Khairaj vs The State of Rajasthan

R.R. Yadav, J.—One Shri B.L. Asnani, Assistant Engineer, Rajasthan State Electricity Board, Ajmer Camp at Barmer filed a report at the police station, Barmer on 14.12.1979 to the effect that his employees Gangmen were lying electric wire from Banner to Chohtan Road in Dist. Banner. It is further alleged that on 13.12.1979, two drums of Aluminum wires were put in village Undkha and 19 drums were put at Neemdi. When on 14.12.79, the labourers of the first informant went to village Undkha, they did not find two drums of electric wires. The Junior Engineer, Shri Ram Rakhani reached to the site on receiving information and found that two drums of electric wires were missing and tyre marks of the truck and foot marks of persons were noted on the spot. The employees of the R.S.E.B. went to village Neemdi, there also two drums of electric wires were missing and there also tyre marks and foot marks of persons were found. According to the allegations, four drums containing 10 KM of wire with approximate value of Rs. 52,000/- were missing.

After investigation, the police has submitted a charged- sheet u/s 379 and 379 read with Section 34, I.P.C. against eight accused persons namely; Bansiram, (Gordhan, Bagaram, Bhakhra Ram, Khumaram, Jagmal, Bharmal and the petitioner Khairaj. After trial, seven accused-persons were acquitted and petitioner Khairaj was convicted for the offence punishable u/s 379, IPC and was sentenced to three years'' R.I. by the learned Chief Judicial Magistrate, Banner on 6.4.84.

Aggrieved against the conviction and sentence, the accused-petitioner filed on appeal before the learned Sessions Judge, Balotra-camp at Barmer. The learned Sessions Judge vide judgment dated 19.12.84 confirmed the finding of guilt recorded by the learned Chief Judicial Magistrate, Barmer and maintained the conviction.

Aggrieved against the conviction and sentence, the petitioner had filed a revision petitioner before this Court. From close scrutiny of the evidence on record, it is apparent from both the judgments of the sub-ordinate Courts that in support of the prosecution, the prosecution agency has examined PW 1 Kishanchand, PW 2 Achla Ram, PW 3 Bhanwar singh, PW 4 Devisingh, PW5 Magharam, PW 6 Dhansingh, PW 7 Jodharam, PW 8 Gangaram, PW 9 Afjal Khan, PW 10 Jaffar Ali, PW 11 Shankar Lal, PW 12 Bhanwar and PW 13 Bhagwan Dass. In support of the prosecution story, the prosecution agency has also produced Ex.P/1 to Ex.p/27 as documentary evidence.

From peusal of the judgments given by the Sub-ordinate Courts, it is apparent that there are no eye-witness of he occurrence and the present accused-petitioner is convicted on sole testimony of the alleged recovery vide recovery memo Ex.P/13 which is also signed by two motbirs namely; PW 7 Jodharam and PW 8 Gangaram. respectively. The aforesaid recovery was made from an open filed which is situated near the house of Gordhanram. After careful scrutiny of evidence, learned Chief Judl. Magistrate acquitted accused Gordhanram but convicted the present petitioner for the offence u/s 379, IPC on the basis of some recovery alleged to have been made at his pointing out.

A perusal of the judgment of the learned Sessions Judge, who affirmed the judgment passed by the learned Chief Judl Magistrate raised a presumption against the present accused- petitioner to the effect that if the accused was not connected with the said offence, how can recovery be effected fro a place, which is pointed out by him. It is pertinent to mention here that two witnesses of the alleged recovery namely PW 7 Jodharam and PW 8 Gangaram had not supported the prosecution story, and both of them have been declared hostile by the prosecution. A perusal of the statement given by the aforesaid two motbir-witnesses it is apparent on the face of record that no such recovery was made at pointing out by the accused as alleged by the prosecution. Both the motbir witnesses stated before the court that they do not know the accused-person and no recovery of electric wire has been made in their presence.

A special feature of the prosecution story, which is borne out from the record is that from the place where the drums of electric wires were stolen some tyre marks and foot marks were found vide Ex.P/1. The moulds of foot-prints and tyre marks were taken on the spot by the inestigating officer but when the accused-petitioner was arrested and truck was taken into custody, then, why the moulds of the foot-prints of the accused-petitioner and tyre marks of the truck were not taken and were not sent for comparison to the Forensic Science laboratory is a mistry for which prosecution has no explanation. The aforesaid omission on the part of the prosecution agency not taking the moulds of the foot-prints and tyre marks and not sending them to the Forensic Science Laboratory, is fatal to the prosecution. In absence of F.S.L. report, there is no link evidence to connect the accused with the alleged offence.

A detailed procedure is given under Sub-rule (1), (2) and (3) of Rule 6.26 of the Rajasthan Police Rules, 1965 according to which, foot-prints are of the first importance in the investigation of crime. In the present case for the reason best known to the prosecution it failed to produce evidence of identity of accused and identify of truck found and taken by the investigating officer at the scene of occurrence for the identification of suspect accused-petitioner as provided under Rule 7.31 of the aforesaid Rules when he was arrested and truck was taken into custody. The prosecution failed to explain as to why the detail procedure prescribed under Sub-rule (2) of Rule 6.26 of the Rajasthan Police Rules was not followed in presence of a Magistrate.

Both the courts-below have fallen in to an error in raising a presumption against the accused-petitioner on the basis of the alleged recovery of electric wires from an open filed, which was admittedly accessible to all and was not found to be in exclusive possession of the petitioner. As matter of fact, under Sc. 114 of illustration (a)-such kind of presumption can only be raised in those case where a person is found in possession of stolen goods soon after the theft. Here, in the present case, the petitioner was not found in possession of stolen goods but it is alleged by the prosecution that on his pointing out, the recovery was made from an open field, which was admittedly not found in exclusive possession of the petitioner. No witness has deposed that he saw the stolen wire in Truck No. RSN 2946. The prosecution has examined Arjal Khan to prove that the field from where the recovery of stolen wires was made belong to Gordhan accused since it was near his house. The prosecution satisfied with the statement of Arjal Khan and did not made in effort to connect the field in possession of (Jordhan accused and as such both the courts acquitted him.

Evidence of recovery of stolen wires at the instance of the petitioner cannot by itself prove that he who pointed out the stolen wires was thief of that stolen wires. The statement accompanying the discovery is woefully vague to identify the authorship of concealment with the result that the pointing out of the stolen wires may at best prove the petitioner''s knowledge as to where the stolen wires were kept. The place from where the recovery of stolen wires were made was accessible to public at large. Discovery of stolen wires leaves a significant question which creates a sense of uneasiness in the mind of criminal court as to whether the hedges where the stolen wires were alleged to have been concealed were enough to conceal so big drums of stolen wires wrapped in big wooden wheels as apparent from Ex.P./6, P/7 and p/8 of the photographs.

Mr. H.R. Panwar, learned Public Prosecutor for the State has invited attention of the court towards the statement of PW 12 Bhanwara in support of the prosecution story. In view of the discrepancies found in the prosecution story mentioned above, the statement of PW 12 Bhanwara Ram cannot be taken to be sufficient to establish the guilt against the accused-petitioner. As a matter of fact, the prosecution agency has miserably failed to establish guilt against the accused-petitioner beyond reasonable doubt, therefore he is entitled to be acquitted and both the judgments of the courts-below are liable to be set aside.

In the result, the revision petition is allowed. Both the judgments dated 6.4.84 and 19.12.84 passed by the learned Chief Judl. magistrate, Barmer and learned Sessions Judge, Balotra Camp at Barmer respectively are hereby set aside. The accused-petitioner is on bail, he need not to surrender to his bail-bonds, which are hereby cancelled.