ORAL JUDGMENT

1.The State of Gujarat – The Appellant has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 [herein after referred to as “The Code” for brevity] challenging the order of acquittal dated 24/1/1997 passed by learned JMFC, Wadhwan, District Surendranagar, in Criminal Case No. 326 of 1990, acquitting the present respondent / original accused No.1 of the charge of committing offence punishable under Section 406 r/w section 114 of I.P. Code [herein after referred to as “IPC” for short]. This order of acquittal dated 24/1/1997 passed by learned JMFC, Wadhwan, in Criminal Case No. 326 of 1990 is impugned in the present appeal. This Court (Coram:N.N. Mathur, J) on 6/5/1997 granted leave and admitted the appeal. Today the same was taken up for final disposal.

2.The facts in brief leading to filing the appeal deserve to be set out as under:-

2.1 The prosecution witness no.2- wife had filed complaint before the concerned Magistrate against original accused no.1-husband and accused no.2 – mother-in-law alleging commission of offence punishable under section 406 r/w section 114 of I.P. Code as the accused did not return the Sridhan and the goods given to her by her parents on her marriage to accused no.1. Said complaint was registered as Case No. 1 of 1989 and the learned Magistrate at the relevant time had ordered inquiry under Section 156 (3) of the Code of Criminal Procedure. The police registered the case as M. Case No.1 of 1989 and charge sheet came to be filed in the court of learned JMFC, Wadhwan against both the accused no.1 & 2 for commission of offence punishable under section 406 r/w 114 of I.P. Code. Learned JMFC, Wadhwan on 21/7/1990 vide exhibit-2 framed charge against both the accused for commission of offence under section 406, r/w 114 of I.P. Code, as the accused did not return the Sridhan of the witness no.2, the wife, which she had carried with her on her marriage to accused no.1. The plea of accused no.1 denying the charge was recorded at exhibit-3 and plea of accused no.2 denying charge is recorded at exhibit-4. Both the accused claimed to be tried. Accordingly the trial court recorded evidence led by the prosecution and recorded further statement of the accused under section 313 of Cr.P.C. In further statement also both the accused denied case of the prosecution.

2.2 The trial court after making detailed analysis of the evidences adduced by the prosecution came to the conclusion that he prosecution could not prove its case beyond reasonable doubt and therefore, accused no.1 was given benefit of doubt and accused no.2 was honourably acquitted vide its order dated 24/1/1997 which is impugned in the present appeal by the Stat of Gujarat.

2.3 Learned APP Shri. Patel has submitted that the order of learned JMFC acquitting the accused being erroneous and contrary to the material on record deserves to be quashed and set aside. Shri. Patel vehemently submitted that the trial court has patently erred in not appreciating the evidence adduced by the prosecution so as to bring home the guilt on the part of the accused. Shri. Patel submitted that the trial court has erred in not appreciated the fact that the witnesses deposed to the effect that PW-2 wife and original complainant was given the goods and articles mentioned in the list at exhibit-33 and as the accused have not proved that the same were returned, the offence punishable under section 406 r/w section 114 of I.P. Code was complete. The trial court has therefore erred in acquitting the accused. Shri. Patel has submitted that the order of acquittal impugned in the present appeal is otherwise also erroneous and therefore the same deserve to be quashed and set aside. Shri. Patel submitted that the record and evidence go to show that the accused no.1 had committed the offence under section 406 read with section 114 of I.P.Code and therefore, he be convicted and appropriate punishment be imposed upon him.

2.4 Shri. Amin, learned counsel