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State Vs. Jhabbu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Appeal No. 331 of 1949
Judge
Reported inAIR1952All445
ActsEvidence Act, 1872 - Sections 9
AppellantState
RespondentJhabbu and ors.
Appellant AdvocateA.G.A.
Respondent AdvocateShripeti Sahai Srivastava, Adv. for No. 1 and ;B.C. Saxena, Adv. for Nos. 2 to 7
Excerpt:
criminal - evidence in criminal trial - section 9 of evidence act, 1872 - witness identifying stolen property - stolen article mixed with other at time of identification - evidence not rejected on this ground. - - there was also theground that the rumal of orange colour whichwas said to have been part of the stolen propertyin that case, had been mixed with only one otherrumal of a similar description when it was putup for identification by the witnesses and that,therefore, the evidence of identification could notbe regarded as reliable. in my view thecase against sughar singh has been establishedby cogent and reliable evidence......that he naibnazir had not been examined with the object ofproving that the articles with which the suspectedproperty was mixed had not been shown to theidentifying witnesses before the identification proceedingwas held. it is further pointed out thatthe magistrate before whom the identification proceedingwas held has stated that he did not putany marks on the suspected articles and it is arguedthat there is nothing, therefore, to show thatexs. 6 and 7 are in fact the articles which hadbeen recovered from the house of sughar singh.it is said that there is no guarantee that exs. 6and 7 are not part of the property which hadbeen produced by the naib nazir to be mixed upwith the suspected property. i am not impressedby this argument. no doubt the magistrate hasstated that he put no marks on.....
Judgment:

Harish Chandra, J.

This appellant (SugharSingh) was identified by Arjun, Gopal. RamBharose and Bhopi. Besides this evidence, there isthe evidence of the recovery from him of a hansli,Ex. 6 and a tarain, Ex 7, which have been identifiedby Arjun and his wife as forming part of thestolen property. I have carefully examined theseornaments and compared them with the descriptionsgiven in the list of stolen property preparedby the complainant, namely, Ex. p.2, andin my view they tally with the descriptions, however,brief they may be, as given in the list. Itis, however, pointed out that their alleged identificationby the complainant and his wife is open tocriticism. The Magistrate before whom the identificationwas held has stated that he sent for someproperty of a similar description from the Tahsiland the Naib Nazir of the Tahsil brought a sealedbundle containing similar articles. The articlessaid to have been recovered from the possessionof this appellant were also brought to him in a sealed bundle. Both these sealed bundles wereopened in this presence and both the sets of articleswere mixed together before they were put up foridentification by the witnesses. It is said that theNaib Nazir of the Tahsil should also have beenexamined to prove that these other articles whichwere mixed with the suspected articles and notbeen shown to the witnesses before they wereproduced before the Magistrate. For had they beenso shown, the identification would lose much ofits value. But the witnesses are not residents ofthe place where the identification was held andthere is no suggestion in the evidence at all thatthese articles had in fact been previously shownto the witnesses. In the circumstances my view isthat it was quite unnecessary to produce such evidenceto prove the negative fact that these otherarticles had not been shown to the witnesses beforethe identification proceeding took place. Myattention has been drawn to the case of Subhanv. Rex : AIR1950All180 decided by alearned Single Judge of this Court in which objectionwas taken to the non production in similarcircumstances. of the person who had producedarticles before the Magistrate to be mixed up withcertain suspected articles prior to their identificationby the witnesses. But that was not the onlyground upon which the evidence of identificationof property was discarded. There was also theground that the rumal of orange colour whichwas said to have been part of the stolen propertyin that case, had been mixed with only one otherrumal of a similar description when it was putup for identification by the witnesses and that,therefore, the evidence of identification could notbe regarded as reliable. In my view the evidenceof identification of the articles Exs. 6 and 7 bythe complainant and his wife in this case cannotbe discarded on the mere ground that he NaibNazir had not been examined with the object ofproving that the articles with which the suspectedproperty was mixed had not been shown to theidentifying witnesses before the identification proceedingwas held. It is further pointed out thatthe Magistrate before whom the identification proceedingwas held has stated that he did not putany marks on the suspected articles and it is arguedthat there is nothing, therefore, to show thatExs. 6 and 7 are in fact the articles which hadbeen recovered from the house of Sughar Singh.It is said that there is no guarantee that Exs. 6and 7 are not part of the property which hadbeen produced by the Naib Nazir to be mixed upwith the suspected property. I am not impressedby this argument. No doubt the Magistrate hasstated that he put no marks on the suspected articles.But there is nothing in his evidence to indicate that he took no steps whatsoever to keepsuch articles distinct and the cross-examinationof the witness was not pushed further. It maybe mentioned that this appellant produced a witness named Raghubar with the object of provingthat the ornaments Exs. 6 and 7 belonged to SugharSingh's mother. This evidence rules out thepossibility or Exs. 6 and 7 not being the same articlesas were recovered from the possession ofSughar Singh. The evidence of Raghubaralone. however, does not go to the extent of establishingthat these ornaments are in fact the propertyof Sughar Singh's mother. In my view thecase against Sughar Singh has been establishedby cogent and reliable evidence.


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