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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. Badar, J.
Rukhsana Hanif Pathan @ Pushpa Motiram Gawade - Applicant
Versus
The State of Maharashtra - Respondent
Criminal Revision Application No. 82 & 83 of 2017 & Criminal Application No. 76, 77 of 2017
Decided On : 16-03-2017
Once it is found that stolen articles were recovered at the instance of revision petitioner/accused, then presumption as envisaged in Article 114 illustration (a) of the Evidence Act comes into play. A person, who is in possession of a stolen article, after the theft, is presumed to be either the thief or receiver of the stolen property.
Evidence Act, 1872 - Sections 27 and 114 Illus. (e)-Recovery of stolen articles.-Recovery of stolen articles can be accepted provided evidence of panch witnesses effecting recovery is found to be truthful and trustworthy.
It is not at all necessary that for effecting recovery, panch witnesses should be examined and recovery should be made only before panch witnesses. Even otherwise, it is a wise principle of law recognized even by the Legislature under Section 114(e) of the Evidence Act that the official acts are regularly done. It is thus clear that statement of accused can be recorded even in absence of panch witnesses and such recovery can be accepted, provided evidence of official witnesses effecting recovery is found to be truthful and trustworthy.
A.M. Badar, J.
Both these revision petitions are being decided by common Judgment because except evidence of first informants other evidence in both these revision petitions is common and revision petitioner in both these revision petitions is one and the same.
2. In revision petition bearing No.82 of 2017, the revision petitioner is challenging the Judgment and Order dated 19th January 2017 passed by the learned Additional Sessions Judge, Mumbai in Criminal Appeal bearing No.275 of 2014 filed by her, thereby dismissing her appeal. The said appeal was filed by revision petitioner/original accused for challenging the Judgment and Order dated 01/03/2014 passed by the learned Metropolitan Magistrate, 35th Court, CST, Mumbai in Criminal Case No.240/PW/2008, thereby convicting the revision petitioner/original accused of the offence punishable under Section 379 of the Indian Penal Code (For short, "the IPC") and sentencing her to suffer rigorous imprisonment for six months.
3. In revision petition bearing No.83 of 2017, the revision petitioner/accused is challenging the Judgment and Order of dismissal of her appeal bearing No.276 of 2014 by the learned Additional Sessions Judge, Mumbai on 19/01/2017 thereby confirming the Judgment and Order of conviction recorded by the learned Metropolitan Magistrate, 35th Court, CST, Mumbai in Criminal Case No.241/PW/2008. In this Criminal Case also the learned Metropolitan Magistrate was pleased to convict the revision petitioner/original accused of the offence punishable under Section 379 of the IPC and she was sentenced to suffer rigorous imprisonment for six months. It needs to be noted that the learned Metropolitan Magistrate had directed that the sentences in both these Criminal Cases shall run concurrently.
4. Briefly stated, it is case of the prosecution in Criminal Case No.240/PW/2008 that on 06/01/2008 first informant/P.W. No.1 Vaishnavi Vijay Mukale was travelling by a local train from Dombivali to Bhandup. Because of heavy rush in the train, she kept gold chain and cash amounting to Rs.600/in a purse and that purse was kept by her in the shoulder bag carried by her. When she alighted at Bhandup Railway Station, she noticed that an unknown person has committed theft of golden chain and cash from her shoulder bag. She immediately lodged report (Exh.6) on 06/01/2008 with Kurla Railway Police Station, which resulted in registration of Crime No.3 of 2008 for the offence punishable under Section 379 of the IPC. Routine investigation followed which resulted in charge-sheeting the revision petitioner/accused. In support of the charge, the prosecution has examined in all three witnesses namely Vaishnavi Vijay Mukale (PW1), Purshottam Soma Gawade, police head constable (PW2) and Anand Nikhale, police head constable (PW3). The defence of the accused was that of total denial. After due trial, the learned trial Magistrate was pleased to convict the revision petitioner/accused of the offence punishable under Section 379 of the IPC and she is sentenced accordingly as indicated in the opening paragraph of this Judgment.
5. Case of the prosecution so far as Criminal Case No.241/PW/2008 which has resulted in filing of Revision Petition bearing No.83 of 2017 is to the effect that on 26/12/2007 Dakshata Suryakant Koli was travelling from Thane to Ghatkopar. She had kept gold Mangalsutra weighing 16.650 gms., ATM card and several documents in a purse and that purse was kept in the shoulder bag carried by her. After she alighted from the train, she found the money purse containing Mangalsutra was missing from the shoulder bag. She lodged report of this incident to Kurla Railway Police Station on 03/01/2008, which has resulted in registration of Crime Registration No.2 of 2008 for the offence punishable under Section 379 of the IPC.
6. After routine investigation, the revision petitioner/accused came to be charge-sheeted and in order to bring home the guilt to the revision petitioner, the prosecution has
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