State of Rajasthan vs Brahmanand son of Shri Ratan Lal

Criminal leave to appeal was filed by the State of Rajasthan

under sub-Section (1) & (3) of Section 378 of Cr.P.C. against the

judgment dated 27-06-1991 passed by Additional Chief Judicial

Magistrate No. 2, Alwar (hereinafter referred to as the "trial

Court") in Criminal Case No. 425/1983, whereby the accused

persons Brahmanand and Lala Ram (respondents in this appeal)

have been acquitted from charges levelled against them under

Section 457 and 380 of IPC.

The brief facts of the case are that on 09-07-1980 at about

1:30 PM, Shri Jagmal Singh (PW-1) gave a written report (Ex.P-7)

of Shri Shambhu Dutt Shastri, Incharge of Deodhi Khas, City

Palace, Alwar to Indra Kumar (PW-9) stating therein that on

inspection of Janana Mahal on 30-06-1980, it was found that a

valuable carpet and three tables were missing, whereupon a FIR

No. 287/1980 under Section 457 and 380 of IPC was registered

and the investigation commenced. During investigation the

accused/respondent Brahmanand and Lala Ram were arrested on

28-07-1980 vide Ex.P-9 and Ex.P-10 respectively, and two

carpets, one of which was like floor mat were recovered at the

instance of the accused Lala Ram on 28-07-1980. A carpet was

also recovered on 05-08-1980 from the house of Babli @ Yash

Kumar (PW-2), at the instance of the accused Brahmanand.

Further, footprints and fingerprints were taken from the spot. After

completion of investigation, a chargesheet was filed against the

accused/respondents in the concerned Court. Charges were

framed against the accused/respondents for offence under Section

457 and 380 of IPC. The charges were read over and explained to

the accused/respondents. The accused/respondents pleaded not

guilty and sought to be tried

In support of it''s case, the prosecution examined as many as

nine witnesses and exhibited some documents.

Thereafter, learned trial Court put oral evidence of the

prosecution witnesses and the documentary evidence produced by

the prosecution to the accused/respondents under Section 313 of

Cr.P.C. In reply to the prosecution evidence, the

accused/respondents stated that they have been falsely implicated

and no recovery was made at their instance. In defence, no

witness was examined.

After completion of trial, the learned trial Court acquitted the

accused/respondents from the offence under Section 380 and 457

of IPC giving them benefit of doubt, vide impugned judgment

dated 27-06-1991.

Being aggrieved with the said judgment dated 27-06-1991

passed by the learned trial Court, the State of Rajasthan has filed

Leave to Appeal with Criminal Appeal. After hearing learned Public

Prosecutor and perusal of the record, the leave to appeal was

allowed and it was ordered to register the appeal separately and

accused/respondents be summoned through bailable warrant.

Learned Public Prosecutor for the appellant, State of

Rajasthan has contended that it is proved from the statement of

Jagmal Singh (PW-1) that one valuable carpet and three tables

were found missing from the Janana Mahal, Alwar on 30-06-1980.

It is also clear from the statement of Jagmal Singh that one glass

as fitted in the doors of the Janana Mahal, Alwar was found broken

and after entering therein the footprints and fingerprints were also

found. But the learned trial Court has erred in not believing the

statement of Jagmal Singh (PW-1) on the premise that the story

of broken glass and finding of footprints and fingerprints were not

mentioned in the FIR, whereas, it is well settled law that each and

every fact is not required to be mentioned in the FIR.

Learned Public Prosecutor also submitted that statement of

Jagmal Singh (PW-1) is corroborated by the statement of Daulat

Singh (PW-5) and other witnesses, even then the learned trial

Court did not believe on the statements of witnesses produced by

the prosecution and gave benefit of doubt to the

accused/respondents. Therefore, impugned judgment is against

the facts and law, and the same is liable to be quashed and set

aside.

Learned counsel for the accused/respondents supported the

impugned judgment contending that the incident of theft in

Janana Mahal, Alwar appears to have taken place before 30-06-

1980 and the fact of theft was noticed on 30-06-1980 on making

inspection of Janana Mahal, Alwar, but the FIR was lodged on 09-

07-1980 i.e., after nine days and the prosecution has not

explained the delay of nine days caused in lodging the FIR.

Learned counsel for the respondents also contended that

alleged recovery made by the police at the instance of the

accused/respondents, is not proved. The alleged recovery of the

carpet was made on 28-07-1980 and 05-08-1980, whereas, the

identification parade was conducted on 27-10-1980 i.e., after

unexplained delay of more than two months. Prosecution could

not prove that the pieces of carpet allegedly recovered at the

instance of the accused persons, remained sealed between the

date of recovery and the date of identification parade, because the

prosecution neither produced Malkhana Register nor examined

Malkhana Incharge of the Police Station, which creates doubt. It is

further contended that no specifications of theft carpet are

mentioned in the written report (Ex.P-7) or even in the statement

of the complainant or any other witness, recorded by the police or

in any document. Therefore, the proceedings of identification of

goods conducted by Madan Gopal (PW-4) is not of any

consequence. In support of their contentions, learned counsel for

the respondents placed reliance on:-

We gave our anxious considerations to the submissions of

the learned Public Prosecutor for the State and learned counsel for

the respondents and perused the record of the case.

From perusal of impugned judgment, it reveals that the

learned trial Court observed that the fact of theft took place in

Janana Mahal, Alwar, was noticed on 30-06-1980. Therefore, the

theft took place prior to 30-06-1980 and the FIR was lodged on

09-07-1980, but the prosecution has not explained the delay of

nine days in lodging the FIR, which creates doubts on the

prosecution story of theft. Moreover, it appears that Shambhu Dutt

Shastri, Guru Dutt Singh and Narayan Singh might have removed

the carpet from Janana Mahal and lodged the FIR for their

defence. Learned trial Court also observed that according to the

statement of Jagmal Singh (PW-1), Indra Kumar (PW-9), Rajkaran

(PW-7) & Ratanlal Sharma (PW-6), photographs of footprints and

fingerprints were taken from the place of incident. But the

prosecution neither produced this evidence before the Court nor

sent the same to the expert, for comparison. Moveover, footprints

of the accused persons were not taken, which create doubts on

the prosecution story. It appears that Investigation Officer has

shown much mercy with the real culprits and has falsely

implicated the accused persons. Learned trial Court also observed

that arrest of the accused persons and alleged recovery made at

the instance of the accused persons, are not proved beyond

doubt, because none of the witness corroborates the testimony of

the Investigation Officer to prove the factum of alleged recovery,

at the instance of the accused persons.

Learned trial Court also observed that the alleged recovery

from the accused persons was made on 28-07-1980 and 05-08-

1980, but the identification of alleged recovered carpet was

conducted on 27-10-1980, and the prosecution did not explain the

delay occurred in conducting the identification. Further, the

prosecution has not produced Malkhana Register and Malkhana

Incharge in whose custody the recovered goods were kept till the

identification was conducted, therefore, it cannot be said that the

said goods were remained in sealed condition from the date of

recovery till the identification proceedings held.

Learned trial Court also observed that specifications of the

alleged theft carpet are not there in the FIR or in any document

produced by the prosecution, and required precautions were not

taken while conducting identification of the carpet, which creates

doubt on the prosecution story and acquitted the accused persons,

giving them benefit of doubt.

In Mool Singh Vs. State of Rajasthan (supra), the

accused was charged for the theft of railway property and the I.O.

took the case property in his possession, and arrested the accused

on 05-10-1973 and the case property was examined on 09-10-

1973 by PW-5 Gopal Singh. In para 5 of the judgment Hon''ble

Coordinate Bench of this Court observed as under.

During the course of investigation the I.O. had recorded the statement of the petitioner and the said statement has been proved on record as Ex.P-5. The said statement was admittedly not put to the petitioner who had no opportunity to explain the same in his examination under Section 313 Cr.P.C. The learned lower Courts have relied on the above said statement of the petitioner. In view of the decision of the Supreme Court in case (1) Sharad Vs. State of Maharashtra (AIR 1984 SC 1622) the said statement has to be completely excluded from consideration. From the record it is also found that in his statement the I.O. has deposed that after recovering the case property he had deposited it in the malkhana and an entry about its depositing had been made in the malkhana register but no entry was made in the malkhana register when the property was taken out for showing to PW-5 Gopal Kishan on 09-10-1973 or when it was redeposited in the malkhana after resealing it. The seal admittedly remained with the I.O. Neither the malkhana Register has been produced nor has the Incharge Malkhana been examined to prove that the seals on the property remained intact between the period of its recovery and its examination by PW-5 Gopal Kishan. In view of the decision in case (2) State of Rajasthan Vs. Daulat Ram (A.I.R. 1980 SC 1314), the case of the prosecution thus is doubtful and the petitioner is entitled to be acquitted.

In the case in hand, Investigation Officer Indra Kumar

(PW-9), while giving detailed account of the investigation, has also

stated that the accused persons Brahmanand and Lala Ram were

arrested on 28-07-1980 vide Ex.P-9 and Ex.P-10 respectively. He

recovered a floor mat like carpet and a piece of carpet from the

house of Lala Ram at his instance vide Ex.P-12, in consequence of

information given by him, and recovered articles were sealed. The

witness further stated that he recovered a piece of floor mat like

carpet at the instance of accused Brahmanand vide Ex.P-5. The

prosecution neither produced Malkhana Register nor Malkhana

Incharge of the Police Station, to prove that the seals on the

goods recovered, remained intact between the period of it''s

recovery and identification proceedings. Therefore, the case of

prosecution is doubtful and the accused/respondents deserve

acquittal, only on this ground alone.

The scope of hearing a criminal appeal against the judgment

of acquittal is limited. The initial presumption of innocence of

accused persons is further strengthened by judgment of acquittal.

No any apparent error in judgment of acquittal is pointed out,

therefore, no interference in the impugned judgment is called for.

In view of the above, the prosecution having failed to make

out a case under Section 457 and 380 of IPC against the

accused/respondents, therefore, the appeal preferred by the State

of Rajasthan under Section 378 of Cr.P.C. deserves to be

dismissed.

Consequently, the criminal appeal preferred by the State of Rajasthan is dismissed.