SAXENA, J. - (1.) THIS revision has been directed against the judgment dated 6. 08. 1993 passed by the learned Sessions Judge, Jalore whereby he dismissed the petitioner's appeal filed under section 454 Cr. P. C. and confirmed the order dated 26. 8. 1991 passed by the learned Munsiff and Judicial Magistrate, Sanchore directing the petitioner to hand over the recovered three pipe lines, one fan-Arun Trade Mark, one axe, one kudali and one rope, which were given on Supurdginama to him to accused non- petitioner Sona Ram, who was acquitted for the offence under Section 392 IPC along with other two co-accused persons.
(2.) I have heard Mr. Bishnoi, learned counsel for the complainant-petitioner and Mr. Thakur, learned public prosecutor at length and carefully perused the record of the lower court. It appears that on the report (Ex. P. l) submitted by the petitioner Kheraj, a case under section 379 IPC was registered on 28. 4. 1986 at Police Station Chitalwana against the non-petitioner Sona Ram and Virda and Okha Ram. It was alleged by the petitioner that he had installed a water pump in the well of co-accused Okha Ram and agreed to share the crops with them, that after the crops were harvested, he was coming from the field to his house on his cart carrying the afore-mentioned implements articles A. l, that in the way, three accused persons way-laid him and looted the aforementioned implements Articles A-1, which belonged to him. The non-petitioner Sona Ram was arrested and in pursuance of his information under section 27 of the Evidence Act, he got recovered afore-mentioned implements Articles A-1 which were concealed under bad thorny fence near the Bera of co-accused Okha Ram vide recovery Ex. P. 7. After investigation, a challan was filed against Sona Ram, Virda and Okha Ram. The learned trial Magistrate framed charge against them for the offence under section 392 IPC, who pleaded not guilty. The Magistrate, after trial, held that the prosecution evidence was inconsistent and that the prosecution had failed to successfully bring home the offence under section 392 or 379 IPC against any of the accused persons beyond reasonable doubt and thus by his judgment dated 26. 8. 1991 acquitted them by giving benefit of doubt. He, however, ordered that the disputed implements Articles A-1, which were earlier given on Supurdginama to the complainant Kheraj, be handed over to accused Sona Ram, from whose possession those articles were recovered. Aggrieved by this judgement, the petitioner filed an appeal which was rejected by the learned Sessions Judge. Hence, this revision. The main consideration taken by the courts below for handing over the disputed implements Articles A-1 to Sona Ram is that an agreement Ex. D. 4 was filed by the latter, whereas the complainant did not file any bill or document to prove his ownership. The learned Sessions Judge also held that onus lay on the petitioner to prove that he was the owner of the implements alleged to have been looted and since the accused-Sona Ram was acquitted and those implements were recovered at his instance, he was entitled to get them back. I have carefully gone through the evidence recorded by the trial Magistrate in this case.
(3.) P. W. 1 Kheraj has deposed that he had installed a water pump in the well of Okha Ram and that the implements Article A-1 were owned by him which he was carrying on his cart. Not a single question has been put to this witness in cross-examination by Sona Ram or any other accused regarding the owner-ship of implements Articles A-1. Even no suggestion has been put to him or to any other prosecution witnesses that the implements Articles A-1 belonged to accused Sona Ram and not to petitioner-Kheraj. P. W. 2 Teja, P. W. 4 Atma Ram & P. W. 7 Hari Kishan have specifically stated that the implements Articles A-l belonged to petitioner-Kheraj. Besides this, P. W. 3 Juth Singh and P. W. 5 Teja Ram, who were declared hostile by the prosecution, have also deposed that those implements Articles A-l belonged to petitioner-Kheraj. P. W. 8 Jalam Singh, SHO has investigated the case did not from his investigation, it transpired that the implements Articles A-l belonged to petitioner-Kheraj. Similar is the testimony of P. W. 9 Sona Ram. Not a single question has been put to these witnesses regarding the ownership of implements Articles A-l. Even in the plea recorded under Section 313 Cr. P. C, Sona Ram or any other accused persons did not claim that the implements Articles A-l belonged to Sona Ram and not to Kheraj. However, in defence Sona Ram examined himself as D. W. I and claimed that he had purchased a machine from Kisan Traders, Sanchore and filed agreement Ex. D-4 which has not been proved. P. W. I Kheraj or any other witness was also not confronted with agreement Ex. D. 4. Under such circumstances, there was no sufficient evidence to prima facie establish that implements Articles A-l belonged to Sona Ram and that those did not belong to petitioner-Kheraj. Apart from it, merely because Sona Ram was acquitted of the offence under section 379 IPC/392 IPC by giving benefit of doubt and implements Articles A-l were recovered at his instance from the Bera of Okha Ram, it cannot be held that he was the owner of the implements Articles A-l. Besides this, in Dhanraj Baldeokishan vs. The State (1), it has been held that the statement inadmissible at trial may be admissible for the purposes of Section 517 Cr. P. C. (old) to connect ownership of property recovered as a result of the statement recorded under section 27 of the Evidence Act. The accused Sona Ram in his information recorded under section 27 of the Evidence Act Ex. P. 8 has not stated that the implements Articles A-l belonged to him. On the other hand, he stated that he had concealed the implements Articles A-l near the Bera of Okha Ram. The lower courts have ignored the afore- mentioned material evidence and committed illegality of fact as well as of law in directing that the implements Articles A-l be given to accused-non-petitioner Sona Ram. In my considered opinion, the impugned judgements regarding the disposal of implements Articles A-l are patently incorrect, improper and illegal and these deserve to be quashed. ;