YADAV, J. - (1.) THE instant revision is directed against the order dated 4. 8. 84 passed by learned Sessions Judge , Balotra camp at Barmer in Cr. Appeal Nos. 22 and 23 of 1983 preferred by the petitioner as well as non petitioner Deda against the judgment of learned Additional Munsif and Judicial Magistrate, Barmer dated 17. 1. 83 in Cr. Case No. 10/79.
(2.) IT is borne out from the record that a criminal case against non-petitioner Deda and his wife Jheema was initiated u/s. 447 and 352 IPC. After analytical discussion of oral and documentary evidence on record the learned Additional Munsif and Judicial Magistrate, Barmer vide his judgment dated 17. 1. 83 had extended the benefit of doubt to both the accused persons named above. While delivering the aforesaid judgment extending the benefit of doubt to non-petitioner Deda and his wife Jheema the learned Additional Munsif and Judicial Magistrate had ordered to confiscate a 'tegar' article 2 as according to him neither the complainant nor the accused could able to prove the title of aforesaid 'tegar' beyond all pale of doubt. IT is true that while passing the aforesaid order for confiscation of 'tegar' article 2 the learned Additional Munsif and Judicial Magistrate, Barmer had ordered return of article 1 'lehar' and broken pieces of 'churi' to Surati. Against the aforesaid order and judgment dated 17. 1. 83 passed by the learned Additional Munsif and Judicial Magistrate, Barmer, two appeals i. e. appeal Nos. 22 and 23/ 1983 were filed before the learned District and Sessions Judge, Balotra camp at Barmer who vide his impugned judgment dated 4. 8. 84 in exercise of his power u/s. 454 Cr. P. C. ordered the return of 'tegar' article 2 to non-petitioner Deda. Aggrieved against the aforesaid order dated 4. 8. 84 passed by the learned Sessions Judge, Balotra camp at Barmer directing to return of 'tegar' article 2 to non-petitioner Deda, the instant revision is filed before me. Before entering into the merit of the present revision I would like to give the brief facts of the case which would be necessary for just and fair decision of the present revision. It was alleged by the prosecution that on 10. 11. 78 at about 3. 30 p. m. Kana Ram PW-1 lodged a FIR at Police Station Sedwa stating therein that on 9. 11. 78 at about noon when his daughter Smt. Surati aged about 20 years was working in his filed then the Goats and Cows of Deda (non-petitioner) started damaging the crops standing in his filed. Mst. Surati tried to drive out the cattle of non-petitioner Deda out of the field. At that stage Deda and his wife Mst. Jhima came there and started beating Mst. Surati and they snatched away her ornaments i. e. one 'tegar' of gold weighing about 4 tolas article 2, one pair of 'kanon Ki Toti' of Silver, one 'bedla' of silver and one. silver Dibia.
(3.) ON the basis of aforesaid FIR the case No. 31 for the offence u/s. 352 and 447 IPC was registered and investigation commenced. Shri Kachhab Singh, Head Constable incharge Police Station Sedwa inspected the site where he found one silver 'lehar' (Bedla) and one piece of plastic Bangle lying in the sand and took them into his custody. The investigating officer arrested non-petitioner Deda on 14. 11. 78 vide arrest memo Ex. P/7 at about 3. 30 p. m. He recorded the information given by accused Deda u/s. 27 of the Evidence Act at about 5. 15 p. m. and prepared information memo Ex. P/8 wherein the non-petitioner Deda stated that 'tegar' article 2 which he snatched from the neck of Smt. Surati and had concealed in his own field, he wanted to get the aforesaid article 2 recovered. In pursuance of the aforesaid information Ex. P/8 the investigating officer Kachhab Singh PW-7 recovered the 'tegar' at the instance of non-petitioner Deda who produced the same by digging the sand from the southern boundary of his field in the presence of motbir witnesses PW-6 Uka and PW-8 Heera Ram on the same day i. e. on 14. 11. 78 at about 5. 30 p. m. vide recovery memo Ex. P/4. ;