Samirmal vs State And Anr
2022 Latest Caselaw 7925 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 343/1997

Ugam Raj

----Petitioner Versus State And Ors.

----Respondent Connected With S.B. Criminal Revision Petition No. 342/1997 Samirmal

----Petitioner Versus State And Ors.

                                                                   ----Respondent


For Petitioner(s)         :     Mr. Lalit Pareek
For Respondent(s)         :     Mr. A.R. Choudhary PP
                                Ms. Yogita Mohnani

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 17/05/2022 Pronounced on 26/05/2022

1. The above-numbered S.B.Criminal Revision Petition

No.343/1997 has been preferred against the order dated

16.06.1997 passed by the learned Additional Sessions Judge,

Sojat ('lower appellate court') in Criminal Appeal No.5/95,

whereby the order dated 13.02.1995 passed by the learned

Judicial Magistrate, Sojat ('trial court') in Regular Criminal Case

No.53/83; vide the said order dated 13.02.1995 the recovered

articles in question were ordered to be returned to respondent

No.2 Bhanwar Lal.

                                           (2 of 9)                      [CRLR-343/1997]



2.   The     above-numbered            S.B.      Criminal         Revision      Petition

No.342/1997     has    been        preferred       against        the   order    dated

16.06.1997 passed by the learned Additional Sessions Judge,

Sojat in Criminal Appeal No.6/95, whereby the order dated

13.02.1995 passed by the learned Judicial Magistrate, Sojat in

Regular Criminal Case No.53/83; vide the said order dated

13.02.1995 the recovered articles in question were ordered to be

returned to respondent No.2 Bhanwar Lal.

3. Ms. Yogita Mohnani, learned counsel, who appeared on

behalf of the private respondent(s) submitted two applications (in

both the revision petitions) under Section 394 Cr.P.C. (Inward

No.1/22) seeking to bring on record the legal representatives of

deceased respondent No.2-Bhanwar Lal on record.

4. For the reasons mentioned in the applications, the same are

allowed. Accordingly, the legal representatives of deceased

respondent No.2-Bhanwarlal, as mentioned in the applications, are

taken on record, being arrayed as party respondents in these

petitions; amended cause titles already filed are also taken on

record. Thus, such substitution shall also form part of the present

judgment.

5. Learned counsel for the petitioners submitted that on

10.07.1980, a complaint was filed by the deceased-Bhanwarlal

(hereinafter referred to as 'the complainant') to the effect that

gold ornaments weighing 19½ tola and silver ornaments weighing

97 tola and a cash in a sum of Rs.265/- were stolen from his

house, on the previous night; report whereof was also lodged by

the complainant, on the same day i.e. 10.07.1980, before the

Police Station, Sojat, whereupon the same was registered as

(3 of 9) [CRLR-343/1997]

Criminal Case No. 126/80 for the offences under Section 457 &

380 IPC.

5.1 Learned counsel further submitted that after two years of the

alleged incident, the accused-Devaram was arrested, during the

course of investigation.

5.2 Learned counsel also submitted that after being arrested,

while the investigation was going on, the said accused-Devaram

informed the concerned investigating officer that some of the

stolen articles were being sold by him to goldsmith, namely,

Dayaram s/o Gopilal s/o Sojat Road; some articles were sold by

the accused to goldsmith, namely, Samir Sarraf r/o Sojat City;

while some of the articles sold by him to goldsmith, namely, Ugam

Raj s/o Bhanwar Surana.

5.3 Learned counsel further submitted that after investigation

and the necessary recovery [of gold and silver in solid form

(dhaliya)] having been effected from the concerned persons

(buyers of the stolen articles in question), a charge-sheet was

filed before the learned trial court under Sections 457 & 380 IPC

and the trial according commenced.

5.4 Learned counsel also submitted that after trial, vide the

order dated 13.02.1995 passed by the learned trial court, the

aforementioned accused-Deva Ram was convicted for the offences

under Sections 457 & 380 IPC; for conviction under both the

offences, he was ordered to undergo rigorous imprisonment for a

period of one year and a fine of Rs.250/-, in default of payment of

which, he was to undergo further three months rigorous

imprisonment.

5.5 Learned counsel however, submitted that vide the same

impugned order dated 13.02.1995, learned trial court directed

(4 of 9) [CRLR-343/1997]

that the recovered articles shall be returned to the complainant;

against such determination, the present petitioners preferred

appeals before the lower appellate court, but the same were

dismissed vide the impugned order dated 16.06.1997, while

upholding the determination of the learned trial court; hence,

against both the impugned orders, the present petitions, as

mentioned above, have been preferred.

5.6 Learned counsel further submitted that before making a

determination in regard to return of the stolen articles in question

to the complainant vide the impugned order dated 13.02.1995,

the learned trial court has not afforded any opportunity, nor issued

any notice to the petitioners so as to enable them to put forth

their stand, in regard to such determination, before it.

5.7 Learned counsel also submitted that the stolen articles in

question, alleged to have been belonging to the complainant, were

recovered (in solid form- Dhaliya) upon the indication/information

of accused-Deva Ram, that too, after two years of the alleged

theft; this is more so when, the recovered articles were not the

same, as were allegedly stolen from the house of the complainant.

5.7.1 Learned counsel however, submitted that the said

recovery of Dhaliya (articles) were made, under the immense

pressure and threat exerted by the concerned investigating

authority, whereupon the ornaments were converted into Dhaliya

by the petitioners and handed over to the concerned investigating

authority; at the time of the said recovery, the signatures of the

petitioners on the concerned fard were also taken by the police, by

exerting pressure upon them; this is more so when, the

complainant could not prove the factum of the recovered articles

being the same as were allegedly stolen from the house of the

(5 of 9) [CRLR-343/1997]

complainant, by placing the cogent evidence on record before the

learned trial court.

5.8 Learned counsel thus submitted that the learned trial court

has passed the impugned order of return of the articles (in sold

form) to the complainant without taking into consideration the

overall facts and circumstances and without duly appreciating the

evidence placed on record before it, more particularly, the one

pertaining to the fact that the articles recovered from the

petitioners, were not the ones, which were allegedly stolen by

accused-Deva Ram from the house of the complainant. Learned

counsel also submitted that the learned lower appellate court also

erred in affirming the determination made by the learned trial

court. Thus, as per learned counsel, both the impugned orders are

not sustainable in the eye of law, and deserve to be quashed and

set aside by this Court.

6. On the other hand, learned Public Prosecutor as well as

learned counsel for the private respondents opposed the aforesaid

submissions made on behalf of the petitioners, and have

supported the impugned orders passed by the learned courts

below.

7. As regards, the argument raised on behalf of the petitioners

that no notice was issued to them by the learned trial court,

before passing the impugned order in regard to return of the

articles to the complainant, learned counsel for the private

respondents submitted that for such determination, no notice was

required to be issued, as the petitioners were very much aware of

such proceedings before the learned trial court, and thus, they

were very much required to remain present before the learned

trial court on each and every date of hearing of the case; this is

(6 of 9) [CRLR-343/1997]

more so when petitioner-Samir Mal had moved an application

before the learned trial court on 28.09.1991 for release of the

articles in question in his favour.

7.1.1 Learned counsel further submitted that in the litigation

pending before the learned trial court, the names of the present

petitioners were very much there in the list of witnesses prepared

by the prosecution; however, their version was not found to be

worth-believing by the learned trial court, and rightly so; thus, as

per learned counsel, the argument of the petitioners regarding

non-affording of any adequate opportunity to put forth their stand

does not merit acceptance.

7.2 Learned counsel also submitted that it was an established

fact before the learned trial court that the articles (in solid form)

as recovered by the concerned investigating authority from the

possession of the present petitioners, were the same, as were

allegedly stolen from the house of the complainant, that too, on

the strength of the indication, information and identification made

by the accused-Deva Ram (culprit of the theft in question), on

different dates.

7.2.2 Learned counsel further submitted that the conduct of

the present petitioners speaks for itself and rather the same is self

explanatory, to the effect that immediately after purchasing the

stolen articles in question, the same were converted into solid

form (dhaliya), whereas the petitioners could not point out any

reason, as to what prompted them to make such conversion.

7.3 As regards the argument advanced on behalf of the

petitioners that the recovery in question was effected by the

concerned investigating officer and the signatures of the

petitioners, as taken, upon the concerned recovery fard, both

(7 of 9) [CRLR-343/1997]

were done under immense pressure and threat by the concerned

investigating officer, learned counsel submitted that the same

could not be proved before the learned trial court by the

petitioners; and even if that was so, the petitioners also could not

point out before the learned trial court, whether they had

complained of such an alleged conduct on the part of the police

authority to their superior authorities, and if not, then the reason

thereof; but as regards the said issue, nothing was forthcoming

before the learned trial court, on the part of the present

petitioners. Thus, such argument of the petitioners also is not

worthy of consideration.

7.4 Learned counsel thus submitted that the learned trial court

has taken into due consideration the overall facts and

circumstances of the case, as well as duly appreciated the

evidence placed on record before it, before passing the impugned

order of return of the recovered articles to the complainant; and

affirmation thereof in the attending facts and circumstances of the

case, as made by the learned lower appellate court, also cannot

be faulted with, and thus, both the impugned orders does not call

for any interference by this Court.

8. After hearing learned counsel for the parties as well as

perusing the record of the case, this Court finds that there are

varying versions put forth by certain prosecution witnesses before

the learned trial court, in regard to the recovery in question, which

is also detrimental to the case of the present petitioners in regard

to their being the bona fide purchasers of the recovered articles in

question and ownership thereof; this is more so when the

documents produced before the learned trial court clearly shows

(8 of 9) [CRLR-343/1997]

the ownership of the complainant in regard to the recovered

articles in question.

9. Another pertinent aspect of the present case, as noticed by

this Court also, is the failure of the petitioners in reporting the

alleged illegal act on the part of the concerned investigating officer

while effecting recovery of the articles in question from the

possession of the petitioners, which speaks much about their own

conduct. Thus, when the petitioners were themselves sitting tight

over their own alleged rights, then they cannot seek any relief, at

a belated stage, when there are two consecutive orders passed

against them by the learned courts below.

10. This Court also observes that the record of the case clearly

reveals that the recovered articles, which were converted into

solid form (dhaliya) by the petitioners, upon the same being sold

by the accused-Deva Ram to them, seven days after the alleged

theft, were in fact belonged to the complainant; thus, being the

owner thereof, the same have been rightly been ordered to be

returned to the complainant, by the learned trial court, and thus,

the affirmation of such a determination cannot also be faulted

with.

11. In view the above, this Court finds that both the learned

courts below, in passing the two consecutive orders impugned

herein in favour of the complainant, have not committed any error,

rather both the impugned orders, the opinion of this Court, are

well reasoned speaking orders, which are sufficient to meet the

ends of justice, and therefore, the same do not warrant any

interference by this Court.

                                                                              (9 of 9)                   [CRLR-343/1997]



                                   12.   Consequently,     the     present       petitions       are   dismissed.   All

pending applications also stand disposed of. Record of the learned

court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

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