Champa Lal vs State
2023 Latest Caselaw 3871 Raj

[2023/RJJD/012030]                  (1 of 10)                       [CRLR-540/2007]


      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
             S.B. Criminal Revision Petition No. 540/2007

Champa Lal S/o Shri Babu Lal, By Caste Soni, R/o Bhinmal Tehsil
Bhinmal, District Jalore.
                                                                    ----Petitioner
                                    Versus
State Of Rajasthan
                                                                  ----Respondent


For Petitioner(s)         :     Mr. Raj Singh Bhati
For Respondent(s)         :     Mr. Abhishek Purohit, AGA



               HON'BLE MR. JUSTICE FARJAND ALI

                                     Order

ORDER RESERVED ON                       :::                      25/04/2023
ORDER PRONOUNCED ON                     :::                      02/05/2023
BY THE COURT:-

1. The instant Criminal Revision Petition filed under Section

397/401 of the Cr.P.C. against the impugned judgment dated

15.06.2007 passed by the learned Additional Sessions Judge,

Bhinmal in Criminal Appeal No.13/2007 as well as against the

judgment dated 22.01.2007 passed by the learned Additional

Chief Judicial Magistrate, Bhinmal in Criminal Regular Case

No.333/2006 whereby the petitioner Champa Lal was convicted for

the offence under Section 411 of the IPC and sentenced to

undergo six months' simple imprisonment along with fine of

Rs.100/- and in default, to further undergo seven days' simple

imprisonment and the appeal filed against the said judgment was

dismissed.

[2023/RJJD/012030] (2 of 10) [CRLR-540/2007]

2. Bereft of elaborate details, the brief facts giving rise to filing

of the instant revision petition are that the petitioner was

chargesheeted for committing an offence under Section 411 of the

IPC. As per the charge sheet, a theft was committed in the

intervening night of 15th and 16th October 2005 at Mahadevji

Bhimeshwar temple near Village Kalapura by some unknown

persons. During investigation, it was revealed that co-accused

Chhagna Ram and Harchand Ram committed the offence of theft

and the petitioner received the articles of gold and silver knowing

it to be stolen one.

3. P.W. 1 Daulat Singh in his own statement at oath had

deposed that a theft was committed in the temple and he lodged a

report Ex.P/1 at the Police Station Jaswantpura, Bhinmal.

4. P.W. 2 Dalpat Singh was a Manager of the temple property.

As per him, some gold and silver ornaments were stolen by

unknown persons. The bill and vouchers of the stolen articles were

not submitted by him.

5. P.W. 3 Narain Singh stated that site memo Ex.P/3 was

prepared by the police officials in his presence.

6. P.W. 5 Mahendra Singh, the Investigating Officer, who

conducted the investigation had deposed that he recorded the

statements of witnesses and arrested the co-accused Harchand

Ram and Chhagna Ram. He further stated that while in police

custody co-accused Harchand Ram and Chhagna Ram made a

disclosure statement to him that out of the total stolen property

from the temple, they sold one silver bar and one gold article to

[2023/RJJD/012030] (3 of 10) [CRLR-540/2007]

the petitioner Champa Lal. It was his contention that pursuant to

the information furnished by the accused Harchand Ram and

Chhagna, he went to the shop of the petitioner and recovered one

silver bar, a golden nose ring and 450 mg melted gold from the

conscious possession of the petitioner and prepared the recovery

Memo Ex.P/4. As per this witness, Kamlesh, the monk of temple

was also present at the shop of the petitioner and at the time of

recovery, he identified the recovered articles. It is notable that

neither any bill vouchers of the ornaments were produced nor any

mark of identification was mentioned by the complainant prior to

recovery of articles as mentioned in Ex.P/4. It is also notable that

the articles mentioned in Ex.P/4 are different to what were

mentioned in the FIR. It is evident from the recovery memo that

the description of property mentioned therein do not match with

the property allegedly stolen from the temple.

7. P.W. 5 Mahendra Singh further asserted the fact that the

accused Harchand Ram and Chhagna Ram made confession before

him to the effect that they procured some of the stolen articles to

the petitioner.

8. P.W. 6 Kamlesh, monk of the temple has stated that a theft

was committed in the temple and recovery of one silver bar and a

golden nose ring was affected at the instance of the petitioner.

9. P.W. 7 Vijay Bhadur stated that he was posted as a Constable

of the police station Jaswantpura and he was produced to verify

the fact of recovery from the shop of the petitioner. No

[2023/RJJD/012030] (4 of 10) [CRLR-540/2007]

independent witness has been produced to verify the fact of

recovery.

10. After examination of the witnesses of the prosecution, the

accused-petitioner was examined under Section 313 of the Cr.P.C.

wherein he claimed to be innocent and made an explanation that

he was falsely implicated. Thereafter, hearing the learned counsel

for the parties, the learned trial Court vide judgment dated

22.01.2007, convicted the accused petitioner Champa Lal and

sentenced him to suffer six month's simple imprisonment with a

fine of Rs.100/- with default clause.

11. Aggrieved by the judgment of conviction and order of

sentence passed by the learned trial Court, the accused-petitioner

preferred an appeal before the learned appellate Court, however,

the same was dismissed vide impugned judgment dated

15.06.2007. Hence, the legality, correctness and propriety of the

judgments and orders passed by the Courts below have been

challenged by way of filing the instant revision petition.

12. Learned counsel appearing for the petitioner submitted that

the prosecution has miserably failed to appreciate the correct legal

and factual aspect of the matter and thus, reached at an

erroneous conclusion of guilt. It is submitted that except the

confessional statements made by the co-accused Harchand Ram

and Chhagna Ram before the police official while in police custody,

no other incriminating evidence available is on record, even for

the namesake on the basis of which, it can be said that the

petitioner committed the offence. The alleged recovery of articles

[2023/RJJD/012030] (5 of 10) [CRLR-540/2007]

from the shop of the petitioner have no match with the stolen

articles as described in the FIR and as such, there was no

evidence to bring home the guilt of the accused.

13. Per contra, learned Public Prosecutor opposed the

submissions made at the end of the petitioner and submitted that

no interference is required by this Court in the judgments passed

by the Courts below.

14. Heard learned counsel for the petitioner as well as learned

Public Prosecutor for the State. Perused the material available on

record as also the impugned judgments of the Courts below.

15. It is an admitted fact that name of the petitioner was not

mentioned by any of the prosecution witnesses. He has been

arraigned as an accused simply on the basis of the statements of

the co-accused Harchand Ram and Chhagna Ram and that too

when they were in police custody. What were the specifications or

mark of identification of the stolen articles for which allegation of

theft was levelled against the petitioner, has not been clarified

anywhere in the record. Even, the FIR Ex.P/1 does not contain

description of the articles, the FIR came to be lodged on

17.10.2005. The alleged recovery was affected from the petitioner

vide Ex.P/5 on 27.04.2006 i.e. well after six months of the

incident. The recovery mentioned in Ex.P/4 do not have any

match with the description made by the prosecution witnesses in

their statements. A bizarre process has been undertaken by the

Investigating Officer in this case while keeping the complainant of

this case with them at the time of recovery from the shop of the

[2023/RJJD/012030] (6 of 10) [CRLR-540/2007]

petitioner and it has been mentioned in recovery memo Ex.P/4

itself that the witnesses identified the articles. The law does not

recognize such identification and in considered view of this Court,

the alleged recovery is nothing but a farce. Such type of practice

deserves to be deprecated. As mentioned above, the articles

mentioned in the Ex.P/4 were altogether different ornaments. As

per the material available on record, the petitioner is a goldsmith

having a jewellry shop and availability of some gold and silver

articles at his shop is a common thing. There is no legally

admissible evidence on record to show or suggest that the alleged

recovery made from the petitioner vide Ex.P/4 was the same

which was stolen by the co-accused Harchand Ram and Chhagna

Ram from the temple and in this view of the matter, it is observed

that the alleged recovery made in pursuance to the information

furnished by the complainant vide Ex.P/4 do not connect the

petitioner in any manner with the alleged theft.

16. The language of Section 411 of the IPC is very clear in terms

to say that if any person receives the property/article

"knowingly" to be stolen then it shall be presumed that he

committed an offence under Section 411 of the IPC but here in the

case at hand, there is not an iota of evidence from which it can be

inferred that the petitioner received the property from the co-

accused Harchand Ram and Chhagna Ram knowing to be stolen

thus, the ingredients essential to constitute offence under Section

411 of the IPC are conspicuously missing and, therefore, the

conviction for the aforesaid offence cannot be sustained.

[2023/RJJD/012030] (7 of 10) [CRLR-540/2007]

17. Coming to the next question regarding the confessional

statement made by the co-accused Harchand Ram and Chhagna

Ram while in police custody is concerned it would be sufficient to

propound that the contention made by the co-accused of a case in

police custody regarding his involvement in commission of crime

as well as involvement of the other accused would not be

admissible in evidence in view of the provision contained under

Sections 24, 25 and 26 of the Indian Evidence Act unless any

corroborative evidence is produced to bolster the allegation based

on confession.

18. It is neigh well settled proposition of law that only on the

basis of the confessional statement made by co-accused without

there being any corroboration, no conviction can be made. There

are two parts of a disclosure statement made under Section 27 of

the Evidence Act and only the part of such information would be

admissible in evidence which distinctly relates to the fact

discovered thereby. The part of statement which is nothing but a

confession of crime by the accused to a police officer would hit by

the other provisions of the Evidence Act and only the part

wherefrom recovered, discovered and disclosed which is not

already in knowledge of the investigating officer would be

admissible in evidence. Section 27 of the Indian Evidence Act is an

exception to Sections 24 to 26 of the Indian Evidence Act. While

dealing with the identical question, this Court has made

observation in the case of Sumit Vs. State of Rajasthan decided

on 29.03.2023 in S.B. Criminal Misc. 2nd Bail Application

[2023/RJJD/012030] (8 of 10) [CRLR-540/2007]

No.2886/2023. The relevant part of the said order is deemed

appropriate to reproduce herein below:-

"......This court is of the view that at least there must be some corroborations or support to verify the confession made by the principal accused to the Police Officer while in lockup. If this said disclosure statement is a piece of evidence then this Court is forced to wonder who will come to the witness box to substantiate the charge against the petitioner for his alleged act of his being the alleged future recipient of the contraband. If it is an information under Section 27 of the Evidence Act, something is required to be recovered or discovered in pursuance of the information supplied under Section 27 of the Evidence Act, which distinctly relates to the commission of the crime. It is the admitted case of prosecution that in pursuance of the information furnished under Section 27 of the Evidence Act regarding the culpability of the petitioner, nothing new was disclosed, recovered or discovered.

.

.

.

.

.

.

.

It can be manifested from a simple reading of the Section 27 of the Evidence Act and the judgments referred above that only information in the form of confession received from disclosure made by an accused cannot be taken as reliable piece of evidence in isolation until there is a discovery or a recovery or another fact to corroborate the said information and prove its veracity. Precisely, it can be said that Section 27 of Evidence Act is an exception to Sections 24, 25 and 26 of Evidence Act, however, the exception limits its admissibility only upto what is envisaged in the statute itself and not beyond that."

[2023/RJJD/012030] (9 of 10) [CRLR-540/2007]

19. Thus, in this view of the matter, the conviction of the

petitioner is not sustainable in eyes of law which was made simply

on the basis of confession made by the co-accused Harchand Ram

and Chhagan Lal to a police officer in police custody. As such, in

the considered view of this Court, the prosecution has miserably

failed to prove the charge under Section 411 of the IPC against

the petitioner. The learned trial Court and the Court of appeal have

failed to scrutinize and evaluate the evidence in correct

perspective and thus, the findings arrived at by the learned Courts

below cannot be said to be a legal one and, therefore, the

impugned judgments passed by both the Courts below deserve to

be quashed and set aside.

20. Accordingly, the revision petition is allowed. The impugned

judgment dated 22.01.2007 passed by the Additional Chief

Judicial Magistrate, Bhinmal and the judgment dated 15.06.2007

passed in appeal by the learned Additional Sessions Judge,

Bhinmal are quashed and set aside. The petitioner is acquitted

from the charges. His bail bonds are cancelled.

21. Before parting, it is deemed appropriate to decide an

application preferred on behalf of the petitioner seeking

permission to make an application for obtaining a passport on the

ground that his wife is suffering from serious ailment and for that

purpose he wanted to take her to abroad for further treatment.

Since, the petitioner has been acquitted from the charges, no

further order is required to be passed in this application filed by

the petitioner for obtaining passport. However, it is made clear

[2023/RJJD/012030] (10 of 10) [CRLR-540/2007]

that if any application is moved by the petitioner to the Passport

Authorities for obtaining a passport, the same shall be heard and

decided in accordance with the prevailing law and rules, however,

this particular case shall not be taken as an impediment in that

process.

22. The record of the court below be sent back forthwith.

(FARJAND ALI),J 116-Mamta/-

Powered by TCPDF (www.tcpdf.org)