In a criminal revision petition, the Rajasthan High Court acquitted the petitioner of theft charges. The court held that the prosecution failed to prove exclusive possession of the recovery site or establish the accused's identity beyond reasonable doubt.
Impugned judgments of conviction and sentence were set aside; petitioner acquitted; refund of fine order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 840/2003
Noshad @ Noshi @ Noshya S/o Shri Mitthu Khan, by caste Muslim, R/o Panchayati Masjid Ke Pas, Rashid Hathi Wale Ke Pas, Mohalla Mahavatan, Chokdi Topkhana Hajuri, Police Station Ramganj, Jaipur
----Petitioner
Versus
State of Rajasthan
----Respondent For Petitioner(s) : Mr. Shamsuddin Ansari For Respondent(s) : Mr. Atul Sharma, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
J U D G M E N T
DATE OF PRONOUNCEMENT : 09/01/2024
Under Sec.457 IPC Three years RI with a fine of Rs.3,000/- and in default of payment of fine to further undergo six months Addl. SI.
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Under Section 380 IPC Two years RI with a fine of
Rs.2,000/- and in default of payment of fine to further undergo six month Addl. R.I.
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accused petitioner denied the allegations levelled against him. He submitted that he has not committed any theft and that the alleged recovery of the stolen articles has not been made at his instance. Rather same has been recovered at the instance of the accused Umar. However, no evidence in defence was produced by the accused petitioner. After hearing arguments advanced by learned Public Prosecutor as well as learned defence counsel, the learned trial court convicted the accused petitioner for offences under Section 457 and 380 IPC vide judgment dated 10.07.2002. The accused-petitioner challenged the said judgment of conviction dated 10.07.2002 by way of Criminal Appeal (No.13/2003) before the court of learned Addl. Sessions Judge (Essential Commodities Act), Jaipur. Vide judgment dated 09.04.2003, the learned Appellate Court dismissed the appeal of the appellant and affirmed the judgment dated 10.07.2002 passed by the learned trial court. Hence, this revision petition.
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witnesses but while overlooking these material contractions, the learned trial court proceeded to convict the accused petitioner. He contended that Mohd. Umar from whose house the alleged recovery of the stolen articles have been affected, has not been examined at trial whereas he was an important witness. While referring the cross-examination conducted from the complainant Ajaz Ali (PW.1), he contended that the complainant admitted that he did not produce any separate list of the stolen articles to the IO and only mentioned about these articles in the FIR. Besides that, he argued that identification proceedings of the recovered stolen articles was not conducted by the IO and these were identified by the complainant for the first time in the trial court. It was also contended that the prosecution failed to prove the fact that the room from where the alleged recovery has been affected was in the possession of the petitioner. The prosecution has not placed on record any rent note in order to prove the fact that the petitioner was a tenant of the room from where the alleged recovery was affected. It was contended by learned counsel that there is not eyewitness of the incident as PW.7 Abdul Rashid clearly stated that on the fateful night, he saw a boy going towards Jamal Ki Haveli. However, he did not see his face and on the next morning, he came to know that theft had taken place in the house of Jabbar Mulla and thus, there was no evidence available on record to connect the accused appellant with the alleged offence.
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Bail (Suspension of Sentence) Application No.125/2003 whereby the execution of sentence awarded to the accused petitioner was suspended by this Court subject to furnishing a personal bond in the sum of Rs.20,000/- with one surety in the like amount to the like amount. However, as the accused petitioner failed to furnish bail bonds in lieu of his release from jail, the accused petitioner has served the sentence awarded to him and therefore, he argues the case for setting aside the conviction passed against the accused petitioner by the learned courts below. On these submissions, he prayed that the impugned judgment passed by both the courts below may be set aside and petitioner may be acquitted of the charges.
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the petitioner as he furnished the information u/s 27 of the Indian Evidence Act. Alleged recovery was made from the house of Mohammad Umar wherein according to prosecution case, the petitioner was tenant. It is an admitted fact that prosecution has neither produced Mohammad Umar in the witness box as prosecution witness nor any rent note was produced during the course of trial. Mere search and recovery of stolen articles from a house or room cannot be considered as incriminating circumstances against the accused unless there is satisfactory evidence available on record that the house or room from where recovery has been made, was in exclusive possession of the accused.
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Jaipur City in Criminal Regular Case No.306/2001 and judgment dated 09.04.2003 passed by learned Addl. Sessions Judge (Essential Commodities Act) Jaipur in Criminal Appeal No.13/2003, affirming the judgment dated 10.07.2002, are set aside. The petitioner is acquitted from all the charges. The revision petition is allowed. The petitioner would be entitled for refund of fine amount if any deposited by him.
12. Record be returned to the trial court forthwith.
(ANIL KUMAR UPMAN),J
Sudhir Asopa/16
3 issues framed by the court
Whether the prosecution conclusively proved the petitioner's exclusive possession of the room where stolen articles were recovered beyond a reasonable doubt.
Whether the identification of the accused was properly established given the witness could not identify the accused's face.
Whether the conviction was sustainable in absence of a rent note and non-production of the alleged house owner as a witness.
2 provisions across 1 enactments
Noshad @ Noshi @ Noshya
State of Rajasthan
ANIL KUMAR UPMAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
