1 S.B.Criminal Appeal No.214/89 (Jetha Ram v. The State of Raj.) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. JETHA RAM V. THE STATE OF RAJASHAN. S. B. CRIMINAL APPEAL NO.214/89 against the judgment dated 2.6.89, passed by Shri B.L.Sharma,RHJS, Additional Sessions Judge, Bali, in Sessions Case No.39/86 (63/85) DATE OF JUDGMENT ::: 06/08/2009 HON'BLE MR. JUSTICE C. M. TOTLA Mr. R.R.Choudhary, for Appellant (s). Mr. Kamlesh Rawal, PP, for the State. REPORTABLE . BY THE COURT :- Appellant challenges his conviction for the offence of Section 392 IPC and sentence awarded to two years rigorous imprisonment with fine of Rs.1000/- vide judgment dated 2.6.89 in Sessions Case No.39/86 (63/85). Heard learned counsel for the appellant and learned Public Prosecutor. Appellant Jetha Ram s/o. Jagaji was charged for the offences of Sections 366 and 376 IPC ( in relation to wife of PW 1 Jetha Ram s/o. Pema) and also for the offence of Section 392 IPC regarding her ornaments. One other accused Bhanwar Lal was also charged for the offence of Section 411 IPC – appellant per judgment under consideration is acquitted for other charge for the offences of Sections 366 & 376 IPC and is convicted and sentence for the offence of Sections 392 IPC. 2 S.B.Criminal Appeal No.214/89 (Jetha Ram v. The State of Raj.) Brief alleged facts as per prosecution and relevant for the offence convicted appear to be that on 25.5.84, Jetha Ram s/o. Pemaji PW 1, presenting a typed report Ex.P1 at police station, describing in detail, informed that his wife Smt. Dharmi is deceitfully or forcibly taken by Jetha Ram s/o. Jagaji r/o. Palaya and on report is registered FIR No.122/84 Ex.P24 for the offence of Section 366 IPC – the woman was found with appellant on 1.9.84. In course of investigation, appellant Jehta Ram s/o. Jagaji was arrested on 1.9.84 and (1) as per his information of 6.9.84 Ex.P31 a silver “kankni” ornaments weighing about 50 gm recovered from a goldsmith shop of Tarachand s/o. Hinduji at Takhatgarh which seized and sealed, preparing memo Ex.P9 and memo of paper slip affixed on packet is Ex.P29, (2) per disclosure made by appellant on 7.9.84 and reduced in writing Ex.P32 at appellant's instance from goldsmith shop of Bhanwar Lal recovered a melted silver little piece “dali” weighing 160 gm which seized, preparing memo Ex.P10 and paper slip affixed is Ex.P23, (3) per disclosure made by appellant on 8.9.84 and reduced in writing as Ex.P30 and at his instance from his house lying in a box recovered silver a pair “uttarni” & “jela” weighing 115 gm which sealed, preparing Ex.P11. As matter is not under consideration for the other acts offences of Sections 376 and 366 IPC, no relevance appears for describing other details. It appears that at the time of above recoveries, goldsmith Bhanwar Lal s/o. Meda also presented a receipt dated 28.8.84 of mortgaging silver “karias” - similarly, goldsmith Tarachand s/o. Hinduji also presented a receipt Ex.P3 of pledging “kankni” - Jetha Jaga describing the day of Bhadwa Vadi 13 of Samvay 2040. The recovered “kankni”, “jeta” and “uttarni” were identified by PW 1 and PW 7 as to be of PW 6 and other which were on her person – memo of identification parade conducted before Executive Magistrate isEx.P16. After investigation, 3 S.B.Criminal Appeal No.214/89 (Jetha Ram v. The State of Raj.) charge-sheet submitted for the offences of Sections 376, 366 and 392 IPC and also for the offence of Section 411 IPC for other acquitted Bhanwar Lal. The prosecution, in total, examined 32 witnesses. As above, appellant is convicted for the offence of Section 392 IPC and is acquitted of other charges. Thus, alleged facts and events and also the evidence not relevant for the offence of Section 392 IPC, hardly needs to be gone into detail. For the offence of Section 392 IPC, evidence is of PW 1 Jetha and his the wife prosecutrix PW 7 who has identified recovered articles to be her's and PW 7 also deposes about taking of these ornaments from her person by appellant. Head Constable PW 32 investigating the matter on information furnished by appellant, recovered the articles. Tara Chand PW 3, Girdhari PW 11, Achla Ram PW 12, Bhanwar Lal PW 13, Jawahar Singh PW 19, Jetharam PW 19, Mangilal PW 23, Gopilal PW 24 are witnesses of recovery etc. of which PWs 11, 12, 13, 14, 19, 23 and 24 are declared hostile by the prosecution. Before Tara Chand PW 20, the then Executive Magistrate, articles were identified by PW 1 and PW 7. As per appellant, he is falsely implicated. In defence, is examined the then Judicial Magistrate who recorded statement Ex.D2 undler Section 164 Cr.P.C. of witness Smt Dharmi PW 7 Art.2 “kakni”, Art. 3 “uttarni”, Art. 4 “Jhela Jori” and Art.5 silver geli alleged to have been recovered. Learned trial Judge, describing and analyzing the evidence in detail, for the reasons and circumstances mentioned in judgment acquitted appellant for the offences of Sections 366 and 376 IPC and convicted for the offence of Section 392 IPC. Learned counsel for the appellant argued that (1) regarding pledge of the articles are receipts Ex.P3 and Ex.P35 and as per receipt, the 4 S.B.Criminal Appeal No.214/89 (Jetha Ram v. The State of Raj.) articles were pledged prior to that alleged incident of prosecutrix going with appellant. (2) Silver “dali' recovered, cannot be said to be of “Karia” any other article belonging to PW 7 which is also accepted by the learned trial Judge. (3) Per receipt Ex.P3 articles were pledged on Bhadwa Sud 13 Samvat 2040 which is about year prior to alleged events for which prosecution is – learned Judge purely on possibilities inferred that probably instead of 2041 written was 2040. (4) If no evidence of 366 or any like offence, then hardly can be question of taking ornaments forcibly or without consent. (5) Taking evidence together of entire incident, there is nothing to infer that of theft or extortion and/or obtaining articles putting the concerned in fear. Learned Public Prosecutor countering arguments, submitted that inferences regarding commission of offences convicted for are based on strong evidence and reasons. Considering arguments, perused judgment and evidence on record. It seems that the learned Judge arrived at conclusions of Dharmi being above relevant age and about 25 years and also on given facts inferred about consent etc. Going through the evidence of PW 1 husband of prosecutrix who lodged FIR is, she was away since August 24th if not earlier by a day or two. Appellant and Smt. Dharmi were found at some public place near Rilway Station, Balotra on 30.8.84 that is, 7-8 days after the incident and the ASI Balotra PW 29 deposed that he observed appellant and prosecutrix who appeared to be afraid like, so interrogated and prosecutrix first disclosed her name to be Bhanwar Bai, then Rukmani and then right one who were arrested on 30.8.84. PW 29 further says that initiating proceedings under Section 41/109 Cr.P.C. these persons were produced before Executive Magistrate on 31.8.84 and prosecutrix, when 5 S.B.Criminal Appeal No.214/89 (Jetha Ram v. The State of Raj.) interrogated, did not say any of snatching or taking her ornaments. A perusal of statement of PW 7 discloses that according to her for stated reasons on asking of appellant, she accompanied him to Lunawa a village where leaving her in house of a purohit, appellant ran away, who came after three days, then she taken to Takhatgarh, where appellant threatening of injuring by knife, obtained her “kankani” and then similarly, at Jalore also obtained her “kare” which were on her person and all these articles sold to goldsmith. PW 7 states that appellant took her articles soon after he returned from village and at home of the Purohit. As per prosecutrix, then after 3-4 days, appellant did have physical relations with her at several places and they then taken by police men. Per PW 7, physical acts perhaps only after 3-4 days, thus, after ornaments taken from her. As appellant is acquitted for the other charges so appears that for other acts elements of fear, use of force, elopement etc. were not proved. Articles “uttarna”, “Jhela” and “Kankni” are proved of prosecutrix. Though the recovery witnesses PWs 11, 12, 13, 14, 23 and 24 are declared hostile, but they accept their signatures on memos of recovery Exs. P9, 10 & 11 and Head Constable Amar Singh PW 32 deposing that on information of appellant reduced in writing by him Exs. P30, 31 and 32, the recoveries made from shop of goldsmith accused Bhanwar Lal other goldsmith Tarachand and from house of appellant, so the recoveries may be taken as proved. Per memo Ex.P9 “Kankni” is recovered from shop of Tara Chand at which shop Head Constable was lead by appellant. As per statement of goldsmith Tara Chand PW 3, the “kankni” was pledged with him by appellant Jethiya for Rs.125/- and he at the time of pledging, obtained receipt Ex.P3 which bears thumb impression of the appellant and the 6 S.B.Criminal Appeal No.214/89 (Jetha Ram v. The State of Raj.) receipt was submitted by him to police. Recovering Officer PW 32 states that receipt Ex.P3 was presented by PW 3 then and there. As per receipt Ex.P3, “Kankni” is pledged by Jetha s/o. Jagani and also written is day of Bhadwa Vad 13 Samvat 2040. Learned Judge has observed that incident is of 2041 but possibilities or erroneously writing 2040 appears because PW 3 does not say of pledging of this day of 2040, in opinion of this Court, this reasoning is not based on sound facts or reasons. Equally, if not equal at least some possibility may be of 2040. Even then whatever be PW 3 says that the same was pledged by Jethiya, PW 3 does not say that wrong is the date mentioned and also have stated ignorance about pledging on 25.8.83 (incident of 84). So for this recovery, provenly no inference can be against the appellant. “Uttarni” and “Jela” are recovered from the house of appellant. Per recovery memo Ex.P11, appellant leading, policeman taken by him to house where in iron box were this “uttarni” and “gela” weighing 118 gm. Now, coming to the totality of alleged incident, as per PW 7 because she was not having any child, so on calling by Jetha s/o. Duda, the son of her Mausi, she went to house of Mausi where Jetha s/o. Jagga was also present and after some spiritual like ceremony in night she sent and came back to her house and then Jetha s/o. Duda (cousin brother) and also Jetha s/o. Jaga (appellant) came and, thereafter, she accompanied appellant and than events for charge fall out. Thus, prosecutrix, on calling of her cousin brother, going and caming back and then going again and further as no elements of inducement, fear and force etc. are inferred by the learned trial Judge, only because these articles “uttarna” and “Jela” were found in house of appellant, hardly can be in absence of any other evidence inference of theft or extortion. If such happened, certainly the articles would have been sold at a place out 7 S.B.Criminal Appeal No.214/89 (Jetha Ram v. The State of Raj.) of 3-4 places visited together by appellant and prosecutirx. For recovery of melted silver itself, learned trial Judge has held that no inference on the basis of this recovery and for kankni is Ex.P3 along with other circumstances. Appellant is acquitted for the offence of Sections 366 and 376 IPC, meaning thereby absence of force, threat, eloping, inducement, force and like. Though not necessarily, but if for continuous acts, the above elements are found to be missing, then certainly, for acts related to same incident and of same time, more strong and particular specific evidence is certainly required. Rarely can be for the simultaneous actions of such alleged nature of same time duration elements can be said to be proved for one act and not for other act - any how for the above reasons, it cannot be inferred that above silver articles of PW 7 were taken without her consent or extortionally, as such, appellant is to be acquitted of charge of Section 392 IPC. The articles be returned to Smt. Dharmi PW 7 as is ordered by the learned trial Judge. Consequently, this criminal appeal (judgment dated 2.6.89 S/C 39/86) is accepted and the appellant is acquitted of the charge of Section 392 IPC. Appellant is on bail and bail bonds are discharged. (C.M. TOTLA),J.