Raghu Shankar Kale Vs the State of Maharashtra - Citation 369342 - Court Judgment

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indian penal code, 1860 - sections 302, 394, 397 and 457 r/w section 34 - offences of murder etc. - no eye witness - mere recovery of stolen property - no basis for the offence charged.;mere recovery could not be the basis for the offence charged. the learned sessions judge according to us, has committed patent illegality. in view of the decision reported in sheo nath v. the state of u.p. air 1970 sc 535, the appellant could be held guilty under section 411 ipc since found in possession of a stolen property. - bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds,.....

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ashok desai, j.1. this appeal is directed against the finding of conviction for offences under sections 302, 394, 397 and 457 of ipc r/w 34 of ipc.2. the prosecution case was disclosed by p.w. 2 smt. sushila. according to her, at about 1 a.m. on 13.9.1991, due to dog barking she woke up and heard that one deorarri was calling her husband by referring 'aba aba'. she came out and noticed that door of the house was opened. she went inside with deoram and saw her husband dnyanshwar was lying dead with numerous injuries. thereafter, she noticed that three bags containing various ornaments namely two mangalsutras, two black pots, watis, jodavis etc. etc were missing. her statement was recorded by the police. undisputedly, she has not seen either the act of the assault or the theft. the.....

Judgment:

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Ashok Desai, J.

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1. This appeal is directed against the finding of conviction for offences under Sections 302, 394, 397 and 457 of IPC r/w 34 of IPC.

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2. The prosecution case was disclosed by P.W. 2 Smt. Sushila. According to her, at about 1 a.m. on 13.9.1991, due to dog barking she woke up and heard that one Deorarri was calling her husband by referring 'Aba Aba'. She came out and noticed that door of the house was opened. She went inside with Deoram and saw her husband Dnyanshwar was lying dead with numerous injuries. Thereafter, she noticed that three bags containing various ornaments namely two mangalsutras, two black pots, watis, jodavis etc. etc were missing. Her statement was recorded by the police. Undisputedly, she has not seen either the act of the assault or the theft. The prosecution has also not examined Deoram. P.W. 4 Avadaji Kale Police Patil lodged an F.I.R. vide Exh. 36. The accused was arrested in some other case on 3.10.1991. Recovery of the stolen property was affected on a memorandum vide Exh. 39. P.W. 5 Indore acted as a panch. Undisputedly, there is no recovery of any other incriminating article like weapon, blood-stains etc. etc. The prosecution rests its claim for the offence as charge only on the strength of recovery.

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3. Mr. Karwande learned counsel for the accused made a submission that the material as placed is neither sufficient nor cogent to hold the accused guilty for offences punishable under Sections 302, 394, 397 and 457 r/w 34 of IPC. The recovery could not connect the accused with the murder of Dnyaneshwar. We find sufficient force in the submission. Mr. Salvi learned counsel for the prosecution could not successfully repel the submissions. We also find that mere recovery could not be the basis for the offence charged. The learned Sessions Judge according to us, has committed patent illegality.

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4. In view of the decision reported in Sheo Nath v. The State of U.P. : 1970CriLJ601 , the appellant could be held guilty under Section 411 of IPC since found in possession of a stolen property. The conviction as recorded therefore, cannot be sustained.

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	(int) 4 => '<p>4. In view of the decision reported in Sheo Nath v. The State of U.P. : 1970CriLJ601 , the appellant could be held guilty under Section 411 of IPC since found in possession of a stolen property. The conviction as recorded therefore, cannot be sustained.',
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5. Appeal is therefore partly allowed. The convictions and sentences as awarded by the learned Sessions Judge are hereby set aside. Instead, we convict the appellant-accused for an offence under Section 411 IPC.

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6. It is reported that the accused since the date of arrest is in jail, i.e. for a period of about seven years. Since the maximum sentence is only for 3 years under Section 411 of IPC, he be released forthwith unless required in some other case. The fine as imposed by the learned Sessions Judge if paid be refunded to the accused.

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			'judgement' => '<p style="text-align: justify;">Ashok Desai, J.</p><p style="text-align: justify;">1. This appeal is directed against the finding of conviction for offences under Sections 302, 394, 397 and 457 of IPC r/w 34 of IPC.</p><p style="text-align: justify;">2. The prosecution case was disclosed by P.W. 2 Smt. Sushila. According to her, at about 1 a.m. on 13.9.1991, due to dog barking she woke up and heard that one Deorarri was calling her husband by referring 'Aba Aba'. She came out and noticed that door of the house was opened. She went inside with Deoram and saw her husband Dnyanshwar was lying dead with numerous injuries. Thereafter, she noticed that three bags containing various ornaments namely two mangalsutras, two black pots, watis, jodavis etc. etc were missing. Her statement was recorded by the police. Undisputedly, she has not seen either the act of the assault or the theft. The prosecution has also not examined Deoram. P.W. 4 Avadaji Kale Police Patil lodged an F.I.R. vide Exh. 36. The accused was arrested in some other case on 3.10.1991. Recovery of the stolen property was affected on a memorandum vide Exh. 39. P.W. 5 Indore acted as a panch. Undisputedly, there is no recovery of any other incriminating article like weapon, blood-stains etc. etc. The prosecution rests its claim for the offence as charge only on the strength of recovery.</p><p style="text-align: justify;">3. Mr. Karwande learned counsel for the accused made a submission that the material as placed is neither sufficient nor cogent to hold the accused guilty for offences punishable under Sections 302, 394, 397 and 457 r/w 34 of IPC. The recovery could not connect the accused with the murder of Dnyaneshwar. We find sufficient force in the submission. Mr. Salvi learned counsel for the prosecution could not successfully repel the submissions. We also find that mere recovery could not be the basis for the offence charged. The learned Sessions Judge according to us, has committed patent illegality.</p><p style="text-align: justify;">4. In view of the decision reported in Sheo Nath v. The State of U.P. : 1970CriLJ601 , the appellant could be held guilty under Section 411 of IPC since found in possession of a stolen property. The conviction as recorded therefore, cannot be sustained.</p><p style="text-align: justify;">5. Appeal is therefore partly allowed. The convictions and sentences as awarded by the learned Sessions Judge are hereby set aside. Instead, we convict the appellant-accused for an offence under Section 411 IPC.</p><p style="text-align: justify;">6. It is reported that the accused since the date of arrest is in jail, i.e. for a period of about seven years. Since the maximum sentence is only for 3 years under Section 411 of IPC, he be released forthwith unless required in some other case. The fine as imposed by the learned Sessions Judge if paid be refunded to the accused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => 'Indian Penal Code, 1860 - Sections 302, 394, 397 and 457 r/w Section 34 - Offences of murder etc. - No eye witness - Mere recovery of stolen property - No basis for the offence charged.;Mere recovery could not be the basis for the offence charged. The learned sessions Judge according to us, has committed patent illegality. In view of the decision reported in Sheo Nath v. the State of U.P. AIR 1970 SC 535, the appellant could be held guilty under Section 411 IPC since found in possession of a stolen property. - BOMBAY STAMP ACT, 1958. Schedule 1, Article 36: [Y.R. Meena, CJ & D.A. Mehta & A.S. Dave, JJ] Deed of Mortgage  Liability to pay stamp duty  Held, Any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all Commercial Bank etc. are entitled to remission of entire duty chargeable under the Stamp Act with effect on and from 1.4.1979 under Government Notification dated 23.3.1979. Thus, where loan was granted by Bank of India under Agricultural Finance Scheme towards purchase of Air Compressors, Drilling Rods and other Accessories. Use of the Air compressors, Drilling Rods and other Accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. Thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. The instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under Government Notification dated 23.3.1979 and hence not liable to stamp duty under Article 36 of Schedule I of the Act.  -  Undisputedly, there is no recovery of any other incriminating article like weapon, blood-stains etc.',
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		'judgement' => '<p>Ashok Desai, J.</p><p>1. This appeal is directed against the finding of conviction for offences under Sections 302, 394, 397 and 457 of IPC r/w 34 of IPC.</p><p>2. The prosecution case was disclosed by P.W. 2 Smt. Sushila. According to her, at about 1 a.m. on 13.9.1991, due to dog barking she woke up and heard that one Deorarri was calling her husband by referring 'Aba Aba'. She came out and noticed that door of the house was opened. She went inside with Deoram and saw her husband Dnyanshwar was lying dead with numerous injuries. Thereafter, she noticed that three bags containing various ornaments namely two mangalsutras, two black pots, watis, jodavis etc. etc were missing. Her statement was recorded by the police. Undisputedly, she has not seen either the act of the assault or the theft. The prosecution has also not examined Deoram. P.W. 4 Avadaji Kale Police Patil lodged an F.I.R. vide Exh. 36. The accused was arrested in some other case on 3.10.1991. Recovery of the stolen property was affected on a memorandum vide Exh. 39. P.W. 5 Indore acted as a panch. Undisputedly, there is no recovery of any other incriminating article like weapon, blood-stains etc. etc. The prosecution rests its claim for the offence as charge only on the strength of recovery.</p><p>3. Mr. Karwande learned counsel for the accused made a submission that the material as placed is neither sufficient nor cogent to hold the accused guilty for offences punishable under Sections 302, 394, 397 and 457 r/w 34 of IPC. The recovery could not connect the accused with the murder of Dnyaneshwar. We find sufficient force in the submission. Mr. Salvi learned counsel for the prosecution could not successfully repel the submissions. We also find that mere recovery could not be the basis for the offence charged. The learned Sessions Judge according to us, has committed patent illegality.</p><p>4. In view of the decision reported in Sheo Nath v. The State of U.P. : 1970CriLJ601 , the appellant could be held guilty under Section 411 of IPC since found in possession of a stolen property. The conviction as recorded therefore, cannot be sustained.</p><p>5. Appeal is therefore partly allowed. The convictions and sentences as awarded by the learned Sessions Judge are hereby set aside. Instead, we convict the appellant-accused for an offence under Section 411 IPC.</p><p>6. It is reported that the accused since the date of arrest is in jail, i.e. for a period of about seven years. Since the maximum sentence is only for 3 years under Section 411 of IPC, he be released forthwith unless required in some other case. The fine as imposed by the learned Sessions Judge if paid be refunded to the accused.<p></p><p>',
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	(int) 1 => '<p>1. This appeal is directed against the finding of conviction for offences under Sections 302, 394, 397 and 457 of IPC r/w 34 of IPC.',
	(int) 2 => '<p>2. The prosecution case was disclosed by P.W. 2 Smt. Sushila. According to her, at about 1 a.m. on 13.9.1991, due to dog barking she woke up and heard that one Deorarri was calling her husband by referring 'Aba Aba'. She came out and noticed that door of the house was opened. She went inside with Deoram and saw her husband Dnyanshwar was lying dead with numerous injuries. Thereafter, she noticed that three bags containing various ornaments namely two mangalsutras, two black pots, watis, jodavis etc. etc were missing. Her statement was recorded by the police. Undisputedly, she has not seen either the act of the assault or the theft. The prosecution has also not examined Deoram. P.W. 4 Avadaji Kale Police Patil lodged an F.I.R. vide Exh. 36. The accused was arrested in some other case on 3.10.1991. Recovery of the stolen property was affected on a memorandum vide Exh. 39. P.W. 5 Indore acted as a panch. Undisputedly, there is no recovery of any other incriminating article like weapon, blood-stains etc. etc. The prosecution rests its claim for the offence as charge only on the strength of recovery.',
	(int) 3 => '<p>3. Mr. Karwande learned counsel for the accused made a submission that the material as placed is neither sufficient nor cogent to hold the accused guilty for offences punishable under Sections 302, 394, 397 and 457 r/w 34 of IPC. The recovery could not connect the accused with the murder of Dnyaneshwar. We find sufficient force in the submission. Mr. Salvi learned counsel for the prosecution could not successfully repel the submissions. We also find that mere recovery could not be the basis for the offence charged. The learned Sessions Judge according to us, has committed patent illegality.',
	(int) 4 => '<p>4. In view of the decision reported in Sheo Nath v. The State of U.P. : 1970CriLJ601 , the appellant could be held guilty under Section 411 of IPC since found in possession of a stolen property. The conviction as recorded therefore, cannot be sustained.',
	(int) 5 => '<p>5. Appeal is therefore partly allowed. The convictions and sentences as awarded by the learned Sessions Judge are hereby set aside. Instead, we convict the appellant-accused for an offence under Section 411 IPC.',
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Subject	Criminal
Court	Mumbai High Court
Decided On	Dec-03-1998
Case Number	Criminal Appeal No. 648 of 1994
Judge	A.A. Desai and ;Vishnu Sahai, JJ.
Reported in	(1999)101BOMLR625
Appellant	Raghu Shankar Kale
Respondent	The State of Maharashtra

Raghu Shankar Kale Vs. the State of Maharashtra - Court Judgment