M.C. Jain, J.
1. The respondent Ramkumar Singh was acquitted of the offences under Sections 397 and 307, IPC, by the learned Additional Sessions Judge, Churu, by his judgement dated 22.12.1972.
2. The prosecution case in nutshell, is that on 12.9.1971 at about 3.30 p.m., the accused-respondent came in the field of Mst. Anki. The respondent inquired Mst. Anki as to whose field that is. Thereupon she replied that it belongs to Swamis. The accused, thereupon asked her to handover Borla and Galsari. Thereupon she said that she will call her father-in-law. According to Mst. Anki, the accused took out the revolver and at revolver point she was relieved of her Galsari and Borla and she was again threatened not to raise any alarm, else he will fire a shot with pistol. Thereafter the accused ran away from her field. Mst. Anki raised an alarm and called Shivji Mali. It is alleged that both of them followed the accused raising shouts 'Chor' 'Chor'. The accused entered into the town of Sardar Sahar. People from the locality, hearing the alarm, chased him and at some distance in hot pursuit apprehended the accused. Before he was actually apprehended, it is alleged that the accused fired shots from his revolver aiming at some witnesses. As per the prosecution case, unfolded in the first information report lodged by Bhikamchand, Shivji Mali and Anki wife of Bhanwarlal arrived at the place where the accused was apprehended. The accused was having a bag. The occurrence was narrated by Mst. Anki that at the revolver point she was relieved of Galsari and Borla both made of gold. Both the ornaments were taken out from the bag and shown to Mst. Anki. She said that both these belonged to her. There after some persons went to the police station. The police arrived at the place where the accused was caught hold of and then Bhikamchand and others took the accused to the police station, Sardar Sahar and produced the accused along with the bag. Report of the occurrence was lodged at 5.00 p.m., by Bhikamchand. Thereupon a case under Section 392 and 307, IPC was registered. The SHO Shikharchand (P. V.8), arrested the accused and prepared the arrest and the personal search memo (Ex.P/5). The revolver and the ornaments were seized from the custody of the accused. Investigation was conducted from the witnesses and after completion of investigation, charge-sheet was presented against the accused. The accused was committed for trial to the Court of Additional Sessions Judge, Churu. Charges under Section 397 and 307 IPC, were framed against the accused. The accused, however, pleaded not guilty and claimed to be tried. At the trial, the prosecution examined P W 1 Bhikam Chand, P.W. 2 Nanuram, P.W.3 Narain Singh P.W.4, Mst. Anki, P W.5 Khinv Chand P.W 6 Baldass, P.W.7 Manakchand and P.W 8 Shikharchand. The statement of the accused was recorded, in which he came out with the version that on 12.9.1971, he was proceeding to his Susral, but as it was darkness at the bus stand, where he got down, so he concealed himself sitting waiting for the bus. He stated that he was absconding in a case registered at the Police Station, Sardar Sahar, so out of fear, be was sitting concealed on one side at the bus stand. He had a bag, which contained his wife's ornaments, namely, Borla and Galsari and also his pistol. A crowd came near him and thinking him to be a thief in misapprehension, belaboured him with 'lathis' and Kulharis. On account of which he became unconscious. When he gained consciousness, be found himself at the Police Station. The learned Additional Sessions Judge after trial found that the offence under Sections 397 and 307, IPC, are not proved against the accused in as much as no test indentification parade of the accused was got conducted and nor test indentification parade of the ornaments was got conducted. The learned Sessions Judge further observed that the Shivji Mali was a material witness, who was not examined. Besides that, he also noticed some discrepancies in the statements of the witnesses with regard to the recovery of the ornaments Khinv Chand stated that the ornaments were taken out by the accused from the pocket of his Kurta. So far as the offence under Section 307, IPC, is concerned, he took the view that despite firing several shots, no shot was effective, so the story of firing is fake. Thus finding the infirmities of nonconduct of identifiction parades and finding that the story of firing shots is incredible, acquitted the accused of both the offences. The learned Additional Sessions Judge believed this part of the version of the accused that the ornaments belonged to the wife of the accused, so ordered return of the ornaments to the accused D issatisfied with the judgement of the learned Additional Sessions Judge, the State has preferred this appeal.
3. We have heard Shri M.C. Bhati, learned Public Prosecutor, for the State, and Shri Niranjan Gaur, amicus curiae, for the acccused-respondent, and we have perused the record of the case carefully.
4. Mr. M. C. Bhati, learned Public Prosecutor, for the State, emphatically submitted that there is a fool proof case against the accused-respondent. The occurrence took place in the broad day light and the accused was apprehended in hot pursuit along with the robbed ornament, and was immediately produced before the police along with the ornaments. So in such a case, it was not at all necessary for the investigation to have hold the test identification parades for the accused and for the ornaments. The identity of the accused is fully established and cannot be doubted in the least. The accused had remained for some time in the custody of those, who apprehended him. and Mst. Anki also appeared at the place, while chasing the accused. So the reasoning, which has been employed by the learned Additional Sessions Judge, for holding that the offences under Sections 397 and 307, IPC, are not made out, is out of place. He urged that there was no reason for Mst. Anki to have chased the accused right from her field till she reached in the town of Sardar Sahar, where the accused was apprehended and there was no reason for Mst. Anki to have come out with a false case that the accused had removed two ornaments from her person. Whatever occurrence took place wit 1 Mst. Anki, there was truth in it, that is, why she followed the accused and the accused was caught in the hot pursuit. According to Mr. Bhati, from the evidence on record, namely, from the statement of P.W. 1 Bhikamchand, P.W. 2 Nanuram P.W. 3 Narain Singh, P.W. 5 Khinv Chand, P.W. 6 Baldass and P.W. 7 Manakchand, coupled with the statement of Mst. Anki (P.W. 4), it is amply proved that the accused forcibly removed the ornaments from the person of Mst. Anki and thereafter in hot pursuit, the accused was apprehended along with the stolen property. The witnesses are the residents of locality and the occurrence had taken place in mid day. There was no reason for the witnesses to have falsely implicated the accused for such grave offences.
5. Shri Niranjan Gaur, learned amicus curiae, on the other said, submitted that the first information report was also given by Bhikamchand that the occurrence war narrated by Mst. Anki to the witnesses, has not only been supported by Bhikamchand, but have also not been supported by all other witnesses. Even the presence of Mst. Anki at the place where the accused was apprehended, has not been stated by the prosecution witness and the prosecution witnesses have also not stated that the ornaments were taken out from the bag and were shown to Mst Anki. When such is the state of prosecution evidence, it was essential to have put the accused for identification and also to have put up the ornaments, alleged to have been robbed from the person of Mst. Anki, for identification. If the presence of Mst. Anki would have been stated by the witness & if the ornaments would have been shown to her at the place, perhaps it can be contended that there was no need for holding any test identification parades for the accused and for the ornaments. But when the statement of Mst. Anki is not corroborated by the prosecution witnesses, then it was essential for the prosecution to have got the test identification parades held. When it has not been got done, then there remained a serious lacuna in the investigation and the benefit of that serious lacuna and infirmity has rightly been given by the learned Additional Sessions Judge to the accused. He also urged that the story of firing of shots from the revolver, is a fake one. Even if it is found that the shots were fired, they might have been fired by the accused, just to scare away the crowd chasing him or in his self defence in a way that the shots fired may not be effective. He also pointed out that when the test identification parade of ornaments, has not been held and for want of test identification parade of the accused, it was reasonable for the learned Additional Sessions Judge to have believed the version of the accused-respondent for the delivery of the ornaments to the accused, considering them to be of his wife Thus, Shri Gaur supported the judgment of acquittal entered into by the learned Additional Sessions Judge.
6. We have given our anxious consideration to the above submission. It is to be seen as to whether any offence is made out against the accused from the evidence, which has been placed on record by the prosecution. There are tall tale circumstances and convincing evidence to the effect that Mst. Anki (P.W.4) was relieved of her ornaments at mid day and thereafter she chased the accused and the accused was even apprehended in the hot pursuit in the town of Sardar Sahar and after informing the police, the accused was produced at the police station and soon after his production at the police station, the first information report was lodged and the accused was arrested at 5.30 p.m. vide arrest memo Ex P/3 and on his personal search the articles recovered from his bag, were seized by the same memo. The revolver recovered was containing three empty cartridges and three cartridges The ornaments were separately sealed and the revolver was also packed and sealed along with the cartridges.
7. The question arises for consideration as to whether offences under Sections 397 and 307, IPC are brought home to the accused or not. So far as the offence under Section 397, IPC is concerned, the statement of Smt. Anki is to the effect that the accused aimed the revolver at her and told to kill her. As she was put into fear, so she bowed down her neck. Thereafter the accused relieved her from Galsari and Borla, which he put there in his bag and then went away. She raised alaram, but the accused again threatened her. Thereafter, she called out Shivji Mali. She went to the Bera of Shivji Mali and Shivji Mali also followed her and both of them continued to follow the accused. The evidence of the other witnesses, other than the investigating officer, is to the effect that when the accused was running, they chased him and caught hold of him. P.W. 6 Baldass has stated that one man was fastly passing running in front of his house, and, people behind were calling Chor. He also shouted Chor Chor. Manak Chand (P.W.7) also supported the version of Baldass. Bhikamchand (P.W.I) and Nanuram (P.W. 2), likewise, have also stated that the accused took a turn in a narrow lane and on inquiry from one man there, it was revealed that a man was seen running. Then he saw the accused surrounded by persons. Khinv Chand (P.W. 5) and Narain Singh (P.W. 3) have stated that Khinv Chand obstructed the accused. He was armed with Kulhari at that time. Then he carried the accused in the crowd and there he apprehended him. Thereafter the accused was produced before the police. So from the prosecution evidence in our opinion, it is fully established that the accused was caught hold of and was produced at the police station. In order to substantiate the offence under Section 397, IPC the prosecution primarily relies on that statement of Mst. Anki, because she has categorically stated that on revolver point she was relieved of her ornamints. This version of Mst. Anki that she was relieved at the revolver point of her ornaments does not get corroboration from the testmony of any other prosecu tion witnesses. Even she has not stated in her statement that she divulged the occurrence and the manner of the occurrence to the witnesses, who had collected at the time when the accused was apprehended. The first information report, no doubt, makes mention of the version of Mst. Anki as is said to have been given out by her to the witnesses at that place, but none of the prosecution witness supports that version. Even Bhikam Chand, the first informent, does not make mention of it in his statement. Thus, this part of her statement that revolver was used, in as much as she was put to fear of instant hurt or death by firing of the revolver at her remains completely uncorroborated and no witness supports this verstion. Therefore, the truth of this version can be doubted. But it cannot be doubted that Mst. Anki was relieved of her two ornaments, which she was wearing by putting her in fear of instant hurt. Such fear of instant hurt, must have been caused by the accused, else Mst. Anki would not have allowed the accused to be relieved of her two ornaments.
8. We may also consider here the effect of absence of test indentification parade of ornaments. In the instant case, the ornaments were seized by the police when personal search of the accused was taken at the time of his arrest. Non identification of ornaments is not very material in order to hold the accused guilty of the offence of robbery. Implicit reliance, so far as the relieving of Mst. Anki of her ornaments, is concerned, can be placed on her testmony. Had she not been relieved of her ornaments, in our opinion, there was no occession for Mst. Anki to have followed the accused in hot pursuit. Besides that, Khinv Chnd's statement to some extent corroborates the version given by Mst. Anki, when he stated that he asked where the ornaments are, then he took out the ornaments Galsari and Borla from the pocket of his Kurta. The other witnesses, of course, have not supported this version, but to our mind that is of no consequence, in view of the fact that soon after the occurrence the accused was caught hold of and produced before the police along with the ornaments. Mst. Anki had identified both the ornaments at the time of her statement and she has given the reasons as to how she is identifying her ornaments. In this regard her statement inspires confidence. Thus, we are clearly and firmly of the opinion that from the statement of Mst. Anki and whatever little corroboration there is on record, it is proved that Mst. Anki was robbed of her ornaments Borla and Galsari by the accused. As already stated, that if nothing would have taken place with respect to Mst Anki's ornaments, neither there would have been shouts Chor Chor, nor there would have been any occasion for hot pursuit, so the entire story leads us to this conclusion that Mst. Anki was robbed of her ornaments, which she identified in the court. It would have been of course, better if a test identification parade in respect of ornaments would have been held. But it appears that it was not held, as stated by the investigation officer, that the witness had already seen the ornaments at the time when the accused was apprehended. As regards the offence robbery, the statement of Mst. Anki gets some corroboration, but so far as the method of commission of robbery by pointing out the revolver is concerned, her statement remains uncorroborated. So considering that we find it unsafe to hold the accused guilty of the offence under Secion 397, IPC On the basis of the evidence, we have no doubt in our mind that it is proved beyond doubt that the accused is guilty of the offence under Section 392, IPC.
9. Coming to the offence under Section 307, IPC, we may state that the prosecution witness namely, Bhikamchand (P.W.1) clearly stated that when Ramkumar Singh proceeded ahead and tried to escape, but he chased him. At that time he fired a shot, but the said shot did not hit him and the shot passed by his side. Nanuram (P.W.2) has also stated that the accused fired a shot towards Khinvaram, but that also did not hit him. The accused also attempted to fire a further shot, but at that time the revolver got locked. Khinv Chand (P.W.5) has also stated that when he chased the accused and came near to him, the accusd fired a shot at him. Similar is the statement of Manakchand (P.W.7) with regard to the firing of the pistol by the accused when Bhikamchand chased him. Thus, there is ample evidence of firing shots by the accused towards the witnesses. Shots were aimed shots. Those shots passed by the side of the witnesess, so it cannot be said that the shots were fired only with an intention to scare away the crowd or the witnesses. There was no occasion for firing shot in defence as such. Simply because the shots had remained ineffective, the testimony of the prosecution witnesess cannot be taken to be false and it cannot be taken that in fact the shots were not fired. This is also a material circumstance, which corroborates the testimony of the prosecution witnesses that the revolver was recovered from the possession of the accused and the revolver contained three empties and three missed cartridges. This circumstance of recovery, renders the testimony of the prosecution witnesses credible and on the basis of the evidence of the prosecution witnesses, it can be found as proved that the accused fired shots with his revolver aiming at the witnesses. If the shots would have been effective, they would have proved fatal. So the offence under Section 307, IPC is also brought home to the accused. We, therefore, hold the accused guilty of both the offences, namely, 392 and 307, I.P.C.
10. Coming to the question of sentence, we may state that the accused had remained in custody during trial and before trial, right from 12-9-1971 to 22-12-72. Now more than ten years have passed. In such circumstances, it would not be proper to further sentence him belong the period of his custody. It would be just that on both the counts, the accused may be sentenced to the period of his custody.
11. Accordingly, the appeal is allowed, the judgment of acquittal is set aside and the accused-respondent Ramkumar Singh is convicted of the offences under Sections 392 and 307, IPC and on both the courts he is sentenced to the period of his custody. Both the sentences shall run concurrently. Both the ornaments shall be returned to Mst. Ankt.