Judgment:
B.R. Arora, J.
1. This revision petition is directed against the order dated December 5, 1989, passed by the Sessions Judge, Sirohi by which the learned Sessions Judge dismissed the revision petition filed by the petitioner.
2. Accused Fatiya and Ladura were tried for offences under Sections 407 and 380 IPC for the theft committed at the house of non-petitioner Chunni Lal, by the learned Munsif and Judicial Magistrate, First Class, Abu Road on October 15, 1988. In that theft gold and silver ornaments and Rs. 900/- were stolen from the house of Chunni Lal. The learned Magistrate, after trial, convicted the accused Fatiya and Ladura for offences under Sections 457 and 380 IPC and sentenced them to undergo 2 years rigorous imprisonment to each accused and a fine of Rs. 200/- under Section 457 IPC and two years' rigorous imprisonment and a fine of Rs. 1500/- each for the offence under Section 380 IPC. The learned trial Court, also, ordered for the delivery of the recovered amount of Rs. 900/ as well as two gold and silver ingots and the bangles to the complainant Chunni Lai. Dissatisfied with the conviction and sentence passed by the learnedJudicial Magistrate, accused Fatiya preferred an appeal before the learned Sessions Judge, Sirohi. An appeal was filed by accused Ladura through Jail, which was allowed by the learned Sessions Judge, Sirohi, by his judgment dated July 9, 1986 and Ladura accused was acquitted of the offences under Sections 457 and 380 IPC. The appeal filed by Fatiya and the appeal filed by Himmat Singh, both, were heard by the learned Sessions Judge, Sirohi, who, by his judgment dated September 2, 1983, allowed the appeal filed by Fatiya in part, acquitted him of the offences under Sections 457 and 380 IPC, but convicted him under Section 411 IPC and sentenced him to undergo 2 1/2 years' rigorous imprisonment and a fine of Rs. 2000/-. The learned Sessions Judge, also, allowed the appeal filed by Himmat Mai and ordered for the delivery of gold and silver ingots to Himmat Mal on some conditions. Dissatisfied with this order, passed by the learned Sessions Judge, Chunni Lal (complainant) filed a revision petition before this Court. That revision petition filed by Chunni Lal was allowed and the order passed by the learned Sessions Judge, giving delivery of gold and silver ingots to Himmat Mal, was set aside and the case was remanded to the learned Sessions Judge to decide the question of delivery of gold and silver ingots after taking evidence of both the parties. The learned Sessions Judge thereafter gave the opportunity to both the parties to lead their evidence. After remand of the case, the complainant filed the affidavit of Fatta and also got him examined before the learned Sessions Judge. Himmat Mal examined himself in support of his case. The learned Sessions Judge, after recording the statement of Fatta and Himmat Mal, by his order dated December 5, 1989, decided the question of delivery of gold and silver ingots in favour of Chunni Lal. It is against this order dated December 5, 1989 passed by the Sessions Judge, Sirohi, that the present revision-petition has been filed by the petitioner Himmat Mai Soni.
3. Heard learned Counsel for the petitioner the learned Counsel for the non-petitioner No. 2 and the learned Public Prosecutor.
4. It is contended on behalf of the petitioner that the non-petitioner himself did not appear in evidence after the remand of the case and the learned Lower Court has place reliance over the statement of Fatta, recorded under Section 161 Cr. P.C., which he was not entitled to do. It is, also, contended by the learned Counsel for the petitioner that the Courts below have opined that the gold and silver ingots recovered from the petitioner are not prepared from the stolen property and the accused having been acquitted of the charge of the theft, the ingots cannot be ordered to be delivered to Chunni Lal and Himmat Mal was the only person entitled for the delivery of the same. He, therefore, prayed that from the evidence produced by the petitioner, his claim stands proved and the learned lower Court committed an error in ordering for the delivery of the gold and silver ingots, to Chunni Lal. The learned Counsel for Chunni Lal and the learned Public Prosecutor, on the other hand, have supported the order passed by the learned lower Court.
5. I have considered the rival submissions made by the learned Counsel for the parties and perused the order and the record of the case.
6. After going through the record of the case, I am of the opinion that the order passed by the learned lower Court cannot be said to be, in any way, illegal, improper or incorrect. The learned lower Court has properly appreciated the evidence on record and after due appreciation of the evidence, has come to the conclusion that the ingots recovered from Himmat Mal were prepared from the stolen ornaments. Fatiya, in his examination in chief, before the learned Sessions Judge, has specifically stated that he and Ladura both, committed the theft in the house of Chunni Lal and the gold and silver ornaments which were stolen from the house of Chunni Lal, were sold by Ladura to Himmat Mal Soni, and out of the sale proceed of the ornaments, Ladura gave Rs. 2000/- to him as his share. The statement given by Himmat Mal before the learned Sessions Judge on the same point, is contradictory with his statement given during the trial and the learned Sessions Judge, while discarding the evidence of Himmat Mal, has pointed-out those discrepancies between the two statements of Himmat Mal given in the trial Court and that given in the Sessions Court. The conclusion arrived at by the learned lower Court, in my view, is just and proper and does not require any interference. It is, no doubt, true that the accused have been acquitted by the learned Sessions Judge of the offences under Sections 457 and 380 IPC, but they have been given the benefit of doubt as the original ornaments were not recovered. There is no such finding given by the Courts below that the theft never took place in the intervening night of October 15 and 16, 1988. The evidence produced by Himmat Mal does not show that the gold and silver ingots were prepared from the ornaments of his family members. Admittedly, the theft took-place in the house of Chunni Lal and the ingots were recovered from Himmat Mal, which were produced by Himmat Mal, but on the information given by Ladura and Fatta. It is not expected from the Court that the Court, sitting in revisional jurisdiction, will be appreciate the evidence. The conclusion arrived-at by the learned lower Court does not require any interference.
7. Consequently, the revision-petition, filed by the petitioner, has not no force and is hereby dismissed. The order passed by the learned Judicial Magistrate, Abu Road, is restored.