Himmat Mal Soni Vs. the State of Rajasthan - Court Judgment

Excerpt:
penal code - sections 457 and 380 and criminal procedure code--revision--theft committed--stolen ornaments not recovered--not proved that silver and gold ingots were made of stolen ornaments--held, finding of acquittal requires no interference and (ii) evidence should not be reappreciated in revisional jurisdiction.;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 section 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 appreciate the evidence. the conclusion arrived at by the learned lower court does not require any interference.;revision dismissed. - 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. 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 487 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 1.5,1988. 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 1/2 years rigorous imprisonment to each accused and a fine of rs. 200/- under section 457, ipc and two year's 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 bangles to the complainant chunni lal. dissatisfied with the conviction and sentence passed by the learned judicial magstrate, 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 mal, 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 year's rigorous imprisonment and a fine of rs. 2000/-. the learned sessions judge, also, allowed the appeal filed by himmat mal and ordered for the delivery of gold and deliver 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 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 to falta 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 mal 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. pc, 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 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 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 statement 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 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 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 got no force and is hereby dismissed. the order passed by the learned judicial magistrate, abu road, is restored.