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2005 DIGILAW 824 (MP)

Uma Shankar S/o Kaluram Swami v. State of M. P.

2005-08-05

U.C.MAHESHWARI

body2005
ORDER U.C. Maheshwari, J. 1. This revision is directed by applicant complainant under section 397 read with 401 of the Criminal Procedure Code (in brief "the Code") against the judgment dated 19-3-2001 passed by Additional Sessions Judge, Narsinghpur whereby by allowing the appeal of respondent No. 2, the findings and direction regarding final custody of the seized articles and ornaments was given in favour of applicant by Judicial Magistrate First Class, Narsinghpur vide Judgment dated 29-1-1998 in Criminal Case No. 578/97 has been set aside and such custody has been directed in favour of respondent No. 2. Hence this revision is preferred to restore the findings of trial Court by setting aside the judgment of said appellate Court. 2. The facts giving rise to this revision are that on dated 13-9-1994 at about 9.30 to 10 p.m. after taking dinner the applicant Uma Shankar and other family members have slept on roof and other places of his house. At about 3.00 O'clock in late night the father of applicant got up and found the doors of room open then he called applicant and on entering to inside the room it was seen that after mismanaging the household goods some unknown person have taken away there box in which valuable golden and silver ornaments and cash were kept. The incident was reported to Police Kareli on which an offence under sections 457 and 380 of Indian Penal Code was registered as Crime No. 332/94 in which the entire description of stolen property was mentioned as complainant by applicant. 3. During investigation the respondent No. 2 and other persons were arrested and at the instance of respondent No. 2 and other accused the aforesaid stolen property was recovered regarding this the memorandum under section 27 of the Evidence Act on information by respondent No. 2 was also prepared and in pursuance of it the said seizure was made. Subsequent to it the test identification parade was also held in which applicant and other member of family has identified as their property. On completion the investigation all accused including respondent No. 2 were charge sheeted before the trial Court. 4. On framing charges under section 411, Indian Penal Code against respondent No. 2 and one other accused and under sections 457, 380, Indian Penal Code against other accused. On completion the investigation all accused including respondent No. 2 were charge sheeted before the trial Court. 4. On framing charges under section 411, Indian Penal Code against respondent No. 2 and one other accused and under sections 457, 380, Indian Penal Code against other accused. In order to prove the incident prosecution examined as well as seven witnesses and by examining the accused under section 313 of the Code, on appreciation the factum of theft regarding said properties from the house of applicant was found proved but by giving benefit of doubt in the facts and circumstances of the case all accused including respondent No. 2 have been acquitted. By the same judgment as per para 18 it was also directed that seized property be given to the applicant on producing the documentary proof but after the period of appeal. 5. The aforesaid direction regarding final disposal of stolen property was challenged by respondent No. 2 before the appellate Court and claimed it. 6. In appeal the said finding was. set aside and the custody of said alleged stolen properties were directed in favour of respondent No. 2 accused. Hence this revision is preferred for restoration of the finding of trial Court. 7. Learned counsel for applicant Shri Shashank Upadhyay submitted that the findings of trial Court regarding theft from the house of applicant and properties seized during investigation was the same stolen properties of the applicant were given on proper and cogent appreciation of the evidence and in view of this finding the applicant was the only person for giving custody of it at the stage of final disposal of the case and with correct approach such finding was given by the trial Court. 8. It was also said that although respondent No. 2 and other accused have been acquitted by giving the benefit of doubt from the alleged charges it does not mean that respondent No. 2 or any other person has right to take custody of such property only on the basis that it was seized at the instance and from the possession of respondent No. 2. 9. 9. According to him, such stolen articles were never claimed by respondent No. 2 at any stage of the trial; even in cross-examination of complainant applicant Umashankar (PW1) and ASI Shri D. S. Pagare (PW 7) the investigating Officer not a single question was asked regarding it and no other evidence was adduced by him and all this aspect were examined by trial Court and the direction was rightly passed in favour of applicant. 10. According to his another submission no circumstances were available before the appellate Court to dislodge the findings of trial Court in spite in the wrong premises and contrary to the spirit of section 452, Criminal Procedure Code the appellate Court has set aside the said findings and directed custody to respondent No. 2 and thereby a grave error of jurisdiction has been committed by appellate Court and prayed for restoration of the direction by setting aside the impugned judgment. 11. No one has appeared on behalf of accused/respondent No. 2 Bhagwandas to advance the arguments. So on hearing applicant and by perusing the record this revision is being decided. 12. Having heard the learned counsels, on perusing the record it appears that on the aforesaid date the theft took place at the house of complainant in which aforesaid properties were stolen on which an F.I.R. under section 154 Ex.P/1 was lodged by the present applicant by mentioning the description of the theft articles. During investigation of such offence the non-applicant No. 2 was not only arrested by Ex.P/12, but his confessional statement (Ex.P/16) under section 27 of the Evidence Act was also recorded on 17-11-1994 and in pursuance of it, the seizure Ex.P/5 was made. The aforesaid seized articles were identified by the present applicant/complainant and by his mother which are evident by Ex.P/3, P/4. The aforesaid identification parade was found to be proved on appreciation of the statement of complainant Uma Shankar as P.W.I and his mother IIayachi Bai by P.W.2 and the witness Khub Chand (PW 4) the witnesses of the identification parade. The aforesaid memorandum of seizure-memos have also been duly proved not only by investigation Officer Shri D. S. Pagare (PW 7) but also by some other witnesses. The aforesaid memorandum of seizure-memos have also been duly proved not only by investigation Officer Shri D. S. Pagare (PW 7) but also by some other witnesses. It is also evident from the record that during cross-examination of the aforesaid witnesses, the title and ownership of the property was not disputed by the accused as such the properties were not claimed by the accused. Even in the statement of accused recorded under section 313, Criminal Procedure Code the property was not claimed by producing the cogent documents of his title as such at any stage such property never claimed by respondent No. 2. On the contrary, in reply of question No. 42 in the accused statement, it was said that the properties are belonging to the respondent No. 2 but no documents regarding ownership and title have been put fourth by accused/respondent No. 2. 13. On appreciation of the evidence, trial Court has come to this conclusion that such theft took place at the house of complainant/applicant as per paras 8 and 9 of the judgment. It was also held in para 10 of the judgment that the properties seized are the properties of the aforesaid registered offence but on question of identification of the properties the benefit of doubt was extended to the accused. It was also considered by the trial Court that accused has not examined himself under section 315, Criminal Procedure Code and other concerning witnesses from whom the articles were received by the accused and by giving due considerations the conditional order regarding custody of the properties was passed by the Court against which appeal was preferred by non-applicant No. 2. 14. It appears from the judgment of the appellate Court that the aforesaid all aspects were not considered by the appellate Court according to their spirits and by wrong appreciation of the evidence, the findings have been changed. One order of this Court passed in Criminal Appeal 284/97 on dated 29-2-1998 has also been mentioned in the impugned judgment in which a direction for custody of the properties was given in favour of the accused. One order of this Court passed in Criminal Appeal 284/97 on dated 29-2-1998 has also been mentioned in the impugned judgment in which a direction for custody of the properties was given in favour of the accused. Although that order is relating to some other case but even on perusing the copy of that order it is apparent that the concerning properties of that other case was claimed by the accused and complainant or any other person did not claim it so the properties were given to the accused in view of the principle that property should be returned to that person from whom it was seized. So, it appears that on nonavailability of the other claimant the property was directed to be given to the accused, which is not the situation in this case at hand so the aforesaid order was wrongly appreciated by the appellate Court. 15. The observation of the trial Court that the prosecution has failed to prove that any theft property of the applicant has not been recovered from the non-applicant No. 2 has been wrongly interpreted by the appellate Court as such the judgment of the appellate Court was not on correct foundation of law and thus, it is not sustainable in view of the aforesaid discussion. 16. At earlier occasion such question was answered by this Court in the matter of Munshi Lal v. Sewaram and Others reported in 1987 M.P.L.J. 332 in which it was held as under: Held, that for the purpose of disposal of property the statement made by the accused to the police during the course of investigation can be used as evidence against him because such statement is not being used against the accused in any enquiry or trial. Disposal of property is a separate proceeding. At the conclusion of enquiry or trial any admission or confession of fact with regard to seized property made by the accused during investigation can be used for determining the question as to in whose favour the order of disposal of property be passed. Disposal of property is a separate proceeding. At the conclusion of enquiry or trial any admission or confession of fact with regard to seized property made by the accused during investigation can be used for determining the question as to in whose favour the order of disposal of property be passed. The admission of the accused led to the discovery of the material fact and the police recovered the property which was stolen according to the admission of the accused; the Sessions Judge was satisfied that the property belonged to the complainant and the said property therefore was liable to be returned to the complainant except insofar as the order regarding currency notes was made. Currency notes are unidentifiable property and, therefore they should be returned to the person from whose possession they had been recovered. 1963 JLJ Note No. 87, Rel. AIR 1968 MP 270 Ref. The aforesaid case was decided on the basis of some earlier decided cases of this Court and in view of the aforesaid principles if we examined the case at hand then it is apparent that the confessional statement of the respondent No. 2 was recorded by the police and in pursuance of that the properties were seized, identified by the complainant and not claimed by the accused by submitting the cogent evidence or by cross-examining the complainant and their witnesses. So, in view of the aforesaid principles the order passed by the appellate Court is not sustainable. Thus, I hold that error of jurisdiction, apparent perversity and infirmity have been committed by the appellate Court in setting aside the finding about custody of the properties given by the trial Court. 17. Therefore, by setting aside the order of the appellate Court this revision is allowed and trial Court is directed to proceed according to the directions given in the judgment of the trial Court. 18. Revision allowed.