned Munsif and Judicial Magistrate, First Class, Abu Road.Appeal dismissed. *******