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2007 DIGILAW 432 (RAJ)

Parvati Devi v. State of Rajasthan

2007-02-27

R.S.CHAUHAN

body2007
JUDGMENT 1. - The petitioner is challenging the order dated 21.2.1998 passed by the Sessions Judge, Churu whereby he has set aside the order dated 19.8.1997 passed by the Judicial Magistrate, First Class, Churu. By the latter order the learned Magistrate had convicted one Roshal Lal for offence under Section 380 of Indian Penal Code (henceforth to be referred to as 'I.P.C.', for short) and had directed the article'of theft, namely 'Borla' (a head ornament worn by women in Rajasthan State) to the petitioner. Vide former order while setting aside the conviction of Roshal Lai, the learned Judge has directed that 'Borla' be returned to the father of the accused, Hemaram, respondent No. 2 before this Court. The battle between the parties before this Court is over a 'Borla', which was allegedly stolen from the house of the petitioner by Roshal Lai. 2. The brief facts of the case are that on 13.1.1996 the S.H.O., P.S. Dudhva Khara received a written complaint from the complainant Shri Ram Chandra, who claimed that a theft occurred in the house of his brothers, Amarchand and Lalchand. According to the complainant, besides cash, certain items including a 'Borla' of 12 annas costing about Rs. 4,000/- was stolen from the said house. Eventually, Roshal Lal was arrested and tried for offence under Section 380 of I.P.C. During the course of trial, in his statement under Section 313 of the Code, the accused pleaded that 'Borla' neither belongs to Ramkarni nor to the present petitioner. In fact his father, Hemaram, had gotten the 'Borla' made by Mohan Lal Sonar at the time of marriage of the accused himself. Therefore, the 'Borla' belongs to his family and not to the present petitioner. Vide order dated 19.8.1997, the learned Magistrate convicted and sentenced Roshan Lal for offence under Section 380 of I.P.C. Simultaneously, the learned Magistrate directed that the 'Borla' be returned to the petitioner as it was her stolen property. Since both the accused and his father were aggrieved by the conviction and by the returning of the 'Borla' to the petitioner, two appeals were filed by them before the Sessions Judge, Churu. In Criminal Appeal No. 31/97, the accused challenged his conviction and sentence. On the other hand, in Criminal Appeal No. 33/97, Hemaram, father of the accused, challenged the returning Of the 'Borla' to the petitioner. In Criminal Appeal No. 31/97, the accused challenged his conviction and sentence. On the other hand, in Criminal Appeal No. 33/97, Hemaram, father of the accused, challenged the returning Of the 'Borla' to the petitioner. Vide order dated 21.2.1998, the learned Judge allowed both the appeals and acquitted the accused Roshal Lal for offence under Section 380 of I.P.C. and directed that the 'Borla' being the property of Hemaram and his family should be returned to him. Since the petitioner is aggrieved by the said order, she has filed the present miscellaneous petition before this Court. 3. Mr. Chaitanya Gahlot, the learned counsel for the petitioner, has vehemently argued that respondent No. 2, Hemaram, never appeared before the trial court and never presented an application for returning of the 'Borla' to him. It was, in fact, the petitioner who had moved an application that the 'Borla' should be returned to her as it was her property. 4. On the other hand, Mr. Pradeep Shah, the learned counsel for the complainant, has contended that once the accused is acquitted of an offence and once the accused statement is believed that the 'Borla' belongs to his family, the learned Judge has rightly returned the 'Borla' to his family.Mr. O.P. Boob, the learned Public Prosecutor for the State also supported the impugned order. 5. We have heard the learned counsels for the petitioner as well as respondent No. 2 and the learned Public Prosecutor for the State and have perused the impugned orders. 6. A bare perusal of the order dated 21.2.1998 clearly reveals that the learned Judge had meticulously examined the evidence on record and had legally concluded that the alleged offence was not committed by Roshal Lai. On the issue as to how the 'Borla' was recovered, the learned Judge has not believed the statement of Investigating Officer, Palaram. According to the Investigating Officer, Roshal Lal had handed over the 'Borla' (Article-I) to him. According to the learned Judge, this statement cannot be relied upon for the simple reason that prior to the alleged handing over of the 'Borla' by the accused to the Investigating Officer, the accused was arrested and physically searched. Upon his search, nothing was recovered from his person. However, the Investigating Officer would have the Court believe that subsequently, after half an hour, the accused produced the 'Borla' out of nowhere. Upon his search, nothing was recovered from his person. However, the Investigating Officer would have the Court believe that subsequently, after half an hour, the accused produced the 'Borla' out of nowhere. Moreover, P.W. 3, Ramchandra, clearly states that the "Borla" was recovered from the house of the accused. P.W. 1, Rameshwar, states that it is Hemaram, who had given the 'Borla' to the police from his own house. On the other hand, P.W. 5, Diparam, states that the 'Borla' was given to the Investigating Officer in front of the Panchayat. According to P.W. 7, Keshar Dev, the 'Borla' was given by Hemaram to the Investigating Officer at the Panchayat. Thus, according to the learned Judge, the 'Borla' was neither recovered from the possession of the -accused, nor was it given by the accused to the Investigating Officer. Therefore, the, recovery of the 'Borla' does not connect the accused to the alleged crime. 7. The learned Judge further considered the question whether the learned Magistrate was justified in returning the said 'Borla' to the petitioner or not? While considering this issue, the learned Judge has relied on the statement of D.W. 3, Mohan Lal Sunar. The said witness had testified before the trial court that Hemaram had gotten the said 'Borla' manufactured from him at the cost of Rs. 5,880/-. In order to substantiate his statement, he had submitted the receipt of the said amount (Ex.D7). His statement was further corroborated by the statement of Hemaram (D.W. 4), who claimed that the said 'Borla' was made on the occasion of Roshal Lal's wedding. It is also on record that after the alleged theft, a Panchayat was called in the village. It is 5 at the Panchayat that Hemaram produced the said 'Borla' and handed over it to the Investigating Officer before the Panchayat. According to P.W. 7, Keshar Dev, the Panchayat had directed Hemaram to get a new 'Borla' made for the complainant's family. He had given the new 'Borla' made and handed over it to the Investigating Officer in front of the Panchayat. Thus, the 'Borla' in question is not the 'Borla' that was either recovered from the accused or was handed over by the accused to the Investigating Officer. In fact it was the 'Borla', which was got made by Hemaram at the direction of the Panchayat and was handed over to the Investigating Officer before the Panchayat. Thus, the 'Borla' in question is not the 'Borla' that was either recovered from the accused or was handed over by the accused to the Investigating Officer. In fact it was the 'Borla', which was got made by Hemaram at the direction of the Panchayat and was handed over to the Investigating Officer before the Panchayat. Since the accused has been acquitted of the alleged offence of theft, since it was amply clear from the evidence on record that Hemaram got the 'Borla' made in order to hand over to the same to the complainant family, obviously the 'Borla' is property of Hemaram. Therefore, the learned Judge has validly directed that the 'Borla' be returned to Hemaram. 8. In the result, there is no force in this appeal. It is, hereby dismissed.Criminal Misc. Petition Referred to as Appeal Concluding Para of Judgment Dismissed. *******