R.P. Gupta, J.
1. The State has felt aggrieved from judgment dated 21-8-86 of Addl. Sessions Judge, Murwara in S.T. No. 101/83. The respondents were acquitted of the charges of dacoity and murder committed by them in the night between 27 and 28 September, 1982 at mid night in the house of PW 3 Ramkishore. They were armed with ilathies, Kodas and fire arms, broke-in to the house by breaking the doors of the house and attacked Ramkishore and his wife Sushila causing injuries to them. Sushila died as a result of those injuries on 6-10-82. The dacoits looted silver and gold ornaments, cash and other articles from the house. They fired shots by fire arms to cow-down the inmates of the house and neighbours and used blunt weapons to cause injuries to them. Respondents 8, 10 and 11 were charged with receiving and keeping stolen property knowing it to have been stolen. Other respondents were charged for offences punishable under Sections 395, 396, 397 I.P.C.. Out of these 11 respondents, respondent 6 Lalu died during the pendency of the appeal and the appeal against him has abated.
2. The FIR was lodged by Ramkishore (PW 3) at 1.40 p.m. at P.S. Barahi. He was sleeping in the Parchhi of the house while his wife Sushila was sleeping in the inner room of which the doors had been chained from the outside. At about mid night he noticed 3 persons tying his feet. He woke up and sat down. One person was lighting a torch and another was tying his feet. The third was hitting him with a hunter (koda). Then 2 persons entered the room after opening the chain. One person ran out of the house and exploided some bomb and again approached him and started hitting him. After this man went to some distance, Ramkishore opened his rope and ran to house of Bare Gond. Alongwith Bare Gond he went to the Basti of Dhimars and returned alongwith about 20 persons. He then saw 3 persons running towards the village. Many other persons from the village had also come there and they chased the miscreants but returned without catching anybody. On returning home he noticed his wife tied with rope and was bleeding from her head. Rope had been tied around her neck also and she was unconscious. The box was found open and ornaments of gold and silver were found missing. He gave details of some of the ornaments. These consisted of 4 types of gold ornaments including a number of rings, Mohars, Gunj. There were 5 types of ornaments of silver and 1 wrist watch. According to him the dacoits entered the house of his nephew Gulab also and articles and ornaments were looted from there. He claimed that he could identify the miscreants and ornaments. Thus, no accused was named in the FIR.
3. The ornaments which had been looted from Ramkishore's house were one mohar weighing one tola, 4 Adhiya 1/2 tola each in a black thread, payal sathi 2 pairs, one pair dora, Ganga-Jamna Churi -1 pair, one pair small Khagga, 1 silver bagaliya, 1 sutiya silver, 2 pairs Banvariya, Gunj 2 lari 6 tola, Jhumka 1 tola, 3 gold adhiya out of which 2 weighed 1/2 tola each and 1 weighed 3/8 tola, 2 pairs payal, one pattidar sathi, silver new kardhan 581 1/2 tola, 12 lachha 4 tolas each, 10 big lachhas, 6 small lachhas, 14 coins of silver of which 13 were of one hook and 1 was with 2 hooks, kardhan Makri silver, kardhan chaurasi, 3 taar ki 3 pairs churi, Gajariya 2 pairs, 1 gold taviz, 1 Aana weight Nathni, Chhota dora, Navgrahi 1 pair and others.
4. Ramkishore asserted in his testimony that at the time of FIR he was in extreme nervous state and he could not give all the details of looted property. The details of gold ornaments given by him in the FIR were; one gold Gunj 2 Lar vali weighing 6 tolas, 4 Adhiya gold threaded in a thread, 1 mohar gold, one pair Jhumka gold; one Kaddora silver which he got made from Narayan goldsmith 98.5 tolas, one pair of silver payal 12 tolas, 1 pair of child payal, one pair of small chaurasi 1 Lar vali, 12 lachhas silver old 3 taar vali weighed 40 tolas, 1 wrist watch Camy 29 jewels.
5. Some ornaments and watch were recovered on the disclosure statement of several accused persons and they were identified by Ramkishore. There was one more identifying witness that is Ramnaresh but he was not examined as a witness in Court.
6. The various test identification memos Ex. P-5 to P-15 had been prepared according to test identification carried out about various sets of articles. These sets were of those articles which had been recovered from respective accused. The recoveries from the various accused or at their instance had been made after their arrest when on interrogation they made certain disclosure statements under Section 27 of the Evidence Act and in pursuance thereof they led the police to recovery of certain articles. These disclosure memos and respective recovery memos may be enumerated here alongwith details of articles recovered and compared to the respective sets of articles which were put for test identification and according to various test identification memos Exs. P-5 to P-15.
7. Kishanlal had made disclosure statement Ex. P-23 on 20-10-82 about having with him concealed 6 silver lachhas and 1 hunter in his village. He led to recovery of 6 silver lachhas vide memo P-24 and hunter vide P-25 on the same day. He also led to recovery of one pair of silver Bagaliya and one Dhagaliya chikni. These lachhas Bagaliya were identified vide test identification memo Ex. P-12, before Naib Tahsildar Nirmal Tigga by Ramkishore as well as by Kammobai while Dhagaliya was identified by Ramkishore alone.
8. Accused Phulloo vide memo P-36 made a disclosure statement on 25-10-82 that he had with him one silver Kaddora and a pair of silver chhalli. He had kept that buried. He also had one gold Gunj. He led to recovery of one Kaddora and one pair of Bagaliya vide memo P-27 on 25-10-82. These articles were identified by Ramkishore in test identification parade on 15-10- 82 vide Ex. P-7 before Naib Tahsildar Tigga. Phullo on 31-10-82 had made a further disclosure statement that he had with him 6 Nathaniya gold and one pair of Jhumka gold in his house which he had kept concealed in a room and could get recovered them. This was recorded in memo P-53. In pursuance to this disclosure the same day Phulloo produced all these gold ornaments from his house which were seized by police vide P-52.
9. Mihilal accused/respondent had made disclosure statements Exhibits P-26 on 20-10-82. He disclosed that his plastic shoes got struck in mud in a field while he was escaping and it got broken and that he had also taken a Chadar which he produced to the police and disclosed that the ornaments of silver and gold had been taken away by Musalman people of Hirapur. The same day he got recovered an old used Chadar vide P-27. Further vide memo P-48 on 27-10-82 he led to recovery of 1 silver churl 3 Taar vali weighing 81 tolas and also silver coins 5 in number with a hook attached to each in a red string. In test identification parade Ex. P-13 dated 15-12-82 both Ramkishore and Kammobai identified the pair of silver churis teen taar vail as belonging to wife of Ramkishore and Ramkishore further identified the threaded silver coins.
10. The accused/respondent Ramswaroop had made a disclosure statement vide memo Ex. P-28 on 20-10-82 that he had 6 lachhas of silver with him and also Rs. 150/-. He produced these silver lachhas of 3 taar wala. from his house vide memo P-29 the same day. Further on 28-10-82 Ramswaroop had produced to police vide seizure memo Ex. P-49 one pair of silver churls 3 taar vail and one pair of Dhagaliya. These articles were identified correctly in test identification parade vide memo P-15 by Ramkishore.
11. Accused/respondent Abbas Khan vide memo Ex. P-13 made a disclosure on 20-10-82 that he had with him one silver payal and the rest of the ornaments were taken away by Abbu, Dilawar and Munnuar. He also disclosed about one live cartridge which too he got recovered. He also got recovered vide memo P-50 on 28-10-82, 8 silver coins with one hook each and stringed in a black thread and one pair of silver payal. These were identified by Ramkishore vide memo Ex.P-11.
12. The accused/respondent Narayan made a disclosure statement recorded in memo Ex. P-33 on 25-10-82 about having purchased old ornaments weighing 1 kg and 300 gms. from accused Rahim for Rs. 900/- and that he had converted them into new ornaments and further that he had one gold Addhi which was given to him by Rahim. Then vide memo P-34 on the same day he led to recovery of one gold Addhi with one hook weighing about .57 tolas. He also produced 8 items of silver ornaments i.e., 8 lachhas, 1 dora Jhalardar weighing 34 tolas, one pair of sathi payal, 1 pair of dora, 1 pair of Bagallya-chameli phool, another silver pair of single Bagallya, 1 pair of silver payal, but melted them. Ramkishore had correctly identified the gold Addhi vide Ex. P-12 on 15-12-82.
13. From accused Labru vide memo P-35 on 20-10-82, one wrist watch-Camy of 21 Jewels was recovered. Again on 27-10-82 Labru led to recovery of 1 pair of silver Ganoriya and 10 Lachhas of silver weighing 18 tolas. He also got recovered one pair of silver churls vide memo P 47. It was vide memo Ex. P-14 of test identification parade that all these articles were identified correctly by Ramkishore before Naib Tahsildar Tigga on 15-12-82.
14. Accused Mustapha @ Tajjoo made a disclosure on 25-10-82 vide memo P-38 that he had buried below the earth one silver Chhanni, one Kalavati Gajra and 99 silver coins in a bag from his house. Then he led to recovery of one pair of Chhanni-chameli design, one Bagaliya, one lawaniya, one pair of silver Gajra, one pair of Mavariya, one pair of silver sulma, one sutiya, 5 coins of 4 tolas each, threaded. Out of these articles Ramkishore had identified 4 pairs of Chhanni, one pair of Gajra, one pair of pakhori, one khusna, one sutiya and 5 silver coins vide test identification memo Ex. P-10.
15. Accused Rahim had made a disclosure statement recorded in Ex. P-40 that some ornaments were given to him by Phulwa. He was still having one pair of silver chhail churi and one gold Addhi. This was on 25-10-82 and the same day he got recovered one chhail churi of silver vide memo Ex.P-41.
16. These silver ornaments were identified on 15-12-82, in test identification parade by Ramkishore. The memo of Ex. P-8 was prepared by Naib Tahsildar Shri Tigga.
17. Accused Lalwa @ Makbool made a disclosure statement on 25-10-82 vide memo Ex. P-42 that he had with him one pair of silver payal, one pair of silver Gajariya which he had buried in his house. In pursuance of this disclosure vide memo P-43 he produced from his house after digging out one pair of silver payal and one pair of silver Gajariya. These were identified by Ramkishore by test identification parade Ex. P-5 on 15-12-82.
18. Accused Mukundi @ Manauar had made a disclosure statement in memo Ex. P-44 on 9-7-82 that he had with him one pair of payal and one pair of Chhanni silver which he had buried in his room and produced the same vide memo P-46. He had produced these ornaments after digging them which were seized by police vide test identification parade Ex. P-26. These 2 ornaments were identified by Ramkishore on 15-12-82 before Naib Tahsildar Shri Tigga.
19. Ramkishore had identified various recovered articles in the test identification parades before Naib Tahsildar who had prepared test identification memos Ex. P-5 to P-15. These be identified in Court also. These were identified by him and exhibited as under in Court :--
Exhibits Description of Articles i) A Gold Addhi ii) B-1 & B-2 1 pair of silver Banvariya iii) C-1 and C-2 Another pair of silver Banvariya iv) D-1 and D-2 one pair of Chhail churi silver v) E-1 to E-10 10 lachhas of silver 3 taar vala vi) F-1 to F-6 3 pairs of silver churis 3 taar vali vii) G-1 to G-4 2 pairs of silver Gajariya viii) H-1 to H-16 8 pairs of silver Bagaliya ix) I one sutiya silver x) J-1 to J-8 4 pairs of silver payal xi) K-1 & K- 2 one pair of silver Khagga (small) xii) L one silver kaddora xiii) M one silver Khusna xiv) N-1 to N-12 12 silver lachhas xv) O 14 silver coins in a black thread xvi) P watch-- Camy xvii) Q-1 to Q-6 3 pairs of silver payal xviii) R-1 & R-2 2 silver kardhan xix) S-1 to S-8 8 silver lachhas xx) T-1 & T-2 one pair silver Bagaliya xxi) U-1 to U-3 3 Naths of gold xxii) V-1 to V-3 3 small Naths of gold xxiii) W one pair of gold Jhumka.
20. It will be worth noticing at this stage that PW 20 Kammobai who is Jethani of deceased Sushila also identified in Court the ornaments of Sushila which had been looted from her house as she had been seeing her wearing them often. She identified the gold and silver ornaments which had been recovered from various accused as some of the ornaments belonging to Kaushalya and these are the same which were identified by Ramkishore and marked as Articles A, B-1, B-2, C-1 & C-2, E-1 to E-1,0, F-1 to F-10, G-1 to G-4 , H-1 to H-16, I, J-1 to J-8, K-1 to K-2, L, M, N-1 to N-12, O, P, Q-1 to Q-6, R-1 & R-2, S-1 to S-8, T-1 and T-2, U-1 to U-3, V-1 to V-3 and W.
21. Ramkishore had identified these articles in Court also on oath as belonging to him and his deceased wife. They were exhibited as per details on page 11 herein. He identified all these silver articles and also gold Nathaniya, Jhumki and Addhi. He says that these were looted from his house in the night of dacoity. These ornaments were worn by his wife from time to time. We find that the narration of this witness about identification of ornaments is stead-fast in Court and no infirmity has arisen in cross examination. PW 20 Kammobai has also identified the ornaments in Court but rule of caution will require that her testimony of identification be restricted in its acceptance to the ornaments which she identified before the Naib Tahsildar Tigga vide memos Ex. P-12 and P-13.
22. According to PW 6 Nirmal Tigga, Naib Tahsildar, the test identification parade was conducted on 15-12-82 regarding recovered ornaments of which identification memos were prepared as Exs. P-5 to P-15. The above marked articles were identified by Ramkishore. Some of the articles were identified by Kammobai in these identification parades vide memos P-12 and P-13. In test identification parades she had identified only 6 silver lachhas vide P-12 and identified one pair of silver churis 3 taar vali and five silver coins vide memo Ex. P-13.
23. Shri Nirmal Tigga, Naib Tahsildar (PW 6) stated that he got test identification parade done in respect of the recovered ornaments by putting the ornaments to them for indentification mixed with other ornaments. The ornaments were put before the witnesses as per recoveries from various accused persons and that is why these separate identification memos were prepared. These ornaments which were to be identified were taken up from sealed parcels produced before him by police and so about each parcel separate proceedings of test identification were carried out. In the test identification memos he had specified as to from which accused those articles were recovered.
24. The investigating officer R.N. Tiwari, Station Officer, P.S. Barahi, had made a detailed statement of investigations which he carried out. He had found cover of a cartridge, pieces of cracker at the scene of crime. He seized them. He found a plastic shoe lying stuck in the field in the mud. One empty cartridge was also found on the scene of crime. This shows that there was fire by gun at the scene of crime. This witness had proved the various disclosure statements made by the 11 accused and they led to recovery of these ornaments. He had proved disclosure statements, the seizure of various articles and the various memos about the disclosures and seizures which we have already detailed above. It is also worth noticing that inspector Gujraj Singh (PW 23) had carried out investigation on 31-10-82 by interrogating Phulloo who disclosed that he had given the ornaments to Ramkaran Sunar. He led to Ramkaran and Ramkaran told him that Phulloo had given a Gunj of gold and he prepared from that Nathini, Bali, Jhumki which are seized from Phulloo. Ramkaran had produced before him the writing Ex. P-60 which was copy of the original book. The ornaments were recovered from Phulloo's house. These gold ornaments were not those stolen from the house of Ramkishore but reconverted gold ornaments.
25. Thus a vital piece of evidence against the respective accused/ respondents available on record is that they were in possession of some of the ornaments which were looted from the house of Ramkishore on the night of the dacoity. These were in their respective possession on 20-10-82 to 25-10-82. They had disclosed about their possession and led to the recovery. The dacoity had been committed in the night between 27 and 28 September, 82. So within 22 days to 27 days these accused were in possession of substantial number of the looted silver ornaments as also one wrist watch. From perusal of the evidence of Ramkishore and Kammobai it appears clear that their testimony that these are the looted ornaments is acceptable and truthful. The testimony of Ramkishore that these ornaments belong to him and were used by his wife, supported by the evidence of Kammobai, is sufficient proof that the looted ornaments belonged to Ramkishore. The evidence of identification of ornaments in Court is supported by the test identification parade before Shri Tigga Naib Tahsildar. The ornaments had been kept in sealed condition and we find no infirmity in this evidence.
26. So far as the accused are concerned, in their statements under Section 313 Cr. P.C. they have not claimed that these ornaments belonged to them. They have simply denied any participation in the dacoity. They (except Narayan) have denied recovery of the ornaments from them or having made disclosure statements. Narayan has asserted that the police took from him 2 pairs of Bagaliya, 2 pairs of Payal, 2 Lachhas, patti, Addhi. These belonged to him and he had purchased them from Raghuveer on a receipt. He alleged that Thanedar had asked him for a motor-cycle which he declined, so he has been falsely implicated.
27. It may be appropriate at this stage to note that during the cross examination of R.N. Tiwari investigating officer, it was never suggested on behalf of the accused that he took into possession the ornaments belonging to Narayan. So there is improvement in the assertions raised by the defence in this respect.
28. It will be appropriate at this stage to note that Chandrabhan turned hostile and was cross examined by the police with reference to his case diary statement supporting the case of the prosecution. He had declined it. His testimony has to be discarded. Similarly PW 11 Ramnarayan was also hostile to the prosecution and both these witnesses were cross examined by the public prosecutor as earlier they have supported the prosecution case. However, the testimony of these hostile witnesses does not weaken the testimony of the investigating officer R.N. Tiwari.
29. PW 12 Ramkaran has narrated that Phulloo had got prepared from him 6 Nathini and one pair of Jhumka. He had a lump of gold so he prepared these ornaments. He had made an entry in his book, copy of which is Ex. P-51 A. This witness had brought the original which was returned to him. So he identified that articles U-1 to U-3, V-1 to V-3, and W were made by him on the asking of Phulloo and he gave them to him. The police recovered these articles from Phulloo vide memo Ex. P-22. Even this witness was cross examined on the plea that he was concealing certain facts about gold ornaments produced by Phulloo and then getting the new ornaments prepared from it. The copy of the entry of Bahi Ex. P-60 indicates that details of gold ornaments were given which consist of Jhumki, 3 Nathinis and it related to the brother of one Tajjuwar of village Lahreta. There is evidence of this witness that Phulloo had come to his shop along with his brother of village Lahreta. Ramkaran knew the brother.
30. Even if we ignore the evidence regarding gold ornaments that these were the coverts of ornaments which were looted from the house of Ramkishore, there is ample evidence that other ornaments looted from the house of Ramkishore were in possession of these accused in special and were recovered from them. It also indicates that the looted ornaments were passed to these accused persons, either they are the looters or receiver of looted property. The charge against Abbas, Rahim and Narayan is that they are receivers of stolen property and against the rest that they committed the dacoity.
31. The Trial Court has disbelieved the evidence of disclosure by the accused and recovery mainly on the ground that witness Chandrabhan is hostile, Ramnarayan has spoken against the prosecution and the investigating officer kept the same witnesses as disclosure and recovery witnesses although recoveries were made from various different places. It is also noticed that Tahsildar was not sure if the packets of the ornaments were in sealed condition or not.
32. On close consideration of evidence on record which we have discussed above, we find that the criticism of the Trial Court is unjustified and by misunderstanding the test on which the evidence of such witnesses is to be appreciated. We can give hardly any credence to hostile witnesses Chandrabhan and Ramnarayan. The Trial Court appears to have lost sight of the fact that Ramnarayan was cross examined by the public prosecutor as a witness hostile to the prosecution. He was narrating differently than what he narrated to the police. Whatever the reasons, this witness was going against his previous statement. Such witnessess denial testimony can hardly be believed when positive evidence is supported by the fact that such huge quantity of ornaments have been recovered from various accused persons. The investigating officer cannot plant the ornaments himself. There is no suggestion to this effect also. The ornaments do not belong to the accused except that one Narayan has claimed some of the ornaments, and the charge against him is of receiving the stolen property. According to the prosecution he received some of the stolen ornaments and then prepared some fresh silver ornaments at the instance of one of the accused Rahim. We may note that from amongst the ornaments recovered at the instance of Narayan only one gold Addhi was identified by Ramkishore and the silver ornaments recovered at his instance were not identified by him. Narayan had disclosed about this Addhi being in this possession. At the instance of Rahim only 1 pair of Chhail Churi was recovered.
33. It is well settled principle of appreciation of evidence of police officers that the Courts should not ignore their evidence or discard it on some assumed grounds. They are entitled to be believed as much as any ordinary witness unless it is shown that they have any interest against the accused. There is no such allegation in the present case. The criticism that the ornaments recovered were not the same as looted, has no substance. The fact is that public witnesses of recovery have turned hostile. In the recovery memos Ex. P-36 to P-50 which were prepared on 25-10-82 the witnesses were B.P. Verma and Ramnarayan. Ramnarayan was produced and turned hostile. B.P. Verma was not examined. If on the same day the investigating officer interrogates some accused, and then goes for recovery, he will be justified in taking 2 witnesses, present at the time of interrogation to the spot of recovery. It is not always practical these days that at every spot where he goes for recovery he should call the neighbourhood witnesses. The Courts can take Judicial notice of the attitude of public of these days in not cooperating with the police. These hostile witnesses' explanation that they signed the documents at the asking of police are totally false and cannot be accepted. So this reasoning of the Trial Court to discard the evidence of disclosures by these various accused and recovery of stolen articles at their instance, cannot be sustained. The evidence of investigating officer is believable that these accused made the disclosures before the investigating officer and led to the recovery of the ornaments which were found to be stolen and they were stolen from the house of Ramkishore on the night of dacoity.
34. The evidence of Ramkishore regarding identity of recovered ornaments exhibits of which have already been noticed is fully believable. There is no reason to discard the same. It is supported by Kammobai (PW-20) who spoke about some of the ornaments and does not know about others. These ornaments do not belong to the accused. So, it is believable that the ornaments recovered from the various accused Kishanlal, Mihilal, Ramswaroop, Mukundi, Phulloo and Mustapha, Lalu noticed in paras 7, 9, 10, 18, 8, 14 and 13 of the judgment were recovered from them on their disclosure. No remarks are needed about recovery from Lalu @ Makbool who is already dead.
On analysis the following table will make it easy to understand at 1st sight which looted articles identified before Court and in test identification parade were recovered from accused 1 to 5, 7 and 9.
----------------------------------------------------------------------- Name of the Property recovered from his Exhibit Accused possession and all identified by Ramkishore PW-1 and
thus proved to be looted
----------------------------------------------------------------------- Kishanlal 6 Lachhas of silver N-1 to N-6 1 pair of silver Bagaliya T-1 & T-2
1 Bagaliya (Chikna) H-1 & H-2
Mihilal 1 pair of silver Churi F-1 & F-2 5 silver coins O
Labru 1 watch (Camy) P 1 pair of silver payal J-1 & J-2
1 pair of silver gajariya G-1 & G-2
1 pair of silver churi F-3 & F-4
10 silver lachhas N-7 to N-10
+E-7 to E-10
Ramswaroop 6 silver lachhas E-1 to E-6 1 pair of silver churi F-5 & F-6
1 pair of silver bagaliya H-1 & H-2
Mukundi @ 1 pair of silver payal J-3 & J-4 Munauar 1 pair of silver bagalia H-3 & H-4 Phulloo 1 pair of silver bagaliya H-5 and H-6 1 silver Kaddora L
3 Nath gold U-1 to U-3
3 small nalh gold V-1 to V-3
(disclosed vide Ex. P-53
and recovered vide Ex.P-
52 on 31-10-82 and
identified by Ramkishore
Mustapha 1 pair of silver Banvariya B-1 & B-2 1 pair of silver Gajariya G-3 & G-4
4 pairs of silver Bagaliya H-7 to H-14
1 silver sutiya I
1 silver Khusna M
5 silver Coins O
2 silver Kardhan R-1 & R-2
35. On a comparison of ornaments and other articles looted from house of Ramkishore with the ornaments recovered from various accused Nos. 1 to 7 and 9 it becomes clear that the ornaments are the same which were looted from the house of Ramkishore. They have been so identified by Ramkishore in evidence and some ornaments have been identified by Kammobai. The dacoity had been committed on the night between 27th & 28th September and the disclosure statements by most of the accused on 20-10-82 i.e., within about 3 weeks and the recovery followed immediately thereafter. The evidence also clearly suggests that these accused had distributed the looted ornaments between themselves. The possession of these looted articles with the accused is established to be recent after dacoity. These facts clearly warrant that presumption be raised against these accused as permitted under Section 114 (Illustration-a) of Evidence Act that they are either dacoits or receivers of stolen property and since the incident of murder of Sushila and the incident of dacoity are one integral transaction, if they committed dacoity they committed murder also.
36. The question is, as to which presumption should be taken against them i.e. whether they are receivers of the stolen property or whether they are the dacoits. The facts that the ornaments are of gold and silver belonging to Ramkishore and his wife and were distributed by these accused amongst themselves and the recovery was soon after the dacoity, warrants that presumption be raised that they are the dacoits, and not that they are mere receivers of the stolen property. The Supreme Court in the case of Gulabchand v. State of M.P., AIR 1995 S.C. 1598 had observed that it depends on the facts and circumstances of each case as to what presumption can be raised from possession of stolen property.
37. In case cited at AIR 1972 SC 2501 titled Ayodhya Singh v. State of Rajasthan, the Court found that house breaking and theft occurred in the house of the complainant on a certain date and within 17 days, a large number of stolen articles were recovered from appellant's house from his person and from a lonely spot in a graveyard in pursuance of disclosure statement of appellant. Appellant's explanation was found to be unworthy of credence. The Court held that since a large number of stolen articles were found and since bulk of stolen articles were recovered from him soon after theft, the Courts below were justified in drawing presumption that appellant was guilty of house breaking and theft.
38. In case reported in AIR 1971 SC 196 titled Shivappa and Ors. v. The State of Mysore, their Lordships of the Supreme Court were dealing with the fact where a large quantity of cloth taken for sale to the dealer was looted by 20 persons by pelting stones at the cartmen. Immediately afterwards a number of searches were made and the goods were found with various persons. Their Lordships held that under the circumstances it was legitimate to raise the presumption that the persons with whom the goods were found were the dacoits themselves. In the leading judgment, Hon'ble Justice Hidayatullah observed as under :
"If there is other evidence to connect an accused with the crime of dacoity itself, however, small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn. In what circumstances the one presumption or the other may be drawn depends upon the circumstances under which the discovery of the fruits of crime are made with a particular accused. If the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. The reason is obvious. Disposal of the fruits of crime requires the finding of a person ready to receive them and the shortness of time, the nature of the property which is disposed of, that is to say, its quantity and its character determine whether the person who had the goods in his possession received them from another or was himself the theft or the dacoity. In some cases there may be other elements which may point to the way as to how the presumption may be drawn."
39. In AIR 1995 SC 1598 titled Gulab Chand v. State of Madhya Pradesh, their Lordships of the Supreme Court again considered the scope of presumption under Section 114 Illustration (a) Evidence Act and as to when presumption as to commission of murder and robbery by the accused should be drawn. In this case the accused had sold some of the ornaments belonging to the deceased next day after the murder and there was further recovery of stolen articles from the house of the accused at his instance within 3-4 days of the murder. He had given no plausible explanation for lawful possession of ornaments of deceased by accused. Their Lordships said that the presumption under Illustration (a) is that the accused not only committed murder but committed robbery of ornaments. Their Lordships approved the observations made by that Court in AIR 1983 SC 446 Earabhadrappa's case.
40. In the case before us it is unexplained by these accused as to how they came in possession of the ornaments looted from the house of Ramkishore. It is also unexplained how these 7 accused got the distribution of these ornaments. They are not goldsmiths or silversmiths. They do not claim any lawful acquisition of these properties. In these circumstances the just and proper presumption would be that they are the persons who looted this property. They were the dacoits and in this dacoity they were jointly concerned. They or some of them caused such deliberate injuries to Sushila during commission of dacoity that she died within 10 days as result of those injuries. There is ample evidence of Ramkishore and Gulab that she was tied and assaulted in order to facilitate the commission of dacoity. So all the dacoits committed offence punishable under Sections 395 and 396 I.P.C.
We are taking this inference in spite of the fact that we consider that evidence of 'Test identification' does not show that it was fair, as we will discuss hereafter. 1st we proceed to consider, if there is other evidence regarding number of dacoits i.e. 5 or more and whether it was dacoity with murder.
41. The incident had occurred at 12 mid-night between 27th and 28th September, 82. The FIR given by Ramkishore was that armed dacoits had committed dacoity in his house and had assaulted him with Kodas and his wife with Kodas and Dandas and had tied her to a cot with a rope and looted gold and silver ornaments, cash, watch, clothes and other articles. He had noted initially 3 persons alongwith his cot hitting him and tying him with a rope and explosive substances were also used, outside. Some of the accused had gone out of the house and some of them had gone in the inner room. In the FIR he narrated that 2 more persons entered the house and went out. According to the FIR this witness noted 5 or more persons committing dacoity.
42. Ramkishore stated that accused tied him to the cot and had gone out temporarily. He had untied himself and escaped. Then he saw 3 more persons so he ran away to the house of Bade Gond and called him for help. The dacoits had fired gun shots. According to PW 4 Gulab he went towards the house of Ramkishore while other villagers had also moved towards that house to provide some protection. The villagers were shouting and going towards the house of Ramkishore. At that time he moved out of the house of Shivlal and noticed 4 persons running. Some of the dacoits had entered the house and looted the property belonging to him and his sister. According to PW 5 Venkat Prasad who is brother of Ramkishore, he first came towards the house of Ramkishore on hearing his shrieks hut on hearing the sound of gun fire he and his elder brother Ramadhar went to the house of Shivlal Gond and they came again to Ramkishore when other villagers came rushing to the house of Ramkishore. At that time he noticed 7 or 8 dacoits running away.
43. From this evidence it becomes established that there were 8 or more dacoits who participated in the dacoity. In that, fire arms were used. Ramkishore was beaten with hunter and tied. His wife Sushila was tied, hit with hunder and other weapons and available ornaments and other articles were looted. So clearly it was a case of dacoity committed by more than 5 persons. The Trial Court observed that the statement of Venkat regarding number of dacoits cannot be acted upon as in the case diary statement under Section 161 Cr. P.C. he has simply stated that he could identify 2 or 3 persons whom he had seen. For one thing, he was narrating how many he could identify and not how many total were there. We have to keep in mind the fact that 3 persons were tying and beating Ramkishore inside the house. There were others outside who were firing gun shots and throwing explosives. Empty cartridges and pieces of explosives were recovered from the outside of the house of Ramkishore. The statement of Ramkishore proves that there were more than 5 persons who committed dacoity. It cannot be expected that the victim could give the exact number when the dacoits are moving in and out and playing their different roles in the commission of dacoity and murder. So the criticism of the learned trial judge is without proper appreciation of the narration of facts by Ramkishore and without taking into consideration the fact that in a dacoity dacoits will be generally seen in different groups inside and outside the house where the dacoity is committed. So we find it established that there were more than 5 dacoits who participated in this dacoity and they were eight or more in number.
44. The nature of injuries caused to Sushila which resulted in her death, has been explained by Dr. B.M. Shrivastava (PW 2). He had noticed one contusion on the scalp and one on the outer aspect of the left eye. Other 4 injuries were on the extrimities. There was found subdural haematoma below the head injury and this resulted in the death of Sushila.
45. There were found 4 injuries on the person of Ramkishore also by Dr. Parihar (PW 1). These were on the back, below the arm, thigh and feet. So this violence was used by the dacoits to the inmates of the house and injuries sufficient to cause death were given to Sushila at least by some of the dacoits. Thus, it is established that it was clearly a case of dacoity with murder.
46. Sections 391 and 396 I.P.C. define offence of dacoity and dacoity with murder in following terms :--
"Section 391. When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity.
Section 396. If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, very one of those persons shall be punished with death, or imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
47. Section 391 makes it clear about committing dacoity that when some persons commit or attempt to commit dacoity and some others aid such commission or attempt, if the total number of such persons is 5 or more, their act is dacoity. So if 3 persons go in and 2 or more remains out of house, aid other 3, they are committing dacoity. In this case 3 persons had been noticed by Ramkishore assaulting him in the house. Others had fired shots outside the house. Those who were inside the house were not armed with guns. So they were persons joining the dacoity, some were outside and some were inside the house. One or more of them caused injuries to Sushila. It is apparent from the circumstances that she was found tied with the cot with injuries on her body including the head injury. The Trial Court has mis-interpreted the statement of Gulab that Sushila had once run out of the house from the backside with him but then she returned to the house. The Trial Court interprets this as showing that nobody knows how she got the injuries. The Trial Court has forgotten to give weight to the fact that she was found tied to the cot in the house and the dacoits had escaped from the house. The dacoits have not taken the ornaments within the sight of Ramkishore. He too had escaped but all the ornaments were looted and taken away. They were missing from the house. The inference is clear that they were looted by the dacoits in that incident. So all of them who joined hands or aided in dacoity in any manner are said to have committed dacoity and all of them are responsible for dacoity with murder under Section 396 I.P.C.
48. We are taking this inference in spite of the fact that we consider that evident of 'test identification' does not show that it was fair, as we will discuss hereafter. Even the evidence of alleged judicial confession Ex. P-57 by Lalu accused under Section 164 Cr. P.C. recorded by judicial magistrate Shri Raipuria PW 7 has also been rightly rejected in absence of proper certificate required under Section 164(3) Cr. P.C.. The question is whether the identification of some of these accused namely Kishanlal, Mihilal, Ramswaroop, Mukundi by Ramkishore (PW 1) and of Kishanlal, Ramswaroop, and Phulloo by Gulab (PW 4) in Court and in test identification parade can be relied upon. The Trial Court had discarded their testimony of identification of these accused. The Trial Court had enumerated about 18 reasons in not believing the evidence of identification given by these witnesses about these accused and also for not believing in the fairness of the test identification parades of these accused. One of the reasons noted by the Trial Court is that Gulab who identified Kishan and Ramswaroop admits in cross examination that he knew Kishan and Ramswaroop earlier of the incident and stated that he did not know that in the incident Kishan and Ramswaroop were involved. The reasoning is clear that if he had seen these accused and if he knew them earlier he would have told Ramkishore about it before the FIR and their names should have found place in the FIR. Since it is not so and since he says that he did not know if Ramswaroop and Kishan were involved in the incident, he had not seen them at the scene of crime and identification of these accused is not believable.
49. A number of other reasons have been given such as delay in holding the test identification parade after the arrest of the accused. This delay was about one month. The accused had been arrested on 20-10-1988 while the test identification parades were conducted on 23-11-1982. There is no valid explanation about it and no reliable evidence that during this period no opportunity was given to the witnesses to see these accused. So far as the evidence of investigating officer R.N. Tiwari (PW 24) is concerned he has stated nothing about how these accused were treated or kept after their arrest, that is whether their faces were muffled or pre-caution was taken that they were not seen by any public person or whether judicial remand was obtained in muffled face. The only relevant part of the statement of the investigating officer on this aspect is that he got done the test identification parades of these accused and of recovered property before the Naib Tahsildar. There is no other evidence that any of the accused on his arrest was kept with muffled face before the test identification parade.
50. We need not go into the further details about the reliability of the test identification parade in view of this singular circumstance. The test identification parade has great importance in supplying corroboration to the testimony of witnesses in Court. A mere identification of the accused in Court, although substantive evidence, has no value without corroboration. The corroboration can come from test identification parade, fairly conducted. It is essential criteria of fairness of test identification parade that after the arrest, the suspects are kept separately from the witnesses so that the witnesses cannot see them. This is generally achieved by muffling the faces of the suspects. In this case there is no evidence that after arrest the accused were kept with muffled face. This has to be considered in the light of the further fact that for a period of one month after arrest no test identification parade was held. The reason of the delay has not been explained. It has not been brought on record as to where the accused were kept during this period. It is duty of the investigating officer to muffle faces of accused immediately on arrest, if they are to participate in a 'Test identification' parade. The fact of muffling can be mentioned in arrest memo. Whenever an accused is produced for remand before a magistrate, the fact of muffling the face of accused, should be brought to his notice and he should incorporate the fact in remand order. The absence of such material from record, may lead to inference that such pre-caution before 'Test identification' parade was not taken. It makes the evidence of identification valueless. In these circumstances apart from other reasons there is no sanctity of the test identification parade in which Ramkishore and Gulab identified 4 of the accused. For this reason the testimony of these witnesses about the identification of accused in Court looses weight and cannot be acted upon by itself. This evidence has been rightly rejected.
51. In spite of rejection of evidence of identification of accused by witnesses, we find that the circumstance of unexplained recent possession of looted property with respective accused, indicating that the stolen property was distributed amongst these accused the respondents No. 1 to 5, 7 and 9, lead to definite interference that these respondents committed dacoity with murder punishable under Sections 395 and 396 I.P.C.
52. Now we take up the cases of Abbas Khan, Rahim and Narayan, the charge against whom is of receiving or retaining the property which was subject matter of dacoity, knowing it to be so. They were charged under Section 412 I.P.C. It is the prosecution case against them that they received this property from some of the dacoits named above. They received the property shown in the following table which had been identified by Ramkishore as some of that property which was looted in specie from his house :--
-------------------------------------------------------------------------- Name of the accused Property recovered from his Exhibits possession and identified by
Ramkishore and thus proved
to be looted
-------------------------------------------------------------------------- Abbas Khan 2 pair of silver payal J-5 to J-8 8 silver coins O
Rahim Khan 1 pair of chhail churi D-1 & D-2 Narayan 1 gold Addhi A --------------------------------------------------------------------------
Certain other ornaments recovered from Narayan were the result of melting of 1 kg. 300 gms. of silver ornaments which was given to him by some of the dacoits. He converted it to other ornaments. So they could not be identified in specie by Ramkishore. That shows the truthfulness of Ramkishore regarding identity of the ornaments.
53. The evidence about recoveries from them is reliable for the same reasons as discussed about other accused.
54. Since every one of the above 3 accused had some of the looted ornaments with him and Narayan too had one gold Addhi, the same as was looted from the house of Ramkishore, in this dacoity, and the recovery is soon after the incident of dacoity after about 3 weeks of the dacoity and these accused have not explained how they acquired these ornaments in a legal manner, the presumption under Section 114a Evidence Act applies against them that they possessed those ornaments knowing to be looted property. The lesser presumption is being drawn against them because it was the prosecution case itself that they were in possession of stolen property having received it knowing it to have been looted in a dacoity. Thus it is established that Abbas Khan, Rahim Khan and Narayan have committed the offence punishable under Section 412 I.P.C.
55. For the reasons discussed above, the acquittal of the respondents (except No. 6) by the Trial Court is set aside. The respondents 1 to 5, 7 and 9 namely Kishanlal, Mihilal, Labru, Ramswaroop, Mukundi, Phulloo and Mustapha Khan are convicted of offences of dacoity and murder with dacoity punishable under Sections 395 and 396 I.P.C. and they are sentenced to life imprisonment each on each of the two counts with fine of Rs. 1,000/- each, on each count in default of which they shall undergo further rigorous imprisonment for 2 years each. No finding is given regarding respondent No. 6 Lalu as the appeal is abated against him due to his death. Respondent Nos. 8, 10 and 11 namely Abbas Khan, Rahim Khan and Narayan are convicted under Section 412 I.P.C. and they are sentenced to R.I. for 10 years each and fine of Rs. 2,000/- each failing which they shall further suffer R.I. for 2 years each.