Decided on August 05,1960

STATE Respondents


V.B.RAJU - (1.)This is a revision application by the two applicants who were original accused Nos. 7 and 8 at the trial by the Judicial Magistrate First Class Dakor in Criminal Case No. 622 of 1959. They were both convicted for an offence under sec. 411 I.P. Code in respect of certain gold ornaments which had been stolen. The ornaments had not been recovered and it was the prosecution case that upon the information given by accused No. 5 the shop of accused Nos. 7 and 8 was discovered and it was ultimately found that accused Nos. 7 & 8 had sold certain gold on 7-9-59 the offence for theft having been committed on 5-9-1959. The learned Magistrate convicted the applicants who were original accused Nos. 7 and 8 under sec. 411 Indian Penal Code and their convictions were confirmed by the learned Sessions Judge in appeal.
(2.)In revision three points have been urged:- (1) that the provisions of sec. 27 Evidence Act had been mis-applied in the present case; (2) that the learned Sessions Judge has observed in his judgment that the second Panch supports the prosecution case whereas the second Panch had in fact not been examined; and (3) that the learned Sessions Judge also erred in observing that the account books of the accused not show any entry relating to the transaction of sale although it was the defence case that they sold their ornaments which had been converted into gold. The convictions of the applicant cannot be sustained for the following reasons:- The statement made by accused No. 5 before the Police and the Panchas which resulted in the discovery of article may be evidence against him under sec. 27 of the Evidence Act but cannot be used as evidence against a co-accused. This position is conceded by the learned Government Pleader Mr. Chokshi. Mr. Chokshi also concedes that the second Panch was not examined and the learned Sessions Judge was wrong when he observed that the second Panch supports the prosecution case. Moreover this is not a case where the stolen ornaments were discovered. What was proved is that accused Nos. 7 and 8 had sold certain gold on 7-9-59 and there is no evidence to prove that it was the stolen ornaments that had been converted into this gold. It is of course very difficult to prove such a fact but merely because the proof of such a fact is difficult the fact cannot be presumed. There is no evidence to connect the gold which admittedly the two applicants had sold on 7-9-59 with the stolen ornaments. These grounds are enough for setting aside the convictions and sentences passed upon the two applicants.
(3.)The conviction of the two applicants under sec. 411 Indian Penal Code and the sentences passed upon them are therefore set aside. Fine if paid should be refunded. Bail bond should be cancelled. Conviction set aside.

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