B.P. Beri, C.J.
1. This is appeal directed against the judgment of the learned Sessions Judge. Ajmer, dated February 8, 1973, 'Whereby he acquitted Rama Kanwar Singh and Bhopa for offences under Section 380 and 457 of the Indian Penal Code.
2. Pushkar is a small town situate 7 miles away on the west of Ajmer and is an important Hindu pilgrimage. One of the biggest temples at Pushkar is Rama Baikunth Mandir also called Rangji ka-Mandir (hereinafter called 'the Mandir'. The prosecution case is that in the night in between the 26th and 27th January, 1971 a sensational burglary took place in the Mandir in which ornaments and jewellery of the value of about Rs. 4,00,000/- were stolen, It appears from the site plan of the temple that its lay out resembles a fortress having two independent ramparts with considerable space in between The temple is located in the inner rampart. The main gate of the 'Mandir' opens on the west abutting the road. There is also a gate on the northern side of the outer rampart with a well situated nearby. A lane divides Gordhan Naihji's temple and the outer rampart on the north. The burglars negotiated the outer rampart by means of a rope and the inside latch of the gate was opened The inner rampart, it appeals was also crossed with the and of a rope and locks were broken and the temple was reached wherefrom the jewellery and the ornaments from the idols were removed and broken pieces of the ornaments were found scattered there. When Rameshwar Singh (P.W, 23), the S HO. Pushkar, was taken to the 'Mandir' he found the rope, two 'sabbals'(big steel levers, lamb skin shoes, a drill and pliers etc. Out side the 'Mandir' were found two packets tied in cloth containing the silver utensils of the'Mandir'which the burglars found to be either too heavy or unprofitable to transport and were thus left behind. At the Baikunth Dwar were found a muffler and a 'chadar' stuck in. Some foot marks were noticed in the space in between the two ramparts and those foot marks went right up to the 'tiba' (a sand dune) At the 'tiba' were lying a knife and torn pieces of bus tickets and pilgrim tickets bearing the date of 26.1.1971. A report Ex. P/P 13 was lodged on the morning of 27th January. 1971, by Radha Kishan (PW 1.) at the Police Station, Pushkar and Rameshwar Singh, Station House Officer, vistited the temple on the same morning. He seized the articles that were lying in the 'Mandir' & at the 'tiba' which he considered connected with the burglary and prepared necessary documents. A site plan of the temple was prepared, which is Ex. P 15, The investigation thereafter was entrusted to Shri P.D. Upadhya (PW 24.) Circle Inspector Police Ajmer Later the investigation was taken over by Shri, Kuber Dan. (P.W 20) Additional Supretendent of Police of the Criminal Investigation Department From the list of the ornaments given by the temple employees it appeared that 1024 tolas & 8 mashas of gold besides jewels including a diamond of value were involved in the burglary.
3. A frantic search in Rajasthan and Uttar Pradesh was made to trace the burglars. It was on November 16, 197), that Rama respondent was arrested at village Tijara, District Alwar, vide Ex P/39. Kanwarsingh and Bhopa, the other two respondents, were arrested on January 29 1972 vide Exs P 42 and P 43. The prosecution case is that on the basis of the foot prints of the rubber sole Physical Training shoes that were notices at the scene of occurrence four persons appeared to have been involved in the burglary. In the course of investigation Ram Ratan (PW/12), one of the old employees of the temple, disclosed that some months before the burglary he had driven out three suspicious trespassers from the temple one night and Rama was one of them. With the aid of the torn bits of the bus ticket Ex/25 & Ex P/23 and Ex.P/24 dated 26-1-71 which are the pilgrim ticket the Investigating Officer was able to trace Amir Singh (PW/18) who was the Khalasi of the passenger bus No. RJQ 3662 which ran between Ajmer and Merta via Pushkar. Amar Singh deposed that on January 26, 1971 when he was working as Khalasi of the aforesaid bus three persons boarded the bus enroute sat near him and he had an argument with them because they wanted to get down ahead of the Pushkar bus stand. He identified in the identification proceedings Rama Karwar Singh and Bhopa as three passengers.
4. On the Ajmer-Pushkar road there is a temple of Ramdeoji, which is served by Jai Siyaram PW 19 & from him the prosecution got the information that in the temple there was a(sic) and a curved bamboo stick meant for carrying buckets. These were stolen from the temple of Ramdeoji and he was able to identify these articles which were recovered from the 'mandir' on the morning or 27th January, 1971 soon after the burglary.
5. Laxman Singh PW 10 was located by the investigation and he said that he is the only butcher who does 'jhatka in Ajmer and sells such meat and Rama respondent had purchased from his shop at Delhi Gate, Ajmer a lamb skin, which was the same out of which the shoes recovered from 'mandir' were made.
6. Nisar Ahmed PW 7 was examined by the prosecution to show that he carries on the business of a blacksmith at Sojat Road, District Pali, opposite the Railway Station The two 'sabbles' which were recovered from the 'mandir' were made by him He identified two persons in Ajmer Jail, namely, respondents Kanwarsingh and Bhopa.
7. The persecution also relied on the information given by Bhopa Ex P/44 on January 20 1972, in consequence of which ornaments of the 'mandir' were recovered weighing 109 tolas 7i mashas. Kanwar Singh gave information on the same day, which is Ex P/45, as a result of which gold ornament pieces weighing 297 tolas 3 mashas belonging to the 'mandir' were recovered. And Rama furnished information Ex P 46 on 21-1-1972 pursuant to which ornaments weighing 537 tolas 4 mashas of the 'mandir' were recovered. Evidence was also led to show that these ornaments were of the idols of the Mandir Bhopa gave further information Ex P/50, as a result of which gold weighing 15 tolas was recovered from Ramesh Chander Kapoor of Hardoi on 26,1, 1973. Thus 943 tolas and 14 mashas of gold ornaments of the 'mandir' were recovered in Ajmer at 3 different places and 15 tolas lump of gold was recovered from Hardoi in U.P. In all 24 witnesses were examined by the prosecution in support of its case.
8. All the three accused-respondents denied their complicity in the crime. Rama made a long statement shoving how he was shifted from police station to police station and tortured, harassed and humiliated and he has also made allegations that his father's sister Parvati and his sister Mst. Jiwa and other relations were also humiliated. He stated that he had moved habeas corpus petition in the High Court and produced the certified copies of letters dated 8-9-1971, 3-9- 1971 and other letters. No defence witness was examined
9. The case was put up before the Munsif-Magistrate, Ajmer West who after necessary committal proceedings committed all the three accused to face their trial before the learned Sessions Judge, Ajmer.
10. The learned Session's Judge found that burglary had taken place in the night in between the 26th & 27th Jan, 1971, in the 'mandir' in which gold ornaments were stolen but he disbelieved the identification of the accused due to the lapse of time between the date of the Occurrence and idenification and because there was opportunity when the accrsed could have been seen. He further disbelieved the testimony of RamRatan PW 12, Amar Singh PW 18, Nisar Ahmed PW 7, Jaisya Ram PW 19 and Laxman Singh PW 10 because of the long interval of time. He, however, found that the ornaments recovered belonged to the 'mandir' but he found that the informations alleged to have been given by the accused were in a hackneyed form; that no witnesses were called when the information was given to lend support to the version of the Police officer who recorded it. There was no explanation observes the Sessions Judge why Rama did not make any disclosure earlier that he did although he was in continuous interrogation between 16-11-1971 to 21-1-1972; that no sensible man would have buried the ornaments so close to the main road and inhabitated place and a furlong away from the Police Post and therfore, he concluded that the alleged recovery at the instance of the accused was not free from doubt and the witnesses did not inspire confidence. Regarding the recovery of 15 tolas of gold from Ramesh Chandra PW 21 of Hardoi the learned Judge did not rely on the link because it was a lump of gold and he accordingly found that the complicity of the respondents with the crime was not proved and he gave the benefit of doubt to the respondents and acquitted them. The State of Rajasthan has come up in appeal.
11. Before the learned Sessions Judge it was conceded by the defence that there was house breaking by night in the 'mandir' and jewellery & ornaments were stolen by some miscreants. The learned Counsel for the respondents before us also did not contest the fact that a burglary had taken place in the 'mandir' in between the night of 26th and 27th January, 1971 and that gold ornaments and jewels were stolen. We have also examined the evidence on this point ourselves and the tell tale circumstances in the 'mandir' on the morning of the 27th January, 1971, when there was a rope hanging on the rampart, locks were found broken, ornaments were found snatched from the idol and remanents were lying scattered in the 'mandir' together with the existence of lamb skin shoes, 'sabbals', pliers drill etc. were lying in and about the 'mandir' that it was burgled. The further circumstances of packets of silver ornaments packed in cloth were lying out side the 'mandir' leave no doubt in our minds that a bouse breaking in between the night of 26th and 27th January, 1971, was committed in 'mandir' where property was kept in safe, custody. We are in agreement with the conclusions reached by the learned Sessions Judge, who has relied on the evidence of the temple employees, namely Radha Kishan (PW/1), Bhanwarlal (PW/2). Norat (PW/3), M.V. Rama Swami (PW/4), Surjeet Singh (PW/11), Ram Ratan (PW/12). A K. Rajgopalcharya (PW/16), Umesh Chandra (PW/17) and S.H.O. Rameshwar Singh of Pushkar Police Station (PW/23) that house breaking in the night intervening 26th and 27th January, 1971, was committed in the 'mandir' and the ornaments and jewellery as alleged were stolen from the different idols installed therein.
12. What was strenuously urged by Mr. M.B.L Bhargava on behalf of the complainant an supported by the learned Additional Advocate General on behalf of the State was that the finding of the learned Sessions Judge in regard to the complicity of the accused-respondents with the crime is perverse.
13. It is dot disputed that there is ho direct evidence connecting the respondents with the crime and we shall have to examine the circumstantial link on which rests the prosecution case to see if the prosecution has succeeded in bringing home the guilt to the three respondents or any one of them beyond reasonable doubt. Therefore, we shall examine each link separately and consider the criticism levelled against it by the learned Counsel for the parties.
Rama's visit to the temple on the night of Kartik Sud 14 about 15 months before the burglary:
14. The only witness on this point is Ram Ratan (PW/12) His statement is that he is a servant of the 'mandir' for the last 12 years; that about 15 months before the date of burglary at about 11 or 11: 30 P.M adjoining his quarter 3 strangers were found lying in the Tibara He questioned their identity, asked them for their reference and argued the matter for about 15 minutes with them and because these strangers failed to satisfy him with regard to their respectability he drove them out of the temple premises where this witness's residential quarter is situate. His statement was recorded by the police on 23rd February, 1971, An identification parade was held in Jail on February 4, 1972, the record of which is Ex. P/9 and he identified Rama as one of the three strangers who were lying in the Tibara. His evidence has been disbelieved by the learned Sessions Judge on the ground that it was not Possible on account of the long interval between the day he had seen Rama in the Tibara and the day he was called upon to identify him in fail on 4th February, 1972 Mr. Bhargava commended Run Ratan's evidence for our acceptance and placed reliance on Khilawan v. Emperor 29 Cr. L.J. 1009 (1014); In re Kallameedi Chenna Reddi 42 Cr.L.J 582 Tahsilder Singh v. State : AIR1958All214 and Delhi Administration v. Bal Kishan : 1972CriLJ1 Mr. Purohit appearing for the respondent Rama and Kanwar Singh urged that it was highly improbable that this witness would have been able to identify Rama after about 27 months and he also submitted that Ram Ratan was an interested witness. Mr Purohit cited Pritam Singh v. State of Rajasthan AIR 1971 Raj 184 and Sheo Raj v. State : AIR1964All290 Rama in his statement has said that he was placed at the western gate of the 'mandir' for 3 days so that witnesses were able to identify him. The question for our consideration is whether Ram Ratan (PW/12) should be believed when he says that Rama was one of the 3 strangers who had been to the 'mandir' and was found in the Tibara many months ago in suspicious circumstances.
15. Facial recognition of a human being is dependent on the particular quality of memory. Detailed observation, clarity of image, its retention and recall are the obvious steps in the process. They differ from person to person and from occasion to occasion. The intervention of time between observationand recall is certainly a relevant factor in determining the reliability of recall but it would be hazardous to fix a universal measure of time after which recall should be necessarily disbelieved. All that a Judge in appreciating evidence has to do is that when there is a long period intervening the observation and recall without any repetition of observation in between the last observance and recognition lending assistance to either process; the Court has to be cautious. This is what the Supreme Court has precisely observed in the Delhi Administration's case : 1972CriLJ1 , and the words employed by the Hon'ble Judges are significant in the background of the facts they were deciding. A dacoity had taken place on the 30th September, 1965; the applicants were arrested a month later but there was no test indentification; the trial commenced in December, 1966 and the witness had indentified the dacoits nearly 14 months after the alleged dacoity; the accused were unknown to the witnesses and in this context it was observed, 'Indeed it cannot be laid down as a proposition of law that after the lapse of a long period, witnesses would, in no case, be able to identify the dacoits they had seen in the course of a dacoity committed during the night However, the courts will have to be extremely cautious when such evidence is before them.'
16. We might add a word about the authorities on which Mr. Purohit relied. Mehta J. of this, Court in Pritam Singh's case AIR 1971 Raj 184 held that the value of identification depends on two most important factors viz., that the person who identities an accused had no opportunity of seeing him after the commission of the crime; and secondly that no mistake had been made by the witness. He has further observed that when no explanation comes forward as to why so much time elapsed between the arrest of the accused and the identification proceedings identification cannot be said to be proper. In this context it was urged that Rama was arrested on 16-11-1971. How is it that he was identified on 4-2-1972 An explanation on this aspect could be only had form Mr. Kuber Dan (PW/20) but no question was directed to him. The delay in identification, in our opinion, merely decreases the ability to recall and unless it is shown by reliable circumstances that this opportunity was utilised for showing the suspect to the witness nothing else turns on this. The other case relied upon Sheoraj v. State : AIR1964All290 , to our mind does not help to decide the point at issue. It is not necessary to examine any other case because no principle, as we have already observed; can be formulated fixing the time interval after which a witness's ability to identify should be ruled out. We have gone through the evidence of Ram Ratan and we have also carefully read the statement of accused Rama. Ram Ratan is no doubt a servant of the 'mandir' but he has no reason to speak alie against Rama. What impresses us is that he was only able to identify Rama and not his two companions He does not impress us as a witness, who was out to oblige the prosecution. Added to this circumstance is the fact that Rama, as would be evidenced from the long drawn meticulous statement he has made appears to be a person who can cannot be called inarticulate. When the identification parade took place in which Ram Ratan identified him on 4th February, 1972, we find from Ex. P/9, column 10 that he was completely silent in regard to the complaint that he was ever shown to the witness anywhere In the cross-examination RamRatan was asked if he had told the police about the features of the 3 persons, the three trespassers of the tibara and the witness answered in the affirmative and no further cross-examination is directed against him on this point. There was an argument between these 3 person and the witness which lasted for about 15 minutes when he had observed the trespassers with questioning eyes, suspicious as he was, and had seen them from close quarters We, therefore, rely on the evidence of Ram Ratan (PW/12). We are conscious that this link merely proves the fact Kama visited the temple and wanted to spend one night in the 'mandir'.
The Danda and the rope:
17. According to the prosecution on 24-12-1971, Rama gave informal on to the police that he could point out the temple at which he and his companions had slept during one night. This is Ex. P/40. Pursuant to this information Rama led the police to the temple. Of this temple Jai Siyaram (PW/19) is the attendant. He has deposed that the police people had brought a thief to the temple along with two witnesses, the face of the thief was covered. The witness was called upon to identify before the Magistrate one rope made of coconut fibre and one bamboo stick on 31-12-1971 which were stolen from the temple of Ramdeoji. According to the witness one end of the stick was shaved to convert it into a hammer and the stick was bent bacause it was used for carrying buckets on its either end. The endeavour of the prosecution thus is that these two articles Exs. 2 and 89 belong to the temple of Ramdeoji; that they were stolen; the accused gave information to the police that he could get the temple discovered by leading the police to the place and he did so and the rope Ex. 2 and the bamboo stick Ex 83 were recovered from the 'mandir' on the morning of 27th January, 1971. The first question is whether the discovery of the temple is admissible under Section 27 of the Evidence Act and the second is whether Jaisiya Ram is reliable From Ex P/40 dated 24-12-1971, the facts discovered are that there is a temple of Ramdeoji on Ajmer-Pushkar road and that Rama, Kewal, Kanwar Singh and Bhopa slept in the temple. Ramdeoji's temple had been presumably existing for some time and merely Rama's statement that it is there is hardly a discovery. What was discovered was that he along with 3 companions had slept one night. Mere discovery of this fact is not relevant to the commission of the crime of burglary in between the night of 26th and 27th January, 1971, at the 'mandir' unless there is some evidence to connect that it was on that night prior to the commission of the offence that these persons had slept there. Rama's statement in Ex.P/10 does not disclose which might he meant An inference is sought to be drawn from the fact that a 'danda' and a rope ware recovered from the 'mandit' where those were utilised for the commission of burglary on the night of 26th and 27th January, 1971 and Jaisiyaram identifies them stating that they were stolen from Ramdeoji's temple. As has been laid down by the Privy Council in Pulukuri Kottaya v. Emperor AIR 1941 PC 67 that unless the fact discovered is relevant for proving the offence of which the accused stands charged it cannot be said to be relevat. We are, therefore, extremely doubtful if the discovery of this fact that they had slept in that temple on one night, we might repeat which night we do not know, is hardly relevant. We are equally doubtful whether a common place article, such as a rope, could be identified by an admittedly short sighted person as Jaisiyaram (PW/19). We are also of the opinion that although the 'danda' has some characteristic marks namely, shaving at one end and a curvature in its body but they are not such features which could not be found in another 'danda'. We do not also know the exact date when they were stolen. We are not impressed by the argument of the learned Sessions Judge that the story is incorrect because no first information report was made in regard to the theft because people feel often shy of making first information reports of petty thefts. However, if a report had been made this might have helped in discovering the link between the theft of these articles and their eventual recovery in the 'mandir' coupled with the fact of Rama and his companions having slept during that night in the temple. We are, therefore, unable to attach any significance to this link.
Lamb Skin Shoes:
18. At the time of the inspection of the 'mandir' a pair of lamb skin shoes with cotton soles were found lying. They are Ex. 5. The suggestion of the prosecution is that lamb skin shoes were used to eliminate foot prints of the perpetrators of the crime. Laxman Singh (PW/10) has stated that he is a butcher who sells Jhatka meat. A year and a half back from the date of his examination on 4 11-1972 he sold to a person whom he later identified as Rama a lamb skin from his Delhi Gate shop at Ajmer for Rs 3/-. The lamb was of white colour and he says that he is able to identity Ex 5 to be made of the same lamb-skin which he had sold to Rama because he had killed the lamb and he had identified it in the identification proceedings Ex. P/11 The reasons given by him tor his being able to distinguish it from other lamb skins is that it contained red spot made by the seller and the other reason was that the hair of the lamb were cut by a pair of scissors. The witness had not given nut these particulars to the Magistrate at the time of the identification proceedings and in our opinion these distinguishing marks are not so uncommon in character hat we may rely oh this link.
The Recovery of Sabbah:
19. At the time of the investigation on 27-1-1971 at the Mandir 2 'sabbals' articles 6 and 7 were recovered. The police was able to locate Nisar Ahmed (PW/7), a blacksmith who carries on bu iness opposite the Railway Station of Sojat Road He has stated that some time in November, 1971, police officers had come to him and had shown to him two 'sabbals'. He was able to identify those two 'sabbals' to be those which were made by him. He stated that two or three persons had come to his shop. They wanted to get the 'sabbals' sharpened because they required to use them as truck tyre levers. He did the job on payment of Rs. 5/- and identified Exs. 6 and 7 to be those 'sabbals'. He has further stated that these two or three persons had remained in his shop for one hour In cross-examination he says that he was unable to give the month or the date when these people had come to him but he has added that he never had an occasion of sharpening 'sabbals' of the dimensions of which Exs. 6 and 7 are and that is the reason why he was able to identify them. In the course of identification proceedings Ex.P/12 dated 4-2-1972 he identified Kanwar Singh and Bhopa as the persons who had come to him for getting the 'sabbals' made. The criticism levelled against Nisar Ahmed's evidence is that because he identified Kanwaf Singh & Bhopa after such a long time the learned Sessions judge was not impressed with his evidence. Another argument advanced against the identity of the 'sabbals' is that on 27-1-1971 these two articles were sealed & the police opened these articles to show them to the witness. In this context it will be relevant to remember that the evidence of an identifier at the time of trial when he identifies incrimnating article can find corroboration if he had identified it before the police Reference in this connection may be made to State of Rajasthan v. Shiv Singh . We have gone through the evidence of Nisar Ahmed. He is a young man and no reason has been suggested why this resident of Sojat Road has come forward to identify the 'sabbals' falsely. We have also seen the 'sabbals', the dimensions of which are indeed formidable. They are heavy and long with attenuated ends and pointed curves. The broken locks of the 'mandir' premise?, which were recovered on 27-1-1971 were also seen by us. The interior of same of these locks have peculiar dent marks It is not unreasonable to think that some of those locks might have been broken open with the aid of the heavy 'sabbals'. We see no reason to disbelieve the evidence of Nisar Ahmed. The learned Sessions Judge has given no specific reason for rejecting the testimony of Nisar Ahmed excepting the common ground that the interval between his seeing the persons and identifying them was a long one. We have already observed that the ability to recognise a man after a long time is an individual quality for which no universal rule can be safely laid down. Nisar Ahmed had an hour long to be with his customers.
Travelling by bus:
20. Coming closer to the burglary of 26th and 27th January, 1971, is the evidence of Amar Singh (PW/18). It will be recalled that at the 'tiba' Rameshwar Singh P.W. 23 found torn pieces of bus tickets of RJQ 3662 and pilgrim tickets of Pushkar Municipality bearing the date of 26-1-1971. The police traced the vehicle and Amar Singh was examined op January 30, 1971. Three persons had boarded the bus at Chamar Ghati of which Amar Singh was the khalasi when the bus was going from Ajmer to Merta via Pushkar. Thus these three passengers did dot board the bus at its stand but enroute. They were thus distinct from the common passengers. The second circumstance which is material in this link is these passengers sat very near the witness in the course of about 6-mile journey to Pushkar. The third circumstance is that these passengers wanted to get down at an unusual point, namely, the Higher Secondary School, Pushkar and there was an argument with the witness and he declined to oblige them. This witness when taken for identification proceeding on 27-11-1971 he identified Rama vide Ex P/10 and on another identification parade vide Ex.P/8 dated 11-2-1972 he was able to identify Bhopa and Kanwar Singh as the other two passengers who had hoarded the bus at Chamer Chati, Ajmer- The learned Sessions Judge disbelieved the evidence of this witness broadly on 3 grounds. The first was that he identified Rama, Bhopa and Kanwar Singh after such a long period. The second was that it has not been proved that he was the Khalasi of the bus RJQ 3662 on the material date and it has been further observed that this witness came for the first and the last time, on Ajmer-Merta via Pushkar route. And lastly it was said that there is a discrepancy between his police statement in which he had said that conductor Vikaram Singh had given the tickets whereas in the Court the witness stated that it was he who had given the tickets to these three passengers.
21. Amarsingh is a young man of 23-years who is now employed in the Army. We have no reason to disbelieve him when he says that in 1971 he was a Khalasi of bus RJQ. 3662 We are unable to appreciate the argument of the learned Sessions Judge that in order, to prove that he was a Khalasi of the said bus the owner of the bus ought to have been examined or some other evidence should have been adduced to confirm this fact. His statement was recorded as early as 30'th January, 1971, by the police and he had disclosed this fact that he was the Khalasi of the vehicle, the tickets of which were found in torn bits in close proximity of the scene of the offence. The criticism that this was his solitary trip between Ajmer and Merta as observed by the learned Sessions Judge is apparently a misreading of the evidence. All that witness ha said was:
EkS ml ekg es ikcrh ijo'k crkSj [kyklh esM+rk ls vtesj vk;k Fkk A ifgys es fcykM+k dh :V ij pyk Fkk A esM+rk vtesj :V ij eS ifgys vk;k gawxk A ysfdu dc dc vk;k Fkk ;g ;kn ughA
The learned Sessions Judge has observed, 'According to him he came for the first time on this route and thereafter also he did not come This fact that he was not coming on this route and he came on this route on that date only, also creates doubt in his veracity.' In our opinion the learned Sessions Judge has acted on a wrong impression of the witness's evidence and doubted, his veracity for this incorrect reason It will be well to remember that it was in January 1972 that the witness left his job as a Khalasi and joined the Army. It is, therefore, not correct to say that, he never came on the Ajmer-Merta route any time after 30th January, 1971 because the witness had not said so. The cross examination merely was whether he had come on that route earlier than the 26th January, 1971 We find, therefore, that the learned Sessions Judge's appreciation of the evidence of this witness is gravely erroneous. We have gone through the evidence of this witness and the minor discrepancy that he stated before the police that Vikram Singh gave the ticket is pitted against his statement in Court that Vikram Singh issued the ticket and he gave them to the passengers to our mind only shows that the statement before the police was brief with emphasis on the issuance of the tickets and not on the physical delivery of the tickets. In the Court he has said, and we have no reason to doubt, that Vikram Singh issued the tickets and he passed on the tickets to the passengers presumably because they were sitting nearby him. It is common knowledge that the conductor issues tickets and not the Khalasi. We have no reason to doubt the testimony of this witness because there are two strarge circumstances that may have imprinted on his mind the identity of these three passengers. Firstly, because they boarded the bus at an unusual point of the route and also because they quarrelled to get down at the Higher Secondary School, Pushkar which is not a normal bus stop, and the argument ensued between him and the 3 passengers. Therefore, to our mind it is fully proved that these 3 persons, namely, Rama, Kanwar Singh and Bhopa had travelled by a bus RJQ 3662 to Pushkar on the evening of the 26th January, 1971, as the date borne by the tickets.
Recovery of Ornaments persuant to information under Section 27, Evidence Act;
22. On 20th January, 1972, Bhopa gave information under Section 27 of the Evidence Act to the Additional Superintendent of Police Shri Kuber Dan, which when translated broadly is to the effect that ' I have buried the gold ornaments of Rangji's temple on the Ajmer-Pushkar road near Rangi's temple on the roadside in an enclosure. I can point out the place and get the goods recovered.' The is Ex. P. 44. On the same day Kanwar Singh respondent gave an information to the same officer that ' I have buried in earth the gold ornaments of Rangji' temple on Ajmer-Pushkar road in an enclosure, which is opposite to a poultry house and the place where I have buried it is near a well. I can show you the place. ' This is Ex P. 45. On January 21, 1972 Rama gave an information Ex. P. 46 to Shri Kuber Dan, Additional Superintendent of Police, which when translated is to the effect that 'The ornaments of Rangji 's temple I have buried in earth on the Ajmer-Pushkar road beyond the Police Chowki on the left band side here there is 'a chabutra' and graves. It is near the 'chaupar' that the ornaments have been buried, which I can show you. ' According to the prosecution evidence Kuber Dan (PW 20) these informations were recorded by Mr. Pushkar Datt Upadhyaya (PW 24) and the portions in these 3 documents X--Y are the words of the accused--respondents. Two 'motbirs'; namely, Nathmal (PW/5) and Guman Mal (PW/9) were called by the police. Mr. Kuber Dan has stated that Bhopa and Kanwar Singh repeated the information given to him before these witnesses as well Thereafter on 20th January, 1972, itself Bhopa along with a police guard sat in one vehicle and in another vehicle the 'motbir' witnesses, Kanwar Singh and the police officers sat and they proceeded to the place as mentioned by the accused in Exs.P 44 and 45 Both these accused, it is added, were kept ''baparda' First they went to the place which was disclosed by Kanwar Singh and when the vehicle reached near the CRP, Hospital, Kanwar Singh asked the vehicle to stop and they got down, Kanwar Singh leading. Near the hospital there was an enclosure Kanwar Singh entered that enclosure. This enclosure was on the northen side of the hospital and its opening was closed by loose stones. It was negotiated The police officers followed Kanwar Singh and went up to the well. Kanwar Singh pointed out the place on the northern side of the well and started digging. He duga 1 cubit wide pit and about a cubit and a half deep and took out gold oranments. The Fard Baramdgi (seizure memo) Ex P/27 contains a list and there are as many as 21items together with their weights indicated against each item. We might mention here that there are some items which deserve specific mention, for we shall have occasion to discuss their importance Item No. 1 is a Satari made of gold It is in the nature of a cap which a devotee has the honour to wear on his bead when he enters the temple and on the top of this cap there is a pair of 'khadaori' presumably evidencing reverence to carry the Dairy's foot-wear on the head. It weighs 64 tolas of gold. Item No. 4 is a 'Putli-ka Har' in two strings and on every 'putli' which is a smal oval piece of gold, is engraved on one side 'Shri Ram Baikunth Pushkar Shriram' weighing about 21 tolas. We have already given the weight of the recovery as 297 tolas 3 mashas of the ornaments in the earlier part of our judgment. Kanwar Singh was then entrusted to the guard along with the valuables recovered at his instance and the police party took Bhopa with them and proceeded.
23. The police party headed by Mr. Kuber Dan, Additional Superintendent police along with Bhopa and motbirs proceeded for about a mile and a half from the point where they had left Kanwar Singh and reached an enclosure which was once a dog pound. Bhopa led the party to the compound wall towards Pushkar and pointed out the place where he had buried the ornaments of the Mandir. He dug a put 1' x 14' x 1' and pulled out ornaments which Mr. Kuber Dan collected on a sheet of cloth. The party then came to the place where they had left Kanwar Singh, prepared a memorandum for the recovery of the goods and sealed the same. This is Ex P/28. what is worth noticing in the recovery list are one 'janeoo' of gold intertwined and broken at one place weighing 16 tolas 11 mashes; one part of the gold armour used by the idol on which were embedded precious stones. In all 16 pieces were recovered weighing 109 tolas 7 mashas.
24. After Rama had given information on 21-1-1972 two 'motbirs' were called. They are Ganeshilal (PW/6) and Ramdhan (PW/8). In the presence of the two witnesses Rama also repeated that he was willing to get the gold ornaments of the 'mandir' recovered. They proceeded in a car along with Mr. Kuber Dan on Foysagar Road, Ajmer and Rama asked the car to stop. The party got down, Rama leading. They went near the crematorium of Gosaieens upto a point where there is a 'chaubara'. Rama pointed the place near the chabutra' where he had buried the gold ornaments. He dug the the place 2' x 2' x 2' and brought out the ornaments which Mr Kuber Dan collocted in a sheet of cloth. A goldsmith was called, the ornaments were weigned and a memorandum of recovery containing the list of ornaments, which is Ex. P/29, was prepared. The motbirs signed the list. What is important in this list may be noticed here The front portion of the gold armour (kawach), used on the idol weighing 77 tolas 6 mashas; the front lower portion of the armour (kawach) which was bent and weighed 74 tolas 9 mashas, and the back portion of the gold armour weighing 132 tolas 14 mashas and one necklace of 'putli' on each one of the oval piece which we have ourselves examined are engraved the words 'Shriram Baikunth Pushkar Shriram' weighing 12 tolas 13 mashas, etc. The total number of items recovered were 11 weighing 537 tolas 4 mashas.
25. The learned Sessions Judge has disbelieved this recovery on the following grounds: 1. That the information given to the police officer were in a hackneyed form; 2. that no independent witnesses were called when these statements were made by the three accused persons under Section 27 of the Evidence Act; 3. that there w,as no reason why Rama who was admittedly arrested on 16-11-1971 chose to give the information on 21-1-1972; and 4 that the place where these ornaments were buried was near the road and in proximity of inhabitated area and near Police Chowki and it was highly improbable that the accused would have buried them there.
26. Mr. Purohit, learned Counsel for the respondents Rama & Kanwar Singh and Mr. Radhey Shyam Sharma for Bhopa not only supported what the learned Sessions Judge has observed but Mr. Purohit added additional four arguments why this recovery should be disbelieved Firstly, he urged that the investigation was unfair and placed reliance on Ghazi and Ors. v. The State : AIR1966All142 , Amin v. The State : AIR1958All293 Secondly he urged that the statei-ments of the motbirs are silent as to the burying of the ornaments by the respondents and that there were discrepancies in the statements of these 'motbirs'. Thirdly he urged that Rama was fortured before the alleged information and it should be excluded on that account because it amounted to a testimonial compulsion and he cited State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 . Fourthly he argued that the identification of these ornaments before the learned Magistrate Shakti Dan was farcical.
27. Let us now examine whether the ornaments recovered pursuant to the informations given by the accused-respondents did or did not belong to the Mandir and were the subject matter of the burglary.
28. We might repeat here that at the 3 places parts of the same 'kawach' (gold armour) were recovered & in two places the 'putli hars' bearing the engraved name of the 'mandir' were recovered. The ornaments that were left in the 'mandir' in broken pieces at the time of the commission of the offence were also exhibited as Ex. P. 19 and some of those remnants we set with the portions recovered pursuant to the aforesaid three informations and we found that they fitted with one another. From the nature of the ornaments, from the fitting in of the broken parts found in the 'Mandir' and from the evidence of the temple 'pujari' who used these ornaments for 35 years and who identified them, we agree with the learned Sessions Judge that there is no doubt whatever that the ornaments recovred pursuant to the informations were of the 'mandir' and were in use of the idols of the 'mandir'.
29. We might observe that there is substance in the criticism leveled by the learned Counsel Mr. Purohit that the identification proceedings conducted by Shri Shaktidan (PW/14) the Magistrate of these recovered gold ornaments are unreliable. Shri Shaktidan tells us that a peon of his brought the ornaments or identical nature from the town of Ajmer and he was able to get a number of them and mixed these procured samples with the suspected items and the witnesses were able to identify them. We are no prepared to believe that having regard to the nature of the items, their weight and value that any body would ordinarely possess and readily provide such broken items as torn gold armour a 'satri' and 'putlihar' to be mixed up with the recovered articles. It is contrary to human behaviour to expect that gold weighing thousands of tolas could be easily collected by a peon to facilitate the identfiction proceedings. We are, therefore, not inclined to place any reliance on the identification proceedings conducted by Mr. Shakti Dan (PW/14). Notwithstanding this we are more than satisned for the reasons already stated that the gold ornaments recovered pursuant to informations belonged to the 'mandir'.
30. The first argument which has appealed to the learned Sessions Judge is that it was impossible for all the accused to have employed identical language in their statements made to the police officer under Section 27 of the Evidence Act and, therefore, such mechanically recorded statements should not be believed. Exs. P. 44, P. 45 and P. 46 are the three statements made by the accused respondents. Each one of these may be divided into three parts. The first what we may call is the subject-reference. The second is the description of the location where the property is buried, and the third is the offer made by the accused as to what he was going to do. It is true that the subject reference of all the three informations is in identicial language. The words employed are:
iq'dj es jaxth ds efUnj dk eky tsoj lksus dk A
The second part, which relates to the location, is different in each one of these statements, and the third part is also not idenfical. The third part so far as Bhopa is concerned reads:
eS pydj txg crk ldrk gwWA og eky cjken djok ldrk gWWw A
It is Ex. P/44. In Ex. P/45 the statement of Kanwar Singh he says:
dq, ds ikl tehu es xkM+ j[kk gS A eS pydj crk ldrk gW A
The third part of Ex. P/46, the information given by aceused Rama reads:
ogkW ckckjk ds ikl eSus tehu es xkM+ j[kk gS tks eS crk ldrk gwW A
The subject reference of the property could not be different in the very nature of things. The 'mandir's popular name is Rangji-ka-mandir. The location is plainly different in each one of these three informations. The method of concealment in each one of them is the burial in the ground and if they have employed the words 'gadh rakha hai' that means it has been buried. The criticism is of no substance because ail the three accused persons evidently come from the same level of the society. Rama and Kanwar Singh being brothers and Bhopa their caste follow and it is futile to expect any sophisi' cated description. The learned Sessions Judge has not cared to analyse the the statements and has in a sweep dubbed them as hackneyed. Ordinarily hackneyed means common place or trite. We are unable to appreciate how informations regarding the burial of stolen property could be deseribed by the respondents in an original style.
31. The second argument which appealed to the learned Sessions Judge and which has been pressed before us by Mr. Purohit is that the accused respondents had given the information in a populous city like Ajmer which has no dearth of witnesses. Therefore, prudence required that when the accused were going to depose before the Additional Superintendent of Police Mr. Kuber Dan, independent witnesses ought to have been called to lend assurance to the fact that such statements were made. Mr. Purohit has placed strong reliance on an authority of this Court in Kammu v. State ILR (1964) 14 Raj 715 and Mr. Bhargava has relied upon another authority of this Court in Dharma v. The State AIR 1966 Raj 74, to which one of us was a party, and the Public Prosacutor v. Bhe-ampati Subba Reddi 40 Cr.LJ. 433 a decision of the Madras High Court The plain language of Section 27 of the Evidence Act is that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered, may be proved, The section nowhere requires the presence of independent witneses before whom the information may be given. In our opinion, if the presence of independent witneses was insisted before an accused gave information in some cases the information may not be forthcoming. An accused may give information to a police officer while in custody for diverse motives. It may be the cry of his conscience to satisfy which he may want to make a clean breast or it might be a remorse, the pangs of which he can no longer endure; or it may be to mitigate the gravity of the offence and the consequential punishment by bringing true facts to the notice of the investigating agency as for some superstitious motive. These moments when an accused wishes to divulge if they are not caught in time the accused may change his mind and the opportunity of bringing an offence to book may completely be lost. In fact the Madras High Court in The Public Prosecutor's case 40 Cr.LJ. 433 has observed that where the witnesses were sent for by the Circle Inspector to go to the police station where the accused were kept in custody, and when they arrived there, the accused was brought out of the lock-up and examined by the Circle Inspector in their presence this meant that the Circle Inspector knew before hand precisely what the accused were going to say. His procuring the presence of the witnesses and others who signed the panchayatnama was a mere farce. The learned Judges held 'It was impossible to say that anything was discovered in consequence of the statement made by accused to the Inspector.' The law has trusted a police officer to record the information given to him by an accused in custody because the truth of the information ultimately finds guarantee from the discovery of the fact we have observed in State v. Amar Sing ILR (1961) 11 Raj 154 to which one of us was a party that the discovery on account of an information itself is a guarantee of the truth of the statement made by the accused person, In the ultimate analysis the principle behind the provisions of Section 27 of the Indian Evidence Act is that whenever a thing is discovered as a result of information given by an accused person, the danger of admitting confessions to the police officers disappears and the confession stands confirmed by facts The discovery affords guarantee in regard to the truth of information itself. Kammu's case ILR (1964) 14 Raj 715 was considered by us in a Division Bench authority Sharma v. State AIR 1966 Raj 74 and which in our opinion is the correct law, where we have made the following observations:
The learned Judge 'and the reference was to the learned Judge who decided Kammu's case ILR (1964) 14 Raj 715' has himself recoguised that it may not be easy or possible to produce a motbir witness before whom the information should have been given in the first instance and in such a case the presence of the motbir cannot possibly be insisted upon. In fact we fear that a punctilious observance of this rule may perhaps lead to a certain amount of difficulty because it may conceivably be argued in certain cases that the information having been already supplied to the police officer, when he could not have thought of having a motbir, the further discovery thereof before the motbir subsequently called was meaningless as a fact which had already been discovered to the Police Officer could not be further discovered, and, therefore, such discovery is inadmissible under Section 27.
In our opinion all the criticism on this score stands answered by the aforesaid observations of this Court and the learned Sessions Judge was in serious error when he insisted on the calling of independent witnesses when the informations were given to the Additional Superintendent of Police by the three respondents before us.
32. Another reason which dissuaded the learned Sessions Judge from accepting the statement of accused Rama was that on the police's own showing he was arrested as early as 1611-1971 whereas he made the statement on 21-1-1972. We shall deal with the question of torture and unfair investigation at a later stage of the judgment but the mere fact that the accused took two months and five days in making up his mind to give information to the police cannot possibly afford a valid reason for rejecting the information, in consequence of which ornaments of a peculiar nature weighing mone than 500 tolas of gold were recovered. Why did Rama take so much of time in volunteering the information is not easy to divine. On the other hand accused Bhopa and Kanwar Singh came forth with the information on the day they were arrested. Thus how much time an accused may take to deliberate the advisability of giving an information to the police officer would depend on his individuality and psychology and law does not say that the information for this reason becomes suspect. For aught we know that when Rama learnt or was informed that his brother Kanwar Singh and Bhopa had divulged Rama may have thought that the game was up and it was no use keeping the secret seated in his mind. We are, therefore, unable to appreciate why the period of two months and 5 days which Rama took to unbosom dissuaded the learned Sessions Judge from accenting the reliability of the information given by him under Section 27 of the Evidence Act.
33. Now we come to the in appropriateness of the places where the stolen property was unearthed. In regard to Bhopa it is in an enclosure on Ajmer-Pushkar road adjoining Ramdeoji's temple. On its north there is a poultry of one Ratan Singh as per Ex. P/49 It is near the northern wall that the stolen property was buried. The learned Sessions Judge has observed that it was so near the road. Mr. Purohit urged that there was a 'Murgi Khana' not far away from the place and it was highly improbable that the accused would have buried the articles there. We have it from the evidence of Jaisiyaram that he alone is the attendant of Ramdeoji's temple and that he goes there once in a day and obviously no one resided in the temple premises. The enclosure has a compound wall and it is, therefore, understandable that any operation of burying ornaments could be done without any difficulty and the place would not be difficult for later location. The road made the access to the enclosure easy, its vacancy made the operation convenient, and the wall provided the screen and an identity Ajmer Pushkar road only connects Pushkar, which cannot be said to be a much frequented road during night. The place where Kanwar Singh buried the ornaments is shown in Ex. P/48 and it is another enclosure on the Ajmer Pushkar road and it presented the same convenience for concealment which did the place in Ex.P/49. The enclosure provided the screen and identity the unoccupied field the privacy and the road easy approach. It was contended before us that it appeared to the learned Sessions Judge that the existence of the Central Reserve Police Hospital nearby made the place unsafe. No body has said whether the place from where the stolen goods was recovered is visible from any part of the hospital. The place where Rama buried the gold ornaments is near a 'chaubara (e g. Ex P/47) This is the grave-yard of a particular community situated on Foysagar Road which to some extent runs along with Pushkar road making a fork. The criticism which appealed to the learned Sessions Judge in regard to the inappropriateness of this place as observed by him is that it is only one furlong away from police post and there are houses nearby. The learned Sessions Judge presumed that Rama is a hardened criminal for which there is no evidence on the record, and reasoned that a hardened criminal would not bury the stolen property so near a police 'chowki People do not normally visit graveyand during night and it affords a peculiar quiet and it has an awe about it. Not all kinds of people go to this grave-yard because it belongs to a particular community. So the chances of people frequenting it are still rendered rather bleak. A furlong is a good distance from a police chowki and the digging of a pit in a grave-yard could hardly arouse anybody's suspicion. Therefore, we do not think that there is anything inappropriate or improbable it Rama chose that place, which is again approachable from Ajmer-Pushkar road, and buried the stolen property.
34. Mr Purohit argued that the Motbirs Ganeshi Lal (PW/16) and Ramdhan (PW/8) have given divergent stories and, therefore, the recovery should be disbelieved. While Ganeshilal said that it was a 'tibra' where the accused Rama took the police party, Ramdhan has described it as a Chaubara. Etymologically a 'tibara' is a three-door apartment whereas a 'chaubara' is a four door one and when these doors are made on a platfrom there can always be an error of observation or description. Another discrepancy pointed out to us was that Ganeshilal said that the accused Rama dug a pit which was 2 cubit long 2 cubit deep and 2 dubit wide and Rama removed several stones whereas Ramdhan (PW/8) has said that it was I cubit long, 1 cubit deep and 1 cubit wide, wherefrom he removed one big stone. This again is an observational divergence, which is anything shows that the witnesses are not telling a story by rote Ganeshilal (PW/6) said that Article 83 was taken out by Rama whereas Ramdhan (PW/8) stated that Article 83, the Laxmipadak, was not then. This again is a minor confusion easy to appreciate when so many articles were recovered Ganeshilal said that the pit was dug 2 or 3 feet away from the 'tibara' while Ramdhan has used the word 'platfrom'. To our mind this is no discrepancy and we are not prepared to disbelieve these two witnesses when they say that they accompanied Rama and the police party and Rama pot the items recovered by unearthing them from the ground. No reason has been suggested why these witnesses are deposing against Rama and the cross examination does not suggest that that they have any interest in the police or against the accused.
35. Another argument raised by Mr. Purohit was that the recovery witnesses are silent as to the story of hurying. All that the accused had said was that they will get the items recovered. The process was not detailed. The informations EXS. P. 44, P. 45 and P. 46 clearly indicate that the ornaments were buried and the accused stated that they had buried the ornaments.
36. Vehement argument was addressed to us in regard to the unfair investigation and it was submitted that because of this unfairness the statements under Section 27, Evidence Act should be disbelieved. Reliance was placed on Ghazi v. State : AIR1966All142 and Amin v. State : AIR1958All293 . In Ghazi's case : AIR1966All142 the learned Judges observed that in the case before them it was found that false links in the chain of circumstantial evidence had been created, evidence of facts of the most damaging character had been manufactured and produced in Court, and the first information report incorporating such facts was got prepared in an improper manner. The confidence of the learned Judges in the bona fides of the investigation was therefore completely shaken and they said to that they could not accept the evidence relating to the discovery of the Gandasa unless it was free from all suspicion and was above board. Even in this case it has been recognised that if the fact discovered in consequence of the information is free from suspicion it can be relied upon notwithstanding what went before it. Amin's case : AIR1958All293 , however, lays down that Articles 20(3) of the Constitution of India applies to discoveries under Section 27 of the Evidence Act, if these discoveries are the results of compulsion, and the scooe of Section 27 is itself restricted by Article 20(3) of the Constitution and the discoveries which follow a confession brought about by compelling an accused person could not be used against him. In this case the learned Judges have drawn out a long list of false links that were manufactured by the investigating officer who wielded peculiar inflaence in the place where he investigated the crime and they came to the conclusion that the information was obtained by compulsion. Thus there is two pronged attack by Mr. Purohit against the acceptance of the informations provided by accused Rama and Kanwar Singh Singh and the discovery of the ornaments in consequence thereof. The one is of compulsion. To the same effect were the submissions of Mr. Sarma, learned Counsel for Bhopa. According to the statement of Rama as noticed by the learned Sessions Judge, which appears to us to be a fair summary of what Rama had stated, he was arrested on 14-5-1971 at Hardoi Railway Station and from there the police had taken him to Dak Bungalow, Hardoi and from there he was brought to Jaipur. Next day he was brought to Ajmer and was put in Jail and thereafter he was taken to Pushkar and was put behind the bars. He was kept there for 7 days. From there he was brought to Ajmer on 22-5-1971 Along with him, his brother Jetha and his brother in law Shriya were also brought under police custody. After keeping him for 2 or 4 days, his brother Jetha was taken to police station, Kekeri on the understanding that his sister Jeeva and a clerk of an Advocate had come there and they would allow him to meet them There the police kept him for 2 days. The informants Ghisu, Bhagwana and Jaimal who had come to get him arrested at Hardoi were also present there. There Shri Kuber Dan told him that in order to remove enmity for ever he asked them to hold a Panchayat. Thereafter Jetha was allowed to go. Shri Kuberdan told his sister that if she pays Rs. 10.000/ Rama could be released. Thereafter the police brought him to police station Alwar Gate, Ajmer. He was kept there for 15 days Then on 7-6-1971 he was taken to Shrinagar village where he was kept from 7-6-1971 to 2-7-1971. He was beaten there. He was not allowed to sleep and electuc shocks were also given to him From that police station he wrote a letter to his counsel Shri Bishan Lal of Jodhpur. On 2-7-1971 he was brought to Sarwar Police Station. In that Police Station one Kailash was also under arrest. Through Kailash he got a letter written to his counsel Shri Bishanlal. He was kept upto 24-7-1971 in the Police Station Sarwar. On 24-7-1971, it was heard that some High Court Judge was coming, so Kuberdan took him from there to Police Station, Arain. On that night the police constable who was on duty was a Gorkha having belt No.l64. At the police Station, Arain he was kept for one month and 24 days. He was taken from there on 16-8-1971 to Police Station, Civil Lines, Ajmer, There he was kept for two days, and then he was again removed to Govlia Police Station He found his sister Jeeva and his son Hira under arrest, Next day his brother-in-law Sriya and his Bhuva Parvati were also brought. His Bhuva Parvati was made naked and was forced to run. His brother-in-law was made naked and was put on his Bbuva. His sister's looks were removed. She was asked to urinate in a pot. Kuberdan asked him to drink that urine. His sister was released in the 10th month and was asked to bring Kanwar Singh and Deva and was assured that if they were produced. Rama would also be freed On 14-11-1971 Hira, Sriya Rama were brought to Police Station, Nasirabad. There he was shaved. He was photographed, Then from there he was brought to Alwar Gate Police Station on 15-11-1971 The next day he was taken to Jaipur and was made to sit in CID. Office. From there he was taken to another police station where he was kept in custody. Next day he was produced before a Magistrate and thereafter he was put in Police Station, Ashok Nagar. From there he was brought to Police Station, Pushkar. For 3 days he was made to sit before the temple. There he was pointed out to other persons saying that they would be required to recognise him later on. After 2 to 4 days he was sen to Jal and after 5 or 7 days he was again taken on remand to Pushkar, where he was kept for 15 or 16 days. Thereafter he was again sent to Jail. We have given out this long statement of Rama because it was on this basis that Rama's learned Counsel urged that the investigation was unfair and the torture was practised on him. Rama was examined in the Court of the learned Sessions Judge. From his above statement and the details that he is a man with good memory who could remember so many dates and numbers and places in sequence. Barring his bare statement and suggestions made to Shri Kuberdan in his cross-examination there is nothing on record to prove any of the tortures practised on Rama. His son, his brother-in-law his Bhuva Parwati and his sitter have not been examined in defence to corroborate Rama's assertions. When Rama was examined in answer to question No. 47 that he had given the information which was recorded in Ex P. 46, what had he to say, he did not say that he had furuished the information on account of torture, all he said was that he had given no information. In question No. 48 he was asked that Ganeshilal (PW 6) & Ramdhan (PW 8) and PW 24 Pushkar Datt Upadhyaya had given evidence to show that when he went in motor car with them and came near the Foyasager Police Post he directed it to the Foyasagar Road, Rama answered by saying that it was wrong. In question No. 49 he was again asked that he had taken the police party to the 'tibra' he again said that there was nothing of the kind and in question No. 50 he was asked that he had pointed out the place where the gold ornaments were buried and he was given a spade and that he dug the put and handed over the gold ornaments to the police, he said it was all wrong In question No. 51 he was asked if he had got ornaments Exs. 73 to 83 recovered he answered it was wrong. At no place, therefore, did Rama say that he gave the information attributed to him and that it was as a result of torture. No specific question was put to Mr. Ruber Dan that Rama was compelled to give the information under Section 27, Evidence Act, because he was tortured. There are merely general suggestions of tortute put to Mr. Kuberdan which he has denied. Bhopa has said that he was beaten but be has not said that it was as a result of the beating that be had furnished the information urder Section 27 of the Evidence Act. In paragraph 15 of Kathi Kalu's case AIR 1961 SC 1808 the Hon'ble Judges if the Supreme Court have said that if there is any information given as a result of duress then alone it would amount to testimonial compulsion. Neither torture has been proved nor its connection with information.
37. Let us now examine the unfairness of the investigations as contended by the learned Counsel. His first argument in this context is that the prosecution witnesses were examined late by the police. Rajgopalcharya was examined on 4-2-1971, Rama Swami on 5-2-1971 and Umesh Chander on 30-1-1971, although they were the employees of the 'mandir'. Shri Rameshwar Singh (PW/23) in answer to the cross-examination has said that when he went to examine these witnesses they were not available. These witnesses have merely identified the ornaments and have deposed in regard to the condition of the temple on the morning of the 27th January, 1971. We have no suspicion that any evidence was fabricated due to their belated examination. A general note regarding the condition of 'mandir' premises meticulously prepared is on the record The nature and weight of ornaments neutralise all suspicion of fabrication.
38. It was also urged that the chance prints were not taken off from the locks and the foot moulds were not produced nor was there any investigation in regard to the muffler and the 'chaddar'. Mr. Kuber Dan (PW/20) has said that the chance prints and foot moulds were not good for comparison and, therefore, they were non produced. We see no reason to disbelieve Mr Kuber Dan on this score. Muffler end 'chaddar' are ordinarily common place articles and it is not always easy to locae their owners.
39. Another argument on which great emphasis was laid by Mr. Purohit was that Rama proved to be an obedient servant of Mr Kuber Dan. He met him in Hardoi on 12-5-1971 and on 13-5-1971 and then on 15-5-1971 at Ajmer with Sariya and on 21-5-1971 and then on 22nd and 23rd May, 1971, he met Mr. Kuber Dan. Why was he not arrested was the big question that was posed by Mr. Purohit. Mr. Kuber Dan has answered that be was merely investigating and that he had no reason till then to arrest him. Rama may have been anxious to eliminate the suspicion and Kuberdan keen to keep an eye on him to locate his links and associates. He has deposed that Rama was shadowed by the informants. An application Ex D. 5 was made that Rama who was under arrest in this case was required in police case No. 28/58. It will be relevant to remember that there were two other criminal cases in which Rama stood accused They are police cases Nos. 27/58 and 28/58 and it appears that the investigation in these cases was also in progress Mr.Pushkar Dm has admitted that habeas corpus application was moved by Rama in the High Court, wherein he had filed an affidavit in answer. When there were already 2 cases against Rama why he was permitted to go, when he came to Ajmer is somewhat surprising, but no cross-examination was directed to Mr. Kuber Dan on this aspect and, therefore, we cannot express any firm opinion on this aspect. It may have been a strategy to trace Rama's network.
40. It was also urged that the identification proceedings of the three respondents was done late On that account the proseeution has forced us to be very cautious in regard to the identification evidence but nothing turns on this because it is merely a corroborative piece of evidence.
41. We agree with the learned Sessions Judge that the recovery of fifteen tolas of gold sold by Bhopa respondent to Ramesh Chandra PW 23, resident of Hardoi and recovered at the instance of Bhopa does not help the prosecution in connecting Bhopa with the crime because it is in the shape of a lump incapable of identification.
42. Mr. Sharma also cited a number of authorities but they largely relate to the principles of appreciation of evidence and, therefore, it is not necessary for us to examine them
43. From the discussion aforesaid it has been satisfactorily proved that Bhopa and Kanwar Singh got two sabbals' (Articles 6 and 7) prepared by Nisar Ahmed (PW 7); that these articles were recovered from the 'mandir' on the morning of the 27th January, 1971. Bhopa and Kanwar Singh have been identified by Nisar Ahmed in the identification parade as well as in the Court. It is also established that Rama with two other person, we do not know who they were, went to the 'tibara' within the 'mandir' many months before the commission of the offence of burglary. Ram Ratan (PW 12) suspected their presence and after questioning drove them out. It is also established that on the evening of 26th January, 1971 Rama. Bhopa and Kanwar Singh traveled by bus RJQ 3662 to Pushkar This is established by the torn bus tickets, pasted on Ex. P 25 It is not easy to say conclusively how many tickets they were but they appear to be three as the bus No. RJQ. 3662 has been repeated in three bits. Amar Singh (PW 18), the Khalasi of the bus RJQ 3662 has proved the tact of their travelling on the evening of the 26th January and getting down at Pushkar and they were of Rama, Bhopa and Kanwar Singh; that a burglary was committed in the 'mandir' in the night intervening the 26th and 27th January, 1971 and gold ornaments weighing 1024 tolas and 8 mashas were stolen; that at instance of the three accused persons, according to the information given in Exs. P. 44, P. 45 and P. 46 and the recovery memoranda Exs. P. 27, P. 28 and P. 29 ornaments weighing 943 tolas and 14 mashas were recovered; that these ornaments belonged to the Mandir's idols; that they consisted of peculiar articles which adorn the idols and some of them bear the engraving marks of Ram Baikonth Pushkar Shriram and they have been conclusively identified to be a part the property that was stolen. The question which confronts us now is what offence, if any, of which all or any of the three respondents can be held guilty.
44. The connection of two of the accused with the instruments of burglary, namely, sabbals', the visit of the three accused on the fateful evening of 26th January, 1971 to Pushkar itself and the information by all the three accused which resulted in the discovery of considerable quantities of gold ornaments from three places not for removed from the scene of the incident, in our opinion, are sufficient in the eye of law to connect these three accused persons with the crime of burglary and theft.
45. The established circumstances when cumulatively considered conclusively connect the three accused with the crimes of burglary and theft. They were associates is established by the fact that they travelled together Parts of the ornaments, particularly of the gold 'kawach' (armour which the idol of the 'mandir' used to be adorned with) fitting one another in three parts were unearthed at all the three places. The inscriptions in the two 'putli hars' also is a telling circumstance. There is no room for any hypothesis of the innocence of the three accused in the face of these circumstances and we accordingly set aside the order of acquittal passed by the learned Sessions Judge and convict Rama, Kanwar Singh and Bhopa each under Sections 380 and 457 of the Indian Penal Code. Under Section 457 whoever commits house breaking by night when the offence intended to be committed is a theft, is punishable with 14 years' imprisonment. Property involved in the case is in the neighbourhood of Rs. 4,00,000/- and the sentence, therefore, has to be deterent. We accordingly sentence Rama, Kanwar Singh and Bhopa under Section 457 IPC to 5 years' rigorous imprisonment each and to pay a fine of Rs. 1000/- each and in default to undergo 6 months' further rigorours imprisonment. We also convict Rama, Kanwar Singh and Bhopa under Section 380 IPC for committing theft. The sentence which could be awarded under Section 380 IPC who commits theft in a building used for the custody of property is imprisonment of either description which may extend to 7 years' imprisonment. We accordingly sentence Rama, Kanwar Singh and Bhopa under Section 380 IPC to undergo 3 years' rigorous imprisonment and to pay a fine of Rs. 1000/- each and in default of the payment of fine to undergo further 6 months' rigorous imprisonment The substantive sentences are ordered to run concurrently. The directions regarding the disposal of ornaments and gold as given by the learned Sessions Judge are here by confrimed.