- (1.) THIS appeal preferred by the appellant-complainant against the order dated 4-10-1989 passed by the learned Additional Sessions Judge, Alibag, in Criminal Appeal No.89 of 1984, regarding return of property, whereby the learned Judge has ordered to return the muddamal article viz., three golden pieces to respondent no.2, Sudhakar Potdar after due verification.
(2.) HEARD Mr. P.P.Hudlikar, learned Counsel for the appellant, and Miss Seema Sarnaik, learned Counsel for respondent no.2. This appeal is preferred under section 452 of the Criminal Procedure Code for recovery of stolen property viz., muddamal article, three golden pieces, seized from the possession of respondent no.2. For the offences punishable under sections 454 and 380 I.P.C.,; the accused has been found guilty by the learned Judicial Magistrate, First Class, Murud, and the accused has been accordingly convicted and sentenced for the said offences. The learned Magistrate has ordered to return the muddamal article viz., three golden pieces to the appellant-complainant. The accused has preferred an appeal against the order of his conviction and sentence before the Sessions Court, Alibag, Raigad. The learned Additional Sessions Judge allowed the appeal, set aside the order of conviction and sentence passed by the learned Magistrate and acquitted her for the offences with which she has been charged. The original complainant was heard on the point of return of the muddamal article, viz., three golden pieces. However, the learned Judge rejected the prayer of the complainant for return of the said muddamal and has ordered to return the same to respondent no.2 after due verification. Hence this appeal by the appellant-complainant.
(3.) HAVING gone through the record and proceedings of the case, it is clear that the accused has not claimed the muddamal which he sold in its original form to respondent no.2 who melted the same and from whose possession the same has been seized by the police. Though respondent no.2 was shown as a witness and he was examined, he turned hostile and, therefore, his evidence was rendered useless to the prosecution. However, it has been deposed by respondent no.2 that he has purchased the gold from one lady and he produced receipt for the said purchase, but that is held not proved. The appellant-complainant herein has claimed return of the property seized from respondent no.2. It reveals from the record that the prosecution has failed to prove its case that the stolen property was sold to respondent no.2. Moreover, the original accused has not claimed the same. However, there is no evidence on record to show that the stolen property was sold to respondent no.2. The appellate Court has held that the original accused was not responsible for the stolen property. Therefore, it cannot be said that it is the stolen property which has been purchased from the original accused by respondent no.2 from whose possession the same has been seized by the police. Therefore, in this appeal, it is not possible for this Court to direct respondent no.2 to return the muddamal viz. three golden pieces, to the appellant-complainant. This appeal, therefore, fails and the same is dismissed.;