C.B. Bhargava, J.
1. This is an application in revision by Mst. Bhuti against the order of the learned Sessions Judge, Bikaner in ordering delivery of an ingot of gold weighing 55 1/4 tolas to Bhanwarlal opposite party.
2. Briefly the facts giving rise to these proceedings are that a theft took place in one of the rooms of the petitioner's house, situate in the city of Bikaner during her absence. On her return from Calcutta on 10th September, 1960 when she opened the room, she found that all the ornaments which she had kept in an almirah had been stolen. The matter was reported to the police on 12th September, 1960 and a list of the stolen property was also submitted along with the report. Excepting the room from which ornaments had been stolen the remaining portion of the house was in possession of Madhodass as a tenant. Madhodass was suspected of having committed theft and so be was arrested and on his information two gold Naths were recovered from his possession. Madhodass also nave information to the police with regard to the disposal of other ornaments and in consequence of that information the police recovered one gold surliya patti from one Shikharehand and! pieces of melted gold from other persons to whom Madhodass had sold gold ornaments in his own name as well as under false names. The number of such persons from whom ingots of gold were recovered was 15 one of whom was Bhanwarlal opposite party representing firm Nathmal Tarachaad.
3. It may be mentioned that all the 15 persons from whom gold ingots were recovered had made entries in their account books regarding the purchase of gold ornaments from Madhodass and the latter had also put his signatures below those entries, Madhodass was prosecuted under Sections 457 and 380 of the Indian Penal Code.
4. During the trial, opposite party Bhsnwarlal was examined as P. W. 3. He admitted that Madhodass accused had delivered to him one gold Borla, one pair of Amleti two Bangries Tikhi. four Bangries Rava and one Tadda all weighing 55 1/2 tolas and in, exchange he delivered 45 3/4 gold Chakries to him. He also produced entry from his account book relating to this transaction marked Ex. P. 5 and stated that Madhodass had signed the entry in his presence. He, however, denied that the gold ingot of 55 1/4 tolas was of the ornaments which Madhodass had delivered to him.
5. The learned Additional Munsif Magistrate First Class, Bikaner who tried the case found Madhodass guilty under Sections 457 and 380 of the Indian Penal Code. He held that
from the evidence on record it is clear that the accused has sold different articles to sarafs under different names. The Sarafs have purchased these articles without verifying the identification and the status of the accused. It is, therefore, obvious that they had purchased the stolen property not in good faith and caution. The accused has not explained that why did he sell the ornaments to different persons under wrong names. These circumstances are consistent with his guilt, Sarafs have denied the melted gold to be stolen property. It has been discussed by me that the produced articles are nothing but the melted gold of the stolen property. At this (the word is not legible) I add that the explanation submitted by Sarafs should not be relied upon. It was natural for them to tell that the gold ingots were not of the same articles melted. It is not expected that they should clearly admit it to cause their own wrongful gain to themselves they have said it and therefore, they cannot be relied upon. And at the same time I cannot overlook that none of the sarafs has been able to corroborate his statement to the effect that the melted gold ingots of the stolen property were disposed of by them. Only their say, in the absence of any entry in their record is untenable. Under Section 114 of Evidence Act the presumption would be that of the recovered gold ingots and the melted gold of the stolen property.
With regard to the gold ingot recovered from Bhanwarlal the learned Magistrate observed
of course the P. W. 3 had denied tint the gold ingot of 55 1/4 bhari is the same gold melted out of the stolen property. I am to believe that out of his sheer personal gain, the witness must have denied. It is presumed, when the articles were sold to him and he got them melted, that the gold ingot 55 1/2 bhari is of the same articles sold to him.
The learned Magistrate despite Bhanwarlal's denial that the gold ingot weighing 55 1/4 tolas was the melted gold of the ornaments which he had taken from Madhodass, found that it was of the same ornaments which had been given to him by Madhodass. It may be mentioned here that description and weight of the gold ornaments entered in Ex, P. 5 exactly tallied with those mentioned in the list of stolen property submitted on behalf of Mst. Bhuti i.e. Ex. P.3. The learned Magistrate therefore, ordered that all the recovered articles be delivered to the complainant.
Madhodass appealed against his conviction in the Court of the learned Sessions Judge, Bikaner and Bhanwarlal submitted a separate application against the order of restoration of gold ingot to the complainant. The learned Sessions fudge maintained the conviction of Madhodass. The learned Judge in the course of his judgment observed:
I agree with the learned Counsel for the accused that excepting Shri Shikharchand the rest of the 15 purchasers had converted the ornaments into gold and the gold could not be identified as stolen property. The details of the ornaments purchased as given in their books under the signatures of the accused do show that the ornaments were similar and identical to those mentioned in the list Ex. P.3 of the stolen properties.
The learned Judge further observed:
As discussed above the prosecution has succeeded beyond shadow of doubt that the stolen properties were in possession of the accused. He had kept two of the Suraliyas with him, and had sold most of the stolen properties to no less than 16 dealers in gold ornaments.
After having said this the learned Judge considered |Bhanwarlal's application and observed
It is an admitted fact that five ornaments mentioned in Ex. P.5, the entry of his book, were sold to him by the accused in exchange of 46 gold 'chakariyas.' These ornaments are similar and identical to the ornaments mentioned at Nos. 1 to 5 in the list Ex. P.3. The ornaments were melted and converted into gold by Bhanwarlal and it was this gold and a copper bar of a 'Tadda' that were recovered from Bhanwarlal. In the first place merely because of the similarities of the ornaments it cannot definitely be said beyond shadow of doubt that the ornaments sold were the same that are mentioned in the list Ex. P.3 and that were stolen away by the accused. There may be strong presumption for believing that the ornaments sold might be the stolen ones. Secondly, even if it be believed for the sake of arguments that the ornaments Bold were the same that were stolen away, there is no cogent evidence on record that the gold piece or the copper bar that have been recovered were of the stolen ornaments. Bhanwarlal stated that the ornaments were melted and converted by him in gold. He denied that the same gold was recovered from him. According to him the police wanted gold in quantity equal to that obtained by melting of the ornaments and he gave that piece of gold and copper bar.
It was further observed that
Evidently, the recovery was made more than a month after the ornaments were sold. It is hard to believe that the witness would have kept the converted gold in the same shape for such a long time and as such I see no reason to disbelieve him. The piece of gold recovered cannot, therefore, be said to be in converted form of the stolen properties and as such there was no reason why it should not be restored to the witness instead of to the complainant.
He, therefore, set aside the order of the trial Magistrate regarding the delivery of this gold ingot to the complainant and directed that it should be restored to Bhanwarlal.
6. It is against this order that the present revision application has been submitted on behalf of the complainant. It is urged that there was definite evidence on record to show that the gold ingot recovered from Bhanwarlal was of the gold ornaments which Madhodass had delivered to him. In this connection attention of the court is invited to the statement of Bhanwarlal made by him during : investigation (Ex. P. 9) (portion E to F) with which he was confronted at the trial wherein he had admitted that the ingot produced by him was melted-out of the ornaments which Madhodass had given to him. It is urged that the above statement of Bhanwarlal was duly proved by the evidence of Motikhan (P.W. 29) but the learned Sessions Judge failed to consider the said statement. It is also urged that in the circumstances of the case the learned Judge in spite of coming to the conclusion that there was strong presumption for the believing that the ornaments sold might be the stolen ones, was not justified in holding that the ornaments given to Bhanwarlal by Madhodass were not the stolen property. Learned Counsel points out that the judgment of the learned Sessions Judge is self-contradictory because at one place he had observed that Madhodass had sold most of the stolen properties to no less than sixteen dealers in gold ornaments. It is urged that under Section 517 of the Code of Criminal Procedure read with-the explanation the gold ingot should have been ordered to be delivered to the complainant.
7. On the other hand learned Counsel for Bhanwarlal has strongly urged that the courts below have not definitely come to the finding that the gold ornaments delivered by Madhodass to Bhanwarlal were the subject matter of theft and secondly that the gold ingot was of those very ornaments. He says that in the absence of such findings, the gold ingot has been rightly ordered to be delivered to Bhanwarlal from whose possession it was recovered by the police. Learned Counsel has also pointed out that the list of the stolen properties (Ex. P. 3) had been introduced during investigation after the recoveries had been made and the purchasers had shown the entries in their account books. In this connection he has referred to the statement of Mst. Bhuti, Tulsidass and Dhauia (P. W. 4). It is urged that the courts below erred in relying upon Ex. P. 3 in coming to the conclusion that the description and weight of the ornaments mentioned in Ex. P. 3 exactly tallied with those which were sold by Madhodass to different : persons included Bhaawarlal.
8. During the course of arguments it was noticed, that Madhodass had made a confessional statement during investigation (Ex. P. 16) in which he had stated that he had sold the ornaments which ha had stolen from the house of Asaram Kalwani Brahman (husband of Mst. Bhuti) to different persons. The statement also contains the names of the persons and the description of the ornaments including those which were given by him to Bhanwarlal. It was contended on behalf of the petitioner that the said statement (Ex. P. 16) can be looked into for the purpose of finding out that the ornaments given by Madhodass to Bhanwarlal were the subject-matter of theft.
9. However, Mr. M. R. Bhansali learned Counsel for the opposite party objects to it and says that it is not admissible against Bhanwarlal under any pro. vision of the Indian Evidence Act. He however, admits that Ex P. 16 would have been admissible against Madhodass as his admission under Section 18 or 21 of the Evidence Act but not against Bhanwarlal because at the time the statement was made by him he had no interest left in the property.
10. There can be no doubt that even though the [Stolen property in its original shape was not before the court, it had power under Section 517 read with the explanation to order restoration of the gold ingot if it found that it had been converted from the ornaments which had been stolen. As stated earlier, the trial Magistrate came to the conclusion that melted pieces of gold recovered from all the persons, were of the gold ornaments which had been stolen by Madhodass from the house of the petitioner. The learned Magistrate gave reasons for his finding namely that the description of the ornaments mentioned in the list of stolen property (Ex. P. 3) exactly tallied with that entered by the purchasers in their respective account books, that Madhodass entered into these transactions in his real name as well as in false names, that Madhodass had still in his possession some stolen ornaments, that one of the purchasers had not melted the ornament and had kept it in its original condition and it was identified to be stolen property and that the purchasers including Bhanwarlal had not been able to explain that the melted gold ingots were of some different ornaments.
The learned Sessions Judge also noticed that Madhodass was living as a tenant in Mst. Bhuti's house excepting in one room in which she had kept the ornaments and had vacated the house suddenly. He also noticed that Madhodass lived in the house upto the month of Sawan and it was near about that month that he had sold the various ornaments to various persons.
11. In my opinion, on the materials on record, even if Ex. P. 16 is excluded from consideration, there should have been no doubt in coming to the conclusion that the ornaments given by Madhodass to Bhanwarlal were those which had been stolen by him from the petitioner's house. As the ornaments had already been melted, their identification by the petitioner was not possible But in the circumstances mentioned above, the degree of probability that the ornaments given to Bhanwarlal by Madhodass were stolen ones was so high that the court could say so with reasonable certainty. Under the Evidence Act a fact is said to be proved 'when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does exist.' In the present case it was found that Madhodass lived in the same house where theft was committed, some stolen ornaments were found in his possession, one stolen ornament was recovered from the possession of Shikharchand to whom Madhodass had sold it, it was found that Madhodass in his real as well as false name had sold other ornaments to as many as 18 persons within a period of one month and that the description and weight of the said ornaments exactly tallied with those mentioned in the list Ex. P. 3. These facts to my mind were such on which a prudent man could say with reasonable certainty that the ornaments given by Madhodass to Bhanwarlal were those which he had stolen from the petitioner's house. There should have been no room for doubt on this point in the mind of the court below,
12. As regards the second objection whether gold ingot recovered from Bhanwailal was of those ornaments which Madhodass had given to him. Bhanwarlal's own statement during investigation (Ex. P. 9) shows that the ingot was of the same ornaments and of no other. The learned Sessions Judge clearly overlooked that statement. Section 162 of the Code of Criminal Procedure provides that no statement made by any person in the course of an investigation under Chap. XIV shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made except as laid down in the proviso. Thus the use of statements recorded during investigation is barred during an enquiry or trial relating to the offence under investigation when such statement was made. But an order for disposal of property is passed after the conclusion of an enquiry or trial as the opening words of Section 517 show and so Section 162 cannot be a bar for using those statements in such proceedings where the question of right of possession of the property is only looked into by the court and not of its ownership. Ex. P. 9 is therefore, relevant and can be Droved against Bhanwarlal as his admission under Section 21 of the Evidence Act. In view of the aforesaid admission of Bhanwarlal contained in Ex. P. 9, it will have to be held that the ornaments which Madhodass had given to him were converted into an ingot which he had produced before the police during investigation.
13. As regards the list of the stolen property, it may only be pointed out that the learned Sessions Judge has dealt with this question at length and has come to the finding that Ex. P. 3 was admissible as it was not prepared after the recoveries had been made. This is a finding of fact and sitting as court of revision, I do not find any good reason to interfere with it. I am therefore, of the view that the learned Sessions Judge was not right in ordering restoration of the gold ingot to Bhanwarlal and the order passed by the trial Magistrate was correct,
14. The result is that this revision application is allowed, order of the learned Sessions Judge as regards restoration of gold ingot to Bhanwarlal is set aside and that of the trial Magistrate is restored. The gold ingot shall be delivered to the petitioner Mst. Bhuti provided she furnishes adequate security to the satisfaction of the trial Magistrate that in case Bhanwarlal opposite party is held to be entitled to this property as its owner by a competent court, she would return the same ingot weighing 55 1/4 tolas or 45 tolas of pure gold or its equivalent price i. e. Rs. 6500 to him,