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Laxmi NaraIn and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal Nos. 135 and 136 of 1975
Judge
Reported in1976WLN(UC)594
AppellantLaxmi NaraIn and ors.
RespondentState of Rajasthan
Excerpt:
.....infirmity but it is unsafe to base conviction on evidence of single witness.;the prosecution put accused laxminarain to identification test after the period of more than three months it is true that the investigating officer was not put any question in cross-examination to explain the delay but even in the absence of such cross-examination the infirmity caused by delayed test identification cannot be brushed aside altogether.;i do net consider it safe to base conviction of laxminarain on the identification evidence of a single, witness.;(c) evidence act - presumption house not in exclusive occupation of accused recovery of incriminating articles in absence of accused--held, lower court was justified in not relying on recovery.;ordinarily, a presumption can be raised from the exclusive.....s.n. modi, j.1. these are two appeals, one by laxminarain and the other by deva, shanker and radhakishan roth these appeals are directed against the judgment of the additional; sessions judge, bundi, dated december 17, 1974, convicting the appellants and sentencing then as under:(1) laxminarain under sections seven years' rigorous impri- 395/397 i.p.c. sonment and a fine of rs. 1,000/-, and in default of payment of fine, to further undergo rigorous imprison- ment for 3 years.(2) radhakishan under sections seven years'rigorous impri- 395/397 i.p.c. sonment and a fine of rs. 1,000/-, and in default of payment of fine to further undergo rigorous imprison- ment for 3 years.(3) shanker under sections seven years' rigorous impri- 395/397 i.p.c. sonment and a fine of rs. 1,000/-, and in default.....
Judgment:

S.N. Modi, J.

1. These are two appeals, one by Laxminarain and the other by Deva, Shanker and Radhakishan Roth these appeals are directed against the judgment of the Additional; Sessions judge, Bundi, dated December 17, 1974, convicting the appellants and sentencing then as under:

(1) Laxminarain under sections Seven years' rigorous impri-

395/397 I.P.C. sonment and a fine of Rs.

1,000/-, and in default of

payment of fine, to further

undergo rigorous imprison-

ment for 3 years.

(2) Radhakishan under sections Seven years'rigorous impri-

395/397 I.P.C. sonment and a fine of Rs.

1,000/-, and in default of

payment of fine to further

undergo rigorous imprison-

ment for 3 years.

(3) Shanker under Sections Seven years' rigorous impri-

395/397 I.P.C. sonment and a fine of Rs.

1,000/-, and in default of

payment of fine, to further

undergo rigorous imprison-

ment for 3 years.

(4) Devaunder under Section Three years rigorous im-

412 I.P.C. prisonment and a fine of

Rs. 2,000/-, in default of

payment of fine to further

undergo rigorous imprison-

ment for six months.

2. The case relates to a dacoity which took place at village jethal at about 9 p.m. on April 7, 1973. More than five persons are said to have participated in the dacoity. The dacoits entered the house of PW. 3 Ghanshyam and his brother PW4 Copal and looted the property. They also belabored PW. 3 Ghanshyam and caused several injuries on his person. The first information report about the incident was lodged by Gopilal on the same night. In the first information report, the names of the dacoits were not mentioned as all of them ware strangers to the occupants of the houses of Ghanshyam and Gopal. After spot inspection, the investigation was handed over to PW. 21 Nandsingh on August 17, 1973. Nandsingh arrested caused Deva in another dacoity at village Anthara on July 27, 1973 and recovered one gold chain. Article 1 concerning the present dacoity vide recovery memo Ex. P. 1 from the person of Deva. Accused Laxminarain was arrested in connection with the dacoity at Anthara along with accused Deva on July 27, 1973. Laxminarain's house was searched on August 6, 1973 in the presence of his wife Mst. Ramkanya. Several articles were recovered from the course of Laxminarain concerning this dacoity as well as' other dacoity cases. The investigating officer arrested Radhakishan as veil as Shanker and Nathu during the course of investigation.

3. At the test identification parade, gold chain Article 1, recovered from the possession of Deva was Identified by PW. 3 Ghanshyam arid P.W.4 Gopal as belonging to Ghanshyam. Similarly, at the test identification, Article 2 silver 'kada' was identified by Ghanshyam as belonging to him, and Article 3 wrist watch and Article 5 bag, were identified by P.W. 3 Ghanshyam, P.W. 4 Gopal and P.W. 5 Devkaran as belonging to Gopal. Several test identification parades were held to identify the accused persons. Accused Laxminarain was put to identification test on November 21, 1973. At this test identification, Ghanshyam correctly identified Laxminarain Similarly, Shanker and Radha Kishan were put to identification test on July 11, 1973 and November 21, 1973 respectively. At these tests, Shanker was correctly identified by PW8 Ghanshyam and PW4 Gopal whereas Radhakishan was correctly identified by PW. 3 Ghanshyam.' After usual investigation, the police put up a challan against she four appellants and one Nathu. The accused pleaded not guilty and claimed to be tried. The learned Additional Sessions Judge, Bundi, after trial, as quitted Nathu and convicted and sentenced the other four accused as aforesaid.

4. I first take up the case against Deva. He has been convicted and sentenced by the Additional Sessions Judge under Section 412 I.P.C. on the ground that from his possession, one gold chain was recovered from his person at the time of his arrest. Murtzakhan P.W. 11 has deposed that the gold chain was taken out from the neck of the accused Deva by Shri Nand Singh in his presence. Similarly, Nandsingh has deposed that he arrested accused Deva and recovered gold chain from his neck. It is further proved from the evidence of Ghanshyam that this gold chain Article 1 which was recovered from the possession of Deva belonged to him and was taken away by the dacoits at the time of the dacoity. I have carefully gone through the statements of Ghanshyam, Nandsingh and Murtzakhan and see no reason to disbelieve their testimony. There is thus no doubt that the gold chain Article 1, which belonged to PW. 3 Ghanshyam, was found in possession of accused Deva soon after the dacoity. The learned Counsel for the appellant has strenuously argued that even if it is held that the gold chain was taken away by the dacoits and was subsequently recovered from the possession of Deva, there is no justification for convicting under Section 412 I.P.C. The question arises whether Deva has been rightly convicted under Section 412 I.P.C. Illustration (a) to Section 114 Evidence Act provides that person in possession of stolen goods soon-after the theft is either a theft or a receiver of stolen property unless he accounts for his possession. So far as Section 411 I.P.C. is concerned, he is clearly guilty under that section as he has not been able to account/explain how he came into possession of Article 1. But it would not be proper to convict him under Section 412 I.P.C. because that section requires that the receiver should know or have reason to believe that the property had been transferred by the commission of dacoity. There is no such evidence in the present case. The prosecution has to show something more than mere possession of stolen goods for a conviction under Section 412 I.P.C. If the prosecution has proved mere possession and nothing more, the proper section to use is Section 411 I.P.C. I, therefore, hold Deva guilty undo Section 411 I.P.C. instead of Section 412 I.P.C.

5. I now take up the case against Laxminarain. The learned Additional Sessions Judge has convicted Laxminarain on the sole ground that he has been identified in the court as well as in the identification parade by PW. 3 Ghanshyam as one of the dacoits who participated in the dacoity. It may be recalled here that Laxminarain was arrested on July 27, 1973. He was sent to judicial lock-up on July 31, 1973 and was put to test identification as late, as November 21, 1973. The only person who identified him at the test identification parade was PW. 3 Ghanshyam. It has been laid down in Budhsen and Anr. v. State of U.P. : 1970CriLJ1149 that the power to identify varies 'according to the power of observation and memory of the person identifying and each cast-depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to-identify an accused should have had no opportunity of seeing, him after the commission of the crime and before identification, and secondly, that no mistakes are made by them or the mistakes made are negligible. The identification lo be of value should also to be held without much delay. The evidence as to identification deserves, therefore, to be subjected to close and careful scrutim by the court. Shri Devchand Meena, Magistrate who conducted the identification of Laxminarain, has appeared at the trial as PW. 20. The identification memo in respect of Laxminarain is Ex. P. 21 dated November 21, 1973 In Ex. P. 21, I find a note that Laxminarain had stated that he had been shown to the witness Ghanshyam at the police station. PW. 20, Shri Devehand Meena, in his statement, admitted that the accused Laxminarain and Radhakishan used to be brought in his Court in connection with other cases, before he held the identification parade on November 21,1973. He has further deposed that though Radhakishan and Laxminarain used to be produced 'Uaparda', but when they were brought inside the court, the) stood with open faces From the statement of Shri Devehand Meena PW. 20, it can safely be presumed that there was an opportunity to the witness Ghanshyam of seeing accused Laxminarain in the court before the identification parade was held on November 21, 1973. It is true that Ghanshyam in his statement completely denied that he had seen Laxminarain at the police station or in the court. I have carefully gone through the statement of PW. 3 Ghanshyam. In his cross-examination, he completely denied that he knew accused Shanker before the incident took place. But the identification memo Ex. 19 prepared by the Magistrate clearly shows that Ghanshyam, at the time of identification admitted that he knew accused Shanker from before the incident of dacoity. No only that, he also resiled from his previous statement recorded under Section 161 Cr.P.C. In his previous police statement Ex. D. 1, at two places, A to B and C to D, he deposed that some of the dacoits were putting on 'dhatas', but in his statement before the court, he completely denied that any of the dacoits was putting on 'dhata' to conceal his face. When confronted with his previous statement, the witness had no compunction in saying that his previous statement was incorrect. A further scrutiny of the statement of PW. 3 Ghanshyam shows that he identified Laxminarain and other accused person in the flash light of torches used by the side at the time of the dacoity. He has further clearly stated that it was on account of torch light that he could identify the accused otherwise he would not have been able to identify them It is not very easy to believe that a dacoit would flash torch light upon his colleagues at the time of dacoity as that his colleague might be identified by the victims In order to make his statement some what credible PW. 3 Ghanshyam stated that Laxminarain stood by hit side at the time of the dacoity. He has further stated that Laxminarain as that time was not having any 'dhata' on his face It is difficult to believe that a dacoit without using 'dhata' or mask on his face would keep standing by the side of the victim especially when the torches were being flashed by other dacoits. Moreover, the prosecution put accused Laxminarain to identification test after the period of more than three months It is true that the investigating officer was not put any question in cross examination to explain the delay but even in the absence of such cross examination, the infirmity caused by delayed test identification cannot be brushed aside altogether would also like to mention here that at the time of test identification of Shanker, P.W. 3 Ghanshyam and P.W.4 Gopal clearly admitted before the Magistrate that Shanker was shown to them at the police station, If that is so, the possibility cannot be overruled that Laxminarain might have also been shown to Ghanshyam at the police station. In any case, in these circumstances. I do hot consider it safe to base conviction of Laxminarain on the identification evidence of a single witness.

6. The learned Public Prosecutor has drawn my attention to the recovery of Articles 2, 3, and 5 from the house of Laxminarain vide recovery memo Ex. P. 13. This recovery was made on August 6, 1973 when Laxminarain was injudicial custody. These articles have been identified by P.W. 3 Ghanshyam, P.W. 4 Gopal and P.W. 5 Devkaran as belonging to them. They have also stated that these articles were taken away by the dacoits at the time of the dacoity. The learned Additional Sessions judge has not relied upon this evidence of recovery on the ground that the recovery was made some 10 days after the arrest of Laxminarain and further that there is no direct evidence to connect Laxminarain with the recovery of the articles. It is not in dispute that the house from which the said articles were recovered was in occupation of Laxminarain before his arrest along with his wife. It is also riot in dispute that 'on the date of the recovery, Laxminarain was in the judicial lock-up and the only person occupying the house was his wife Mst. Ratnkama Ordinarily, a presumption can be raised from the exclusive possession and occupation of a house that the incriminating articles found therein were introduced by the person who was in occupation of the house. The difficulty, however, arises when the house is inoccupation of a person along with others who are equally capable of introducing the incriminating articles in the house. In such a case, unless some other circumstances connecting the accused with the incriminating articles are found to exist, it becomes difficult to draw a presumption against the accused solely because he is the owner of the house or the head of the family. In the present case, there is no evidence connecting the accused Laxminarain with the incriminating articles found in his house. The possibility cannot be overruled that Mst. Ram Kanya, after the arrest of Laxminarain, introduced these articles in the house. The learned Additional Sessions Judge, in the circumstances, was justified in not relying upon the circumstance of recovery of the stolen articles from the house of Laxminarain.

7. I now take up the case against Radhakishan. He was arrested by the investigating officer on August 3, 1973. He was sent to judicial lock-up on August 18, 1973. A test identification parade was held by P.W. 20 Devchand Meena on November 21, 1973. The sole witness who identified Radhakishan before the court as well as at the identification parade, was P.W. 3 Ghanshyam. I have already discussed the evidence of P.W. 3 Ghanshyam. In my opinion, his identification evidence is not of such a type which can safely be acted upon without any corroboration. I therefore hold, that the prosecution has not been able to prove beyond realm of doubt that Radhakishan participated in the commission of the dacoity.

8. The last appellant, whose case remains to be considered, is Shanker. Against him, there is the identification evidence of P.W. 3 Ghanshyam and, P.W.4 Gopal. Both of them identified Shanker at the identification parade held on July 11, 1973, and also before the Court. Ex. P 16 and Ex.P.20, identification memos prepared by the Magistrate in respect of P.W. 4 Gopal and P.W. 3 Ghanshyam respectively, clearly reveal that both these witnesses before the Magistrate, admitted that Shanker was shown to them by the Investigating Officer at the police station before the identification parade was held. In these circumstances, it is not safe to rely upon' the identification evidence of Ghanshyam and Gopal in the court. In my opinion, the prosecution has not succeeded in bringing home guilt to the accused beyond the realm of doubt.

9. In the result, I allow the appeal filed by Laxminarain and acquit him of the offence under Section 395/397 I.P.C. He is in jail arid he shall be released forthwith, if not required in any other ease.

10. As regards the other appeal filed by Deva, Radhakishan and Shanker. I allow it in part. The order convicting bind sentencing Deva under Section 412 I.P.C. is set aside and instead, her is convicted under Section 411 I.P.C and sentenced to Undergo rigorous imprisonment for one year. The order convicting and sentencing Radhakishan and Shanker is set aside arid they ate acquitted of the offence under Section 395/397 I.P.C. They are in jail. They shall be released forthwith, if not required in any other case.


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