Bombay High Court
The State Of Mah vs Radhabai Sadashiv Gunjal & Ors on 21 April, 2016
Bench: A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.815 OF 2005
The State of Maharashtra,
Through Police Station,
Parner.
...APPELLANT
(Ori. Complainant)
VERSUS
1) Radhabai Sadashiv Gunjal,
Age-35 years,
2) Rakhamabai Tukaram Yeole
Age-50 years,
3) Laxman Mohana Gunjal,
Age-55 years,
All R/o-Daithane - Gunjal,
Tq-Parner, Dist-Ahmednagar.
...RESPONDENTS
(Ori. Accused)
...
Mr.A.M. Phule, A.P.P. for Appellant-State.
Mr.N.N. Shinde Advocate for Respondent No.1.
Mr.V.S. Bedre Advocate for Respondent Nos.
2 and 3.
...
CORAM: A.I.S. CHEEMA, J.
DATE : 21ST APRIL, 2016
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JUDGMENT :
1. This is an Appeal against acquittal of
the Respondents - accused Nos. 1 to 3 by J.M.F.C.,
Parner in Summary Trial Case No.723 of 1997 for
offence punishable under Section 4 read with
Section 20 and 21 of the Indian Treasure-Trove
Act, 1878 ("Treasure Act" in brief).
2. In brief, the case of prosecution is as
under:
(A). On 23rd September 1997, Police Patil
Daithane-Gunjal, Tq-Parner filed F.I.R. with
police station Parner informing that he came to
know from newspaper that in Daithane-Gunjal some
persons had found gold coins in the Shivar. He
made discreet inquiry and came to know that
accused No.1 Radhabai and accused No.2 Rakhamabai
had, in a field called "Chaupala", found gold
coins. Complainant informed police and the police
along with Tahsildar came for inquiry and when
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inquires were made with accused No.1 Radhabai, she
gave recovery of 50 gold coins. The F.I.R. was
filed claiming that similar gold coins are likely
to be with accused No.2 Rakhamabai and accused
No.3 Laxman Gunjal also.
(B). The police recovered some gold coins from
accused No.2 Rakhamabai as well as some were
recovered from accused No.3 Laxman Gunjal. It
transpired that accused No.3 had kept some coins
with gold-smith PW-5 Balasaheb who had melted two
of the coins. The same were also seized. Police
had recorded Panchnama of the seizure from accused
No.1 Radhabai and also recorded Spot Panchnama
from where recovery of gold coins was made from
accused No.1 Radhabai.
(C). In the course of investigation, the
seized coins were got examined from Assistant
Director, Archeology and it transpired that the
coins pertain to the time of Devgiri King,
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"Rajesinghan" and were from the period 1200 to
1247. That, they had historical importance and
were more than 100 years old. The coins had
picture of "Dancing God Krishna" and they were
known as "Padma-tank".
(D). Police recorded statements of witnesses
and after investigation, charge-sheet came to be
filed.
3. J.M.F.C., Parner framed charge under
Section 4 read with Section 20 and 21 of the
Treasure Act. The accused pleaded not guilty.
Their defence as is appearing from the cross-
examination of the witnesses is that of denial.
The trial Court discussed the evidence and
recorded Judgment of acquittal of the accused
persons. The Tahsildar was directed to handover
the seized coins to Collector for disposal
according to the provisions of the Treasure Act.
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4. The learned A.P.P. has argued that the
trial Court has wrongly acquitted the accused
persons. There was evidence of PW-5 Balasaheb with
whom accused No.3 Laxman had kept some coins. The
gold-smith had diluted two of the coins to explain
to accused No.3 as to what were the gold contents
in the coins. According to the A.P.P., the trial
Court wrongly acquitted the accused only because
Panchnamas regarding seizures from accused Nos.2
and 3 and the gold-smith were not prepared by the
police machinery. The A.P.P. submitted that there
was evidence of Investigating Officer of
recovering such gold coins from accused persons
and Investigating Officer should have been
believed.
5. Against this, the learned counsel for the
Respondents-accused submitted that the Panchas in
the matter were hostile and did not support the
prosecution. There was only one Panchnama made of
the recovery from accused No.1 and that was also
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not duly established. Even the complainant PW-2
Sukhlal Gunjal admitted that he did not know the
contents of the F.I.R. and signed it as per the
directions of the superiors. It is argued by the
accused that cross-examination of PW-5 Balasaheb
shows that he was normally asking for receipt of
purchase whenever anybody comes to his shop to
sell ornaments but in this matter he did not ask
for such receipt from accused Laxman. According to
the counsel, the evidence of PW-5 Balasaheb that
accused No.3 brought and kept some gold coins with
him, was unnatural and could not be accepted.
6. I have gone through the evidence and also
the reasonings recorded by the trial Court. In
this matter, before the F.I.R. was registered on
23rd September 1997 at 5.15 p.m., the police and
Tahsildar appear to have gone and recorded
Panchnama of recovery of 50 gold coins from
accused No.1 Radhabai. As per the Panchnama
Exhibit 56 the coins are said to have been
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recovered from a place which was one furlong North
of the residential area and it was in Wadgaon Amli
Shivar in the field of one Baban Umaji Dhone, near
well from under a tree where it was said to be
buried. This Panchnama was drawn on 23rd September
1997 between 1.00 - 1.30 p.m. Thus, even before
the F.I.R. was filed, the Panchnama of recovery
was executed. The Investigating Officer PW-7 P.I.
Dinkar Gaydhane claims that he recovered 50 gold
coins from accused No.1 drawing Panchnama. He
seized 15 gold coins from accused No.2 and 5 gold
coins from accused No.3, as well as the coins
diluted and which were kept with gold-smith PW-5
Balasaheb. However, for all this, no Panchnamas
were prepared. Evidence of PW-7 P.I. Dinkar is
also that some gold coins were seized from
Dattatraya Kisan Pawar and one Shivaji Anantrao
Gunjal also. However, these persons are not before
the Court.
7. Evidence of PW-5 Balasaheb Shahane is
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that accused No.3 Laxman came to him to his shop
and wanted to verify gold coins as to the quantity
of gold in them. According to this witness,
accused No.3 had brought 7 coins, out of which
witness PW-5 melted two of them and found that
they were not of complete gold. According to him,
he asked accused No.3 to keep those coins with him
for two days. The evidence is that then police
came and the coins were seized from him. The
cross-examination of this gold-smith shows that he
was asking for receipt of purchase whenever
anybody comes to his shop to sell ornaments. He
said that he did not ask such receipt from accused
Laxman as accused did not want to sell the gold
coins but only wanted to test them. I find it
unnatural that if a person has found such 7 gold
coins and takes it to the gold-smith, he would
simply leave the gold coins there with the gold-
smith without getting any document of deposit of
such valuable coins. The evidence of gold-smith is
not supported by any documentary evidence which
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one would expect in a genuine transaction. Thus,
the value of the evidence of PW-5 Balasaheb cannot
be that of an independent witness.
8. Going through the reasons recorded by the
trial Court, I do not find that the trial Court
has committed any error if after discussing
evidence it did not accept that the offence was
established against the accused persons. No doubt
there is evidence of PW-6 Harichandra, Assistant
Director of Archeology, giving historical value of
the gold coins, but that by itself is not enough.
9. Section 20 of the Treasure Act provides
that if the finder of any treasure fails to give
the notice or does not either make the deposit or
give the security, required by Section 4, or
alters or attempts to alter such treasure so as to
conceal its identity, the share of such treasure,
or the money in lieu thereof to which he would
otherwise be entitled, shall vest in Government
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and that he shall on conviction before a
Magistrate, be punished with imprisonment for a
term which may extend to one year or with fine or
with both. Section 21 of the Treasure Act deals
with abetment of offence under Section 20 and has
provision of imprisonment which may extend to six
months or with fine or with both. If the Sections
are kept in view and reference is made to the
First Schedule under the Code of Criminal
Procedure, 1973 ("Cr.P.C." in brief), I find in
Part II dealing with "Classification of offences
against other laws", it is provided that for
offences against other laws if the offence is
punishable with imprisonment for less than three
years or with fine only, it would be non-
cognizable case and it would be bailable offence
triable by any Magistrate. Thus, the offence under
Section 4 read with Section 20 and 21 of the
Treasure Act would be non-cognizable offence. This
being so, under Section 155(2) of the Cr.P.C., no
police officer shall investigate a non-cognizable
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case without the order of a Magistrate having
power to try such case or commit the case for
trial. At the time of arguments, the learned
A.P.P. was unable to show that when the offence
was non-cognizable, any procedure as required by
Section 155(2) of Cr.P.C. was followed. In fact,
in the present matter even before the offence was
registered, the recovery was made and even when
the offence was registered, no steps as per
Section 155(2) of Cr.P.C. were taken.
Investigating Officer simply collected the coins
drawing no Panchnamas. Trial Court has rightly not
relied on such investigation. In this view of the
matter the investigation was bad and on
the basis of such investigation the prosecution
could not succeed. The trial Court has, still
appreciated the evidence and come to the
conclusion that the accused deserve to
be acquitted. I do not find any reason to
interfere.
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10. The Appeal is dismissed. Bail bonds of
the Respondents -accused are cancelled.
[A.I.S. CHEEMA, J.]
asb/APR16
