PRATAP BABURAO BHOSALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by the accused, who was convicted by the Presidency Magistrate, 18th Court, Girgaum, Bombay on March 31, 1969, of the offence under Section 124 of the Bombay Police Act, 1951 and sentenced to rigorous imprisonment for three months. It is material for the purpose of disposing of the present appeal to quote Section 124 of the Bombay Police Act, which is in the following terms: 24. Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he foils to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for n term which may extend to three months or with fine which may extend to one hundred rupees or with both. The facts necessary for the purpose of disposing of the present appeal are that on September 4, 1967 a complaint had been filed by one Manekchand that he had been cheated by some persons, while he was on the way to purchase utensils with a large amount of cash and the cash was taken away from him. It was in connection with that offence that the accused in the present case was arrested by Sub -Inspector Dabholkar on the morning of September 7, 1967. The prosecution case is that, shortly after his arrest the accused made a statement leading to the recovery of 4 gold biscuits and an amount of Rs. 3,500 in cash from the house of the accused's father -in -law, which statement has been admitted in evidence under Section 27 of the Evidence Act. The prosecution story is that after having made that statement, the accused led the police party and the panchas to his father -in -law's flat in Sitaram Building at Crawford Market, took out a key from the pocket of a trouser hanging on a nail, opened a tin box with that key and took out from it a plastic bag from which the accused produced 4 gold biscuits with foreign markings and a sum of Rs. 3,500 in Government Currency notes. After investigation was completed, the accused was charged under Section 124 of the Bombay Police Act, 1951, with the offence of having been found in possession of the said 4 gold biscuits and the cash of Rs. 8,500 'which there is reason to believe is stolen property fraudulently obtained,' and had thereby committed an offence under the said section.

(2.) THE fact of the recovery of the four fold biscuits is disputed by the accused. According to him, a, sum of Rs. 8,500 in cash was recovered from his father -in -law's flat at his instance, but he has stoutly denied that any gold biscuits were recovered along with the currency notes. In course of the hearing of this appeal before me, Mrs. Ponda pointed out what, according to her, were the infirmities in the evidence relating to the alleged recovery of the four gold biscuits. She has relied on the fact that while the signatures of the panchas were taken on the currency notes, their signatures were not taken either on the gold biscuits, or any piece of paper attached to them, or on the packet in which the gold pieces were alleged to have been wrapped according to Sub -Inspector Dabholkar himself. She has also pointed out that the punch witness who has been examined has in his statement denied having put his signature even on the currency notes. She has pointed out that the gold pieces have not been exhibited in this case and has further submitted that there is no reason why the evidence of R. J. Jadhav, the father -in -law of the accused, who was examined, as a defence witness, should not have been accepted by the Court. I do not think any of these grounds are sufficient to disbelieve the evidence of the punch witness and the Police Officer in regard to the recovery of the four gold biscuits at the instance of the accused from the house of his father -in -law. The mere negative fact that the signature of the panchas was not taken on the paper in which the gold pieces were wrapped is, in my opinion, not sufficient to discard the testimony of the Sub -Inspector Dabholkar or of the panch. The Police Officer may have found it difficult to take signatures on the gold pieces themselves, and it might not have struck him that he could obtain the signatures on the paper in which the same were wrapped. In any case, even if the signature was taken on a separate piece of paper, that might perhaps not have been sufficient to identify the gold pieces themselves. The discrepancy with regard to the evidence of the Sub -Inspector and the panch in regard to the point as to whether the signatures of the panch were taken on the currency notes might have assumed importance, if the recovery of the currency notes had been denied but that is not the case. Mrs. Ponda no doubt contended that this discrepancy goes to discredit the evidence of the panch witness, but the answer that was elicited from the panch witness in course of the cross -examination was a general answer to the effect that on currency notes signatures were not taken, which may be a matter of recollection or failure of recollection on his part. If the panch witness had been categorically asked whether the signature on the currency notes shown to him was his signature or not and he had denied it, there might have been some substance in the contention of Mrs. Ponda that the prosecution evidence is discrepant and should not be accepted. The fact that the four gold biscuits have not been exhibited also does not, in my opinion, warrant disregarding totally the evidence of the Police Officer as well as the panch witness. This was obviously an over -sight on the part of the prosecution in the trial Court, The fact that the gold biscuits were actually before the trial Court and were shown to the witnesses and they have identified them and stated that they bore foreign markings shows that merely because gold biscuits were not exhibited cannot lead to the conclusion that no gold biscuits were recovered, or to the conclusion that they did not bear foreign markings, or to the conclusion that the prosecution witnesses, when they deposed to the recovery of the gold biscuits, were not telling the truth. As far as the evidence of the accused's father -in -law, as a defence witness, is concerned, the trial Magistrate has dealt with the same in para. No. 9 of his judgment and has pointed out the infirmities in his evidence and has given his reasons for rejecting the evidence of R. J. Jadhav, the father -in -law of the accused, and I see no reason to take a different view in regard to the same. In the result I hold that the learned trial Magistrate has rightly come to the conclusion that the four gold biscuits in question were recovered along with the cash of Rs. 3,500 from the house of the accused's father -in -law at the instance of the accused.

(3.) MRS . Ponda applies that I should order that the sum of Rs. 8,500 seized by the police from the house of the accused's father -in -law at the instance of the accused be returned to the accused. In this respect, reliance has been placed upon the decision of the Supreme Court in the case of Suleman Issa v. State of Bombay : 1954CriLJ881 S.C. In the view which I have taken, and having regard to the fact that there are no rival claimants, I must grant that application, and I order accordingly.