Nazir Ahmad Khan Vs. State of Jammu and Kashmir - Court Judgment

Excerpt:
- 1. the appellant alongwith others were tried on charge punishable u/s 457/380 rpc by the city munsiff judicial magistrate ist. class, srinagar. they were alleged to have committed theft by breaking house on 30.8.1974. on their disclosure statements stolen property such as a piece of cloth, transistor and jewellry were recovered on 1.9.1974 from their possession. the trial court by its judgment dated 12.2.1976 convicted them u/s 411 rpc. all of them were sentenced to one year rigorous imprisonment.2. the appellant accused challenged their conviction by filing appeal before the court of sessions judge, srinagar who transferred the same to the court of additionel sessions judge, srinagar. the appellate court dismissed the appeal vide judgment dated 8.3.1976 thereby upholding the conviction of the appellants.3. it is strange that even though there is no provision for second criminal appeal either in the code of criminal procedure or in the letters patent yet by order dated 23.3.1976 this appeal was admitted by a learned single bench of this court. however since there is no provision for 2nd criminal appeal it is treated as a criminal revision and will be decided accordingly. 4. both the trial court as well as appellate court have on appreciation of evidence found that the seized property was recovered after the appellants made disclosure statements during their interrogation. they have also found that the seized property has been identified by the prosecution witness from whose possession it was stolen. it has also been proved that the identity of the transistor-cum-tape recorder was established because of the fact that complainant was in possession of its license. similarly, ornaments were properly identified by the prosecution witness. 5. the stolen property is of such a nature that it could be identified firstly because complainant was license holder of the transistor and secondly jewelry is capable of identification. moreover, the appellants did not claim any of the recovered property. there is thus nothing to hold that the appreciation of evidence by the courts below was perverse, the only ground on which revisional court can interfere.6. one of the arguments advanced is that since the appellants were charged u/s 457/380 rpc, therefore, conviction could not be recorded u/s 411 rpc. this argument is not sustainable because such a course is permissible u/s 237 cr. p.c which reads as under :-'237, when a person is charged with one offence, he can be convicted of another. if , in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have been committed, although he was not charged with it. illustration a is charged with a theft. it appear that he committed the offence of criminal breach of trust, or that of receiving stolen goods. he may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be), though he was not charged with such offence.'7. however on the basis of evidence the appellants should have been convicted u/s 457/380 rpc because there is evidence that these goods were stolen from the house of pw mohd ashraf ahangar on the night intervening 30/31 august 1974. there is also evidence that all these stolen goods were put in a box kept in the house which was found abandoned on the road in the morning. it is also established from the evidence that the doors of the house were closed at night and the appellants forced their entry through window. so on the evidence the appellants should have been convicted u/s 457/380 rpc as the charge was properly framed against them. the appellate court failed to notice this lapse on the part of the trial court. moreover, the appellants were not receivers of the stolen property. they in fact had committed theft and were in possession of the stolen property which they had stolen by entering the house during the night after committing house breaking. however, since they have been acquitted of the charge of committing theft by house breaking during night and the state having not preferred any appeal, i am not inclined to interfere with the judgment on this ground after 24 years during which time these proceedings have remained pending. another argument put forward on behalf of the appellants is that the stolen property has not been identified. this contention is to be noticed only to be rejected because pw mohd ashraf is a licence holder of the transistor which was recovered from one of the appellants. moreover, the transistor has not been claimed by the appellants at whose instance it was recovered. the prosecution case was that the necklace and other ornaments details of which is given in the fir belong to pw mst. hafiza cousin of pw .mohd ashraf ahanger. she has appeared and identified each one of these ornaments. the prosecution also examined pw ghulam rasool a goldsmith who had made these ornaments for her at the instance of her husband. even mohd yasin has corroborated this. so there is abundant of evidence that ornaments belonging to mst. hafiza who had kept then with pw mohd ashraf ahanger from where these were stolen. even otherwise women have uncanning habit of identifying ornaments and clothes they wear. this was observed by their lordships in earabhadrappa v. state of karnataka air 1983 sc 446 which reads:-'even if the seized ornaments could be treated to be ornaments in common use, this witness could never make a mistake in identifying the seized six silk sareers ( m.os 10 to 15 ). it is a matter of common knowledge that ladies have an uncanny sense of identifying their belongings, particularly articles of personal use in the family. that apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. there is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. there is no such legal requirement.' similarly argument that recovery of the stolen articles is not admissible because it was effected on the basis of statements made by the accused is without any substance because this evidence is admissible u/s 27 of the evidence act as held in earabhadrappa v. state of karnataka air 1983 sc 446 which reads :-'under section 27 only so much of the information as distinctly relates to the fact really thereby discovered is admissible. the word 'fact' means some concrete or material fact to which the information directly relates. as explained by sri john beaumont in pulukuri rottaya v. emperor, (1947) 74 ind app 65 (air 1947 pc 67) :-'it is fallacious to treat the fact discovered within the section as equivalent to the object produced; that fact discovered embraces the place from which the object is produced, and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.' 8. for the applicability of s. 27, therefore two conditions are pre-requisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered.'so the evidence is admissible and proves beyond any doubt that the theft was committed by the appellants. there could be thus no better identification than the one in this case because both the persons who have used ornaments and the person who manufactured them have identified them. in view of the above charge of theft against the accused is conclusively proved. they have thus been rightly convicted. this revision petition is disposed of by reducing the sentence to the already undergone by the appellants.