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Ganga Singh Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1978CriLJ269; 1977()WLN218
AppellantGanga Singh
RespondentThe State of Rajasthan
Cases ReferredIn Laxmi Narain v. State of Ra
Excerpt:
criminal trial identification - witness had opportunities to see accused prior to test identification--held, evidence not to be accepted.;there was ample opportunity for these witnesses to see the appellants on 14-6-1971 in the court premises at sirohi. the investigating agency ought to have taken precautions to avoid all opportunities of the appellants being seen by the identifying witnesses prior to the test identification parade.;the evidence of identification of the accused cannot be accepted, unless the court is satisfied that the identifying witnesses were not given an opportunity to see and recognise the accused after their arrest and before they were put up for identification in a test identification parade.;(b) criminal trial - identification--determination of value of test.....kalyan dutta sharma, j.1. s. b. criminal appeal no. 64l of 1975, filed by ganga singh and s. b. criminal appeal no. 419 of 1975 preferred by kishan dan through the superintendent, central jail, jodhpur, arise out of one and the same judgment of the additional sessions judge, sirohi, dated 30th june, 1975, by which both the appellants were convicted under sections 394/397, 436 and 170, ipc and sentenced as under :-ganga singh 394/397, rigorous imprisonkishan dan i.p.c. ment for ten years each.' 436. five years' rigorousi.p.c. imprisonment each.' 170. one year's rigorousi.p.c. imprisonment each.all the sentences awarded to each appellant were ordered to run concurrently.2. the prosecution case against the appellants was that they along with two other persons reached village amlari on.....
Judgment:

Kalyan Dutta Sharma, J.

1. S. B. Criminal Appeal No. 64l of 1975, filed by Ganga Singh and S. B. Criminal Appeal No. 419 of 1975 preferred by Kishan Dan through the Superintendent, Central Jail, Jodhpur, arise out of one and the same Judgment of the Additional Sessions Judge, Sirohi, dated 30th June, 1975, by which both the appellants were convicted Under Sections 394/397, 436 and 170, IPC and sentenced as under :-

Ganga singh 394/397, Rigorous imprisonKishan Dan I.P.C. ment for ten years each.' 436. Five years' rigorousI.P.C. imprisonment each.' 170. One year's rigorousI.P.C. imprisonment each.

All the sentences awarded to each appellant were ordered to run concurrently.

2. The prosecution case against the appellants was that they along with two other persons reached village Amlari on 5-5-1971 at about 5 p.m. They were wearing police uniforms on their bodies and were armed with deadly weapons, i. e, guns, pistols etc. In the village they met Hazari Mai, who was going to his house for a bath. Ganga Singh and Kishan Dan appellants told Hazari Mai that they had seized illicit liquor from the village and that his presence was required to attest the recovery memo. Hazari Mai refused to be an attesting witness to the Panchnama and went away to his house. He was followed by the appellants and their two associates. Kishan Dan appellant caught hold of Hazari Mai and beat him with a lathi. Out of fear Hazari Mai entered his house and closed the doors thereof. After half an hour Ganga Singh appellant and two others succeeded in gaining entry into his house after setting fire to the doors. Ganga Singh appellant and his companion snatched ornaments from the bodies, of Hazari Mai's mother and wife and looted other articles which were lying in a box inside the house. They detained Hazari Mai's sister's daughter also and told Hazari Mai that they would kidnap her if they were not immediately paid a sum of Rs. 1000/-. Haz;iri Mai paid the sum and got the girl released from their custody. The appellants and their companions entered the houses of Kishan Lai, Dha-ram Chand and Tilok Chand also and robbed them of their ornaments and belongings. Thereafter, the miscreants removed two gold chains and two gold rings from the body of Tilok Chand and obtained a sum of Rs. 730/-, from his house. The miscreants then went to the shop of Radhey Shyam and got a sum of Rs, 100/-, from him and took away ladies* wrist-watch, which Radhey Shyam was wearing. The appellants and their companions tfhen detained An Raj who was Branch Post-master of the village but soon allowed him to go to discharge the duties of his post. An Raj rushed to village Sildar and informed Chandu Lai, Secretary, Gram Panchayat that four persons pretending to be police officers had beaten inhabitants of the village and robbed them of their belongings. Upon receiving such information, Chandu Lai lodged a first information report at police station, Kalantari, the very day at 8 p. m. Station House Officer, Bhagwat Singh recorded the first information report and registered a criminal case on its basis. He rushed to village Amlari for investigation into the case. He inspected the site, prepared the site-inspection memos of the houses of Dharam Chand, Phool Chand, father of Hazari Mai and Kishan Lai and received lists of looted articles from Kishan Lai, Tilok Chand, Hazari Mai and Radhye Shyam. He sent the injured to hospital for medical examination as to their injuries. The Doctor found five bruises on the person of Praga and two bruises and one lacerated wound on the person of Kishan Lai. Later on, in the course of investigation, Kishan Dan appellant and his companion Dhudia were detained by some persons near railway station, Kagmala, upon suspicion of being involved in the commission of offences of theft. This fact came to the notice of Nazir Mohammad, Station House Officer, Bhinmal, who went there and arrested Kishan Dan, vide memo of arrest Ex. P, 19. At the time of arrest Kishan Dan was found to have

his possession twelve, gold ornaments, two wrist watches, some currency notes, and coins of India and Pakistan and a few brass buttons of police uniform. These articles were seized then and there by the Station House Officer. Then Ganga Singh appellant and Murar Dan were arrested by Circle Officer, Bhur Singh on 19-5-1971 at 10.30 a.m. from room No. 1 of the Central Lodge, Jodhpur, At the time of arrest Ganga Singh appellant had twenty-four silver ornaments, three wrist watches, a police cap and Khakhi clothes with a whistle cord in his possession. All these articles were taken by Circle Officer, Bhoor Singh into his possession. After his arrest Kishan Dan gave an information to Nahar Singh, S. H. O. on 22-5-1971 that he had concealed two radio-transistors underneath a rock of torda hillock near the temple of Mahadeoji, which is situated to the right side of the bus-stand, Jalia, and that he was prepared to get them recovered at his instance. Nahar Singh, Station House Officer, recorded the above information in a memo Ext. P. 21 and thereafter recovered the two radio-transistors from the aforesaid place at the instance of Kishan Dan appellant and in consequence of his information recorded Under Section 27 of the Evidence Act. The two radio-transistors were sealed properly in the presence of Punamchand and Phulia. The ornaments and articles recovered from the possession of the appellants were, later on, |put up in a test-identification parade held by the Tehsildar and Second Class Magistrate, Sirohi, P, W. 8. Some of the orna- ments and articles were correctly identified in the parade by the victims of the robbery to be the articles which were forcibly taken away by the miscreants from their houses and possession at the time of committing robbery. Both the appellants also were put up for identification in a test-parade held by Shri R. P. Nag, Sub-Divisional Magistrate, Sirohi, and were correctly identified by Tilok Chand, Radhey Shayam, Hazari Mai and Kishan Lai to be the robbers who looted ornaments and articles from their houses. After collecting other necessary evidence the police put up a challan against both the appellants in the court of the Munsiff-Magistrate, Smirch, Under Sections 394, 397, 436 and 171, IPC The learned Magistrate held an inquiry, preparatory to commitment, and upon finding a prima facie case against the appellants, committed them to the court of the Additional Sessions Judge, Sirohi, for trial for the offences ounishable Under Sections 170, 394, 397 and'436, IPC The Additional Sessions Judge tried the appellants and found them guilty of the aforesaid charges. Consequently, he convicted and sentenced the appellants in the manner sta-* ted above. Aggrieved by their conviction and sentences each appellant has preferred separate appeal. As common questions of law and facts are involved in these two appeals, and, as they arise out of one and the same judgment delivered by the Additional Sessions Judge, Sirohi, they are disposed of together by one single judgment.

3. I have carefully gone through the record and heard Mr. Bhagwati Prasad and Mr. S. T. Porwal for the appellants and Dr. S. S. Bhandawat for the State. Firstly, it has been contended on behalf of the appellants that the prosecution could not succeed in proving beyond reasonable shadow of doubt that the two appellants were amongst the four persons who had robbed Kishan Lai, Dhan Raj, Hazari Mai and their wives and sisters of their ornaments and belongings at the alleged time and place. According to the learned counsel for the appellants, the value of identification evidence in this case is highly diminished because there was ample opportunity for the identifying witnesses to see the appellants a day before the identification parade was actually held. It was further argued that there is no explanation forthcoming from the side of the prosecution why the appellants were put up for identification in a test parade after about twenty-five days from the date of their arrest and why ten persons only were mixed with four suspects including the two appellants in the parade. In support of his above contention, Mr. Bhagwati Prasad, learned counsel for the appellants has relied upon Hasib v. State of Bihar : 1972CriLJ233 , Pritam Singh v. State AIR 1971 Rai 184 : 1971 Cri LJ 974, King-Emperor v. Kishan Lai AIR 1924 All 645 : 26 Cri LJ 501; State of Raj asthan v. Ranjita 1962 Raj L W 24 : 1982 (11 Cri LJ. 461 (FB); Emperor v. Chhadammi Lai AIR 1936 All 373 : 37 Cri LJ 730 and Asharfi v. State AIR 1961 All 153: (1961 (1) Cri LJ 340) Dr. S. S. Bhandawat appearing on behalf of the State, in the other hand, urged that the trial court rightly placed reliance on the evidence of identification and there are no such infirmities in it as pointed out by the learned counsel for the. appellants. According to him, neither the appellants were shown to the identifying witnesses at any time prior to the test identification-parade, nor was there any opportunity for the identifying witnesses to see the faces of the appellants a day prior to the test-identification parade. He further contended that the entire identification evidence cannot be brushed aside merely because there was some delay in holding the test-identification parade after the arrest of the appellants. In support of his above contention he has placed reliance on a recent authority of the Court Laxmi Narain v. State of Kajasthan, 1976 WLN (UC) 594.

4. I have considered the rival contentions. It is not disputed before me that the two appellants were unknown to the identifying witnesses prior to the occurrence. The witnesses, no doubt, disclosed to the investigating, officer that they would be able to recognise the robbers if shown to them. Thereupon, the investigating agency decided that a test identification parade of the suspects including the two appellants be held before the Sub-Divisional Magistrate Sirohi, Accordingly, a test parade of the suspects including the two appellants was held at Sub-Jail, Sirohi, by Shri R. P. Nag. Sub-Divisional Magistrate, Sirohi, on 15-6-71. The identifying witnesses, namely. Ra-dhey Shyani, Tilok Chand. Kishan Lai and Hazari Mai were called upon to identify the persons, who were involved in the commission of the crime. Out of the identifying witnesses Radhey Shyam and Hazari Mai identified Ganga Singh ap- pellant to be one- of the persons who had participated in the robbery while Kishan Lai and Tilok Chand identified both the appellants in the test-parade to be the persons who and forcibly taken away the articles and ornaments belonging to them and other victims of robbery. These four witnesses, thereafter, correctly identified the two appellants in the trial court also. The credibility of these, witnesses on the point of identification of the appellants has been challenged before me by the learned counsel for the appellants on the ground that the appellants were shown to these witnesses before they were put up for identification. It has, therefore, to be determined whether there was a possibility in this case .of the appellants being shown to the identifying witnesses prior to the test-identification. To substantiate his contention, Mr. Bhagwati Prasad, learned counsel for the appellants, invited my attention to an entry Ex. D. 3 made on 14-6-1971 in the gate register of Sirohi Sub-Jail, and argued on its strength that the inference that the appellants were shown to the identifying witnesses is not based on surmises but on concrete facts. I have perused the aforesaid entry Ex. D. 3 made in the gate register of the Sirohi Sub-Jail, on 14-6-1971. The entry clearly reveals that the two appellants along with Murar Dan and Dhudia co-accused were taken out of the jail premises by the police guard on 14-6-1971 at 11-10 a. m. for being produced in the court of the Sub-Divisional Magistrate, Sirohi. There is another entry made in the said register at 4-45 p.m. the very day which clearly reveals that the two appellants along with Murar Dan and Dhudia co-accuesd were Drought back to Sirohi Sub-Jail from the court of the Sub-Divisional Magistrate, Sirohi, by the police. This extracts from the gate register of the Sirohi Sub-Jail is duly proved by the testimony of Govind Singh, Assistant Jailor, D. W. 4, who stated in clear and definite terms, that the two appellants were sent from jail to the court of the Sub-Divisional Magistrate, Sirohi, on 14-6-1971 at 11-10 a.m. and, thereafter, re-admitted into jail in the evening at 4-45 p. m. 'The prosecution could not assign any reason why the two appellants were taken out of Sirohi Sub-Jail and brought to the court of the Sub-Divisional Magistrate a day prior to the test-identification parade. Apart from this documentary proof, there is the oral evidence of Bhuba Ram, C. W. 1, who also testified to the fact that the Assis- tant Sub-Jailor, Sirohi, was directed to produce the two appellants and the co-accused in the court of the Sub-Divisional Magistrate for identification on 14-6-1971 at 10 a.m. The letter issued by Bhuba Ram Patel to the Assistant Jailor is Ex. P. 38. Bhuba Ram admitted his signatures on this letter. There is another Letter Ex. P. 39, which was written the very day i.e. on 14-6-1971 to the Assistant Jailor, Sub-Jail, Sirohi. Vide this letter the Assistant Jailor was informed that the identification parade would be held in the Sub-Jail at 4 p.m. the very day instead of 10 a.m. The third letter is Ex. P. 40 which also was written on 14-6-1971 for the purpose of giving intimation to the Assistant Jailor, Sub-Jail, Sirohi, that the identification parade would not be held on 14-6-71 due to rush of case work and that it would be held on 15-6-1971 inside the jail premises, at 10.30 a.m. These letters coupled with the relevant entries made in the gate register of the Sirohi Sub-Jail clearly establish that the two appellants were there in the premises of the court of the Sub-Divisional Magistrate, Sirohi, on 14-6-1971 during court hours between 11-101 a. m. and 4-45 p. m. Mr. Bhagwati Prasad's further contention is that during this period the identifying witnesses also were present in the court premises as they were called upon to identify the articles and ornaments f-eized by the police in this case in a test-identification parade held by the Tehsildar and Second Class Magistrate, Sirohi, on 14-6-1971. According to the learned counsel, the identifying witnesses had enough opportunity to see the appellants in the court premises during the period between 11-10 a.m. and 4-45 p. m. The above contention is not devoid of force. From a bare reading of the statements of Manak Chand, Tehsildar, P. W. 8, it is established that the ornaments and articles recovered by the police in this case were put ap for identification in a test-parade held by him during office hours in his court at Sirohi on 14-6-71. It is further proved by his evidence that Radhey Shyam, Tilok Chand, Hazari Mai and Kishan Lai were called upon to identify the property which was the subject-matter of the offence. This fact is further proved by the evidence of Bhagwat Singh, P.W. 23, who admitted in his deposition that he and the identifying witnesses were present during office-hours on 14-6-1971 in the court premises at Sirohi. According to him, he had gone there in connection with the identification proceedings with 1978 Cri. L.J./18 II regard to the properties recovered by him in this case. There is no dispute that the identifying witnesses, namely, Radhey Shyam, Tilok Chand, Hazari Mai and Kishan Lai, who were present in the court premises on 14-6-1971 during office hours, were the same persons, who were called upon to identify the appellants in the test-parade held on 15-6-1971. Thus, there was ample opportunity for these witnesses to see the appellants on 14-6-1971 in the court premises at Sirohi. The investigating agency ougiit to have taken precautions to avoid all opportunities of the appellants being seen by the identifying witnesses prior to the test-identification parade. There is no evidence from the side of the prosecution on the record that such precautions were taken by the investigating agency. On the other hand, a vain effort has been made by Bhagwat Singh, P.W. 23, to convince the court that the two appellants were not brought to the court on 14-6-1971. The statement of Bhagwat Singh, Station House Officer, denying the presence of the appellants in the court premises during office hours on 14-6-71 cannot be accepted true in view of the overwhelming documentary and oral evidence that the two appellants were brought from Sirohi Sub-Jail to the court of the Sub-Divisional Magistrate on 14-6-1971 at 10.30 a. m. and were taken back to the jail on the very day at 4.45 p.m. Hence, the possibility of the appellants being shown to the identifying witnesses before they were put up for identification in a test-parade could not be ruled out altogether in this case, because the witnesses and the appellants were there in the court premises on 14-6-71 for hours together. This infirmity in the evidence of the identification of the appellants was considered by the Additional Sessions Judge also in his judgment under appeal, as is evident from the following observations made by him

It is also an admitted fact that on 14-6-71 when the accused were taken to the court compound, S. H. O. Bhagwat Singh was also present in the court premises and this fact is admitted by him, though the SHO has said that he had gone to the court on that date for arranging the identification of the stolen articles. The fact that the stolen articles were also got identified on the same date, does not prove that most of the prosecution witnesses were also in the Court compound, and therefore the possibility of their having seen the accused cannot be ruled out. This circumstance has somewhat weakened the evidence the identification.

Hence, I am not satisfied that the evidence of the identifying witnesses, namely. Radhey Shyam, Kishan Lal, Tilok Chand and Hazari Mel is such that it can be safely relied upon so far as the identity of the appellants is concerned. The evidence of identification of the accused cannot be accepted, unless the court is satisfied that the identifying witnesses were not given an opportunity to see and recognise the accused after their arrest and before they were put up for identification in a test identification parade. The trial court, after coming to a conclusion that the evidence of identification of the appellants has been somewhat weakened, went wrong in acting upon it for the purpose of convicting the appellants. Mr. Bhagwati Prasad learned counsel for the appellants further contended that the evidence of identification suffered from another infirmity inasmuch as the test-identification parade was held after more than 25 days from the dates of arrest of the two appellants. Kishan Dan appellant was taken into custody on 17-5-1971 vide his arrest memo Ex. P-19, while Ganga Singh appellant was arrested on 19-5-1071 vide memo of arrest Ex. P-15. After their arrests the two appellants were put up for identification in a test parade on 15-6-1971, i.e. after more than 25 days. No explanation is forthcoming from the side of the prosecution why the test-identification parade was not held within a reasonable time after the arrest of the two appellants. In Pritam Singh v. State, (1971 Cri LJ 974) (Raj) (supra) it was held by this Court that no value can be attached to the evidence of identification if the test-identification parade is held long after the arrest of the accused-appellants. In the referred-to above case, the accused persons were put up in a test-identification parade eleven days after their arrests and there was no reasonable explanation from the side of the prosecution why so much time was taken by the investigating agency for pulting up the accused in a test parade. Their Lordships of the Supreme Court also observed in Hasib v. State of Bihar (1972 Cri LJ 233) (SC) (supra) that the test-identification parade should be held at the earliest opportunity after the arrest of the accused. In Laxmi Narain v. State of Ra-jasthan 1976 WLN (UC) 5&4 (supra) relied upon by Dr. S. S. Bhandawat, it has been merely observed that the infirmity caused by delay in holding the test-identification pasadie1 was not sufficient to brush aside the evidtence1 of identification together. It is maswtoswe laid down in that case that the valuts of text-identification parade is not minimised, by reason of long lapse of the between the arrest of the accused and the test- identification. Consequently, I am of the view total in detenroiffling the vatae of test- identification parades one of the virtali factors that has to be corasidteredi is whether this identification parade was held within a reasonable in after the arrest of the accused and, if whether there is convincing explanation from the aide of the investigation agercey for delay in conducting the test-parade.

5. Another infirmity in the test-identification parade pointed rat fey the- learned counsel for the appellants is that the parade was made too easy for the identifying witnesses to pick out the appellants-. According to the learned counsel for the appellants only ten persons were mixed1 with the .appellants ard the two co-accused in the test-parade and' so there was greater probability of the appellants being identified' by chance. The above contention also is not devoid of substance. It cannot be over-emphasised that the1 accused should be paraded with a fairly-' large number of persons of similar age, height, stature etc. so as to eliminate ipossibility of the accused being picked up or identified by chance. In the present case, the two appellants along with other two co-accused were put up for identic fication along with ten persons only. In my opinion, in a fair identification paradfe the proportion of suspects to undertrials mixed-up with them should bear the ratio of 5:1 or 4 : 1 In order to minimise the chance of the accused toeing picked up accidentally or by chance. As the proportion in this case bore the ratio of 4: 10, it cannot be safely held that the identification test-parade was a fair o Taking all these factors into consideration, I am reluctant to accept the evidence of identification in this case.

6. Another important piece of evidence relied upon by the prosecution is that several articles and ornaments made of gold and silver were recovered from the possession, of each appellant and were proved to be the same articles which were forcibly taken away by the robbers. Mr. Bhagwati Prasad; learned counsel for the appellants,, has assailed the evidence of recoveries of articles and- ornaments out' several ground, The first in firmity in the evidence of the recovery pointed out by the learned counsel for he appellants is that the prosecution could not adduce -cogent and satisfactory evidence to prove which of the articles and ornaments belonged to which victim of the robbery. The above contention has no force. It is proved by the evidence of Nazir Mohamnad, P. W. 22, that Kishan Dan appellant was arrested on 47-5-1971 vide memo of arrest Ex. P-19. At the time of his arrest, Kishan Dan had several ornaments in his possession which were seized t>y the police. The ornaments recovered from his possession were as follows:-

1. Gold ring weighing 5 gms; 2. Gold ring weighing 6 gnus; 3. Gold ring bearing the name '$ B SHA1 weighing 5 gms; 4. Gold Ogsnia =6 gme. 5. piece of gold ring 5 gms; ?. Gold Ogaraia Studded with stones 3 gms; 7. Two gold Zheias 28 gms; 8. Gold Kaiathi 24 gms; 9. Gold chain 1-6 gms; 1-0. Gold chain 13 gms; 11. Gold chain 28 gms. 12. Gold chain 43 gms;

Apart from these ornaments, a good number of other articles, e.g. currency-notes, coins, of the Seiko wrist watch, on Favre Leutea wrist watch end two brass buttons, etc. were also found in his possession. The recovery of these articles and ornaments from the possession of Kishan Dan is fully proved by the evidence of Nazir Mohammad P. W. 22 and the arrest memo Ex. P-19. After his arrest, Kishan Dan appellant furnished an information to the Station Hoiase Officer, Nahar Singh on 21-5-1971 that he had concealed two radio-transistors underneath a rock of Dorda hillock and that he was prepared to get them recovered at his instance. Nahar Singh, Station House Officer, recorded the above information in a memo Ex. P-21 and, thereafter, recovered the radio transistors Exs. / 14 and 15 from the place disclosed by Kishan Dan. The recovery memo of the radio-transistors prepared by Nahar Singh is Ex. P-12. The recovery of these, radios is fully proved by the evidence of Nahar Singh, Station House Officer, P. W. 17 and Poonam Chand Motbir, P. W. 10. Later on the two radio-transistors and the ornaments were put up for identification in a test parade held by Manak Chand, Tehasildar. The two radio-transistors were identified by Dharam Chand P. W. 11 to be the same radios which were forcibly taken away by the robbers from his house. Dharam Chand identified these very radio-transistors in the trial court also and claimed them to be of his ownership. Hence, it was proved beyond reasonable doubt that on 22-5-1-971 Kishan Dan was found in exclusive possession of the two radio-transistors which were taken away forcibly by the robbers from the house of Dharam Chand on 5-5-1971. The appellant failed to account for his possession of the stolen radio transistors. He merely denied the recovery thereof at his instance and in consequence of his information recorded by the police in the course of investigation, but his bare denial is not sufficient to rebut the cogent and reliable evidence of recovery of stolen property from his possession. Hence, a presumption of guilt does arise from his recent and exclusive possession of the looted articles. Likewise, it is proved beyond reasonable doubt by the prosecution that Ganga Singh was found in possession of the following gold and silver ornaments at the time of his arrest:-

1. Four ailver Kadlas 73 gms; 2. Four silver bangles 32 gms; 3. Silver ingot bearing No. '999 1 Kg. & 53 gms; 4. Piece of silver ingot bearing No. l999' 187 gms; 5. Silver ingot 113 gms; 6, Silver Badla 187 gms; 7. Silver wire 92 gms; 8. Silver Toti 85 gms; 9 to 24 are other silver ornaments; 25. Henri Sendoz wrist watch; 26. Tressa wrist watch; 27. Henri Sandoz wrist watch; 28. Woollen police cap with Ashoka pillar monogram; 29. Police side cap (woollen) with two brass buttons having letters 'RP' engraved on them; 30. Khaki bush-shirt; 31. Khaki Shirt, belt etc.

The recovery of these articles is proved by the evidence of Circle Officer, Bhur Singh. These articles were, later on, put up for identification in a test-parade held by Manak Chaad. Out of these articles, a Tressa wrist watch and two silver ingots, two silver 'Karlas' and a pair of silver 'Totis', one silver 'Gajra; one silver 'Hathphool; a pair of 'Toris; two 'Tadas' of gold, a 'Magalshootra' were identified by Hazari Mai P. W. 15 to be his properties in the test parade and thereafter in the trial court. There is no reason to disbelieve the evidence of Hazari Mai relating to the identification of these articles. Hence, it may be said without difficulty that the prosecution has succeeded in proving to the hilt that Ganga Singh was found in recent and exclusive possession of some of the looted articles and ornaments, on 19-5-1971, i. e. about 14 days after the occurrence. Ganga Singh also failed to give any reasonable explanation for his recent possession of the looted articles and ornaments. He merely denied that -any ornaments or articles were recovered from his possession at the time of his arrest. His mere denial is not sufficient to displace the strong presumption of his guilt that does arise from his recent and exclusive possession of the looted properties. Hence, I have no hesitation in holding that Ganga Singh was found in possession of looted articles soon after the occurrence and he failed to give a satisfactory account of how he had acquired possession thereof.

7. The next question that arises for determination is whether recent and unexplained possession of looted properties can be presumptive evidence against the two appellants of charges Under Sections 394/397, 436. and 170, IPC As stated earlier, there is no reliable direct evidence on the record that the two appellants had committed the crimes of robbery with attempt to cause grievous hurt, mischief by fire and personating a public servant. The evidence of identification of the two appellants has been found unsatisfactory upon careful scrutiny thereof. Hence, there is left no evidence on the record except the presumptive evidence under illustration (a) to Section 114 of the Evidence Act to show that the two appellants having armed themselves with deadly weapons pretended to be police officers knowing that they did not hold such office and robbed Kishan Lai, Hazarl Mai, Tilok Chand and Radhey Shyam of their ornaments and articles and committed mischief by setting fire to the doors of the house of Hazari Mai. It is undoubtedly true that the presumption of guilt from recent and unexplained possession of the 'stolen property is not confined to cases of theft but may be extended to graver offences also. No invariable rules can be laid down when and what presumption may arise from recent exclusive and unexplained possession of stolen property, but it depends upon the facts and circumstances of each case. In the instant case the looted ornaments and other articles were not recovered from the possession of the two appellants shortly after the occurrence. There was a time gap of two weeks between the occurrence and the recovery. The articles and ornaments recovered from the possession of the appellants were not of such nature as were not likely to change hand's quickly. The only inference that can be raised from the unexplained re- covery of looted articles from the possession of the appellants in this case is that they were receivers of the stolen properties. Hence in the particular circumstances of this case, it is not safe to infer from the mere unexplained recovery of the looted articles that the two appellants were the persons who had perpetrated the crimes punishable Under Sections 394/397, 436 and 170, IPC The appellants are, therefore, guilty of an offence punishable Under Section 411. I, P. C only.

8. The result is that I partly accept the appeal of Ganga Singh and set aside his conviction and sentences Under Sections 394/397, 436 and 170, IPC an instead convict him Under Section 411, I. P. C, only and sentence him to undergo rigorous imprisonment for three years. Likewise, the appeal filed by Kishan Dan is accepted in part and his conviction and sentences Under Sections 394/397, 436 and 170, IPC are set aside and instead he is convicted Under Section 411, IPC only and sentenced to undergo rigorous imprisonment for three years. However, the period of detention, if any, undergone by the two appellants during investigation, inquiry or trial of this case and before the date of such conviction shall be set off against the term of imprisonment imposed on them and their liability to undergo imprisonment, on such conviction, shall be restricted to the remainder if any of the term of imprisonment imposed on them. I am told by the learned counsel for the appellants that both the appellants are undergoing detention since their arrests in the year 1971. If this is correct, they shall be released forthwith, if not required in connection with some other case.


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