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Bal Kishan and anr. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1984CriLJ308; 1984()WLN36
AppellantBal Kishan and anr.
RespondentState of Rajasthan and ors.
Cases ReferredParkash v. Jagdish
Excerpt:
.....including those parts which might not have been admissible at the trial of the accused whether under section 25 of the evidence act or section 162 of the code of cr. were perfectly good material for the purpose of section 517, cr. the learned sessions judge was, thus, perfectly justified in concluding that the gold nugget weighing 9.6 totals was the converted shape of stolen ornaments. p/19, he clearly stated that the stolen gold and silver ornaments were sold and he got his share of rs. meghamal also did not produce ibis account books to justify his good faith and bona fides in making this purchasing of gold nugget weighing 13 tolas......farasmal (convicted and sentenced). the munsif and judicial magistrate held that the aforesaid gold nugget was not proved to be the stolen property. he further held that the currency notes of rs. 7,841/- which were recovered from accused farasmal belonged to the revision petitioner meghamal, which he had paid to farasmal as the price of another gold nugget weighing 13 totals. the magistrate, therefore, passed an order that the gold nugget weighing 9.6 totals be returned to revision petitioner balkishan and the currency notes of rs. 7,841/- be returned to the other revision petitioner meghamal. aggrieved against this order of the. magistrate, kamal filed an appeal under section 454, cr. p. c. in appeal, the learned sessions judga reversed the above part of the order of the magistrate.....
Judgment:
ORDER

S.S. Byas, J.

1. This revision is directed against an order of the learned Sessions Judge, Balotra dated June 4, 1981 passed in an appeal under Section 454, Cr. P. C. relating to the; delivery of the property.

2. Very few facts need narration, for the disposal of this revision. Kamraj, who is respondent No. 2 in this proceeding, lodged a written report on 17-8-75 at Police Station, Malotra stating therein that in his absence, unknown miscreants ransacked the house situate in his town Pachpadara and decamped with gold and silver ornaments and other properties of huge value running in several thousands of rupees. The police took up the investigation and rounded up the burglars with their aids. The major portion of the stolen properties in original and in converted shape were recovered in consequence of the informations furnished by the culprists whilst under police custody. On the completion of investigation, the police presented a charge-sheet against six persons including the revision petitioners Balkishan and Meghamal. The case was tried by the Munsif and Judicial Magistrate, Balotra. Charges under Sections 411 and 414, I. P. C. were framed against them and Kamal Kishore and respondent No. 3 Farasmal. Charges under Sections 457 and 380, I. P. C. were framed against Govindlal and Jogdish. On the conclusion of trial, the revision petitioners and Kamal Kishore were acquitted. The remaining three were convicted and sentenced.

The properties, which were recovered by the police included one gold ingot weighing 9.6 tolas and currency notes of Rs, 7,841/-. The said ingot was recovered from petitioner Balkishan, while the currency notes of Rs. 7,841/- were recovered from accused Farasmal (convicted and sentenced). The Munsif and Judicial Magistrate held that the aforesaid gold nugget was not proved to be the stolen property. He further held that the currency notes of Rs. 7,841/- which were recovered from accused Farasmal belonged to the revision petitioner Meghamal, which he had paid to Farasmal as the price of another gold nugget weighing 13 totals. The Magistrate, therefore, passed an order that the gold nugget weighing 9.6 totals be returned to revision petitioner Balkishan and the currency notes of Rs. 7,841/- be returned to the other revision petitioner Meghamal. Aggrieved against this order of the. Magistrate, Kamal filed an appeal under Section 454, Cr. P. C. In appeal, the learned Sessions Judga reversed the above part of the order of the Magistrate and directed the delivery of the said properties i.e. gold nugget weighing 9.6 tolas and currency notes of Rupees 7,841/- to respondent Kanmal. Dissatisfied with this order of the learned Sessions Judge dated June 4, 1981, Balkishan and Meghamal have rushed up in revision.

3. I have heard the learned Counsel appearing for the parties and the Public Prosecutor. I have also gone through the record carefully.

4. Before proceeding further, it may be pointed out that the learned Sessions Judge in passing the impugned order mainly depended on the statements of the revision petitioners recorded under Section 161, Cr. P. C. during investigation. He further relied upon the information's furnished by them and the other co-accused given by them to the investigating officer under Section 27 of the Evidence Act. He held that Section 162, Cr. P. C. created no bar against the reception of these statements in revision, These statements could be looked into for the purpose of the delivery of the properties. In doing so, ihe relied upon the two decisions of this Court viz. Dhanraj Baldeokisnan v. The State 1965 Raj LW 289 : 1965(2) Cri LJ 805 and Mst. Bhuti v. Bhanwar Lal 1965 Raj LW 291 : 1965(2) Cri LJ 702.

5. The learned Counsel appearing for the revision petitioners vehemently contended that the whole approach of the Sessions Judge was erroneous and unsustainable in law. The statements made by the revision petitioners and the co-accused could not be looked into for any purpose. In reply, it was submitted that in view of the above two decisions of this Court and the decisions of the other High Courts, the statements of revision petitioners and other co-accused persons could be looked into for the limited purpose of delivery of the properties. I have taken the respective contentions into consideration.

6. The statement recorded under Section 162, Cr. P. C. is prohibited from being used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. The general exception is that it can be used by the accused to confront and contradict its maker. The prosecution can also use such a statement to contradict its maker with the permission of the Court The words 'at any enquiry or trial in respect of any offence under investigation' imply that such a statement cannot be used during any enquiry or trial for the offence. But the use of such a statement recorded under Section 161, Cr. P. C. is not prohibited for any other purpose or in a subsequent stage of the same case after when the trial is concluded. The learned Counsel appearing for the revision petitioners could not bring any authority to my notice where in the reception of such a statement is prohibited for any purpose other than in the enquiry or trial.

7. In addition to the two authorities of this Court referred to above, there are decisions of the other High Courts in which it has been held that the statement made during investigation can be used in proceeding under Sections 517 and 523, Cr. P. C. (now. Sections 452 and 457 of the new Code) and also subsequently for civil suits. In Pohlu v. Emperor AIR 1943 Lahore 312, it was held that the confessional statement of the accused could be properly used for the purposes of Section 517 to determine (1) whether the property is property regarding which an offence appears to have been committed; and (2) for determining the person to whose custody, it should be delivered. The same view was expressed in Queen-Empress v. Tribhuvan Manekchand 1885 ILR 9 Bom 131. The view adopted in the aforesaid two decisions was followed in Parkash v. Jagdish : AIR1958MP270 . In Dhanraj Baldeokishan's case 1965(2) Cri LJ 805(supra), the view taken in the above three authorities was approved and it was observed:

That being so, I am clearly of opinion that these entire statements including those parts which might not have been admissible at the trial of the accused whether under Section 25 of the Evidence Act or Section 162 of the Code of Cr. P. C. were perfectly good material for the purpose of Section 517, Cr. P. C. In other words, we have it from the accused himself that these monies had been realised by him from the sale of the stolen commodities which undoubtedly belonged to the complainants.

8. In Mst. Bhuti's case 1965(2) Cri LJ 702(supra), it was laid down:

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.

9. It is thus settled position in law that; the statement of an accused or a witness can be looked into for disposal of the property, Which takes place at the conclusion of the enquiry or trial of a case. The contention of the learned Counsel for the revision-petitioners is thus barren and holds no ground.

10. It was next argued that the molten pieces of gold weighing 9.6 totals and currency notes of Rs. 7841/- have not been proved to be the stolen properties and the learned Sessions Judge was obviously in error in delivering them to respondent Kanwal. It was argued that no gold nugget or currency notes were alleged to have been stolen. It has also not been proved that the gold nugget was of the molten pieces of the gold ornaments, which were alleged to have been stolen.

11. Now, Sub-section (5) of Section 452, Cr. P. C. lays down that the term 'property' includes not only the original property but also any property into or for which the same may have been converted or exchanged and everything acquired by such conversion or exchange whether immediately or otherwise. In view of this provision, if it can be gathered that the gold nugget and the currency-notes were converted or exchanged properties, due orders for that delivery to the person entitled to their possession can be legally passed.

12. In the instant case, in hand, co-accused Paras Mal (respondent No. 3 in this proceeding) was arrested on 24-8-1975. On the same day, the gave information recorded in Ex. P/18 that when he received stolen gold and silver ornaments from another accused Jagdish and Govindram (both convicted), he got them melted in seven gold and six silver ingots. He further stated that out of them, he gave four gold ingots to Meghamal and three to Balkishan. Balkishan was arrested and he gave information to the police on 24-8-1975, which was reduced into writing in Ex. P/23. In Ex. P/23, he stated that Parasmal gave him three molten pieces of gold to him and he again got it melted into one nugget. He had placed it in the Almirah of his house, which he would get recovered. In consequence of this information (Ex. P/23), Balkishan got the gold nugget weighing 9.6 tolas recovered from his house vide recovery memo Ex. P/6. The statements and information's given by Parasmal and Balkishan can be looked into to find out as to whom the aforesaid gold nugget should be delivered.

Balkishan is prima facie bound by the statement given by him in Ex. P/23. For the limited purpose of the delivery of the property this statement in Ex. P/23, can be used and Section 162, Cr. P. C. creates no bar for it. Balkishan did not claim in Ex; P/23 that the gold nugget belonged to him. No doubt, in his statement under Section 313, Cr. P, C. he laid his claim over it, but he adduced no material in support of his claim. As such, this statement Ex. p/23 binds him. From his statement Ex. P/23 it can be safely gathered that the gold nugget found in his possession, was converted into from molten pieces of stolen gold ornaments. The learned Sessions Judge was, thus, perfectly justified in concluding that the gold nugget weighing 9.6 totals was the converted shape of stolen ornaments. He committed no illegality in delivering it to respondent Kanwal as he was prima facie entitled to its possession.

13. Coming to the currency-notes, co-accused Parasmal again gave information on 27-8-1975 recorded in Ex. P/19. In this information Ex. P/19, he clearly stated that the stolen gold and silver ornaments were sold and he got his share of Rs. 7841/- from those sale proceeds. In consequence of this information, many stolen properties including the currency-notes of Rs. 7841/- were recovered from his house vide seizure, memo Ex. P/12. In Ex. P/19, he nowhere stated that these currency-notes were received by him from Meghamal. The investigating officer Sbri Pukhraj (P. W. 26) no doubt stated in his cross-examination that Meghamal told him that he had purchased gold ingots weighing 13 tolas. This statement is not sufficient to arrive at a conclusion that the currency-notes of Rs. 7841/- were the same currency-notes, which Meghamal gave to Parasmal. Moreover, Meghamal does not appear to be a bona fide purchaser. Meghamal is a resident of Jodhpur while Parasmal is a resident of Pachpadra. They belonged to different castes. Meghamal furnished no explanation as to how he purchased such a big quantity of gold nugget from Parasmal. Probably, Parasmal was known to Meghamal. Meghamal also did not produce ibis account books to justify his good faith and bona fides in making this purchasing of gold nugget weighing 13 tolas. Neither Parasmal nor Meghamal had any licence to deal in the business of sell and purchase of gold. Generally, the gold ornaments are sold and not gold ingots. When the gold ingots are sold, the purchaser is expected to satisfy himself by making proper enquiry that it is not a suspected article. After all, the gold ingots weighed 13 tolas. No such enquiry appears to have been made by Meghamal. He cannot be said to be an innocent purchaser, even if it is held that he purchased the gold ingots and paid the currency-notes of Rs. 7841/- to Parasmal. The claim of Meghamal fails on both the grounds viz., (1) he has not bona fide purchaser and (2) it does not stand proved that the currency-notes of Rs. 7841/- were the same, which he paid to Parasmal. As such, Meghamal is not entitled to get the currency-notes of Rs. 7841/-. The order on the learned Sessions Judge in this behalf suffers with no infirmity.

14. No other contention was raised. For the reasons discussed above, I find no perversity or illegality in the impugned order of the learned Sessions Judge.

15. There is no force in this revision petition and is consequently dismissed.


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