B.R.ARORA, J. - (1.) THIS revision petition is directed against the judgment dated June 28, 1989, passed by the Additional Sessions Judge, Bikaner, by which the learned Additional Sessions Judge dismissed the appeal filed by the accused petitioner.
(2.) ACCUSED Ram Lal alias Ramla was tried by the learned Judicial Magistrate, First Class, No. 1, Bikaner City for the offences under Section 457 and 380 IPC. for committing theft in the house of Prof. G. K. Sharma in the intervening night between 27th and 28th Octoder, 1986, The case of the prosecution is that in the intervening night between 27th and 28. 10. 1986 Prof. G. K. Sharma alongwith his family members had gone to Agra as during those days there were vacation and on that night somebody entered into the house and took-away the goods mentioned in the 'list of Goods' from his house. The report of this incident was lodged at Police Station on October 28, 1986 by Smt. Champa Devi PW 3, who was taking care of the house in the absence of Prof. G. K. Sharma and family. The prosecution, in support of its case produced PW 1 Vidhya Sharma PW 2 Prof. G. K. Sharma, PW 3 Champa Devi, PW 4 Chhotu Lal, PW 5 Hafiz Rehman, PW 6 Shri Kamal Kumar Bagri, PW 7 Tribhuwan Singh, P W 8 Mohan Singh, PW9 Bhanwar Singh and P W 10 Joginder Singh. The accused did not produce any evidence in defence. The learned Magistrate after trial, found the accused guilty for the offences under Sections 457 and 380 I. P. C. Thereafter on April 11, 1989, the Additional charge read with Section 75 of the Indian Penal Code for both these offences was, also, framed and the prosecution examined PW 10 Jogindra Singh to prove the previous conviction of the accused. The learned Judicial Magistrate, First Class, No. 1, Bikaner, thereafter passed the judgment dated April, 28, 1989, convicting the accused under Section 457/75 I. P. C. and sentencing him to undergo three years rigorous imprisonment and a fine of Rs 2000/- and in default of payment of fine to further undergo six months rigorous imprisonment. The learned Judicial Magistrate, also, convicted the accused under Section 380/ 75 I. P. C. and sentenced him to rigorous imprisonment for three years and a fine of Rs. 200/- and in default of payment of fine to further undergo six months' rigorous imprisonment. Dissatisfied with the judgment dated April 28, 1989, passed by the learned Judicial Magistrate First Class No. 1, Bikaner, the accused preferred an appeal before the learned Sessions Judge, Bikaner which was heard by the learned Additional Sessions Judge, Bikaner, who, by his order dated June 28, 1989, dismissed the appeal filed by the accused-appellant. It is against this judgment that the present revision petition has been filed. Heard learned counsel for the petitioner and the learned Public Prosecutor. It is contended by the learned counsel for the petitioner that the recovery, in the present case, has been made from a house which was not in the exclusive possession of the petitioner, and, therefore, that cannot be said to be a recovery under Section 27 of the Indian Evidence Act and as no recovery has been made from the possession of the accused-petitioner, therefore, he is entitled for acquittal. It was, also, contended by the learned counsel for the petitioner that the independent witnesses of the recovery do not support the prosecution case and, therefore, there is no evidence on record to connect the petitioner with the crime. Even the alleged recovery has been made after a period of two months from the date of the incident and in this view of the matter, it cannot be said that the petitioner was the thief, who committed the theft. The petitioner can at the best, be convicted, if this recovery stands proved, for an offence under Section 411 I. P. C. as the receiver of the stolen property, and the order passed by the learned lower Court, convicting and sentencing the petitioner under Sections 457 and 380 I. P. C. is not maintainable. The learned Public Prosecutor on the other hand, has supported the order passed by the learned lower Court. I have considered the rival submissions made by the learned counsel for the parties and perused the record of the case. There is no eye witness to the occurrence and the case of the prosecution solely hinges on the recoveries made from the house of accused Ramla alias Ram Lal and the identification of the two Sarees, one jacket and three ties, alleged, to have been recovered from the house of the petitioner Ramlal. It is not in dispute that the accused was arrested in some other case on December 11, 1986 and he was in judicial custody and he gave information Ex.- 8 on December 22, 1986 under section 27 of the Indian Evidence Act. Though the information under section 27 of the Evidence Act was given by the accused-petitioner on December 22, 1986, but the recovery, in pursuance to this information, was made on December 23, 1986 from the house of the accused vide recovery memo Ex.-5. According to the recovery memo Ex.-5, the two Polyster Sarees, one of pink and the other of blue colour, and one jacket and three ties were lying below the beds in the house. The prosecution, so far as the recoveries are concerned, has produced PW 4 Chandu Lal and PW 5 Hafiz Rehman as the 'motbir' witnesses and PW 7 Tribhuwari Singh, who was the Assistant Sub-Inspector Police and who recovered these articles at the instance of the accused. Both these witnesses, viz. , PW 4 Chandu Lal and PW 5 Hafiz Rehman have not supported the prosecution case on this point and have denied that any recovery was made in their presence at the instance of the accused. So far as the evidence of PW 7 Tribhuwan Singh is concerned, suffice it to say that he has admitted that the house, from where the recovery was made, was not locked and was open. It is the admitted case of the prosecution that the accused was arrested and was in the judicial custody since December 14, 1986 and the recovery was made on December 23, 1986. The recovery was made from the open house, which was accessible to all and sundry. Though PW 7 Tribhuwan Singh has stated that no body was present in the house. In this view of the matter, when the recovery has been made from a house which was not locked and the accused was not living in that house, atleast for last ten days, as per the prosecution case itself, then it cannot be said that the recovery was made at the instance of the accused. The recovery so made, thus, does not lead us to anywhere. Even otherwise, also, the identification made by the prosecution witnesses, also, does not help the prosecution case. The prosecution, in support of the identification, has produced PW 1 Vidhya Sharma and PW 2 Prof. G. K. Sharma - the owners of the house from where the theft took place. There is the evidence of PW 6 Shri Kama! Kumar Bagri, the Judicial Magistrate, in whose presence the identification of these articles were made. The articles, which were found recovered from the house of the accused and at his instance, are to Polyster Sarees, which are new and one jacket and three ties. So far as the question of jacket and three ties are concerned, in the list of stolen articles Ex.-2, supplied by PW 2 Prof. G. K, Sharma, these articles do not find place and they have admitted that it was only when they came for identification that they saw these articles. Thus, the identification of jacket and the three ties do not help the prosecution case.
(3.) SO far as the identification of two Polyster Sarees is concerned, PW 1 Smt. Vidhya Sharma and PW 2 Prof. G. K. Sharma have admitted in their cross-examination that these were new Sarees and are available in the market. They have, also, stated that similar Sarees were not included with these two Sarees at the time of identification. PW 5 Shri Kamal Kumar Bagri, the Judicial Magistrate, admitted that the Sarees which were seized were old sarees. In this view of the matter, the identification of these two Sarees does not help the prosecution case. The identification of these two Sarees cannot be said to be the proper identification which may connect the accused with the commission of the crime. In this view of the matter, in my opinion, the prosecution has failed to prove the case, beyond reasonable doubt, against the accused-petitioner. Consequently, this revision-petition, filed by the petitioner Ramla alias Ram Lal is allowed and the order passed by the learned lower Court, convicting and sentencing the petitioner is set-aside and accused Ramlal is acquitted of all the charges levelled against him. He is in jail and may be released forthwith if not required in any other case. .;