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2005 DIGILAW 1222 (MP)

Ram Nayan v. State of Madhya Pradesh

2005-12-01

RAKESH SAKSENA

body2005
Judgment ( 1. ) APPLICANT has filed this revision against the judgment dated 6-2-1995 passed by the learned First Additional Sessijudge, Rewa, in Criminal Appeal No. 58 of 1987 whereby the judgment dated 14-9-1987 passed by the Judicial Magistrate, First Class, Mauganj, in Criminal Case No. 352/76, convicting the applicant under Section 411 of IPC and sentencing him to rigorous imprisonment for two years and fine of Rs. 100/- was confirmed. ( 2. ) BRIEF facts of the case are that a theft of idols of God Ram, Laxman and Sita from a temple in Naigarhi Kasba was committed in the intervening night between 8th and 9th July, 1975. When Pujari of the temple, Janki Prasad informed Saroj (P. W. 11), she lodged the report (Ex. P-6) at Police Station - Naigarhi. A case under Sections 457 and 380 of IPC was registered. On investigation, when it could not be found out as to who committed the theft, the police had filed final report on 5-10-1975. On getting some clue about the theft, on 3-8-1976, the accused persons were interrogated and on the information furnished by the co-accused Kanhaiyalal, idol of God Laxman was recovered from the possession of the applicant. It is said that applicant Ram Nayan lived at Village Shankcrpur and his brother accused Dwarka Prasad lived at Village Tari, wherefrom the aforesaid idol "article A" was seized vide seizure memo (Ex. P-3 ). During investigation the idol was put up for test identification parade wherein it was identified by P. W. 1 Janki Prasad, P. W. 2 Satyadin, P. W. 3 Banshi and P. W. 11 Saroj to be the stolen property. After requisite investigation the charge-sheet was filed. Other accused persons were charged for the offence under Sections 457 and 380 of IPC whereas the applicant was charged only for the offence under Section 411 of IPC. The applicant had pleaded false implication. Relying on the evidence of P. W. 1 Janki Prasad, P. W. 2 Satyadin, P. W. 3 Banshi and P. W. 11 Saroj about the identification of the property and the evidence of P. W. 3 Ramose and P. W. 9 Sant Kumar Nigam, Investigating Officer, about the recovery of Idol from applicant, the Trial Court held the applicant guilty for the aforesaid offence and convicted and sentenced him as aforesaid. The appeal preferred by the applicant before the Court of First Addl. The appeal preferred by the applicant before the Court of First Addl. Sessions Judge, Rcwa, was also dismissed. Aggrieved thereby the applicant has filed this revision before this Court. ( 3. ) LEARNED Counsel for the applicant submitted that the prosecution had failed to prove beyond doubt that the applicant had received or retained the aforesaid stolen Idol. There was no reliable evidence to prove that the Idol was seized from his exclusive possession so as to make him liable of the offence. He submitted that the evidence of P. W. 3 Ramose, witness of seizure memo and P. W. 9 Sant Kumar Nigam, the Investigating Officer, was contradictory and was not sufficient and reliable to prove beyond reasonable doubt that the aforesaid idol was seized from his possession. On the other hand, learned Counsel for the State contended that the evidence of P. W. 3 Ramose and P. W. 9 Sant Kumar Nigam was reliable and sufficient to prove that the idol was recovered from the possession of the applicant and was identified by other witnesses to be the stolen property. ( 4. ) ON perusal of the evidence of P. W. 3 Ramose, before whom the Idol is said to have been recovered, it is seen that his examination-in-chief he deposed that the idol of God Laxman was seized from the house of applicant Ram Nayan and he had signed the seizure memo (Ex. P-3 ). He also deposed that the applicant had disclosed that he had purchased the said idol from accused Kanhaiyalal. In cross-examination this witness has deposed that applicant Ram Nayan had his house in Village Shankerpur and he used to live there whereas in Village Tari from where the stolen Idol was recovered, applicants brother Dwarka lived. Village Tari was situated at a distance of about 4-5 miles from Shankerpur. The stolen idol "article A" was seized from Village Tari from the house of applicants brother Dwarka. At one place he deposed that he did not see as to who had brought the idol out of the house. At another place he deposed that at the time of recovery the applicant and his brother, both were present and the idol was recovered from the house of Dwarka and it was Dwarka, who had brought it out from the house. ( 5. At another place he deposed that at the time of recovery the applicant and his brother, both were present and the idol was recovered from the house of Dwarka and it was Dwarka, who had brought it out from the house. ( 5. ) P. W. 9, Sant Kumar Nigam, Investigating Officer, deposed that during investigation accused Kanhaiyalal had informed that he had sold the stolen idol to the applicant and that when he along with Kanhaiyalal had gone to the house of Ram Nayan, the idol of God Laxman was recovered, which he seized vide seizure memo (Ex. P-5 ). He deposed that the applicant had not furnished any information about the idol and that there was no house of Ram Nayan (applicant) in Village Tari. ( 6. ) THE conviction of the applicant merely rests on the evidence of aforesaid two witnesses, whose evidence is inconsistent with each other. From the evidence of P. W. 3 Ramose it can not be interfered with certainty that the stolen Idol was recovered from the exclusive possession of applicant Ram Nayan, as according to him, it was brought out by Dwarka from his house. Even if it is assumed that the applicant was present there at the time of recovery, it can not be held beyond doubt that the idol was in his exclusive possession. The possibility that the stolen Idol was recovered from the possession of co-accused Dwarka can not in the circumstances be ruled out. learned Counsel for the applicant placed reliance on the decision in Trimbak v. State of Madhya Pradesh , AIR1954 SC 39 where in the Apex Court observed : (5) We are satisfied that this was not the correct way of approaching the decision of a case under Section 411, IPC. It is the duty of the prosecution in order to bring home the guilt of a person under Section 411, IPC to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts. ( 7. There is no reliable evidence to prove either of these facts. ( 7. ) IN view of the above principle laid down by the Apex Court it is apparent that it is not proved beyond reasonable doubt that the stolen Idol was in the possession of the applicant, as such the finding of conviction of the applicant under Section 411, IPC recorded by the Courts below can not be sustained. ( 8. ) IN view of the above discussion the judgment and order of conviction of the applicant passed by the Courts below is set aside. The applicant/accused is acquitted. His bail bonds are discharged. ( 9. ) REVISION allowed.