Allowed

Champa Lal v. State

Rajasthan HC2 May 2023CRLR/540/2007

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition, quashing the conviction and sentence of a petitioner (Champa Lal) under Section 411 IPC. The Court held that the prosecution failed to prove the element of 'knowingly receiving' stolen goods and that the uncorroborated confessions of co-accused, without matching recovery, were insufficient for conviction.

What did the court decide?

The impugned judgments dated 15.06.2007 and 22.01.2007 are quashed and set aside. The petitioner is acquitted. Bail bonds are cancelled.

Champa Lal Vs State — Cheating and Forgery | Rajasthan HC (2023)

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[2023/RJJD/012030]

[CRLR-540/2007]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Revision Petition No. 540/2007

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Champa Lal S/o Shri Babu Lal, By Caste Soni, R/o Bhinmal Tehsil Bhinmal, District Jalore.

----Petitioner

Versus

State Of Rajasthan

----Respondent

For Petitioner(s)	: Mr. RajSingh Bhati
For Respondent(s)	: Mr. Abhishek Purohit,AGA

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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ORDER RESERVED ON ::: 25/04/2023 ORDER PRONOUNCED ON ::: 02/ 05 /2023 BY THE COURT:-

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The instant Criminal Revision Petition filed under Section 397/401 of the Cr.P.C. against the impugned judgment dated 15.06.2007 passed by the learned Additional Sessions Judge, Bhinmal in Criminal Appeal No.13/2007 as well as against the judgment dated 22.01.2007 passed by the learned Additional Chief Judicial Magistrate, Bhinmal in Criminal Regular Case No.333/2006 whereby the petitioner Champa Lal was convicted for the offence under Section 411 of the IPC and sentenced to undergo six months’ simple imprisonment along with fine of Rs.100/- and in default, to further undergo seven days’ simple imprisonment and the appeal filed against the said judgment was dismissed.

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[CRLR-540/2007]

Bereft of elaborate details, the brief facts giving rise to filing of the instant revision petition are that the petitioner was chargesheeted for committing an offence under Section 411 of the IPC. As per the charge sheet, a theft was committed in the intervening night of 15^th and 16^th October 2005 at Mahadevji Bhimeshwar temple near Village Kalapura by some unknown persons. During investigation, it was revealed that co-accused Chhagna Ram and Harchand Ram committed the offence of theft and the petitioner received the articles of gold and silver knowing it to be stolen one.

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P.W. 1 Daulat Singh in his own statement at oath had deposed that a theft was committed in the temple and he lodged a report Ex.P/1 at the Police Station Jaswantpura, Bhinmal.

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P.W. 2 Dalpat Singh was a Manager of the temple property. As per him, some gold and silver ornaments were stolen by unknown persons. The bill and vouchers of the stolen articles were not submitted by him.

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P.W. 3 Narain Singh stated that site memo Ex.P/3 was prepared by the police officials in his presence.

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P.W. 5 Mahendra Singh, the Investigating Officer, who conducted the investigation had deposed that he recorded the statements of witnesses and arrested the co-accused Harchand Ram and Chhagna Ram. He further stated that while in police custody co-accused Harchand Ram and Chhagna Ram made a disclosure statement to him that out of the total stolen property from the temple, they sold one silver bar and one gold article to

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the petitioner Champa Lal. It was his contention that pursuant to the information furnished by the accused Harchand Ram and Chhagna, he went to the shop of the petitioner and recovered one silver bar, a golden nose ring and 450 mg melted gold from the conscious possession of the petitioner and prepared the recovery Memo Ex.P/4. As per this witness, Kamlesh, the monk of temple was also present at the shop of the petitioner and at the time of recovery, he identified the recovered articles. It is notable that neither any bill vouchers of the ornaments were produced nor any mark of identification was mentioned by the complainant prior to recovery of articles as mentioned in Ex.P/4. It is also notable that the articles mentioned in Ex.P/4 are different to what were mentioned in the FIR. It is evident from the recovery memo that the description of property mentioned therein do not match with the property allegedly stolen from the temple.

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P.W. 5 Mahendra Singh further asserted the fact that the accused Harchand Ram and Chhagna Ram made confession before him to the effect that they procured some of the stolen articles to the petitioner.

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P.W. 6 Kamlesh, monk of the temple has stated that a theft was committed in the temple and recovery of one silver bar and a golden nose ring was affected at the instance of the petitioner.

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P.W. 7 Vijay Bhadur stated that he was posted as a Constable of the police station Jaswantpura and he was produced to verify the fact of recovery from the shop of the petitioner. No

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independent witness has been produced to verify the fact of recovery.

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After examination of the witnesses of the prosecution, the accused-petitioner was examined under Section 313 of the Cr.P.C. wherein he claimed to be innocent and made an explanation that he was falsely implicated. Thereafter, hearing the learned counsel for the parties, the learned trial Court vide judgment dated 22.01.2007, convicted the accused petitioner Champa Lal and sentenced him to suffer six month's simple imprisonment with a fine of Rs.100/- with default clause.

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Aggrieved by the judgment of conviction and order of sentence passed by the learned trial Court, the accused-petitioner preferred an appeal before the learned appellate Court, however, the same was dismissed vide impugned judgment dated 15.06.2007. Hence, the legality, correctness and propriety of the judgments and orders passed by the Courts below have been challenged by way of filing the instant revision petition.

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Learned counsel appearing for the petitioner submitted that the prosecution has miserably failed to appreciate the correct legal and factual aspect of the matter and thus, reached at an erroneous conclusion of guilt. It is submitted that except the confessional statements made by the co-accused Harchand Ram and Chhagna Ram before the police official while in police custody, no other incriminating evidence available is on record, even for the namesake on the basis of which, it can be said that the petitioner committed the offence. The alleged recovery of articles

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from the shop of the petitioner have no match with the stolen articles as described in the FIR and as such, there was no evidence to bring home the guilt of the accused.

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Per contra, learned Public Prosecutor opposed the submissions made at the end of the petitioner and submitted that no interference is required by this Court in the judgments passed by the Courts below.

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Heard learned counsel for the petitioner as well as learned Public Prosecutor for the State. Perused the material available on record as also the impugned judgments of the Courts below.

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It is an admitted fact that name of the petitioner was not mentioned by any of the prosecution witnesses. He has been arraigned as an accused simply on the basis of the statements of the co-accused Harchand Ram and Chhagna Ram and that too when they were in police custody. What were the specifications or mark of identification of the stolen articles for which allegation of theft was levelled against the petitioner, has not been clarified anywhere in the record. Even, the FIR Ex.P/1 does not contain description of the articles, the FIR came to be lodged on 17.10.2005. The alleged recovery was affected from the petitioner vide Ex.P/5 on 27.04.2006 i.e. well after six months of the incident. The recovery mentioned in Ex.P/4 do not have any match with the description made by the prosecution witnesses in their statements. A bizarre process has been undertaken by the Investigating Officer in this case while keeping the complainant of this case with them at the time of recovery from the shop of the

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petitioner and it has been mentioned in recovery memo Ex.P/4 itself that the witnesses identified the articles. The law does not recognize such identification and in considered view of this Court, the alleged recovery is nothing but a farce. Such type of practice deserves to be deprecated. As mentioned above, the articles mentioned in the Ex.P/4 were altogether different ornaments. As per the material available on record, the petitioner is a goldsmith having a jewellry shop and availability of some gold and silver articles at his shop is a common thing. There is no legally admissible evidence on record to show or suggest that the alleged recovery made from the petitioner vide Ex.P/4 was the same which was stolen by the co-accused Harchand Ram and Chhagna Ram from the temple and in this view of the matter, it is observed that the alleged recovery made in pursuance to the information furnished by the complainant vide Ex.P/4 do not connect the petitioner in any manner with the alleged theft.

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The language of Section 411 of the IPC is very clear in terms to say that if any person receives the property/article "knowingly" to be stolen then it shall be presumed that he committed an offence under Section 411 of the IPC but here in the case at hand, there is not an iota of evidence from which it can be inferred that the petitioner received the property from the coaccused Harchand Ram and Chhagna Ram knowing to be stolen thus, the ingredients essential to constitute offence under Section 411 of the IPC are conspicuously missing and, therefore, the conviction for the aforesaid offence cannot be sustained.

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Coming to the next question regarding the confessional statement made by the co-accused Harchand Ram and Chhagna Ram while in police custody is concerned it would be sufficient to propound that the contention made by the co-accused of a case in police custody regarding his involvement in commission of crime as well as involvement of the other accused would not be admissible in evidence in view of the provision contained under Sections 24, 25 and 26 of the Indian Evidence Act unless any corroborative evidence is produced to bolster the allegation based on confession.

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It is neigh well settled proposition of law that only on the basis of the confessional statement made by co-accused without there being any corroboration, no conviction can be made. There are two parts of a disclosure statement made under Section 27 of the Evidence Act and only the part of such information would be admissible in evidence which distinctly relates to the fact discovered thereby. The part of statement which is nothing but a confession of crime by the accused to a police officer would hit by the other provisions of the Evidence Act and only the part wherefrom recovered, discovered and disclosed which is not already in knowledge of the investigating officer would be admissible in evidence. Section 27 of the Indian Evidence Act is an exception to Sections 24 to 26 of the Indian Evidence Act. While dealing with the identical question, this Court has made observation in the case of Sumit Vs. State of Rajasthan decided on 29.03.2023 in S.B. Criminal Misc. 2nd Bail Application

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No.2886/2023 . The relevant part of the said order is deemed appropriate to reproduce herein below:-

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“…...This court is of the view that at least there must be some corroborations or support to verify the confession made by the principal accused to the Police Officer while in lockup. If this said disclosure statement is a piece of evidence then this Court is forced to wonder who will come to the witness box to substantiate the charge against the petitioner for his alleged act of his being the alleged future recipient of the contraband. If it is an information under Section 27 of the Evidence Act, something is required to be recovered or discovered in pursuance of the information supplied under Section 27 of the Evidence Act, which distinctly relates to the commission of the crime. It is the admitted case of prosecution that in pursuance of the information furnished under Section 27 of the Evidence Act regarding the culpability of the petitioner, nothing new was disclosed, recovered or discovered.

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It can be manifested from a simple reading of the Section 27 of the Evidence Act and the judgments referred above that only information in the form of confession received from disclosure made by an accused cannot be taken as reliable piece of evidence in isolation until there is a discovery or a recovery or another fact to corroborate the said information and prove its veracity. Precisely, it can be said that Section 27 of Evidence Act is an exception to Sections 24, 25 and 26 of Evidence Act, however, the exception limits its admissibility only upto what is envisaged in the statute itself and not beyond that.”

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Thus, in this view of the matter, the conviction of the petitioner is not sustainable in eyes of law which was made simply on the basis of confession made by the co-accused Harchand Ram and Chhagan Lal to a police officer in police custody. As such, in the considered view of this Court, the prosecution has miserably failed to prove the charge under Section 411 of the IPC against the petitioner. The learned trial Court and the Court of appeal have failed to scrutinize and evaluate the evidence in correct perspective and thus, the findings arrived at by the learned Courts below cannot be said to be a legal one and, therefore, the impugned judgments passed by both the Courts below deserve to be quashed and set aside.

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Accordingly, the revision petition is allowed. The impugned judgment dated 22.01.2007 passed by the Additional Chief Judicial Magistrate, Bhinmal and the judgment dated 15.06.2007 passed in appeal by the learned Additional Sessions Judge, Bhinmal are quashed and set aside. The petitioner is acquitted from the charges. His bail bonds are cancelled.

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Before parting, it is deemed appropriate to decide an application preferred on behalf of the petitioner seeking permission to make an application for obtaining a passport on the ground that his wife is suffering from serious ailment and for that purpose he wanted to take her to abroad for further treatment. Since, the petitioner has been acquitted from the charges, no further order is required to be passed in this application filed by the petitioner for obtaining passport. However, it is made clear

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that if any application is moved by the petitioner to the Passport Authorities for obtaining a passport, the same shall be heard and decided in accordance with the prevailing law and rules, however, this particular case shall not be taken as an impediment in that process.

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The record of the court below be sent back forthwith.

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(FARJAND ALI),J

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116-Mamta/-

Champa Lal v. State

Case brief

What is this about?

What did the court decide?

Champa Lal v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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