G.M. Lodha, J.
1. In these revision, petitions the order of the Additional District & Sessions Judge No. 2, Jaipur City, Jaipur, dated 22nd April. l982, discharging the accused Vasudev Sharma for the offences under Section 412/ 414, IPC has been challenged.
2. A challan under Sections 395, 397, 402, 414 and 120B, IPC has been filed against the various accused Gulam Mustafa, Ahmed Hussain, Jahid Hussain, Abid Hussain, Abdul Latif and Vasudev Sharma.
3. One Abdul Aziz filed a report in the police on 16th September, 1981 that on the night of 16th September, 1981, while he was sleeping with his wife & his children in his bed-room, the thieves came & plugged his mouth. In the room, there were six persons only, in total, out of whom, two had pistols in their hands. They then demanded the keys. A blow was inflicted on his head when he avoided giving the keys and then he was tied. After that, the accused party went away with cash, gold, silver ornaments, emerald and finished goods, after breaking the almirah and safe.
4. During the investigation, an information was given by the accused Gulam Mustafa that he has taken Rs. 45,000/- by pledging stolen property. Gulam Mustafa informed the Investigating Officer, Indra Kumar Sharma that he has pledged four packets of emerald weighing about 510 carat with Vasudev Sharma, an employee of PWD residing in Janata Colony for a sum of Rs. 45,000/- though a broker Abid. He further informed that he has sealed these four packets after tying in red handkerchief and on the knot of which he has signed 'G.M.' This information was given on 11th October, 1981 and on 12th October, 1981, the recovery was made of these packets and the accused Vasudev Sharma produced the deed. The said deed runs as under:
I Gulam Mustafa s/o. Mohmmed Yamin by caste Musalman, resident of Ghat Gate, Ramganj Mohalla, Tekiya Adamshah Jaipur, pledge my four packets of emerald weighing 510.75 carat sikka-band (sealed) with Shri Vasudev s/o Brij Mohan Sharma, resident of A-84, Janta Colony, Jaipur, for a sum of Rs. 45,000/-(rupees forty-five thousand only), for a period of two months from today. These are my personal goods. 1 accept to give an interest on this money 2% per month. You will have a right to sell these goods and recover-money after two months. These are not stolen goods and if there would be any dispute concerning these goods, 1 would be responsible for that. This deed has been written by me in my full senses.
Sd/. Gulam Mustafa Sd/-Abdul Latif Dated 30-9-81 S/d-Abid Hussain 1, Abid Hussain s/o Noor Ahmed, Mohalla Takiya Adamshah, verify that the above goods are not stolen one and this has been pledged on my guarantee witness: Sd/- Abid Sd/-Abdul Latif.
5. The accused, Vasudev Sharma has been discharged on the ground that it has not been shown that the transaction took place in such circumstances that the accused could have knowledge or belief that the property which he was taking was a property involved in dacoity or theft. In the opinion of the lower court, there were no sufficient grounds for charging the accused under Section 412 read with Section 414 and, therefore, he was discharged from the offences under Sections 412, 395, 397, 402, and 120B, IPC.
6. After hearing the learned Public Prosecutor for the State, the learned Counsel for the complainant and the learned Counsel for the accused Vasudev Sharma, I am of the opinion that no interference can be made in this case. Though detailed and prolonged arguments were made, it may be stated at the very outset that the crux of the offence under Section 411 or 412 is that the accused must know or should have reason to believe that the property is stolen property.
7. In the instant case, the evidence against the present accused consists of the recovery of four packets which were given to the accused in consideration of Rs. 45,000/-for which a document was written by the accused Gulam Mustafa on 30-9-1981 and Abid Hussain stood as a guarantor and Abdul Latif attested the document. Another piece of evidence consists of the evidence of a hawker Radheyshyam, who used to deliver Rajasthan Patrika at the residence of the accused in Janta Colony, Jaipur.
8. The learned Counsel for the complainant and the learned Public Prosecutor submitted that this evidence was enough for the purpose of charge, because the detailed evidence would be given during the trial. All that is required at this stage is that prima facie there must be a case which would require trial.
9. It was pointed out that the Rajasthan Patrika flached the news of this dacoity and even the names of the accused were given on 8th October, 1981 and on 10th October, 1981, and therefore, even if the accused had no knowledge earlier, he retained the property, because he never volunteered to inform the police and hand over the property.
10. Mr. Anthony, the counsel for the accused, on the contrary submitted that in the present case, the accused gave Rs. 45,010/- and unless it is proved that the amount was outrageously disproportionate to the valuation of the property or there were some other circumstances by which an inference can be drawn that the accused was knowing or had reason to believe that the property was stolen, no charge can be framed.
11. It was pointed out that the recovery-memo itself shows that at the relevant time, this accused was posted at Dudu, and therefore, no presumption can be drawn that he had knowledge of what was published in the Rajasthan Patrika on 8th October, 1981 or on 10th October, 1981. Moreover, the witness produced by the prosecution, a hawker, who used to give Rajasthan patrika, has not mentioned that on 8th October, 1981 or on 10th October, 1981, the accured Vasudev was at Jaipur and the issue of the Rajasthan Patrika was handed over to him. Mr. Anthony argued that no such inference can be drawn that the accused must have knowledge or reason to believe that the property was stolen property.
12. The learned Counsel for the complainant emphasised that the jewellery was handed over in a sealed condition but conceded that there was no sealing on any packet either by gum or by any other substance but all that was done was that a handkerchief was tied and initials were put, which can be easily opened and closed.
13. Before I proceed to express opinion on the above contentions, it would be pertinent to notice that in State of Karnataka v. Muniswamy and Ors. : 1977CriLJ1125 a three-Judge Bench consisting of Hon'ble Y. V. Chandrachud, P.K Goswami and P. N. Shinghal, JJ. discussed the requirement for framing a charge and observed as under:
Let us then turn to the facts of the case to see whether the High Court was justified in holding that the proceedings against the respondents ought to be quashed in order to prevent abuse of the process of the court and in order to secure the ends of justice. We asked the state counsel time and again to point out any data or material on the basis of which a reasonable likelihood of the respondents being convicted of any offence in connection with the attempted murder of the complainant could be predicted. A few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for connecting the respondents with the crime, howsoever skilfully one may attempt to weave those bits in to a present table whole. There is no material on the record on which any tribunal could reasonably convict the respondents for any offence connected with the assault on the complainant. It is disputed that the respondents were nowhere near the scene of offence at the time of the assault. What is alleged against them is that they had conspired to come it that assault. This, we think is one of those cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking. We have been taken through the statements recorded by the police during the course of investigation and the other material. The worst that can be said against the respondents on the basis thereof is that they used to meet one another frequently after the dismissal of accused No. 1 and prior to the commission of the assault on the complainant. Why they met, what they said, and whether they held any deliberations at all, are matters on which no witness has said a word. In the circumstances, it would be a sheer waste of public time and money to permit the proceedings to continue against the respondents. The High Court was, therefore, justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed.
14. It would be pertinent to note that the principle which has been emphasised is that there must be some data or material on the basis of which a reasonable likelihood of the respondents being convicted of any offence in connection with the attempted murder of the complainant could be predicted.
15. As against this, the learned. Public Prosecutor and the counsel for the complainant invited my attention to, the principles laid down by Hon'ble the Supreme Court in State of Bihar v. Ramesh Singh : 1977CriLJ1606 in which the Division Bench consisting of two Hon'ble Judges observed as under:
Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.
If the evidence which the prosecutor purposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be do sufficient ground for proceeding with the trial.
16. It is not necessary for me for the purposes of the present case to enter into the controversy, whether the principles laid down by the apex Court in The State of Bihar v. Ramesh Singh, are in any, way in conflict with the principles laid down in the judgment if the State of Karnatka v. L. Muniswamy and Ors. (supra) which was of three Hon'ble Judges of the Supreme Court.
17. Assuming that the principles laid down in The State of Bihar v. Ram Singh (supra) lays down good law and are not in contradiction with the judgment if State of Karnataka v. L. Muniswamy, it will have to be seen whether the evidence to prove the guilt of the accused, even if fully accepted before it is challenged in a cross-examination or rebutted by the defence evidence, if any, show that the accused committed the offence.
18. In my opinion, therefore, the principle which requires consideration is whether the evidence sought to be relied upon by the prosecution, if unrebutted either by cross examination or by defence evidence would warrant conviction.
19. I have repeatedly enquired from the learned Counsel for the complainant and the learned Public Prosecutor as to whether there is any evidence either of the complainant or any expert to show what was the approximate cost of the four packets which were recovered from the accused Vasudev Sharma. Both of them after making a thorough search and research of the record, conceded that there was no evidence on which the prosecution proposes to rely which can show that the price or cost of the recovered jewellery from the accused was either one lakh or two lakhs of rupees. In fact, the Investigating officer did not investigate the case on these lines at all so far as the recovery from the present accused Vasudev Sharma is concerned. That being so there is nothing on record to show that the amount of Rs 45,000/, which was advanced by the accused Vasudev Sharma was outrageously disproportionate or too meagre or small in comparison to the price of jewellery given to him.
20. At this stage, if the prosecution would have examined some one who would have stated that the estimated cost of these four packets of jewellery was rupees two lakhs or so, & was pledged for Rs. 45,000/ only, then, there could have been reasonable suspicion, though not proof that the accused had good reason to believe that the jewellery which was given to him, was obtained by some criminal act, may be a theft or dacoity or misappropriation. The prosecution has not examined any such evidence during the investigation and, therefore, prima facie the fact that Rs. 45,000/-were advance and four packets were taken as pledge, creates no doubt about the genuineness of the transaction. In other words, it can not be said that the property which was recovered from the present accused Vasudev was obtained or taken by him dishonestly or that he had reason to believe that it was stolen property.
21. It may also be pointed out that in the document of pledge it has been mentioned that the present accused Vasudev Sharma would recover the amount together with the interest of 24% per annum and if this amount is not returned back, within two months, then he would be entitled to seal jewellery and recover his amount. This also shows that, he has no guilty intention and dishonest motive in taking the property and giving advance of Rs. 45,000/-.
22. So far as the evidence of hawker Radheyshyam is concerred, a bare reading of it would show that he has nowhere said that on the crucial dates of 8th and 10th October, 1981, the Rajasthan Patrika containing the name of accused Gulam Mustafa being involved in this dacoity were given by him to Vasudev In fact, during the investigation, no evidence has been recorded to prove that Vasudev, who according to the recovery-memo itself, was working at Dudhu and was at Jaipur on 8th or 10th October, 1981. Since, even this evidence is not there, no presumption can be drawn that Vasudev Sharma came to know that Gulam Mustafa who has taken Rs. 45,000/- from him and pledged the jewellery, in fact has pledged the jewellery, which has been obtained by dacoity at the residence of Abdul Aziz
23. It is true that at the stage of charge, it is not necessary to prove the case and all that is required is that there should be prima facie evidence which if unrebutted should be sufficient to prove the guilt. Thus, following the principle, laid down in the decision relied upon by the counsel for the complainant in State of Bihar v. Ramesh Singh (supra), it is clear that the guilt of the accused which is sought to be established by the prosecution, on the basis of the evidence which the prosecutor proposes to adduce in the present case, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there is no sufficient ground for proceeding with the trial, I am convinced that the prosecution has failed to even create strong suspicion, though it is very doubtful in view of the decision of State of Katnataka v. L Muniswamy and Ors. (supra) that such strong suspicion would have been sufficient for framing of a charge.
24. Mr. Mathur, the learned Public Prosecutor invited my attention to the judgment of this Court in Tilak Raj v. State of Rajasthan 1977 CrLR 78, where interference against the framing of charge was refused. In Tilak Raj's case the Magistrate framed a charge under Section 411 of the Indian Penal Code and by placing reliance upon the Komati Jaini Rangayya AIR 1939 Mad 582, it was argued that in the case of pledge, as in the case in hand, it is not possible to impute a dishonest intention to the accused, as there was no wrongful gain to the petitioner which is a necessary ingredient of the offence under Section 411, IPC This Court was of the opinion that it was not possible to say at this stage unless proof is led whether it was actually a case of pledge or not and further whether in all cases of pledge of stolen property, it cannot be said that no offence under Section 411 is made out. The Court then found that a prima facie case against the accused was made out and, therefore, refused to intervene in the revisional jurisdiction against the framing of the charge.
25. I am unable to appreciate, how this decision can persuade this Court to quash the impugned order by which the learned Sessions Judge has discharged the accused. As discussed above, all that the prosecution has placed on record is, the recovery of the jewellery without any established valuation and a document which prima facie shows that it was a case of advance of Rs. 45,000/- by the accused Vasudev against the pledge of jewellery in four packets. As already discussed above, the evidence, of hawker Radheyshyam in no way shows that any newspaper having the name of the accused Gulam Mustafa was delivered to the present accused Vasudev Sharma. In my considered opinion, the above evidence fails to create strong suspicion much less a prima facie case warranting framing of charge.
26. It is true that the present one is a case, where a dacoity was committed in the heart of the city of Jaipur and jewellery and ornaments of substantial valuation, were taken away by the dacoits. However, for that, out of the ten persons who were challaned, nine are facing trial. That consideration alone cannot persuade this Court to put Vasudev Sharma in ordeal of trial inspite of complete and patent lack of evidence against him. This Court cannot be swayed away by any considerations except the merit based on precise nature of positive and cogent evidence against the present accused Vasudev Sharma.
27. It is important to notice that even in the information which was given by other accused Gulam Mustafa under Section 27 of the Evidence Act, there is not the slightest suggestion that the present accused Vasudev Sharma was having any knowledge of this dacoity or of the fact that the property was obtained in a dacoity. It is different matter that even if that statement would have been there, then it may or may not be admissible against the present accused, who is co-accused.
28. I have repeatedly asked the learned Public Prosecutor and the counsel for the complainant to point out any other incriminating circumstance, by which Vasudev Sharma can be put on trial, but, all that they said was, they would produce the evidence and establish cost and price of the jewellery and other details during the trial, which would show that the amount advanced was outrageously disproportionate to the valuation of the jewellery taken as pledge. I am afraid, on the basis of the expectation of what evidence would be adduced and without that having been done by bedrock of the evidence recorded during the investigation, this Court cannot quash the order of discharge, passed by the Additional Sessions Judge on a careful, considerate and mature legal consideration of the evidence, which was available.
29. I am therefore convinced that no interference is called for against the order of discharge of the accused Vasudev Sharma for the offences under Section 412 and 414 of the Indian Penal Code. Consequently, both the revision applications filed by the complainant as well as the State, are dismissed.