(1) These appeals have been preferred by the appellants against their conviction and sentence for the offence of committing a dacoity in the village of Sanosara. Appellant 1 in Criminal Appeal No. 109, accused 1 in the lower Court, was convicted Under Section 395 read with Section 397, IPC and sentenced to seven years' rigorous imprisonment. He was also convicted of the offence Under Section 19(e), Arms Act, and sentenced' to six months' rigorous imprisonment, both the sentences to run concurrently. Appellant 2, accused 4 in the lower Court, was convicted Under Section 395, I. P. O., and sentenced to five years' rigorous imprisonment. The nppellant Chana Bechar of Criminal Appeal No. 112/53, accused 2, was convicted Under Section 395, IPC and sentenced to-seven years' rigorous imprisonment.
(2) The case for the prosecution, which is fully stated in the judgment of the Sessions Judge,... was the three appellants and three others, viz., accused 3, 5 ana 6, visited the village of iSanosara during the night between 16th and 17th November 1951 armed with gun, revolver and sticks. At the village gate two Pasaitas Kala and Nagdan were sleeping. They were overpowered and tied with their own turbans and -their guns were taken away. The dacoits then (went to the shop of Waghji, which is close to the village gate. A petromax lamp was burning .in the shop and Waghji and his brother Nanji, and Sadul, Nathu and Virji were in the shop. The dacoits entered the shop and demanded money from Waghji who gave his cash box to them. Some persons in the shop were beaten by the dacoits, who smashed the petromax lamp, and left after bolting the doors of the shop from .outside.
They next went to the house of Jeram. Jeram 'was sleeping in the fall of his house. In a room :in the osri were sleeping Jeram's wife, his son's wife Golal and his grandson's wife Mani. As the women did not hand over the keys of the pataras, the pataras were broken open by the dacoits and gold and silver ornaments and cash were removed from them. Thereafter the dacoits went to a room opposite in the same fali and recovered some cash from a trunk in the room.
Next they went to the adjoining house of Mulji but the inmates of the house had fled. This house was also looted and gold and silver jewellery and cash were taken away. In the meanwhile the Pasaita Nagdan managed to free himself and went to Khijadia and related the incident to the Police Patel there. However he did not receive .any assistance from the Police Patel and therefore he went to Kuvadava a village about eight or nine miles from Sanosara and at about 2 a.m. he informed the Police Naik Chana Kana at Kuva- dava that a dacoity was being committed in Sanosara. Chana tried to contact Rajkot by phone, but as the wires were cut, he was unable to do so. He therefore sent the village policeman Jasang Mangla to JRajkot.
He was picked up by a milk van and taken to Rajkot where he lodged information at about 3 a. m. on 17-11-51. On that day the superior Police officers were not in Rajkot and the sub-Inspector was on leave. Therefore the Head Constable Champaksinh, who was in charge of the Police station there started for Sanosara with a police party for investigation and reached there at about 5-45 a. m. He was in charge of the investigation till 20th morning but till then he had not succeeded in obtaining any clue as regards the identity of the dacoits. When making a panch-nama of the scene of offence he found a piece of bamboo stick from the room in Jeram's fall. This fact is recorded in the Panchnama.
On the 20th morning Sub-Inspector Mulubha proceeded to Sanosara. On the 21st evening he recorded the statement of Chhagan the son of Pasaita Kala. At about this time Kala left the utara where Chhagan's statement was being recorded and committed suicide near the village gate by shooting himself with a gun. This happened on the night of 21st. On the 22nd the Sub-Inspector went to Kuvadava and at night received Instructions from the Deputy Superintendent of Police and the Inspector to inquire about accused 1. Therefore the Sub-Inspector took two panch witnesses with him and went to the house of accused 5 after midnight. Accused 5 denied that accused 1 was in the house.
The Sub-Inspector thereupon searched the house and accused 1 was found concealed under a cot in Osri of the house. The house was searched for stolen property and some articles of jewellery and cartridges were found. Both the accused were then taken to Rajkot that very night. Accused 2, who was in Rajkot, was called at the Police Station in the morning of 23rd for interrogation and he was put under arrest at 12 noon on that day. He then made a statement to the Deputy Superintendent of Police and other Police Officers that he had concealed mudda-mal articles of jewellery and a gun in his wadi near the lake on the outskirts of Rajkot. This statement was repeated by him before the Panchas.
He then took the Police and the Panchas to his wadi and. from a spot pointed out by him two component parts of a ,12 bore gun were dug out. The third part was dug out from another part of field which he pointed out. He also pointed out another place in the Wadi from which a brass pot containing gold and silver ornaments and .12 bore cartridges were found. The muddamal ornaments have been identified as looted property. Accused 4 was arrested on the 24th and accused 3, 5 and 6 were also arrested on the same date. An identification parade was held on the 26th at which the victims of the dacoity were made to identify the accused.
(3) In addition to the evidence of the eyewitnesses and the identification parade there is the further evidence of discovery against accused 1 Bhagu. His house was searched by the police on 25-11-52 and a piece of bamboo stick was recovered from the house. This piece and the other piece which was found in Jeram's room by the Head Constable Champaksinh in the morning of 17-11-51 were found to be pieces of the same stick. On 29-11-1951 the accused offered to show the police a ruin where he had buried the muddamal revolver. He took them to the ruin and from a spot which was marked with stones and which was pointed out by him the muddamal revolver was dug out. This revolver belongs to His Highness the Thakore Saheb of Rajkot and was stolen from his palace some time before December 1951. Accused 3, 5 and 6 have been acquitted and therefore we do not propose to refer to the evidence against them.
(4) All the three accused denied having committed the offence. Accused l's explanation for being in the house of accused 5 was that on hearing of the death of the Pasaita Kala who was his brother he had gone there. He alleged that the piece of stick recovered from his house was planted by the Police and denied having pointed out the place from where the revolver was recovered. Accused 2 denied that he has made any statement to the Police or that he pointed out the places in his Wadi from where the Muddamal gun and jewellery were dug out. Accused 4 alleged that he was shown to the witnesses at the identification parade.
(5) The learned Judge below convicted accused 1 - principally on the evidence of the eye-witnesses - holding that he was sufficiently identified by them. The learned Judge also held that accused 1 carried a revolver in committing the dacoity. He held that the eye-witnesses were corroborated by the following facts, viz., that accused 1 and 2 were close friends for five or six years past and the bulk of the looted property was recovered from the field of accused 2. That the recovery of the piece of a stick from his house and the recovery of the revolver from the ruin were other corroborated (sic) pieces of .evidence and lastly the learned Judge took into account the fact that accused 1 had been found -concealed in the house of accused 5 when the police visited it during the night of the 22nd.
As regards accused 2 Chana Bechar (appellant Of Criminal Jail Appeal No. 112/53) he relied .upon the identification by the eye-witness Jeram and on the evidence of the recovery of the gun .and the looted property from his Wadi. Nothing incriminating was found against accused 4 (appellant 2 of Criminal Jail Appeal No. 109/53) but lie was convicted on the evidence of identification by the eye-witnesses Jeram Galal and Mani. The appellants have contested all this evidence' in these appeals before us.
(6) That a dacoity had been committed in Sanosara as alleged by the prosecution and that property was looted during the dacoity is not disputed before us nor can it be disputed in the lace of the eye-witnesses Nagdan, Waghji Sadul, Nathu, Virji, Galal, Mani and the deposition of iJeram in the committing Magistrate's Court 'which was brought on record as he died during the pendency of the trial in the Sessions Court. The articles found in the Wadi of accused 2 have also been satisfactorily identified. The only question that therefore survives for consideration is .whether the three appellants, viz., accused 1, 2 and 4 are proved to have been amongst those, .who had committed the dacoity.
(7) As stated above the evidence against accused 1 principally rests on the testimony of the ye-witnesses. Amongst those who identify him are the witnesses Nagdan and Nathu. The learned Sessions Judge discarded evidence of Nagdan for reasons, which we do not propose to repeat but with which we entirely agree. We however think that Nathu's evidence also should have been discarded. Nathu, Ex. 10, identified accused '3 as one of the dacoits, who had visited the shop of Waghji. He admits that he knew accused '3 bv name before the offence. If Nathu had really identified accused 3, his name would surely have been given to Champaksinh while he was investigating the offence in Sanosara. But no name was given to him and his statement that he knew accused 3 becomes doubtful.
(8) But even then there remains the evidence of Waghji, Jeram Galal and Mani. Jeram, it was argued, was in the fali and could not have identified the accused. But Waghji, Galal and Mani identified him consistentlv in the identification parade in the committing Magistrate's Court and also in the Sessions Court. They have committed mistakes with regard to other accused, but all of them have been consistent in their identification of accused 1 as one of the dacoits. These witnesses Waghji, Galal and Mani had an opportunity of seeing him. Waghji had seen him in the light of the petromax lamp while Galal and Mani had seen him in the light of a kerosene lamp which was burning in the room. The dacoits are stated to have been in the room for a pretty long time and the evidence of Mani and Galal cannot therefore be lightly rejected.
(9) Mr. Kirpalsing argued that the light of the lamp would be too feeble to enable the women to identify them. Villagers are however accustomed to work in such light and would find no difficulty in recognising a person.
Sadul had stated that the end of the turban was hanging by the side of accused l's face. It> was pointed out that before the police he had stated that one man was muffled and on this contradiction it was argued that if accused 1 was muffled he could not have been identified. But Waghji says that accused 5's face was muffled and Nanji also says that the face of one of the dacoits was muffled. It appears from the evidence that one of the dacoits was probably muffled but no one says that accused 1 was muffled. Even Sadul does not say so. Therefore the evidence of the witnesses that one of the dacoits had muffled his face does not shake their identification of the accused 1.
Mr. Kirpalsing also pointed out that the witnesses made hopelessly divergent statements about) the weapons which each dacoit carried. This has been noted by the learned Sessions Judge and he rightly observes that mistakes of this type are not uncommon in such cases. The fact however remains that these witnesses had an opportunity of seeing accused 1 and they have consistently identified him without a mistake and that reduces the margin of error. The learned Sessions Judge who saw the witnesses was convinced that they had properly identified the accused and we feel no hesitation in accepting his conclusion.
(10) We may however refer to the identification parade. Mr. Kirpalsing argued that the accused were shown to the witnesses before the parade was held. Of this allegation there is no evidence except that the panch witness says that he had seen them sitting on the police of but he does not say that the witnesses could be seen, by the accused. However there is one objection against this parade. The police called only 7 outsiders and made them to stand in line with the accused and the witnesses were thus asked to Identify 8 persons out of a line of 13.
We think that the proportion of outsiders with the number of the persons to be identified must be sufficiently large to eliminate the chance of the accused being picked up by chance. In this case the chances were all in favour of the witnesses picking up the accused in view of their number being almost equal to the number of outsiders. We would therefore not rely much on the identification parade but in spite of the weakness of this evidence, the accused's identification in the Courts below has been taken as satisfactory and we do not see why if should not be acted upon.
(11) Then, there are corroborative circumstances. These circumstances are that accused 1 was a close associate of accused 2, in whose Held the muddamal stolen property was found, that he was found concealed in the house of accused 5 on the 22nd night, that the piece of stick the counter-part of which was found at the scene of the offence was recovered from his house and the discovery of the revolver from the ruin near Ids house.
(12) We shall first consider the evidence of the alleged association between accused 1 & 2 and the recovery of the piece of stick for though the learned Sessions Judge thinks otherwise these two circumstances do not appear to us to be of any assistance to the prosecution. The only evidence of the alleged association between accused 1 and 2 is the evidence of accused's brother Pancha, Ex. 45. He says that the accused 1 used to live on the Randharda Lake, a lake in the outskirts of Rajkot and the Wadi Of accused 2 was near the lake. This may mean anything from their being adjacent neighbours to being persons living at a distance from each other. Pancha says that he knew the accused 2 for five or six years but there is no mention In his evidence that the accused 1 & 2 knew each other or were friends or associates. Accused 1 Was residing in Rajkot at the time of the offence. Therefore it would not be safe to hold that the accused 1 & 2 were associates or friends and even though they might have known each other and no inference can be drawn against accused 1 from the mere fact that the bulk of the looted property was recovered from accused 2's wadi.
The prosecution has proved beyond doubt that the piece of stick recovered from accused l's house unquestionably belonged to the same stick of which the other piece was found on the scene Of the offence on the 17th. If therefore the evidence regarding the recovery of this piece can be accepted, it provides conclusive evidence of the accused's presence on the scene of the offence independently of the evidence of identification for it directly connects him with the scene of the offence and gives very good reason for inferring In the absence of any explanation that he must have been on the scene of the offence when he . Had no reason to go.
We have therefore carefully examined the evidence regarding the recovery of the piece but find considerable difficulty in accepting it. The stick appears to have been cut neatly into two toy a sharp instrument. The learned Assistant Govt. Pleader could not satisfactorily explain why this should have been done. If the stick had been broken during operations, we can understand one of the pieces might have been accidently left on the scene though even then we do not understand Why the accused should have brought the remaining piece home. But it is evident that the stick could not have been broken because in that case the two pieces would have jagged ends. The fact therefore that the stick was neatly cut and one piece was found on the scene of the offence and the other in accused l's house which providentially furnishes conclusive evidence of his presence on the scene of offence appears to bristle fifth suspicious possibilities and should make us pause before readily accepting them as genuine evidence.
Moreover the manner in which the search was conducted is open to very serious objection. The-accused was in police custody when his house was-searched and was lodged in jail, which we were-informed, is very near the accused's house. He-was however not taken to his house to witness-the search and the search was conducted in the presence of his wife.
Now Section 165, Criminal P. C, contains provisions for making searches in a place in the course of investigation. Sub-section (4) provides that the provisions of Sections 102 and 103 of the Code shall as far as possible be applied to a search made-under this section. Sub-section (3) of Section 103 provides that the occupant of the place searched or some person on his behalf shall in every instance be permitted to attend during the search. These-provisions have been enacted with the wholesome object of ensuring that the occupant should not feel that the search was conducted otherwise than in accordance with law. They would also provide a check against what may be described as the activities of agents provacateur. Therefore it is the duty of the Police Officer conducting the search to permit the occupant of the place or some one on his behalf to attend during the search. The Police Officer however did not think it necessary to take accused 1 with him.
The learned Assistant Government Pleader argued that the search was made in the presence-of accused's wife who must be taken to be acting: on his behalf. We regret that this argument, should have been advanced on behalf of the prosecution instead of the irregularity of the search frankly admitted. The law required that the-occupant of a place should be permitted to attend' the search. It is only in those cases in which the-delay caused in procuring the attendance of the occupant might frustrate the object of the search that the Police would be justified in dispensing-with his presence and conducting the search in-the presence of some one on his behalf. Hero the accused was in the custody of the Police and. there was no difficulty in taking him to witness, the search. It cannot be said under the circum-,, stances that the wife represented him during thet search. Even if the letter of the law was satisfied, the law was broken in spirit.
The learned Assistant Government Pleader argued that the accused had not shown that he was prejudiced by this irregularity in the search. This is not correct. He has been very much prejudiced because the search produced a piece of evidence, which, in the absence of a satisfactory explanation, was bound to connect the accused conclusively with the dacoity and no greater prejudice could be caused to him. The accused alleges that the piece was planted by the Police-in his house. The Police Officer who conducted the search laid himself open to the accusation by. this irregularity committed by him. On the whole we would prefer to discard the evidence of the recovery of the piece of stick entirely from consideration.
(13) The next circumstance of corroboration is that the accused was found by the Sub-Inspector Mulubha concealed in the house of accused 5 to. Kuvadava at 2-30 a. m. on the night between the 22nd and the 23rd. The accused's explanation is that he had attended Kalas cremation and had returned to accused 5's house at about 8 p. m. as meals could not be cooked in his father's house on account of the death and accused 5's wife had taken him for meals. He was lying near the cot and accused 5 might have drawn the cot over him when the Police arrived there.
His learned Advocate complained that he was not allowed to question the Havaldar Vasram Jetha, Ex. 33, as to who was present at the time of the inquest otherwise he would have shown that the accused was in Sanosara during the inquest and at the cremation. The learned Sessions Judge disallowed the question because the names of the persons who were present at the inquest were mentioned in the inquest report. He could have proved his presence at the cremation by examining independent witnesses and he has no explanation why he was in the house of accused 5 at 2-30 a. m.
The learned Sessions Judge has pointed out that the father of this accused lived in Kuvadava and if he was in Kuvadava on a legitimate busi-ness, he would more properly be in his father's nouse and not in the house of accused 5 who is his father's sister's son. This circumstance and his admission that the cot was drawn over him and he was under it when the police came materially corroborate the eye-witnesses.
The last circumstance against the accused is the recovery of the revolver from the ruin. The Sub-Inspector, Ex. 83, says that accused 1 made a statement to him on 29-11-51 that he had buried the nmddamal revolver in a ruin. He therefore called panchas and the accused repeated this statement to them in their presence. He next proceeded to a ruin near his house and pointed out a place and the Muddamal revolver and some cartridges were found buried there. The accused states that he had made no statement to the Police and the Panches that the Police took him there and he was made to dig out the revolver. Two persons in plain clothes wera also there.
His learned Advocate further argued that the ruin was accessible to others and therefore the revolver could not be said to have been recovered from his possession. The Panch witness states that the accused had made no statement to them at the police Station, but states that when they reached the ruin, he had stated on being questioned that he had buried the revolver at a place which he pointed out. There is therefore no material contradiction between the Sub-Inspector and the Panch witness. The statement of the Police Officer is corroborated by the panchnama. The revolver belongs to His Highness and it cannot for a moment be supposed that the Police were aware of its existence and could have planted it in the ruin. Therefore they must have received some information from the accused which led to the discovery of the revolver and that information according to the Sub-Inspector was the statement which the accused 1 made to the Panches.
Under the circumstances we see no reasons to doubt that accused 1 had burled the revolver in the ruin and it must be deemed to be in his possession. The recovery of the revolver coupled with the circumstances that only a few days before the dacoity was commitied in Sanosara and that one of the dacoits is proved to have been armed with a revolver are sufficient to corroborate the testimony of the eye-witnesses.
Mr, Kirpalsing argued that the Panch was known to the Police and was called from his shop at a distance of about a mile and a half from the ruin. But in view of the admitted find of the revolver we have no reason to doubt this evidence.
(14) In the result accused 1 was properly found guilty of the offence Under Section 395. We have next to see whether he is liable to enhanced punishment Under Section 397, IPC In order that he may be made so liable the prosecution has to prove that he was armed with this revolver at the time of the dacoity, Waghji and Sadul have stated that accused 1 was armed with a revolver and a piece of stick. Mani has stated that accused 1 was armed with a gun and a revolver. Nathu states that the accused was armed with a revolver only but in the lower Court he has stated that the revolver was with the accused 6. The witnesses have made mistakes about the weapons which other accused carried and the learned Sessions Judge himself recognised that such mistakes may not be unlikely m me stress of moment. Under the circumstances it would not be safe to hold as proved beyond doubt that the accused I carried the revolver with him at the time of the dacoity and he cannot be rendered liable to enhanced punishment Under Section 397, I. P. O.
(15) As against accused 2 the evidence is that of the eye-witness Jeram who has identified him and the recovery of the muddamal property. His testimony is therefore corroborated by this fact. There can be no doubt that the property waa recovered from his wadi on information giveri by him. The accused's contention is that he was beaten severely by the Police so much so that he remained unconscious for several days and did not even remember that he was taken to the wadi but this cannot be believed. The Panch witness Ravji Chhagan, Ex. 59, deposes that the accused made the statement that he had burled the stolen property in his Wadi near the lake and he also deposes that accused 2 pointed out the place where it was buried and dug it out. Similarly he pointed out the place where parts of the gun were buried and dug them out. The evidence against this accused is too strong to admit of any doubt and he was properly convicted by the learned Sessions Judge.
(16) As regards accused 4 the evidence against him is that he was identified by the eye-witnesses only. He was identified by Jeram, Galal and Mani at the identification parade and also in both the Courts below. His identification at the identification parade may not be acted upon but we sea no reason to differ from the learned Sessions Judge about the convincing effect of their identification of the accused in the Courts below. They had full opportunity of seeing him and they had no reason to falsely implicate him. Therefore we accept the learned Sessions Judge's estimate of their evidence. In the result his conviction must be confirmed.
(17) We may here advert to some objections faised by Mr. Kirpalsing on behalf of the appellant. He argued that Galal had made a mistake in Identifying her Katesari Article 18/1 and confused it with a similar Katesari Article 47 which belonged to Mulji. At one time she had stated that Article 18/1 belonged to her and at another time she claimed that Article 47 belonged to her. Both the Articles are however similar and even Mulji whose house was raided by the dacoits after looting Jeram's house committed the same mistake. In our view these are innocent mistakes and do not detract from the value of their testimony as regards the identity of the appellants (accused 1 and 4). It was contended that although all the accused were arrested by the 24th, there was delay in making the identification parade. The Police were however recovering muddamal property and were busy with further investigation we do not see that there has been any undue delay in holding the identification parade. But as we have not relied upon the identification parade, we do not wish to enter into detailed criticism which Mr. Kirpalsing offered.
(18) In the result the conviction of the accused I (Appellant 1 in Criminal Appeal No. 109/53) Under Section 395, IPC read with Section 397, I. P. O., Is set aside and he is convicted Under Section 395. I. P. O. As he is not proved to have been armed with the revolver at the time of the dacoity, his conviction Under Section 19 (e), Arms Act, is set aside and he is ordered to be acquitted of this charge. The convictions of the rest of the appellants are confirmed. As regards sentence we think that the interest of justice will be served by sentencing them each to five years' rigorous imprisonment. The sentence of appellant 1 Bhagu Ranchhod in Criminal Appeal No. 109/53 and the sentence of the appellant Chana Bechar in Criminal Appeal No. 112/53 is reduced to five years' rigorous imprisonment. The sentence of the appellant Chha-gan Jakshi in Criminal Appeal No. 109 of 1953 lg confirmed.
(19) I agree.