RAMLAL ALIAS RAMLA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is directed against the judgment dated June 28, 1989, passed by the Additional Sessions Judge, Bikaner, by which the learned Additional Sessions Judge dismissed the appeal filed by the accused petitioner.

(2.) ACCUSED Ram Lal alias Ramla was tried by the learned Judicial Magistrate, First Class, No. 1, Bikaner City for the offences under Section 457 and 380 IPC. for committing theft in the house of Prof. G. K. Sharma in the intervening night between 27th and 28th Octoder, 1986, The case of the prosecution is that in the intervening night between 27th and 28. 10. 1986 Prof. G. K. Sharma alongwith his family members had gone to Agra as during those days there were vacation and on that night somebody entered into the house and took-away the goods mentioned in the 'list of Goods' from his house. The report of this incident was lodged at Police Station on October 28, 1986 by Smt. Champa Devi PW 3, who was taking care of the house in the absence of Prof. G. K. Sharma and family. The prosecution, in support of its case produced PW 1 Vidhya Sharma PW 2 Prof. G. K. Sharma, PW 3 Champa Devi, PW 4 Chhotu Lal, PW 5 Hafiz Rehman, PW 6 Shri Kamal Kumar Bagri, PW 7 Tribhuwan Singh, P W 8 Mohan Singh, PW9 Bhanwar Singh and P W 10 Joginder Singh. The accused did not produce any evidence in defence. The learned Magistrate after trial, found the accused guilty for the offences under Sections 457 and 380 I. P. C. Thereafter on April 11, 1989, the Additional charge read with Section 75 of the Indian Penal Code for both these offences was, also, framed and the prosecution examined PW 10 Jogindra Singh to prove the previous conviction of the accused. The learned Judicial Magistrate, First Class, No. 1, Bikaner, thereafter passed the judgment dated April, 28, 1989, convicting the accused under Section 457/75 I. P. C. and sentencing him to undergo three years rigorous imprisonment and a fine of Rs 2000/- and in default of payment of fine to further undergo six months rigorous imprisonment. The learned Judicial Magistrate, also, convicted the accused under Section 380/ 75 I. P. C. and sentenced him to rigorous imprisonment for three years and a fine of Rs. 200/- and in default of payment of fine to further undergo six months' rigorous imprisonment. Dissatisfied with the judgment dated April 28, 1989, passed by the learned Judicial Magistrate First Class No. 1, Bikaner, the accused preferred an appeal before the learned Sessions Judge, Bikaner which was heard by the learned Additional Sessions Judge, Bikaner, who, by his order dated June 28, 1989, dismissed the appeal filed by the accused-appellant. It is against this judgment that the present revision petition has been filed.

(3.) SO far as the identification of two Polyster Sarees is concerned, PW 1 Smt. Vidhya Sharma and PW 2 Prof. G. K. Sharma have admitted in their cross-examination that these were new Sarees and are available in the market. They have, also, stated that similar Sarees were not included with these two Sarees at the time of identification. PW 5 Shri Kamal Kumar Bagri, the Judicial Magistrate, admitted that the Sarees which were seized were old sarees. In this view of the matter, the identification of these two Sarees does not help the prosecution case. The identification of these two Sarees cannot be said to be the proper identification which may connect the accused with the commission of the crime. In this view of the matter, in my opinion, the prosecution has failed to prove the case, beyond reasonable doubt, against the accused-petitioner.