Rajasthan High Court
Saddam Hussain Son Of Shri Abdul Ajij vs State Of Rajasthan on 8 February, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:4854]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 318/2023
Saddam Hussain S/o Shri Abdul Ajij, Aged About 24 Years,
Resident Of Village Ramsar, Police Station Nasirabad Sadar,
District Ajmer
(At Present Confined in Central Jail, Ajmer)
----Petitioner
Versus
State of Rajasthan, Through Public Prosecutor
----Respondent
For Petitioner(s) : Mr. Abhishek Dadhich
For Respondent(s) : Mr. Mahendra Meena - PP
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
08/02/2024
1. By way of filing present criminal revision petition under
Section 397 read with Section 401 Cr.P.C. the petitioner has
assailed the judgment dated 28.02.2023 passed by learned
Additional Sessions Judge No.3, Ajmer in Criminal Appeal
No.05/2021 (CIS No.50/21), whereby, the learned appellate court
while dismissing the appeal of the accused-petitioner has upheld
the judgment of conviction and order of sentence dated
02.02.2021 passed by learned Additional Chief Judicial Magistrate
No.1, Ajmer in Criminal Case No.6036/2018, whereby, the
revisionist-petitioner was convicted and sentenced as under:-
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Under Section 379 I.P.C. :
Three years' rigorous imprisonment.
2. Brief facts of the case are that on 16.03.2018 complainant
Ajay Kumar Jain lodged a written report at police station Sadar
Kotwali, Ajmer stating therein that on 16.03.2018 at around 03:00
AM when he was going to the Temple, his car Maruti-800 bearing
registration No.RJ01-C-9744 standing outside the house from last
four days was stolen by someone. On the aforesaid report, an FIR
No.56/2018 was registered and after usual investigation, charge-
sheet under Section 379 I.P.C. was filed against the present
petitioner.
3. The Learned Magistrate framed charges against the
petitioner for the above offence and upon denial of guilt by him,
commenced the trial. During the course of trial, the prosecution in
order to prove the offence, examined as many as 8 witnesses and
exhibited 10 documents. The accused, upon being confronted
with the prosecution allegation, in his statement under Section
313 Cr.P.C., denied the allegation and claimed to be innocent.
Then, after hearing learned counsel for the parties and upon
meticulous appreciation of the evidence, learned trial court
convicted the accused for the offence under Section 379 I.P.C.
vide judgment dated 02.02.2021. Aggrieved by the judgment of
conviction, he preferred an appeal, which was dismissed by the
learned appellate court vide judgment dated 28.02.2023 affirming
the judgment passed by the trial court. Hence, this revision
petition is filed before this court.
[2024:RJ-JP:4854] (3 of 7) [CRLR-318/2023]
4. It is argued by learned counsel for the petitioner that the
name of the accused-petitioner was not mentioned in the FIR and
the vehicle in question was recovered from an open place, which is
available for public use. It is also argued that a bare perusal of
the statements of PW-6 Udai Singh and PW-7 Moinuddin makes it
clear that the accused-petitioner was brought on production
warrant and no vehicle was recovered from him. It is further
argued that the learned trial court while appreciating the evidence
should keep in mind the two cardinal principles that the guilt
against the accused must be proved beyond reasonable doubt and
the burden on the accused is not so heavy to prove the plea taken
by him as it lay on the prosecution. The burden can be discharged
by the accused merely showing the preponderance of probability
in favour of the plea taken by him. It is prayed that the
judgments passed by learned courts below may be set aside and
revision petition may be allowed.
5. Learned Public Prosecutor supported the judgments passed
by learned courts below and opposed the revision petition.
6. Heard learned counsel for the parties and perused the
material available on record.
7. In order to prove the fact regarding theft of maruti car
bearing registration number RJ-01-C-9744 on midnight of
15.03.2018 to 16.03.2018, prosecution has relied upon the
testimony of Ajay Kumar (PW-1), who is the registered owner of
the stolen car. PW-1 Ajay Kumar in his statement before the Court
has clearly stated that he parked his vehicle outside his house and
came out at 03:00AM on 16.03.2018 and found his maruti car
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bearing registration number RJ-01-C-9744 missing. He has further
stated that written complaint i.e. Ex.-P1, bears his signature.
8. PW-2- Mudita Jain, wife of PW-1- Ajay Kumar, has
corroborated the version of PW-1- Ajay Kumar. Therefore, this fact
was proved by the prosecution that the car of complainant PW-1-
Ajay Kumar was found missing at midnight of 16.03.2018.
9. The accused petitioner has been involved in the case on the
ground that after furnishing information under Section 27 of the
Evidence Act, the car was recovered from the instance of accused
petitioner.
10. In order to prove the above fact the prosecution has relied
upon PW-8 Radheyshyam, who is the investigating officer of the
case and PW-6- Udai Singh. PW-8- Radheyshyam in his
examination-in-chief has stated the fact that he was conducting
investigation in the case under Section 379 of IPC and during the
investigation, he arrested accused- Saddam Hussain. He further
stated that accused- Saddam Hussain voluntarily disclosed the
information that he has stolen a car bearing registration number
RJ-01-C-9744 and hidden it in the shrubs in front of drainage
channel situated near Gugra Ghati. The said information was
recorded as Ex.-P-10 on 24.03.2018 at 04:15 PM and at the
instance of accused petitioner, the recovery of stolen ca was
effected from near Gugra Ghati, Jaipur Road.
11. In convicting the accused Saddam Hussain the trial Court
mainly relied on a solitary piece of evidence, the Seizure Memo
which was prepared after recovery of the stolen car on the
instance of the Accused Saddam's information under section 27 of
the Evidence Act.
[2024:RJ-JP:4854] (5 of 7) [CRLR-318/2023]
12. The trial court drew presumption under Section 114 of the
Indian Evidence Act, 1872 ("Evidence Act", hereafter), to the
extent it provides that "a man who has stolen goods soon after
the theft is either the thief or has received the goods knowing
them to be stolen unless he can account for his possession". The
trial court believed the testimony of two police officials before
whom the recovery of the stolen car was affected.
13. It is admitted position that no independent witnesses were
associated while making recovery of the car. It is also undisputed
that the recovery of the stolen car was made from the open place
just in the vicinity of the main National Highway, hidden in the
shrubs.
14. It is also undisputed that said recovery was made in the time
at 3.00 pm. The police did not endeavour to associate any
independent witness even though the complainant or owner of the
car or any independent witness could easily be associated.
It is settled law that police officials are competent witnesses and
their testimony can not be discarded. It is always a rule of
prudence that evidence of police witnesses needs to be scrutinized
more cautiously in comparison with the other witnesses as there
may be a probability of false implication. If the testimony of police
officials transpires the confidence of the court then the court may
convict the accused.
15. In the instant case apart from two police officials namely
PW-6 Udai Singh and PW-8 Radheyshayam no independent
witness remained associated with the recovery. The police officials
did not even make a proper seizure memo. The place of seizure
memo does not show the precise distance from the main National
[2024:RJ-JP:4854] (6 of 7) [CRLR-318/2023]
Highway. It even does not indicate the distance of the shrubs near
the drainage channel from where the car was recovered. The
recovery place is conveniently accessible to the public and not a
secluded place.
16. The testimony of the seizure witnesses is the only thread in
the present case that could tie together the loose garland, and
without it, the very seizure of stolen property stands falsified. This
fact cannot be overlooked that no independent witness stayed
present during the seizure/recovery of the stolen articles from
Saddam's instance.
17. Therefore the standalone evidence of the I.O. and another
police official on seizure cannot be considered either definitive or
persuasive; the recoveries made before them under Section 27 of
the Evidence Act must, therefore, be rejected.
The above circumstances build a plausible suspicion in the mind of
this Court and likelihoods of false implication cannot be ruled out.
It's highly unsafe for this Court to uphold the conviction of the
accused Saddam Hussain.
18. Upshot to the above, the appeal succeeds. The impugned
judgment dated 28.02.2023 passed by learned Additional Sessions
Judge No.3, Ajmer in Criminal Appeal No.05/2021 (CIS No.50/21)
affirming the judgment of conviction and order of sentence dated
02.02.2021 passed by learned Additional Chief Judicial Magistrate
No.1, Ajmer in Criminal Case No.6036/2018 are set aside. The
accused-appellant is hereby acquitted from the charges under
Section 379 of the Indian Penal Code. The petitioner is in custody.
He shall be released from prison forthwith, if not wanted in any
other case.
[2024:RJ-JP:4854] (7 of 7) [CRLR-318/2023]
19. All pending applications stand disposed off.
20. Record be sent back forthwith.
(PRAVEER BHATNAGAR),J
Mohit
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