Ratanlal vs The State Of M.P.
2022 Latest Caselaw 13384 MP

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                                                       CRA No. 1150/2001



         IN THE HIGH COURT OF MADHYA PRADESH
                           AT INDORE
                              BEFORE

              HON'BLE SHRI JUSTICE VIVEK RUSIA
                                 &
       HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

              CRIMINAL APPEAL No. 1150 of 2001

 BETWEEN:-
 RATANLAL S/O. TUKARAM SHINE, AGED 45 YEARS, R/O. KILA
 JOBAT MARG, JOBAT, DISTRICT JHABUA.
                                                     .....APPELLANT
 (SHRI VIVEK SINGH, LEARNED COUNSEL FOR THE APPELLANT.)

 AND
 THE STATE OF M.P. THROUGH POLICE STATION JOBAT, DISTRICT
 JHABUA (M.P.)
                                                .....RESPONDENTS
 (SHRI BHASKAR AGRAWAL, LEARNED GOVT. ADVOCATE FOR
 RESPONDENT/STATE.)


This appeal coming on for hearing this day, JUSTICE VIVEK
RUSIA passed the following:
                           JUDGMENT

(Delivered on 12th October, 2022) The appellant (since dead now representation through his wife ) filed the present Criminal Appeal against the judgment dated 9.10.2001 passed by Additional Sessions Judge, Jobat, District Jhabua in Sessions Trial No.534/2000 whereby convicted u/s. 302/34 of the IPC and sentenced to undergo life imprisonment and pay a fine of

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Rs.10,000/-, in default of payment of the fine amount, to further undergo 1 year RI and also u/s. 392 of the IPC and sentenced to undergo 5 years RI and to pay a fine of Rs.2,000/- and in default of payment of the fine amount, to further undergo 6 months additional RI.

The facts of the case, in brief, are as under :

1. On 12.7.2000 at about 10.15 pm. appellant's son - the child in conflict with the law - Kailash lodged the report in Police Station Jobat that his father (deceased appellant) is engaged in the business of money lending. At 9.30 pm. he went to the house of Narendra Nigam Patwari ( the deceased ) and found the door of the house open. He came back and informed his father that the door of the house of Narendra Nigam is open. Thereafter, he along with his father - Ratanlal went there and called him but no reply was received, they entered inside the house and found him lying on a bed with injuries on his neck, chest, stomach and blood all over the clothes. His wife had gone to Amankua, and according to the informant, an unknown person murdered Narendra Nigam as he was doing business of money lending. The FIR was recorded u/s. 302 of the IPC against an unknown person and the investigation was set into motion. The police reached the spot, drawn "Safina" form, "Laash Panchayatnama: recovered blood stained clothes, account books, etc. The investigation revealed that the informant - Kailash (juvenile) and his father Ratanlal committed the murder of the deceased Narendra Nigam and looted silver ornaments kept in his house by way of a mortgage. They both were arrested. A bloodstained knife and all the looted silver ornaments were recovered at the instance of the appellant. After completion of

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the investigation, charge-sheet was filed u/s. 302/34 and 392 of the IPC. The juvenile was tried before the Juvenile Court. The appellant denied the charges and pleaded that Raju and Kamalkant have falsely implicated them due to election rivalry.

2. To prove the charges against the appellant, the prosecution has examined 17 witnesses and got exhibited 41 documents as Exh. P/1 to P/41. In defence, the appellant did not examine any witness but got exhibited the statement of Subhash, Vinod and Smt. Shyama Devi as Exh. D/1 to D/3.

3. Vide judgment dated 9.10.2001 the learned Sessions Judge has convicted and sentenced the appellant, as stated first. Learned Sessions Judge has also directed to return the looted articles to the wife of the deceased. Hence, the present appeal before this Court.

4. Vide order dated 20.2.2002 this Court suspended the jail sentence of the appellant. The wife of deceased Narendra Nigam filed an application (I.A. No.2/2002) for the release of the looted articles on "Supurdiginama". Vide order dated 26.3.2002, the said application was dismissed as there is a dispute regarding ownership of the ornaments and the same cannot be handed over to the complainant until the final decision of this appeal.

5. During pendency of this appeal, the appellant passed away, hence, the legal heir filed an application (I.A. No.505/2018) for bringing legal heirs' brought on record. Vide order dated 5.2.2018 the said application has been allowed.

6. Learned counsel for the appellant submitted the appellant - Ratanlal has been falsely convicted by the learned Sessions Judge on merit. The so-called looted articles (silver ornaments) are belonging to

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the appellant as he kept them in the house of the deceased. Shri Singh has drawn our attention to the statement of the wife of deceased Narendra Nigam - Shayama Devi (P.W.16) who has admitted that her husband used to do money lending business through the appellant. importantly she did not allege any enmity between the appellant and her husband. The entire case of the prosecution is based on circumstantial evidence as no eye witness came forward to give evidence, hence conviction is bad in law .

7. On the other hand, learned Govt. Advocate opposes the prayer and argued in support of the impugned judgment.

Having heard the learned counsel for the parties, we have perused the record of the court below.

8. According to the evidence of Vinod (P.W.12) ( son) and Shyama Devi (P.W.16)(wife), the deceased Narendra Nigam and the deceased appellant were jointly doing the business of money lending. According to them, the deceased Narendra Nigam used to keep silver articles in the house and give money to the appellant and his son Kailash. They both used to visit the house for the release of the goods after payment of money. The appellant Ratanlal and Kailash had no knowledge as to where all the articles were kept in the house by the deceased. There was a little skirmish between them as admitted by both the above witness. Smt. Shyama Devi (P.W.16) has deposed that when she entered the house she found that Almirah was opened and all the silver ornaments and the diary were missing which her husband kept. According to her, all the silver ornaments had been looted but only 75 Kg. were recovered by the police. She has also deposed that on 2.7.2000 her husband and Ratanlal had accounted and calculated the

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interest of Rs.91,180/- and recorded it in the paper which she did not find in the Almirah. In her cross examination, she has admitted that Ratanlal used to bring the silver ornaments and took money from her husband, but her husband was not having any license for a money lending business and used to do the business through appellant Ratanlal. The tag on each silver ornament was used to be written by appellant Ratanlal. Therefore, it is clear from the aforesaid evidence that the deceased appellant and deceased Narendra Nigam jointly doing the business of money lending and there was no serious dispute or enmity between them which could be said to be a motive to commit crime .

9. As per the evidence of Vinod (P.W.12) and Shyama Devi (P.W.16) there was no enmity between the deceased appellant and deceased Narendra Nigam. No evidence has been produced to show that there was any dispute between them, due to which the deceased committed murder of deceased Narendra Nigam and looted the silver ornaments. Apart from that, there is no eye-witness of the incident. The appellant has been convicted only on the basis of circumstantial evidence and on the basis of recovery of some articles from the house of the appellant. But as per evidence that came on record, all the ornaments were kept in the house of deceased Narendra Nigam by the appellant Ratanlal and he used to put the tag on the said ornaments.

10. The apex Court in the case of Tulesh Kumar Sahu V/s. State of Chhattisgarh (CRIMINAL APPEAL NO. 753 OF 2021; decided on February 24, 2022) has held that merely the recovery of stolen articles cannot lead to a presumption about murder. Therefore, the conviction of the late appellant is unsustainable in law and accordingly his

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conviction is hereby set aside and he is acquitted of the charge u/s. 302/34 of the IPC and 392 of the IPC.

28. On the other hand, in Sanwant Khan v. State of Rajasthan, one Mahant Ganesh Das, who was a wealthy person, used to live in a temple of Shri Gopalji along with another person. Both of them were found dead. The house had been ransacked and boxes and almirah opened. It was not known at the time who committed the offence. Investigation resulted in arrest of the appellant, and on the same day, he produced a gold khanti from his bara, where it was found buried in the ground. Another accused produced a silver plate. The Court found that there was no direct evidence. There were certain circumstances which were rejected by the Sessions Judge and the solitary circumstance was the recovery of the two articles. In these circumstances, the Court held, inter alia, as follows: "Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S.114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time. ** ** ** Here, there is no evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our Judgment, Beaumonth, C.J., and Sen J. in - Bhikha Gobar v. Emperor, AIR 1943 Bom. 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder. ** ** ** In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the

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stolen property was the murdered. Suspicion cannot take the place of proof. " (Emphasis supplied) 5 33. In the case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, (in this instance murder), what are the tests: i. The first thing to be established is that the theft and murder forms part of one transaction. The circumstances may indicate 7 that the theft and murder must have been committed at the same time. But it is not safe to draw the inference that the person in possession of the stolen property was the murderer [Sanwant Khan (supra)]; ii. The nature of the stolen article; iii. The manner of its acquisition by the owner; iv. The nature of evidence about its identification; v. The manner in which it was dealt with by the accused; vi. The place and the circumstances of its recovery; vii. The length of the intervening period; viii. Ability or otherwise of the accused to explain its possession [See Baiju v. State of Madhya Pradesh, (1978) 1 SCC 588]." 12. The only material which may possibly be taken against the appellant is, thus extremely weak. There is no other material on record which could even remotely be taken against the appellant. On the strength of the law declared by this Court, the appellant is, therefore, entitled to benefit of doubt. 13. We, therefore, allow this appeal, set aside the order passed by Courts below convicting and sentencing the appellant as stated above and acquit him of all the charges levelled against him.

11. As stated above, it is a case of circumstantial evidence. The prosecution witness - Rashid (P.W.4), Farida (P.W.6) and Chhote Khan (P.W.7) have turned hostile and did not support the prosecution story. In Para 47 of the impugned judgment, the learned trial Court has recorded the finding that accused Ratanlal and his son Kailash took Raju Patrakar (P.W.-15) to the house of deceased Narendra Nigam and they saw that the deceased was lying on his bed with blood on his clothes. In Para 50, the learned trial Court has held that the accused Ratanlal and his son Kailash had knowledge about the aforesaid crime and despite that, they took Raju Patrakar to create

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evidence to establish them as an innocent person, otherwise they would have informed P.W.-15 at the beginning that Narendra Nigam is lying in the house, hence appellant and his son committed murder of Nigam Patwari. In our considered opinion this finding of learned trial Court has that the appellant and his son are guilty is based on presumption as there is no direct evidence to establish the complicity of the appellant in charge of murder.

12. In order to connect the deceased appellant to this crime, learned trial Court has relied on the recovery of silver articles on his disclosure as well as blood-stained clothes and knife. It is important to mention here that it is a case of loot and murder in the house of the deceased, but the police have not collected any fingerprints from the doors , almirah, knife, bed, furniture or other parts of the house in order to connect the deceased appellant with the crime. It is the case of the prosecution that the appellant opened the almirah and took out the silver articles, then the police ought to have collected the chance fingerprints from the scene of crime .

13. The seized articles from the appellant were sent to Forensic Science Laboratory and as per the FSL report dated 25.8.2000, human blood was found only on the bottom of the trouser of the appellant. The blood group on the items could not be determined as it was not sufficient or disintegrated. On the shirt and knife, no human blood was found. Therefore, in absence of blood group matching it cannot be presumed that the blood found in articles Nos.3, 4 and 6 was the blood of the deceased Narendra Nigam. It is the case of the prosecution that the appellant visited the inside the house of the deceased along with P.W.-15 and his son Kailash, hence it is quite

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possible that blood got stuck in his trouser at that place. Hence, only on the basis of recovery bloodstained clothes and knife in which the blood group was not matched, the conviction on the basis of presumption based on weak circumstantial evidence cannot be sustained, and the late appellant is entitled to the benefit of the doubt.

14. Hence in view of the above discussion, the late Ratanlan is entitled to the benefit of the doubt, hence he is acquitted from all the charges. Hence the judgment dated 9.10.2001 passed by Additional Sessions Judge, Jobat, District Jhabua in Sessions Trial No.534/2000 whereby the appellant was convicted u/s. 302/34 of the IPC and sentenced to undergo life imprisonment and pay a fine of Rs.10,000/- is hereby set aside. Appellant's conviction and sentence u/s. 392 of the IPC is also hereby set aside.

15. Now, the only issue which requires consideration by this Court is, who will get the custody of the silver articles. Admittedly, the silver ornaments were mortgaged in lieu of money by the deceased Narendra Nigam with the late appellant Ratanlal. As per the evidence that came on record, the late appellant used to keep the silver ornaments with deceased Narendra Nigam who lend money to him. The police have recovered the account books in which all the money transactions were recorded by the deceased. Section 451 and 452 of the Cr.P.C. provided the procedure for the return of the seized articles/property at the time of the conclusion of the trial. Learned Government Advocate had relied on the Apex Court decision given in the case of Bharat Sanchar Nigam Ltd. V/s. Surayanarayan & another : (2020) 12 SCC 637 that the claim of title to the goods which have been seized is a relevant consideration while passing an order u/s. 452 and where

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there are conflicting claims of entitlement to the property, the Magistrate may deal with them or, where it is found that the rival claims need to be resolved after an evidentiary trial, relegate the conflicting claimants to prove their rights and entitlements before a competent Court. It has also been held that where a claim is made before the court that the property does not belong to the person from whom it was seized, Section 452 does not mandate that its custody should be handed over to the person from whose possession it was seized, overriding the claim of genuine title which is asserted on behalf of a third party. The apex Court has set aside the direction given by the trial Court to grant custody of the seized articles to the person from whom it was seized and directed both parties to approach the appropriate civil court to get the title decided about the property. Para 20, 21 and 22 of the aforesaid judgment are reproduced below :

"20. Prima facie, at this stage, we are unable to find any reasonable basis in the record for handing over custody of the seized goods to the respondent. During the course of the hearing, we requested learned counsel appearing on behalf of the first respondent to indicate at least, prima facie, some basis for the claim of title in the acquisition of the goods or the payment which has been made for acquiring them. As we note from the judgment of the trial court, the claimant had produced certain invoices between 8 February and 20 February 1992, recovery having been effected on 21 February 1992. The Magistrate noted that no cash receipts were produced by the first respondent and though vouchers were produced by CW-10, they did not prove that they were for the purchase of the seized goods. Nothing at all has been shown in response to our query.

21. In our view, the claim which has been made by the first respondent to the title to the goods is seriously in dispute. Hence it was but appropriate and proper that such a claim be agitated before the competent civil forum. The view of the Magistrate was correct. In the absence of such an

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adjudication, the custody of the goods, which have been seized, should continue to be with the appellant. In passing this order, we are also guided by the fact that as noticed in the order of the Magistrate, the appellant had indicated through its evidence that the goods were stolen from its godown and were of a nature which were not capable of being acquired from the open market.

22. The High Court was in error in directing return of the goods to the first respondent. The first respondent must, in our view, be relegated to the civil court for establishing its claim and title to the goods as observed in the order passed by the Magistrate, which was affirmed by the Sessions court."

16. In view of the above, the legal heirs of deceased Narendra Nigam and the legal heirs of the late appellant - Ratanlal are free to submit their claim before the Chief Judicial Magistrate. If any such claim is submitted, the Chief Judicial Magistrate is directed to conduct an inquiry in order to decide who is entitled to receive the sized silver articles/ornaments. If the Chief Judicial Magistrate finds that there is a complication in deciding the title of the property between the parties and any other, it may relegate parties to the Civil Court to get a decree in view of the law laid down by the apex Court in the case of Bharat Sanchar Nigam Ltd. (supra). The owner of silver ornaments/articles shall be entitled to claim on 'Supurdiginama', hence their claim be also decided in accordance with law.

With the aforesaid, this appeal stands disposed of. Record be sent back to the concerned Court.

         [ VIVEK RUSIA ]              [AMAR NATH (KESHARWANI)]
             JUDGE.                           JUDGE.
Alok/-
           Digitally signed by ALOK GARGAV
           Date: 2022.10.15 16:39:44 +05'30'