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2005 Supreme(Raj) 2297
High Court Of Rajasthan
Judgename : S.P. Pathak
Babu Bhai - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Appeal No.762 of 2004
Decided On : 09/30/2005
Mr. K.R. Bhati, for the accused Appellant.
Mr. L.R. Upadhyay, Public Prosecutor for the State.
The central legal point established in the judgment is the requirement for trustworthy and sufficient evidence to prove the guilt of the accused beyond reasonable doubt, especially in cases involving recovery and identification of stolen items.
Headnote:
Recovery - Criminal Law - IPC 450, 395, 397 - The court discussed the evidence related to the recovery of stolen items and the identification of the accused. It found that the recovery based on the disclosure statement of the accused was not trustworthy and that there was insufficient evidence to prove the accused's involvement in the crime. The court also noted the lack of evidence regarding the accused being armed with deadly weapons, leading to the acquittal of the accused.
Fact of the Case:
The prosecution alleged that the accused committed dacoity at the house of the complainant, resulting in the theft of gold and silver ornaments and a sum of money.
Finding of the Court:
The court found that the evidence presented by the prosecution was not sufficient to prove the accused's guilt beyond reasonable doubt. It highlighted discrepancies in the evidence related to the recovery and identification of the accused, leading to the acquittal of the accused.
Issues: The key issues revolved around the reliability of the evidence related to recovery and identification, as well as the lack of evidence regarding the accused being armed with deadly weapons.
Ratio Decidendi: The court's decision was influenced by the lack of trustworthy evidence regarding the recovery and identification of stolen items, as well as the absence of evidence proving the accused's possession of deadly weapons during the alleged dacoity.
Final Decision: The accused was acquitted of the charges framed against him, and the judgment of conviction and order of sentence was set aside.
S.P. Pathak, J.-This appeal has been directed against the Judgment of conviction and order of sentence dated 18.06.2004 passed by learned Addl. Sessions Judge (Fast Track) No.2, Banswara in Sessions Case No.83/2003 State vs. Babu Bhai, whereby the accused-appellant has been convicted and sentenced as under:-
Under Section 450 IPC Five years’ rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months’ simple imprisonment. Under Secection 395 IPC Five years’ rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months’ simple imprisonment. Under Section 397 IPC Seven years’ rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months’ simple imprisonment. The sentences were ordered to run concurrently.
2. Briefly stated, the prosecution case is that PW.6 Kalu lodged an oral information on 23.05.2003 Exhibit-P/4 in the Police Station, Anandpuri, District Banswara with the averments that on the day of incident he alongwith his family members had gone to attend 12th day ceremony of his mother in village Cheekly-Teja, Tehsil Bagidora, District Banswara and from there returned back in the evening to their house situate in village Sarda and after taking meals, the family members and the relatives, who were there, slept in the house. He was sleeping in the Courtyard a little away from them. In the mid-night, at about 2 O’Clock, four unknown persons entered in the house and committed dacoity. It was also stated that gold and silver ornaments were snatched by the accused persons and they also took a sum of Rs.34,000/-. It was also stated that the accused gave beating to them.
3. On the basis of above oral report, regular FIR Exhibit-P/5 was chalked and after investigation, challan was submitted and ultimately the trial was conducted by the learned Addl. Sessions Judge (Fast Track) No.2, Banswara. The accused faced trial under Sections 450, 395 and 397 of the IPC.
4. The prosecution examined in all 9 witnesses and tendered 11 documents in documentary evidence. In the statement recorded under Section 313 CrPC, accused denied the prosecution case and claimed to be innocent. No evidence in defence was produced.
5. After hearing both sides, the learned Addl. Sessions Judge convicted and sentenced the accused appellant as stated hereinabove.
6. Aggrieved by the aforesaid Judgment of conviction and order of sentence, the present appeal has been filed.
7. Heard learned Counsel for the appellant as well as the learned Public Prosecutor and carefully perused the material available on record.
8. It has been contended by learned counsel for appellant that in the instant case, conviction has been recorded for the reason that recovery of one silver Kandora (ornament of waist) was made on the basis of disclosure statement of the accused. It has also been contended that the incident is alleged to have taken place in the mid-night and it was pitch dark, therefore it was necessary to have conducted identification test of the accused but that has not been done in the present case. The learned counsel submits that there is no evidence whatsoever on record to prove that the accused-appellant was responsible for the alleged incident.
9. The learned Public Prosecutor contends that on account of recovery and the identification having been made of the accused in the Court, the trial Court has correctly convicted and sentenced the accused appellant.
10. I have considered the submissions made before me.
11. It is to be seen that in relation to recovery, the witnesses are PW.1 Doongar, PW.2 Kantilal, PW.3 Rampratap, PW.6 Kalu and PW.8 Smt. Shanti. PW.1 Doongar has stated in the cross-examination that no silver Kandora was recovered in his presence. This witness has not been declared hostile. PW.2 Kantilal has stated in the cross-examination that police persons brought one silver Kandora from the house of accused but
