Kundanlal S/O Vishveshvarlal ... vs State Of Maharashtra, Through ...
2001 Latest Caselaw 202 Bom

JUDGMENT

R.K. Batta, J.

1. Heard learned Advocate for the applicants and learned A.P.P.

2. The applicants, in this revision, challenge concurrent findings of two Courts below. The applicants were tried for the offence under section 406 read with section 34 I.P.C. and by judgment dated 18-7-1995 of J.M.F.C. Gondia, the applicants were convicted for the offence under section 406 read with section 34 I.P.C. and they were sentenced to undergo simple imprisonment for two years as also fine of Rs. 2000/- in default, simple imprisonment for three months each. The applicants challenged the conviction and sentences before the Sessions Court and the learned Additional Sessions Judge, Gondia, vide judgment dated 16th July 1998, dismissed the appeal.

3. The prosecution case, in brief, is that Chawlibai w/o Rameshwarlal Bajaj had given six bangles weighing 69 grams 500 milligrams to applicant No. 1 Kundanlal on 25-1-1987 for repair of Minakari work on the said bangles. The applicant Kundanlal and his son applicant No. 2 Harikishan pledged 3-3 bangles each with Bhandara District Co-operative Bank Limited on 27-1-1987 for Rs. 5,000/-. Inspite of repeated efforts made by Rameshwarlal Bajaj, the applicants did not return the gold bangles and kept on dodging him. Ultimately a complaint was lodged with the police in relation to the said bangles. The bangles were attached by the police and in the trial the applicants were convicted for the offence under section 406 read with section 34 I.P.C. The applicants claim that the bangles belong to them and they admitted that the bangles in question were pledged by them with Bhandara District Co-operative Bank Limited, Goregaon. On the basis of evidence on record, the Appellate Court found that the prosecution had been able to establish factum of entrustment of the six gold bangles of minakari work to the accused namely applicant Kundanlal on 25-1-1987.

4. Learned Advocate for the applicants has made following submissions before me, (i) there is delay in lodging the F.I.R. inasmuch as the bangles are reported to have been given on 25-1-1987 but the F.I.R. was lodged only on 28-6-1987; (ii) that the bangles according to the panchanama were seized on 4-7-1987 from applicant Kundanlal vide Exhibit 26, but the Bank record shows that the bangles were released by the Bank on 6-7-1987; (iii) the bangles in question were not identified by the Bank officials as the same which were pledged by the applicants; (iv) the statements of P.W. 2, P.W. 3 , P.W. 5 and P.W. 9 had not been recorded by the police; (v) the applicants were not questioned under section 313 Cr.P.C. relating to Exhibit 76, which is not proved, vide which the bangles are reported to have been handed over to the applicant No. 1; (vi) I.O. has not been examined; and (vii) at any rate according to the learned Advocate for the applicants that the punishment imposed is too harsh.

5. Learned A.P.P. in the light of findings of the learned Additional Sessions Judge that entrustment has been established only against the applicant No. 1 Kundanlal, urged that the applicant No. 2 is guilty under section 403 I.P.C. In this connection, my attention has ben drawn to section 222(2) Cr.P.C. and judgments of the Apex Court that though the applicant No. 2 was not charged for the offence under section 403 I.P.C. yet the offence under section 403 I.P.C. being a minor offence, the applicant can be convicted for the offence under section 403 I.P.C. On the question of discrepancy relating to the attachment and the release of the gold bangles by the bank, it was urged by the learned AP.P. that after the applicants were arrested, the pledge amount in respect of the gold ornaments was paid by the applicants to the Bank in the late hours of 4th July, which was a Saturday and the gold bangles were returned after which the same were attached under panchanama and it is only for the purpose of official record that the bangles were shown as released by the bank on 06-07-1987. Since after the official transactions are over on 4th July, the return could not have been shown on 4th July even though actually the gold bangles were returned on 4th July itself. In this connection, he has drawn my attention to Exhibits 53 and 60 wherein the dates shown are 04-07-1987/06-07-1987. On merit, it is argued that the concurrent findings of two Courts should not be disturbed in the exercise of revisional jurisdiction of this Court.

6. The prosecution case is that the gold bangles were entrusted by Chawlibai w/o Rameshwarlal Bajaj with applicant Kundanlal on 25-01-1987. The Additional Sessions Judge came to the conclusion that prosecution had been able to establish entrustment of six gold bangles to accused No. 1/applicant Kundanlal. The gold bangles were not actually entrusted to applicant No. 2. However, applicant No. 2 is reported to have pledged three of the six bangles which were entrusted by Chawlibai to applicant No. 1 Kundanlal and in case the prosecution is able to establish this fact, the offence disclosed against applicant No. 2 would be under section 403 I.P.C. Section 222(1) provides when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Sub-section (2) of section 222 provides that when a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Offence under section 403 is certainly a minor offence in relation to the offence under section 406 I.P.C.

7. In this connection, learned A.P.P. placed reliance on number of judgments. In State of Himachal Pradesh v. Tara Dutt and another, reported in 2000 Cri. L.J. 485, the Apex Court has held that where this is a charge for major offence, the accused can be convicted for minor offence if facts established indicate that such minor offence has been committed. Learned A.P.P. has placed reliance on Rajendra Singh and another v. State of Uttar Pradesh, , wherein the accused were charged and convicted under section 406 I.P.C., but it was found that facts proved did not disclose offence under section 406, but proved facts disclosing offence under section 403 which was minor offence, hence the conviction was altered from section 406 I.P.C. to 403 I.P.C. Learned A.P.P. also relied upon the judgment of Andhra Pradesh High Court in Purushothamahanti Subrahmanyam v. State of Andhra Pradesh, reported in A.I.R. 1956 Andhra 31, wherein it was held that offence under section 403 I.P.C. is a minor offence compared with the one under section 409 I.P.C. He also placed reliance on the judgment of Madras High Court in In re Marudayya, , wherein the accused who was charged with an offence under section 408 I.P.C. and was convicted for minor offence under section 403 I.P.C. Therefore, even though applicant No. 2 had been charged with the offence under section 406 I.P.C. if the facts established that offence under section 403 I.P.C. has been established against him, the applicant No. 2 can be convicted under section 403 I.P.C.

8. The prosecution case is that Chawlibai had got prepared eight gold bangles with minakari work from Girdharibhai Nakabhai and Sons and the prosecution examined P.W. 5 Rameshbhai to prove that eight bangles were purchased by Rameshwarlal, husband of Chawlibai and records in respect of the same were produced by him. Out of these eight gold bangles, Chawlibai in the presence of Pushpabai (P.W. 3) had given six bangles to applicant No. 1 Kundanlal for repair of Meenakari work on 25-01-1987. Chawlibai could not be examined as she expired, but Pushpa (P.W. 3), who is reported to be present at the time of handing over six gold bangles to applicant No. 1 Kundanlal, had categorically stated that six gold bangles were entrusted to applicant No. 1. The prosecution also relied upon Exhibit 76 vide which six gold bangles were entrusted to applicant No. 1 Kundanlal. It is no doubt true that Handwriting Expert in respect of the receipt was not examined, but the Magistrate, on comparison of the signatures on Exhibit 76 and admitted signatures of applicant No. 1 Kundanlal came to the conclusion that receipt (Exhibit 76) was signed by the applicant No. 1 Kundanlal. This comparison is permissible under section 73 of the Indian Evidence Act. In view of this, I do not find any merit in the submission of learned Advocate for the applicants that the receipt (Exhibit 76) had not been proved. Beside the receipt, there is oral evidence of entrustment of that of Pushpa (P.W. 3) whose testimony on this aspect could not be shaken. The applicants' claim that the gold bangles in question belonged to them, but it is pertinent to note that no suggestion was given either to P.W. 2 or P.W. 3 in this behalf and it is only as a matter of afterthought that this defence has been put up. Even though no specific question was asked by the trial Court in relation to the said receipt (Exhibit 76) yet the applicants were questioned on the question of entrustment with reference to the evidence of prosecution witnesses P.W. 2 and P.W. 3 and in these circumstances, non examination of the applicants on Exhibit 76 cannot be said to have caused any prejudice to them. Therefore, I do not find any merit in the submissions of learned Advocate for the applicants on this count as well.

9. On the question of identification, P.W. 3 Pushpa has categorically identified the gold bangles in question and she has further stated that she could identify the bangles since her mother was using the same and sometime she had also used the bangles. The Apex Court in Earabhadrappa v. State of Karnataka, , has laid down that where a lady witness had identified stolen property that is ornaments and silk sarees at the trial without prior test identification the testimony of such witnesses was not inadmissible in evidence for want of prior test identification. It is pertinent to note that the Apex Court has laid down in this ruling that it is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family.

10. The gold bangles in question were seized by the police on 4-7-1987 and the seizure is proved by the evidence of P.W. 1 and P.W. 6. The main argument of learned Advocate for the applicants is that though the bangles are reported to have been seized on 4-7-1987 yet the Bank records as well as the deposition of Bank officials (P.W. 8 and P.W. 9) show that the bangles were released on 6-7-1987. The applicants were arrested on 4th July and the receipts of payment (Exhibits 53 and 60) show that the payments were made on 4-7-1987/6-7-1987. The prosecution case is that the payment was made by the applicants after the closure of bank transactions, 4th July being a Saturday and as such even though the actual payment was made on 4-7-1987, yet for the purpose of official transaction, the date was also shown as 6-7-1987 besides 4-7-1987. Therefore, though for the purpose of record the Bank had shown the release of the gold bangles on 6-7-1987 yet actually the gold bangles in question had been released by the Bank on 4th July itself and that is why the gold bangles could be seized. It is this seized gold bangles which were released by the bank which have been identified by Pushpa (P.W. 3) as the gold bangles belonging to them and which were entrusted to applicant No. 1 Kundanlal. Therefore, the absence of identification by Bank officials of the gold bangles in question does not have much material bearing on the prosecution case.

11. The delay in filing the F.I.R. has been duly explained. The evidence on record is that the applicant No. 1 kept on dodging Ramakant (P.W. 2) regarding the return of the gold bangles. Initially when Ramakant (P.W. 2) had gone for the return of the bangles, the accused told him that the bangles had been sent to Calcutta for minakari work. Subsequently, when his father went to enquire about the bangles, the accused told him that the bangles had been sent to Raigad. It appears that Rameshwarlal (P.W. 4) had gone along with applicant No. 1 Kundanlal to Raigarh but at Raigarh, Kundanlal suddenly left. It is in these circumstances, that there was delay in filing the F.I.R. which, under the circumstances, has been duly explained and nothing turns out on this argument of learned Advocate for the applicants. It appears that the statements of some of the witnesses were not recorded by the police and they were examined in the Court. There is no law which prohibits the prosecution from examining in the Court witnesses whose statements have not been recorded. The applicants had full opportunity to cross-examine these witnesses and in the circumstances, no prejudice can be said to have been caused to the applicants. The non examination by the I.O. is not fatal in the light of the evidence on record.

12. Learned Advocate for the applicants has placed before me the judgment of Civil Court in which the Civil Court had refused to pass any order of return of gold ornaments in favour of the complainant. In fact, this exercise of filing the civil suit was futile and premature exercise since the trial Court vide judgment dated 18-7-1995 had ordered the return of the gold bangles to the complainant. Therefore, obviously when appeal and revision were pending in the matter, the Civil Court could not have ordered the return of gold ornaments to the complainant. It is in these circumstances that the suit filed by the complainant for return of gold bangles was dismissed by the Civil Court.

13. Learned Advocate for the applicants had also placed reliance on the order passed by the Criminal Court in respect of discharge of Gajanan who had been examined as P.W. 8 by the prosecution. The complainant had filed proceedings against said Gajanan under section 193, regarding false deposition that the gold ornaments were returned on 6-7-1987 whereas actually the same had been returned, according to the complainant, on 4-7-1987. This aspect has already been dealt with by me in the earlier part of this judgment. The Criminal Court in the said proceedings held that Gajanan (P.W. 8) has deposed on the strength of available record as a result of which he had not given false evidence due to which he was discharged. In the light of my findings on this aspect, nothing turns out on this judgment of the Criminal Court.

14. From the above assessment of the evidence on record, I am of the opinion that the prosecution has been able to establish the charge of offence under section 406 I.P.C. against applicant No. 1 and charge under section 403 I.P.C. against applicant No. 2.

15. Learned Advocate for the applicants had urged before me that the sentence imposed in the circumstance is too harsh. According to learned Advocate for the applicants, applicant No. 1 is around the age of 70 now and he prays for lenient view in the matter. Taking into consideration that the offence in question took place way back in the year 1987 and the applicants have been facing the prosecution till today, age of applicant No. 1 Kundanlal and the fact that the applicants were in custody for about 20 days that is to say from 04-07-1987 to 10-07-1987 before the commencement of the trial and also for the period from 16-07-1998 to 27-07-1998 during the pendency of the revision, I am of the opinion that the applicant should not at this stage be sent to jail once again. Learned Advocate for the applicants has stated that the applicants are ready and willing to pay substantial amount of fine.

16. Taking into consideration the facts and circumstances of the case, I am of the opinion that the ends of justice would be met by imposing imprisonment already undergone during the proceedings as substantive imprisonment on the applicants and fine of Rs. 25,000/-, in so far as applicant No. 1 Kundanlal Vishveshvarlal Soni is concerned under section 406 I.P.C. and in default to undergo simple imprisonment for one year. In so far applicant No. 2, Harikishan Kundanlal Soni is concerned, fine shall be Rs. 15,000/- under section 403 I.P.C. and in default of payment of fine, the applicant No. 2 shall undergo simple imprisonment for eight months. The amount of fine already paid, shall stand adjusted and the liability of the applicants shall be to deposit the balance of fine. The balance amount of fine shall be deposited within a period of one month in the trial Court.. The fine may accordingly be deposited in the trial Court within a period of one month and report of compliance be filed in this Court. In case, the fine is not deposited within a period of one month, the trial Court shall take coercive step against the applicants. The matter be listed on order board after one month for report of compliance. In case the fine is paid, a sum of Rs. 10,000/- shall be paid to the complainant as compensation. The gold bangles, in question, shall be returned to the complainant. The revisions are accordingly partly allowed while reducing the substantive imprisonment already undergone during the proceedings. Fine in case of applicant No. 1 is enhanced from Rs. 2,000/- to Rs. 25,000/- and in case of applicant No. 2 the fine is enhanced from Rs. 2,000/- to Rs. 15,000/-.

17. The revision application stands disposed of accordingly in aforesaid terms.