B.S. Chauhan, J. - (1.) This appeal has been preferred by the State of Rajasthan against the judgment and order dated 27.10.2004 passed by the High Court of Judicature for Rajasthan, Jaipur Bench, in Criminal Appeal No. 1579 of 2002 acquitting the Respondents, setting aside their conviction and the sentence passed by Additional District and Sessions Judge, (Fast Track), Laxmangarh, Alwar, dated 2.11.2002 in Sessions Case No. 4 of 2002 (14/2000) for the offences punishable under Sections 395, 396 and 397 of the Indian Penal Code, 1860 (hereinafter called the IPC)
(2.) The facts and circumstances giving rise to this case are as under: A. Santosh Jagwayan (PW.13) lodged an FIR on 17.12.1996 at 8.30 A.M., that in the intervening night between 16th and 17th December, 1996 on hearing the noise, he sent his Chowkidar Gopal Nepali (deceased) to the roof of his house. Gopal Nepali went upstairs and opened the gate of the roof and found that 8 to 10 accused persons were trying to enter into the house by breaking upon the door of the roof. They immediately fired shot at Gopal Nepali (deceased) and entered into the house. The accused persons locked Shashi Devi (PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15), his daughters, in the bathroom and started looting the moveable properties. In the meanwhile, his neighbours raised their voice. Thus, the accused immediately fired a shot at Mrs. Anita Yadav, as a result of which, she died on the spot. Kripa Dayal Yadav (PW.2), husband of Anita Yadav (deceased) caught hold of one of the accused but he was beaten with the butt of the gun by the other accused persons and they got the accused released from his clutches. The accused decamped with cash, jewellery and silver wares etc. B. On the basis of the said complaint, an FIR No. 240 of 1996 (Ex.P-30) was registered under Sections 395, 396, 397 and 398 Indian Penal Code and investigation ensued. The dead bodies of Gopal Nepali and Anita Yadav were recovered and sent for post-mortem examination. Kuniya - accused/Respondent was arrested on 24.12.1996. He made a disclosure statement (Ex.P-76) on 29.12.1996 on the basis of which a silver glass and one thousand rupees were recovered vide recovery memo (Ex.P-53). Further, on his disclosure statement, a scooter bearing No. RJ-05-0678 was recovered vide recovery memo (Ex.P-52) on 2.1.1997. C. Another accused Talevar - Respondent, was arrested on 19.1.1997 and on his disclosure statement made on 26.1.1997, two thousand rupees, a silver key ring and a key of Ambassador car was recovered vide seizure memo (Ex.P-45). D. Some more recoveries were made from the other accused persons. After completing the investigation charge sheet was filed against 9 accused persons including the two Respondents. As all of them pleaded not guilty, they were put to trial for the offences punishable under Sections 395, 396 and 398 IPC. E. In the Sessions trial prosecution examined 34 witnesses in support of its case. The ornaments and stolen articles were identified by Shashi Devi (PW.12) and Santosh Jagwayan (PW.13). The trial court vide judgment and order dated 2.11.2002 convicted 8 accused including the two Respondents. One accused named Ram Krishan, died during the trial. All of them stood convicted under the provisions of Sections 395, 396 and 397 IPC. All the accused were awarded punishment to undergo life imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment under Section 396 Indian Penal Code All of them were convicted for the offence punishable under Section 397 Indian Penal Code and a sentence to undergo rigorous imprisonment for seven years and a fine of Rs. 500/- and in default of payment of fine, to further undergo three months rigorous imprisonment. They were further convicted under Section 395 Indian Penal Code, awarded life imprisonment and fine of Rs. 1,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. Accused namely, Ghurelal, Chunchu @ Bhagwan Singh, Kallu, Rajpal and Samay Singh were further convicted under Sections 3/25 and 3/27 of the Arms Act and sentence was awarded to undergo three years rigorous imprisonment and a fine of Rs. 500/- each of them, in default of payment of fine, to further undergo three months rigorous imprisonment. F. Being aggrieved by the said decision, all the accused including the two Respondents preferred Criminal Appeal No. 1579 of 2002, which has been decided by the High Court vide judgment and order dated 27.10.2004 acquitting the two Respondents/accused though maintaining the conviction and sentence in respect of other accused. Hence, this appeal by the State against their acquittal.
(3.) Dr. Manish Singhvi, learned Additional Advocate General for the State of Rajasthan, has submitted that recovery of some of the looted property had been made on the basis of the disclosure statements made by the said Respondents. The law provides for a presumption that they had participated in the crime and, therefore, the High Court has wrongly acquitted the said accused and thus, the appeal deserves to be allowed.;