/Z/L/a’é’gl/é/I/w/II/Hy ¥ 0923 j I TH HxsH couRT OFV‘MADHYAPRABESH ATiJABiALPU timinal Revision N0; 1 /9 3 N E R C “ §¢ ‘ h §. r , R , ,K ‘ { AAPPMCANT E’ inl ja“ Candrabgarj S~lngh‘ ssjfo Narayan singh aged a'bQut 22 year's. /e asathyagudi Chéwk othra Road, Raigarh "” . / VERsUS \ y §§s state > of :Madha réeh. {i NGMAPPLICANT’ R‘IMINAL-{RWIS mN :‘UNDER =5Eeg3‘97 . 410i LieEP .c c . M , fé? .. Kg. / Xi-JIS HG m Raw W .: aw arm am; 7 ' m m (w at w) mam W wk w swam a‘w ém‘mh? t: faér 1 m‘e mr ‘? c» K25M€@[/ 43 R sdl‘ s Ga‘g 3udQe jdgwKgmu/ R fs w W W %m h NW x\ kM m ’ _ IN TEE HIGH COURT OF CHHATTISGARH AT BILASPUR W CRIMINAL REvxs ION N0.,15/96 Ghasiram VS. State ¢ MoP¢(C.G.) AND Criminal Revision No. 14/96 Chandrabhan Singh VS. State of M.P. (C.G.) O J : Per Hon.R.s .Garg, hs junt/orer shall dipoe o riminal evi‘io No15/96 (siram vl é of M(C) and Crinal Rvsion No.14/96(andrahan singh vs State of MP(G), io u f dgmt. 2. Applicnts Ghasram and Chanobh xgh. being agieved by e jdgm dat 20-1-195 passed in criminl Appeal No 295 and Crimnal Appel No.33/9 nf e -15e l} Ti dgmed ss f C Rsg . @a s. Stte PG) mi ei chb . C)§, ‘as both the revisns arise ot o the same jhen a i raan sif gr th uent ed 29 7" a ° 2/ i a 5 Q coirming the jhdgant dated 27-199passd in crimina Cae No72/93 by e eé udcial Magistra Firs ac o v ‘ f Class Raigah cicting/he appellant under sections 457 nd IP .C, sentenin them t undergo .I or a 380 . . cg o R. f ne , nde ch ont n pa fne 1E Rs00’und each cont, dlt of payment feto ndergo ‘ furh mprison f nth f ech ault), the jail sentences to run orent 1y, t ower redun the ubive jail sntencesfro ne :ear't d month imprsonmen,ave filed th reisios RDER s .4 th lqrne Ji te t eh f W3 . r onvt o year ur ea cu ad y i 0 °5/-er J u in efau of in/ u ter iment ,or one mo or a def W cncur bu hev cig setant em o yo three ‘4 s ith ese vn’.p 2 - 3. The prosecution case in brief was that the complainant Dinesh Kumar Ghosh who was residing in Masta Gali, Kotra Roa&, Raigarh alongwith his family. had gone to Jasmin: on 23-12-1992. on 29—12—1992,when he returned back to his house, he found that the outer door was closeo but the inner door was broken. The suit-case,etc. were also broken end certain articles induding ear-rings i bangles , kangan(gold kada ) ,rirngs , neckless,silver payal,mangal-sutra, silver bangles; silver plate; glass, spoons and cash worth .2400/- were stolen by somebody. Accoraing to the prosecution, the miscreants entered in the house from the gap between the wall and the roof. The complainant lodged tl'e first information report on 29-12-1992. ‘In the‘first informa- tion report itself, he expressed his serious doubts against the present applicants. After receiving the information..the police came into action. apprehended the accused persons. After recording the menorandums of the two accused persons, certain recoveries and r; discoveries were effected, From Chandrabhan singh, cash, neckless, gold, bangles, kangan, chain, gar—rings, rings mangal-Sutra and a small m silver box were recoveredé j From the accused Ghasiram, three silver chains, a small Silver box, other silver artic les. gold. rings, Silver articles of the children and silver spoons were rec0vered The said articles were put for identification which were rightly identified by P.W.1. After completing the investigation, the prOsecution agency filed the challan’ before the trial court. ins the accused persons/"pleaded not guilty, they were put to trial; After'recording the evidence and hearing the parties, the [trial court awarded othe‘sentence of ore year R.I. each under Section 457 and 380 IPC and also impg ed a fine of Rs.§xOO/- gnde i, v i o é" r r .;_ s r - 3 each countv In the appeal, the learned appellate Judge while maintaining the findings anguonvietion W3% tke appligants, however, reduced the jail sentences to three months R.I.. Being aggrieved ¥by the said judgment, conviction and sentences the applicants have cane to this Court . Shri Tripathi, learned conns e1 £or tm applicants, submits that as the memorandums and the recoveries have not been proved ana as ?.W.5 Mahendra singh has not proved the memorandums recorded under Section 27 of the Evidence Act and the discoveries made 4b AJxeA . in pursuance to‘ the said manorandums, each o£ the applicant deserves to be acquitted. He further submits that as there are no witnesses to the incident, the applicants could not be held guilty under Section 457/ 380 IPCZ§W if tie prosecntion case is accepted in its entirety, they can’ at best,be convicted under Section 411 IV.P.C¢. .5» shri Ashish Shukla. learned'counsel for the state, on the other hand, submits that the memorandums Ex.P/2 and P/S prepared on 30-12—1992 and 31-12-1992 have been proved and similarly the seizures effected under Ex.P/3 and P/4 have also been proved. he submits x that evenrif there are no eye witnesses to the incident. as the accuaed' persons were found in passession of the i, articles either on the very next day of the incident if 29th is taken to be the date of the incident, or within one week if 23rd is‘taken to, be the date of incident and as the recoveries are within a very shOrt ’ [:r \ time of the alleged incident ,the courts below were justified in holding that the accused ‘persom omitted the offence. T @ - 4 6. The two courts, have relied upon the statements of P.W.5 Mahenéra singh. said Mahendra singh has clearly state& that Chandrébhan made a statanent before him Athat particular articles were hurried by him near the mosque. He has also proved the recoveries/ aiscoveries at the instance of the accused Chandrabhan‘ Said Mahendra singh has further proved that &:.P/5 bears his signatures. Ex.P/5 is' the document which records the, statements bf. the accused. Mahendra singh { '1 has further stated that under Ex.P/4, certain articles were seized at the instance of accused Ghasiram. The witness has furthers tated that RnP/4 bears his Signatures. inthe cross—examination, he however admitted that EanP/z and P/3 were recorded in the polices tation but he further stated that as it was V dark and there was nosource of light near tke mosque 1 recovery memo could not be prepared near the IriOSqueQ He has further stated that when inquiries were made from Ghasiram, he had stated that certain silver articles were given by him to one Rikshawala and after s ome time thewife of that Rikshawala produced the said articles. ~Fromtl’e statements cf P.W.5 Mahendra Singh; it would clearly appear that the manorandums Ex.P/2 and P/S were ‘prepared by the police andrin pursnance of these memorandums certain discoveries were made. True it is that the officers who prepared tl'e memorandums and effected the recoveries was not @camined but his non-.- examination would not provide a foundation in favour of : the accused persors because P.W.5 Mahendra Singh has proved the memorandum and the discoveries. 7? I P.W.7 Kishore Eumar Ghosh had conducted the . ’ ‘ '7 ; . ‘ ‘ .- 5 — identification proceedings. He had clearly s£ated that he had mixed other articles math the artlcles 1n dispute and the Witnesses had identified tne said erticles. His statements were conaemned by the defenc mainly on two grounds, firstly that he did not know how to prepare a memorandum o£ identifieation and secondly that he was supplying some articles to’the police. In the Opihion of/this Court. the grounds on which his statements are challenged are not valid. ~ If. somebody does not know how to prepare a partie-El‘ari,a ’ form, if under the instructions of some Officer preparefs’ f , the form and fills it correctly, then it cannot be hel that he was working under the pressure of police. similarly, smplg because he was, supplying ceran material to the police would not make him unreliable. The two courts have apgr eciated the evidence in proper, € perspective and have recorded correct findingsm; ‘ ii Undisputedly, the articles were recovered from next day of the report. It cannot be held that the accused persons were receivers of the stolen property. Aects ed Chandrabhan had hurried the articles near the mosque while accused Ghasiram had pledged the articles wmh a third person. If they were the receivers of the stolen property, then they were not required eitherto hurry the articles’or'pledge the same. The period between the LI date o£ theft and the recovery. is very short and would justify the Court. in presumingthat the accused persons committed the theft . 8. After giving my anxious considerations to the § arguments of the parties and the evidence brought on the record. I ammunable to hold that the courts belowrm were ,‘ unjustified in convictingthe ' accused persw /¥ IE ‘ r, 1 it, . } ‘ w,‘ d » /i a