Shivdayal Vs. State of Rajasthan

penal code - section 379--criminal procedure code--fir--delay--fir lodged after 7 days of theft--delay not satisfactorily explained--held, lower courts misread evidence--conviction set aside.;the theft, according to the prosecution, was committed on december 7, 1970 and the complaint was lodged on december 14, 1970.;the evidence in this case is that girraj pw 2 returned to the village on december 11, 1970, but even then the complaint was lodged on december 14, 1970. this also cannot be true because the first information report reached the court on december 23, 1970. there is no satisfactory explanation why the first information report reached the court so late.;the courts below totally misread the evidence, with the result that they have reached a wrong conclusion.;revision allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - there is a good deal of force in this..........by the learned counsel for the accused, that the recovery of 'borla' at the instance of the accused, cannot be relied upon. there is a good deal of force in this contention. if the accused had hidden the 'borla' in question, which was the subject matter of theft about which a complaint had been lodged, the same would have been recovered on december 15, 1970. but from the fact that it was recovered on december 18, 1970 very near the place where some articles were recovered earlier, itself, creates good deal of suspicion whether at all this 'boila' was recovered at the instance of the accused.4. apart from this, the theft, according to the prosecution, was committed on december 7, 1970 and the complaint was lodged on december 14, 1970. some explanation has been given by smt. anguri, wife of p.w.2 girraj stating that her husband had gone to attend some marriage, and therefore, after the return of her husband a complaint was lodged. the evidence in this case is that girraj (p.w. 2) returned to the village on december 11, 1970, but even then the complaint was lodged on december 14, 1970 this also cannot be true because the first information report reached the court on december 23, 1970. there is no satisfactory explanation why the first information report reached the court so late, it appears to me that the comlpaint in this case must have been lodged long after the alleged recovery, obviously, to implicate the accused in a false case as there was enmity between the accused and girraj (p.w. 2). the courts below totally misread the evidence, with the result that they have reached a wrong conclusion.5. i, therefore, allow this revision petition, set aside the order of conviction and sentence passed against him and acquit aim. he is on bail and need not surrender to the bail bonds.6. the articles recovered shall be returned to p.w. 2 gir raj.