K.S. Sidhu, J.
1. This judgment will deal with the five appeals, listed above, by the appellants, namely, Gaya Prasad, Ram Gopal, Salka, Ganeshi & Raja alias Rajendra, which have arisen out of the same trial and judgment and can, therefore, be conveniently be dealt with together.
2. By his judgment dated August 3, 1977, the learned Additional Sessions Judge, Dholpur, has convicted & sentenced the appellants as under,-
(1) Gaya Prasad to rigorous imprisonment for 5 years and a fine of Rs. 1,000/, or, in default, further rigorous imprisonment for six months under Section 395 I.P.C.
(2) Ram Gopal to rigorous imprisonment for 7 years and a fine of Rs. 1,000/-, or, in default, further rigorous imprisonment for six months under Section 397 I.P.C.;
(3) Salka to rigorous imprisonment for 5 years & a fine of Rs. 1,000/-, or. in default, further rigorous imprisonment for six months under Section 395 I.P.C.;
(4) Ganeshi to rigorous imprisonment for 7 years and a fine of Rs. 1,000/-, or, in default, further rigorous imprisonment for six months under Section 397 I.P.C.; and
(5) Raja alias Rajendra to rigorous imprisonment for 7 years and a fine of Rs. 1,000/-, or, in default, further rigorous imprisonment for six months under Section 397 I.P.C.
3. The case of the prosecution, which resulted in the conviction and sentence of the five appellants as for mentioned, is that on March 8, 1976, at about 7 or 7.30 p.m. they along with a five others, armed with guns and clubs, committed dacoity in the house of Kedar Nath PW 10 and removed ornaments worn by the women folk and decamped with those ornaments. The first information report in this case was lodged at the instance of Murari PW 16, grand-son of Kedar Nath, aforementioned. It is alleged that Murari or for that matter any other member of the household of Kedar Nath, did not go to the police to report the occurrence to them. What happened was that complainant Murari, who had sustained injuries at the hands of the dacoits had been admitted to the Civil Hospital, Bari. On receipt of information regarding his injuries and admission in the hospital, Sub Inspector Man Singh went to the hospital and recorded his statement Ex P. 12, on 9-3-1976 at about 6-15 a.m. in the morning The statement was forwarded to the police station. The first information report was registered on its basis. Complainant Murari mentioned in his statement that on March 8, 1976, at about 7.30 p m, when the bandits raided their house, his grand-father Kedar Nath along with Shyam Lal, Babulal and DataRam were sitting outside their house. On seeing the culprits, Shyamlal and Dataram ran a way Kedarnath and Babulal rushed inside the house and tried to close the doors against the culprits. They, however, pushed open the doors and effected their entry into it. They broke the petromax lamp which was burning there in the house at that time. They then caused injuries to Babulal, Kedarnath and the complainant Murari. They robbed the women fold of their ornaments. While leaving the house, they fired a gun shot hitting Mohan Singh PW 12.
4. No description of the culprits was given in the first information report. The police could not, therefore effect any arrest in this case for a long time.
5. The case of the prosecution further is that the appellants, namely, Gaya Prasad, Salka & Raja alias Rajendra along with the co accused Bhikka, who has been acquitted by the learned trial Judge, were being held by the Sepau police in case FIR No.37 of 1976, for quite some time before they were arrested in the present case. The Bari police arrested them, in the present case, on April 25, 1976. They were kept in police custody in different cases till May 3, 1976, when they were produced before a Magistrate at Dholpur. They were again formally arrested in two other cases of police station Ban on May 3, 1976 They were sent to the judicial lock-up for purposes of test identification.
6. Ram Gopal, another appellant in the present case, who too, it appears, was being held in police custody for a long time in some other case, was formally arrested in the present case on May 6, 1976. He was sent to judicial lock-up on May 7, 1976, for test identification
7. Ganeshi, the fifth appellant, surrendered himself to the Chief Minister of Rajasthan at a place called Talab Sahi in response to the appeal of the Sarvodaya Leader Shri jai Prakash Narayan, on August 19, 1976. He was sent to the judicial lock-up the same day far test identification. He remained in judicial lock-up for nearly 45 days before the test-identification could be held on October 13, 1976.
8. During the period, appellant Salka remained in the police custody, he is said to have made a disclosure statement to the police to the effect that he had pawned gold Tagri and gold Patti with Ram Bharose & that similarly he had pawned silver Lachhas and bangles with Nathi and that he could get the said ornaments recovered. The Investigating Officer claims to have recovered these ornaments, which, according to him, are stolen ornaments, at the instance of Salka from Ram Bharose PW 6 and Nathi PW 13.
9. On investigation, the Bari police sent up all the five appellants and one Bhikka for trial under Section 395, and 397 I.P.C. Bhikka was acquitted by the learned trial judge. The appellants were convicted and sentenced as mentioned in on earlier part of this judgment.
10. Shri R.N Sharma, Advocate, appearing on behalf of the appellant, Gay a Prasad, and Shri N.K. Jain, Advocate, appearing as counsel amicus curiae, for the other appellants, have read out the relevant depositions of the witnesses in the court and argued that there is nothing in the said evidence which can be said to be connecting the appellants with the charges for which they have been found guilty and punished.
11. It will be seen that so far as appellant Ganeihi is concerned, the only evidence against him consists of his alleged identification by Kedar Nath, PW 10, in the trial court, as corroborated by similar identification in the test-identification parade held in the jail on October 13, 1976. Ram Swaroop, PW 11, also identified Ganeshi in the court as well as in the test-identification parade, but the identification by him can be summarily ignored on the short ground that he had himself made an application, Ex. D.4, before the police on May 27, 1976, stating that since the dacoits had broken the only gas lamp burning in the house, thus plunging the entire house in darkness, he was not able to see any of the dacoits al the time of the occurrence and would not, therefore, be able to identify any of them The identification of Ganeshi by Kedar Nath, who did not have better lighting conditions than Ram Sawroop to see the dacoits, must, therefore, be taken with a grain of salt. It has then to be borne in mind that Ganeshi had surrendered himself to the Chief Minister of Rajasthan in response to an appeal by Shri Jai Prakash Narayan in the public view at Talab Sahi on August 29, 1976. The possibility of the presence of Kedar Nath in the large crowd, which had collected to witness the surrender of Ganeshi to the Chief Minister of Rajasthan at Talab Sahi, cannot be ruled out Moreover, it has not been explained on the record as to why the identification parade could not be arranged earlier than October 13,1976. There is, under the circumstances, a strong possibility of Kedar Nath and other persons, having seen Ganeshi during the period he was being detained in jail from August 29, 1976 to October 13, 1976 He was, during that period, being brought to the court for purposes of obtaining remand. The learned trial Judge has not correctly read the proceedings Ex P. 25 when he says that the Magistrate used to go to the jail to grant the remand. It will be seen that Ganeshi was produced before the learned Magistrate in the court at Bari on September 10, 1976, when the remand was granted till September 21, 1976.
12. That being so, Ganeshi cannot possibly be convicted merely on the basis of his identification by Kedar Nath. The said identification does not inspire any confidence.
13. Similarly, Gaya Prasad, Raja alias Rajendra and Ram Gopal, have also been convicted merely on the basis of their identification by some of the witnesses in this case. Gaya Prasad was identified by PW , Babulal, Kedar Nath and Murari. Raja alias Rajendera was identified by Babulal and Murasi. Ram Gopal was identified by Babulal and Kedar Nath. Kedar Nath could not identify Rajendra in the court. Much reliance cannot be placed on these identifications for the reasons, I am going to mention presently.
14. A perusal of the arrest memos Ex. P. 28, P. 30 and P. 21 regarding the arrests respectively of Gaya Prasad, Raja alias Rajendra and Ram Gopal, would reveal that they were being detained in police custody for a long time before they were sent to the judicial lockup between May 3, and May 7, 1976. Ex P 28 and Ex. P. 30 are the arrest memos regarding Gaya Prasad and Rajendra, purporting to have been prepared by the Deputy Superintendent of Police Liyakat Ali Khan at the time of their arrest by him on April 25, 1976. These memos do not indicate as to whether they were being arrested for the first time or they were already in custody in some other case The Deputy Superintendent of Police Liyakat Ali Khan has not been produced as a witness in this case In the circumstances, it will be reasonable to accept the contention that they were being held in police custody in some other cases even prior to April 25, 1976. In fact, there are such indications available in the statement of S.I. Prahlad Singh of P Section Bari that as on April 17, 1976, these accused were already in police custody.
15. Arrest memo Ex P. 21 regarding Ram Gopal, which purports to have been prepared on May 6, 1976, clearly indicates that he was being held in police custody even prior to that date in some other case. The prosecution has not cared to disclose on the record of the present case as to when Ram Gopal was arrested by the police in other case.
16. This shows that Gaya Prasad, Raja alias Rajendra and Ram Gopal were being held in police custody for a long period before they were sent to the judicial lock-up between May 3, and May 7, 1976. There is thus a strong possibility of the witnesses in the present case having seen them during that period. The prosecution has been rather unfair to them in withholding material evidence regarding the exact date or dates on which the three appellants were arrested in the other cases.
17. Reference may, once again, by made to the application, Ex. D. 4, a number of inmates of the house hold of Kedar Nath to the police on May 28, 1976. It will be seen that Meera Devi, Shanti Devi and Ram Swaroop had frankly told the police by way of that application that since the dacoits had broken the only gas lamp in the house, thus plunging the entire house in dankness, they were not able to see any of the culprits. If they were unable to see the culprits, it is some what difficult if not impossible, to believe that the other members of the household were able to see them.
18. For all these reasons I am not prepared to place any relience on the evidence regarding identification of these appellants by the aforementioned witnesses. On a parity of reasoning, I am not prepared to rely on the evidence of identification of Salke appellant by PWs Murari and Babulal. Salka was also being detained in police custody for a long time before he was sent to the judicial lock-up on May 3, 1976.
19 The prosecution has also relied on the evidence of alleged recovery of stolen ornaments at the instance of Salka accused PW Nawal Kishore, a police officer, has stated that on June 12, 1976, Salka made a disclosure statement in his custody to the effect that he had pawned the stolen ornaments with Nathi & Ram Bharosay & that he would get them recovered from them In this context, it will be borne in mind that Salka had been in police custody for a long time before June 12, 1976, when he is alleged to have made the said disclosure. It has been mentioned above that he was in police custody at least with effect from April 25, 1976, when the formal arrest memo Ex P. 29 was prepared about it. There is every likelihood of his having been in the police custody even earlier. He did not make any disclosure statement to the police from the date of his arrest in April 1976 to May 3, 1976, when he was sent to the judicial lockup for test identification. The police obtained his custody from the judicial lock-up on June 5, 1976, for further investigation, He did not make any disclosure to the police from June 5 to June 12, 1976. This would indicate that the so-called disclosure is not a spontaneous and free disclosure. The police has not produced any other evidence except that of the investigating officer, namely, Nawal Kishore, to prove that the disclosure in question had been made by Salka. The alleged descriers, as already stated, was not made by Salka immediately on or within a reasonable time after his arrest. It is said to have been made during the second spell of his police custody after the test identification It would be reasonable to presume that the investigating officer obtained his custody from the judicial lock up with a view to interrogate him regarding the whereabouts of the stolen property. Under the circumstances, one would expect a fair minded investigating officer to associate with him some independent witnesses at the time of the interrogation so that the disclosure, if any made by the accused carries some conviction with the court. lam, therefore, of the considered opinion, in the facts and circumstances of this case that the investigating officer purposely avoided some Motbir witnesses being associated with the investigation at the time of the making of the alleged disclosure statement by Salka.
20. The recovery of the stolen property from Ram Bharosey, PW 7, and Nathi, PW 15, is also not the type of evidence on which one may rely with certainty PW Ram Bharosey, with whom Salka is alleged to have pawned the gold Tagri and gold Patti, denied the transaction of the alleged bailment He testified that be does not even know the appellant Salka, Gore Lai, PW 5, in whose presence the recovery is alleged to have been made, did not support the prosecution story on that behalf. Chandrabban Singh PW 6, who has supported the prosecution case to this extent that the recovery of these ornaments was made from Ram Bharosey in the presence of Salka, 'dded in this context that Salka had made it clear to Ram Bharosey at that time that he should produce before the police the ornaments which had been pawned with him by some other person. It cannot, therefore, be held with any measure of assurance that the ornaments recovered by the police from Ram Bharosey had been pawned with him by Salka & that the recovery was made from him at the instance of Salka.
21. Similar is the nature of the alleged recovery of stolen property made from Nathi. Of course, Nathi has testified that Salka had pawned the said ornaments with him for Rs 300/-and that he had produced them before the police as required by Salka. No document evidencing the transaction of the alleged bailment of these ornaments had been brought on the record. PW Bhikam, in whose presence this recovery alleged to have been effected does not support the prosecution in that behalf. The other witness of this recovery Laxman Narain was not examined as the witness. I am, therefore, not prepared to hold that the ornaments recovered from Nathi had been pawned with him by the accused, and that they were recovered from him at the instance of the accused.
22. All said and done therefore, there is no definite evidence on the record to connect the appellants with the charges framed against them.
23. I, accordingly, allow all the five appeals, set aside the impugned judgment of conviction and sentence and instead acquit all the appellants, namely, Gaya Prasad, Ram Gopal, Salka, Ganeshi and Raja alias Rajendra,. They shall be released forthwith if not required to be detained in any other case.