Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 877 (RAJ)

Amarchand v. State of Rajasthan

2016-06-16

SANDEEP MEHTA

body2016
JUDGMENT : Mr. Sandeep Mehta, J. By way of this revision, the petitioner Amarchand has approached' this Court assailing the judgment dated 8.11.2001 passed by the learned Additional Sessions Judge, Pali in Cr. Appeal No. 25/2001, whereby the appellate court affirmed the judgment dated 17.2.2001 passed by the learned 5 ACJM, Communal Riots Cases Pali in Cr. Case No. 163/1998, convicting the petitioner for the offence under Section 379 IPC and sentencing him to suffer one year's simple imprisonment and fine of Rs. 500/-, in default of payment of fie, to further undergo five days additional simple imprisonment. 2. Shri Sheetal Kumbhat, learned counsel for the petitioner, challenged 10 the conviction of the petitioner on the following grounds : (1) The FIR of the alleged incident of theft dated 25.6.1998 was filed after a significant delay on 2.7.1998 against unknown persons. (2) The stolen motorcycle bearing registration No. RJ.M.5955 owned by the complainant had already been recovered at the Police Station Sojat City on 27.6.1998. Thus, the Police fraudulently projected the recovery of the very same motorcycle at the instance of the petitioner in connection with the investigation of the FIR No. 230/98. (3) The recovery of the stolen motorcycle, which has been shown at the instance of the petitioner is concocted and created. (4) The evidence of the witness Manjoor Ali could not have been utlized to link the petitioner with the alleged offence because Manjoor Ali did not disclose the number of the motorcycle, which the petitioner allegedly brought to his shop for repairs. 3. Thus, he urged that the conviction of the petitioner for the above offence is totally illegal and contrary to the material available on record. He thus prayed that revision deserves to be accepted and the petitioner is entitled to be acquitted. 4. Learned Public Prosecutor on the other hand, vehemently opposed the submissions advanced by the petitioner's counsel and urged that the stolen motorcycle was recovered at the instance of the petitioner. The witness Manjoor Ali clearly identified the petitioner as being the person, who brought the stolen motorcycle to his shop. Thus, he urged that the conviction of the petitioner as recorded by the two lower courts having concurrent jurisdiction, does not call for any interference whatsoever. 5. The witness Manjoor Ali clearly identified the petitioner as being the person, who brought the stolen motorcycle to his shop. Thus, he urged that the conviction of the petitioner as recorded by the two lower courts having concurrent jurisdiction, does not call for any interference whatsoever. 5. I have heard the arguments advanced by the learned counsel for the parties and have gone through the impugned judgments as well as the record. 6. The motorcycle, RJ22.M.5955, owned by the complainant P.W.1 Kushal Das was allegedly stolen from outside the Woodland Hotel, Pali on 25.6.1998 at about 9 O'clock in the night. The FIR of the alleged theft was lodged by Khushal Das on 2.7.1998 wherein, the name of the alleged offender is not mentioned. The memo Ex.P5 which was prepared at the Police Station Sojat City on 27.6.1998 under Section 102 Cr.PC. shows that the stolen motorcycle was seized by the officer incharge of the Out Post Chandawal, Police Station Sojat City while lying in an unattended condition. As per the QST message Ex.D1, the SHO Police Station Sojat City sent a message to all Police Stations in District Pali regarding recovery of the said vehicle at the village Chandawal. Thus, presumably, the SHO of the Police Station Kotwali Pali can be presumed to have acquired knowledge of the recovery immediately. The petitioner was arrested in this case on 3.7.1998 without there being any evidence so as to connect him with the alleged crime. Thereafter, the SHO allegedly recovered the stolen motorcycle at the instance of the petitioner vide recovery memo Ex.P8. It is indeed a matter of utter surprise that when, the motorcycle had already been recovered by the Officers of the Police Station Sojat City and information of such recovery had been given to the Officers of the Police Station Kotwali Pali, how the same could be shown to have been recovered at the instance of the petitioner. It is further relevant to mention here that the petitioner's arrest memo was not exhibited by the prosecution during its evidence. Thus, the circumstance of recovery, which the prosecution sought to prove against the petitioner, cannot be used against him. Apart from the evidence of recovery, the prosecution sought to prove that the petitioner took the stolen motorcycle to the shop of Manjoor Ali for the purpose of repairs. Thus, the circumstance of recovery, which the prosecution sought to prove against the petitioner, cannot be used against him. Apart from the evidence of recovery, the prosecution sought to prove that the petitioner took the stolen motorcycle to the shop of Manjoor Ali for the purpose of repairs. The stolen motorcycle was a Hero Honda motorcycle whereas, as per Manjoor Ali P.W.2 the motorcycle which the petitioner brought to his shop was an M80 model. Manjoor Ali further alleged that he handed over the motorcycle to the Police. Thus, the evidence of Manjoor Ali is totally false and unbelievable. The allegedly stolen motorcycle as stated above, was recovered while lying in an unattended condition at the village Chandawal. Consequently, this Court is of the opinion that the prosecution failed to prove any circumstance, so as to link the petitioner with the alleged offence. The finding of the petitioner's guilt as recorded by the trial Court vide judgment dated 17.2.2001 and affirmed by the appellate court vide judgment dated 8.11.2001 for the offence under Section 379 IPC, is per se, unjustified and perverse and cannot be sustained. 7. Consequently, the revision deserves to be and is hereby allowed. The judgment dated 17.2.2001 passed by the learned ACJM, Communal Riots Cases, Pali in Cr. Case No. 163/98 and the judgment dated 8.11.2001 passed by the learned Additional Sessions Judge, Pali in Cr. Appeal No. 25/2001 are set aside. The petitioner is acquitted of the offence under Section 379 IPC. He is on bail. He need not surrender His bail bonds are discharged. Record be sent back forthwith.