State of Rajasthan Vs. Kamlashanker

penal code - sections 380 and 457--all stolen property recovered and identified by s--trial court acquitted accused on ground that motbir b was in hostile--held, trial court was in error and accused is liable to be convicted under sections 380 and 457.;all stolen property was recovered, and articles so recovered were identified by mst. shanti and were given on supurdginama. but still the trial court has acquitted the accused merely on the ground that one motbir bhanwar singh pw 14 has gone hostile. in view of this the trial court has erred in acquitting the accused for the offence under section 380 which is fully proved. thus he is liable to be convicted under section 380 ipc.;appeal partly 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. n.k. jain, j.1. this appeal has been filed by the state against the order of the learned judicial magistrate, abu road whereby he has acquitted the accused of the offence under sections 380 and 457 ipc.2. brief facts giving rise to this appeal are that one shyamlal, lodged a report at the police station abu road with the allegation that he went to ajmer on 25.4.80 on official duty and returned on 26.4.80 and found that lock of his house was broken but at that time he could not visualise the loss but when his wife and children returned on 30.4.80, thereupon it was found that four gold bangles weighing one tola each, one golden ring weighing 1/2 tola, one golden paddel, golden tops and currency under sections 380, 457 and started investigation. the accused kamlashanker was arrested on 5.5.80. after completion of usual investigation, police submitted a challan before the learned trial court. the accused pleaded not guilty and claimed trial. the prosecution in support of its case examined 14 witnesses. statement of the accused under section 313 cr. pc was recorded but no witness was produced in defence, by him. the learned magistrate after conclusion of the trial acquitted the accused of the offence under sections 457 and 380 ipc. aggrieved by this judgment the state has preferred leave to appeal which was granted on 31.7.85. hence, this appeal.3. mr. k.l thakur, learned public prosecutor appearing for the stale has urged that the learned magistrate has erred in acquitting the accused when the offence under section 380 has been established and the stolen gold articles and the cash amount have been recovered from the accused.4. mr. k.s. purbia and mr. mahesh mirdha filed power on behalf of the accused but they have not appeared. mr. bhupendra bhatnagar is appointed as amicus curiae to defend the accused and assist the court.5. i have heard mr. k.l. thakur, learned public prosecutor, mr. bhupendra bhatnagar amicus curiae and perused the record. the accused was arrested.....