In an inquiry under Section 452 of the Code of Criminal Procedure, if the accused disclaims ownership of the recovered property, the property should be restored to the victim after verifying it is stolen property; memorandum statements leading to discovery under Section 27 of the Evidence Act are admissible for this purpose.

Judgment on Board

1. The instant criminal appeal has been preferred by the appellant under Section 454 of CrPC arising out of order dated 12.03.2019 passed in MJC No.01/18 by the Additional Sessions Judge, Sarangarh, District Raigarh (C.G.).

2. Brief facts of this case is that the appellant is proprietor of Ruchi Jewelers and Shally having his shop at Baramkela, dealing in sale of Gold and Silver Ornaments from the aforesaid premises. On 18.02.2012, some miscreants committed dacoity in the shop of the appellant and took away the gold and silver ornaments along with cash available in the shop and house of the appellant which is just behind the shop. The appellant who is the proprietor of the aforesaid jewelry shop on 18.02.2012, lodged a written report to the effect that 4 to 5 dacoits covering their face committed dacoity in the shop and house took away gold and silver ornaments along with cash and fled away in a Tavera vehicle. The said dacoits also inflicted injuries to the complainant/appellant and one gun shot injury to one Jasal Das who was the watchman of the shop. On the aforesaid information an F.I.R. for the offence punishable U/S 395 of IPC and U/S 25, 27 of the Arms Act was registered against unknown persons. The police after conducting the investigation, on 04.03.2012 apprehended the accused persons and on the basis of their memorandum certain articles, cash, gold and silver ornaments were recovered. A Test Identification Parade was conducted in which the appellant as well as Jasal Das, Simran Swarnakar, Rajkumari Swarnakar, Arjun Ram identified the accused persons.

3. After completion of investigation, charge sheet was filed against the accused persons and they were tried for the offence punishable U/S 395, 397, 120-B read with Section 34 of I.P.C. and U/S 25, 27 of the Arms Act and one of the accused person namely Ritesh Sahu was prosecuted for the offence punishable U/S 201 and 120-B read with Section 34 of I.P.C.

4. The trial Court after appreciating the evidence available on record vide judgment dated 30.09.2014 convicted all the accused persons. The aforesaid judgment of conviction and sentence was assailed by the accused persons before this Court by way of two different criminal appeal bearing CRA No. 1065/2014 & bearing appeals CRA No. 1228/2014. The appellant also preferred an appeal for enhancement of sentence which was registered as CRA No.428/2015. Vide judgment dated 02.02.2018, this Court concluded that the prosecution was successful to bring home the offence punishable U/S 395/34 IPC and 120-B IPC against all the accused person except Ritesh Sahu. After holding so the appeal of Ritesh Sahu was allowed, the other criminal appeal No.1228/2014 was partly allowed where the sentence was reduced and fine was enhanced. The appeal preferred by the appellant for enhancement of sentence was consequently dismissed.

5. On perusal of judgment dated 30.09.2014 (Annexure A-1) would reveal that the trial Court had not passed any order regarding disposal of the property, and directed that the disposal of the property would be made after conclusion of trial against the absconding accused. Against the said order, the appellant preferred a criminal appeal bearing CRA No. 478/2017 in which this Court had directed to make an application U/s 452 of Cr.P.C. before the trial Court.

6. In compliance of order passed by this Court, the appellant moved an application U/s 452 of Cr.P.C. for release of the articles i.e. jew