( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 76 OF 1998 The State of Maharashtra, through the Police Station, City Chowk, Aurangabad APPELLANT VERSUS 1. Sherkhan s/o Ajamkhan Pathan, R/o Begumpura, Aurangabad. 2. Sk. Nisar s/o Sk. Nasir, R/o Nawabpura, Aurangabad. 3. Sk. Ayyub Sk. Abdul, R/o Prabuddhanagar, Near Panchakki, Aurangabad. 4. Najamabegum w/o Sk. Abdul, R/o as above. 5. Bipinkumar Babulal Zaveri, R/o Sarafa, Aurangabad. RESPONDENTS ..... Smt. R.D. Reddy, APP for the appellant/State. Mr. S.V. Gangapurwala, advocate for respondent No. 5. None for other respondents. ..... WITH CRIMINAL REVISION APPLICATION NO. 61 OF 1998 ( 2 ) Dr. Vivek Dattatraya Tadwalkar, R/o Medical Officers’ Quarters, Ghati Hospital, Aurangabad. APPLICANT VERSUS 1. The State of Maharashtra 2. Bipinkumar Babulal Zaveri, R/o Sarafa, Aurangabad. RESPONDENTS ..... Mr. S.P. Brahme, advocate holding for Mr. R.N. Borulkar, advocate for the applicant. Smt. R.D. Reddy, APP for respondent No.1/State. Mr. S.V. Gangapurwala, advocate for respondent No.2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th August, 2009] ORAL JUDGEMENT : 1. The criminal appeal and revision application are being disposed of together in as much as they arise out of the same judgement rendered by the learned Chief Judicial Magistrate, Aurangabad, in a criminal case bearing R.C.C. No. 32/1996. The State has preferred appeal against judgement of acquittal whereby the respondents No. 1 to 5, who were the original accused ( 3 ) No. 1 to 5 before the Court of learned Chief Judicial Magistrate, have been acquitted for the offence punishable under section 454, 380 and 411 of the I.P. Code. The learned Chief Judicial Magistrate, while passing order of acquittal, directed that the property articles i.e. muddemal articles which were seized during the course of investigation from the shop of the respondent No. 5 (accused No. 5) shall be handed over to him. Feeling aggrieved thereby, original complainant has preferred revision to the extent of the order pertaining to delivery of the said property articles to the accused No. 5. 2. The respondents No. 1 to 5 named in the appeal were tried before the learned Chief Judicial Magistrate for committing lurking house trespass, breaking the lock of house of complainant PW Dr. Vevak Tadwalkar and committing the theft of gold ornaments and other articles as enumerated in the F.I.R. The case of the prosecution is that complainant PW Dr. Veivek Tadwalkar and his wife are medical practitioners and were residing, at the relevant time, in residential quarter ( 4 ) within the campus of Government Medical College Aurangabad. Both of them were out of the residential house in the relevant noon of December 13th, 1995. Somewhere in between 12.30 to 2.30 p.m., their house was burgled, some unknown thieves had broken open the lock and had committed the theft of ornaments, etc. The complainant received a telephonic message about the house breaking. He and his wife immediately went to the residential house. They noticed that the household articles, boxes, etc. were lying helter-skelter in the house. They noticed that gold and silver ornaments such as mangalsutra, neckless, earring tops, etc. were missing from the safe of the cupboard. Therefore, PW Dr. Vivek approached the police and lodged F.I.R. (Exh-18). The accused Nos. 1 to 4 were arrested during course of investigation. The accused Nos. 1 to 3 gave a confessional statement on 09-01-1996 leading the police and panchas to shop of the accused No.5. The accused No. 5/respondent No. 5 produced the mangalsutra and neckless and other articles from his jewellery shop styled as “M/s Babulal Becharbhai Zaveri”. The said ornaments and other articles were seized. The gold ornaments and ( 5 ) articles were identified by PW Dr. Vivek and his wife. On basis of the material gathered during course of investigation, the said five (5) accused i.e. respondents No. 1 to 5 were chargesheeted for the offence of committing lurking house trespass, house breaking and theft in the house of PW Dr. Vivek. 3. At the trial, the prosecution examined in all seven (7) witnesses in support of its case. The learned Chief Judicial Magistrate came to the conclusion that the prosecution evidence was insufficient to reach conclusion that the accused Nos. 1 to 4 had committed lurking house trespass in the residential house of PW Dr. Vivek in the relevant noon. He held that there was no convincing evidence to prove guilt of the respondents No. 1 to 4 so far as the offence of house breaking and theft is concerned. The learned Chief Judicial Magistrate also held that there was no sufficient proof to infer that the respondent No.5/accused No. 5 dishonestly received the stolen property though he could have reason to believe that the same were the stolen items. The respondent No.5/accused No. 5 claimed the ( 6 ) property articles to be of his own during his statement under section 313 of the Criminal Procedure Code. The learned Chief Judicial Magistrate held that since the ornaments and the articles were recovered from the shop of accused No. 5/respondent No. 5 and that he had claimed the same, the articles were required to be returned to him. Consequently, the learned Chief Judicial Magistrate directed that the ornaments and the articles be given to the respondent No.5/accused No. 5 and also acquitted the accused Nos. 1 to 4. 4. Heard learned counsel for the parties and learned A.P.P. for the State. 5. So far as the impugned judgement of acquittal is concerned, it is pertinent to note that PW1 Dr. Vivek and PW3 Dr. Smt. Gayatri Tadwalkar narrated as to how they noticed the incident of house breaking and theft. Their versions purport to show that on 13-12-1995, both of them were absent from the residential house in order to attend their private clinic and Government duty, respectively, and had put lock on the entrance door of ( 7 ) the house. They received information from a colleague by name. Dr. Bhagwat of the house breaking. They reached to the house. They noticed that the lock of the latch was broken and the door was partly opened. They noticed that Godrej Almira (cupboard) was also opened, the locker was pulled out and some empty boxes were lying nearby cot. The boxes and other domestic articles were lying helter- skelter. The ornaments, such as mangalsutra, gold neckless, earring tops, etc. were found stolen away. Hence, PW Dr. Vivek lodged F.I.R.(Exh-18). He also produced a copy of the receipt regarding purchase of the mangalsutra. The receipt (Article-A) was not challenged during course of his cross-examination. There is ample evidence to hold that the incident of house theft occurred in the relevant noon. PW Dr. Vivek admitted that the gold ornaments and the articles were available in the market from the jewellers shop. He deposed that the mangalsutra was being used by his wife – PW Dr. Smt. Gayatri, but since she was required to attend the work as Medical Officer, the costly ornaments were not put on daily. He was subjected to a searching cross- examination on behalf of the respondent No.5/accused No. ( 8 ) 5 in so far as description of the articles and ornaments is concerned. The testimony of PW Dr. Smt. Gayatri purports to show that she identified the mangalsutra and other ornaments. She deposed that after three (3) weeks of the incident, the ornaments were shown to her by the police. She identified the ornaments and the seized articles before the Court. On the silver articles, name of her mother is engraved. She identified the ornament called “mekhla” because a part of one side thereof was broken. She admitted that there was no special mark inside the hallow pendant of mangalsutra, but such mark was present in the pendant of the mangalsutra which was before the Court. There appears minor discrepancy here and there in respect of the identity of some of the items of the articles. At the same time, one cannot overlook the fact that the silver articles were specifically identified by her for the reason that they bore name of her mother viz. Sunanda. She identified neckless and the earring tops because they were being regularly used by her. 6. At this juncture, it may be made clear that ( 9 ) there is no eye witness account regarding the complicity of the respondents No. 1 to 4 in the alleged house breaking and theft. They were roped in on basis of the recovery of gold ornaments and articles, etc. as per their confessional statements. It is pertinent to note that PW6 Adilkhan was examined as an independent panch witness in order to prove the recovery of said gold ornaments on basis of the confessional statements and the recovery panchanama. He admitted his signatures on the memorandum (Exh-34) and panchanama (Exh-35). Still, however, his version reveals that he and another panch followed the accused Nos. 1 to 3 upto the shop of accused No. 5. He states that at the police station, neither of those accused disclosed anything in his presence. He deposed that the accused No.5/respondent No. 5 produced silver and gold ornaments from his shop which was pointed out by the other accused persons. He partly supports the case of the prosecution. 7. The memorandum panchanama (Exh-34) reveals that joint confessional statement of the respondents No. 1 to 3 (accused Nos. 1 to 3) was recorded in general manner. ( 10 ) It has been stated that those accused informed about the theft and agreed to point out the shop. A part of the said panchanama shows that only accused No. 1 stated that he would point out the shop where the stolen ornaments were sold away. The seizure panchanama (Exh-35) reveals that the accused No. 5 produced the ornaments from the shop and narrated that the accused Nos. 1 to 3 and one woman had sold the said ornaments to him before about one month. This part of the statement of the accused No. 5 will not be admissible as a confessional part or material evidence regarding his complicity. At the same time, this part of the recovery panchanama can be used to infer that the said articles and ornaments were purchased by him from the other accused persons. The police investigation papers can be for collateral purposes like decision regarding disposal of the property. The police statements under section 161 of the Criminal Procedure Code are not admissible as evidence in the criminal trial, but for incidental purposes, the same can be used. 8. It is well settled that joint statement of ( 11 ) accused persons is inadmissible for the purpose of recovery under section 27 of the Evidence Act. The statement must be that of single accused who furnishes the information leading to the discovery of fact. The memorandum panchanama (Exh-34) does not satisfy the test in as much as it is stated to be a joint confessional statement of accused Nos. 1 to 3. Secondly, on perusal of the version of PW7 P.I. Shri Lokhande, it is amply clear that he was directed to record admissions of the said accused persons while they were in police custody. This statement of PW Lokhande, P.I. would show that voluntariness of the statement was not ensured. The statement of accused under section 27 of the Evidence Act ought to be proved to be voluntarily made and leading to discovery of the fact. The memorandum panchanama relied upon by the prosecution does not satisfy the statutory tests. Consequently, merely on basis of so called recovery of the ornaments and the articles, the accused No. 1 to 4 could not have been convicted for the alleged offence. Needless to say there is no substantial reason to interfere with the judgement of acquittal and the appeal preferred by the ( 12 ) State must fail. 9. So far as the direction of the learned Chief Judicial Magistrate to return the property articles to the respondent No.5/accused No. 5 is concerned, it may be mentioned that, for the first time, during the statement under section 313 of the Criminal Procedure Code, the accused No. 5 stated that he had purchased those articles and the same were entered in his account books. The entries in the account books are not properly proved. No such explanation was immediately offered by him when the recovery was effected by police inspector in presence of the accused Nos. 1 to 3 and panch i.e. PW6 Adilkhan. Needless to say, such an explanation of the accused No. 5 was afterthought. He did not submit any application before the learned Chief Judicial Magistrate at the initial stage of the trial for restoration of the said ornaments and the recovered articles to him. He may not have been found guilty of dishonestly receiving of the said ornaments and the property articles. Considering the recitals of the recovery panchanama (Exh-35), it will have to be said ( 13 ) that there is some tangible material to infer that he had purchased those ornaments and the articles from the original accused No. 1 Sherkhan. The confessional statement of original accused No. 1 Sherkhan may be used to the extent that the stolen articles were sold by him to the accused No. 5. As stated before, some of the silver articles were found to bear name of the mother of PW Dr. Smt. Gayatri. Thus, there is clinching evidence to infer that atleast such silver articles, which is part of the property recovered from the shop of the accused No.5, have been identified as the property of the complainant and his wife. In this view of the matter, the afterthought claims put forth by the accused No. 5 should not have been accepted by the learned Chief Judicial Magistrate. The reasons ascribed by the learned Chief Judicial Magistrate are improper and unacceptable. 10. Considering the totality of the circumstances and the evidence on record, the appeal is dismissed. The impugned judgement of acquittal is maintained. The revision application is, however, allowed. The direction ( 14 ) of the learned Chief Judicial Magistrate to hand over the custody of the seized articles to the accused No. 5 is set aside. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL76-98-REVN61-98