Gopal Krishan Sharma, J.
1. Appellants Zahid Hussain, Gulam Mustafa Ishrad Ali, Aghaz Mehandi and Mohammed Sadiq have filed Cr.As.Nos. 124, 141,146 and 228 of 1984, against their convictions and the sentences passed by the Addl. Sessions Judge No.2, Jaipur City, Jaipur. Appellants Gulam Mustafa, Irshad Ali, Mohammad Sadiq along with appellant Aghaz Mehandi had been found guilty of the offence under Section 120B, and each of them has been sentenced to four years' rigorous imprisonment and a fine of Rs. 500/-; and in default of payment of fine, to further undergo three months' rigorous imprisonment each. These accused-appellants have also been found guilty under Sections 402 and 395, IPC. Under Section 402, IPC, each, of them has been sentenced to further four years' rigorous imprisonment and a fine of Rs. 500/-, and in default of payment of fine, to further undergo three months' rigorous imprisonment. Under Section 395, IPC, each of these accused-appellants has been sentenced to six months' rigorous imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo six months' rigorous imprisonment. All the sentences awarded to these accused-appellants were, however, ordered to run concurrently. Appellant Zahid Hussain has been found guilty of the offence under Sections 120B and 402, IPC, and for each offence, he has been sentenced to four years' rigorous imprisonment and a fine of Rs. 500/-, and in default of payment of fine, to further undergo three months' rigorous imprisonment. Both the sentences awarded to this accused-appellant, were also ordered to run concurrently.
2. Appellant Abdul Aziz who is complainant in this case, has also filed an appeal against the judgment of the Additional Sessions Judge No. 2, Jaipur City, Jaipur dated 15th March, 1984, which is Criminal Appeal No. 191 of 1984. In his memo of appeal, he has prayed that his appeal may be accepted and the goods/articles Nos, 1, 16 to 19, 21 to 24, 31 to 33, 35 to 37, 20 and 25 to 30 as mentioned in para 7(a), (b), (c), (d), (e) and (f) of the memo of appeal be released and handed over to him immediately with out waiting for the decision of the appeal and without waiting for the trial of the accused, Ahmed Hussain.
3. The police submitted a challan against eight accused persons including the appellants. The other accused persons were Abdul Latif, Abid Hussain and Ahmed Hussain. The trial court has acquitted accused Abdul Latif and Abid Hussain. Accused Ahmed Hussain is absconding.
4. One Dilshad was also arrested in this case by the police, who was made approver and has been examined as PW 2. So, no challan was submitted against Dilshad.
5. Accused-appellant Irshad Ali has not been represented by any advocate before this Court.
6. On 16th September, 1981, at about 5.30 A.M. one Maqsud Ahmed Patel gave information on telephone to police Station Ramganj, Jaipur, to the effect that some dacoits had entered into the house of Abdul Aziz; gave him beating; and looted his properties. This information was noted in the 'Roznamcha', and the SHO of the said police station, Narendra Johari immediately rushed to the spot. Abdul Aziz at whose house, the dacoity was committed, gave his statement to the SHO, which was recorded by him, and this 'Parcha-Bayan' is Ex. P. 1. In this 'Parcha-Bayan'. Abdul Aziz narrated that he, his wife and two small children were sleeping on the third storey of his house as usually. The other family members had gone a day before to 'Tala-Bhuranbada' for 'Ziarat'. Last night at about 1 O'clock, one thief pressed his month, and when he woke up, he saw Jhat another person was closing the mouth of his wife. The light in the room was on. He saw six persons in the room, two of then Were having 'Pistols' (revolvers) in their hands and the remaining were having knives. One of those persons having a revolver in his hand, demanded the key from him, whereupon, he told that man that the key was with his brother. At this, that man hit him on his head with the butt of the revolver, as a result of which, blood came out of his head. Then the accused persons tied his hands and feet. They also tied the hands and the feet of his wife. They also put tapes on their mouths. Those persons then told them that if they tried to cry, they would be murdered. Thereafter, those persons broke the almirah and the safe, and took out gold and silver ornaments, some rough emeralds and also some finished emeralds They also snatched away the 'Laung' from the nose of his wife and two gold bangles from her hands. 'Bijlia' from her ears, silver 'Payjeb' from her feet, and one automatic Citizen-Watch were also taken by them. From the almirah and the safe, they took out a number of gold and silver ornaments, gold necklaces one Ladies suit-cloth (silken) of brown colour; one piece of cloth of yellow colour (terrycotton) and Rs. 15,000/- in cash. One 'Seiko' watch was removed from his hand by the accused persons, who also took two new watches which were kept in the almirah. In his 'Parcha-Bayan', Abdul Aziz has given a detail of the ornaments and the other articles which were taken away by those persons. According to him, all the six persons were of young age and were wearing pants and bush-shirts. He has also stated in the 'Parcha-Bayan' that if those persons came to him, he could identify them. According to him, those persons remained in the room for about three hours, and during that period, they were searching for other articles, and when they left his house, his wife untied her hands, removed the tape from her mouth and called Lachhma, who later on, called Haider. Haider then came there and untied his hands and feet, who later on, informed his brother, Maqsud Ahmed and the other people of the 'Mohalla'. He (Abdul Aziz) has further stated in his 'Parcha-Bayan' that he could identify the articles which were taken away by those persons.
7. The SHO, on the basis of this 'Parcha-Bayan', prepared the FIR, Ex. P. 2, and registered a case under Section 458/380, IPC.
8. The police, after completing investigation, submitted a challan against ten accused persons showing Abdul Arif alias Pehlwan, Aghaz Mehandi, Phoorkan and Dilshad as absconders. Accused Dilshad was later on arrested, who gave his statement on 19th May, 1982 before the CJM, Jaipur City, Jaipur, who was given pardon and made approver. Thereafter, a challan was submitted against Aghaz Mehandi, Mohammed Sadiq and Irshad Ali on 6th August, 1982. A challan was also filed against accused Vasudev.
9. After hearing the arguments before charge, the learned Additional Sessions Judge discharged accused Vasudev. He, however, framed the following charges against the other accused persons:
Name of the accused Charge under Sections
1. Gulam Mustafa 120B, 402, 395, 397 and 412, IPC
2. Abdul Latif 120B & 414, IPC
3. Zahid Hussain 120B, 402, 395 & 397, IPC
4. Abid Hussain 120B & 412, IPC
5. Irshad Ali 120B, 402, 395 & 397 IPC
6. Mohammed Sadiq 402, 395, 120B&397, IPC
7. Aghaz Mehandi 120B, 402, 395 & 397, IPC
8. Ahmed Hussain 120B, 402, 395, 397 and 412 IPC.
10. After the framing of the charge, accused Ahmed Hussain absconded. So, seven accused persons were put to trial. All of them denied the allegations made against them and claimed trial.
11. In order to prove its case, the prosecution examined 37 witnesses in all. All the accused persons in their statements recorded Under Section 313, Cr.P.C., denied the charges levelled against them by the prosecution witnesses. In their defence, they also examined 1 witness Khusroo.
12. After completing the trial, the learned Additional Sessions Judge, did not find accused Abdul Latif and Ahmed Hussain guilty of the charges framed against them, and hence, he acquitted both these accused persons. He, however, found guilty the accused-appellants of the charges levelled against them, and sentenced each of them as mentioned above.
13. In this case, Abdul Aziz PW 3 is the person at whose house, the dacoity was committed. He and his wife, Mst. Mazida Begum PW 22 are the only eye-witnesses in this case. The dacoity was committed at about 1 O'clock in the night. At that time, Abdul Aziz and Mst. Mazida Begum were sleeping with their children, in the room. Apart from these two witnesses, the most important witness in this case is Dilshad Ahmed, the approver.
14. Dilshad approver was arrested by the police on 10th May, 1982 vide memo Ex, P. 73. While in custody, he gave information under Section 27 of the Indian Evidence Act on 11th May, 1982, which is Ex. P. 3. On the basis of this information and at the instance of Dilshad, the ladies-watch (article 1) was recovered vide memo Ex. P. 4, by the SHO, Inder Kumar PW 34. Identification of this watch was done by Abdul Aziz and Mst. Mazida Begum. The identification-memo is Ex. P. 19. Both these witnesses identified the watch. On 12th May, 1982, identification-parade of Dilshad was also done, and identification-memo in this regard is Ex. P. 20. He was identified by Abdul Aziz and Mst. Mazida Begum PWs 3 and 22 respectively. This identification-parade was conducted by Shri Siddharth Jain, Judical Magistrate PW 31. Then, on 13th May, 1982, Dilshad approver was produced before the Magistrate for recording his statement Under Section 164, Cr. P.C. This statement is Ex. D. 1. The learned Magistrate, after giving warning to Dilshad as provided in law and after explaining the consequences of giving statement under Section 164, Cr.P.C. and after satisfying himself that Dilshad was willing to give his statement normally, without any pressure or threat, either by the police or any one else, recorded his statement. In this statement under Section 164, Cr.P.C., Dilshad has statedthat he was resident of Aligarh and used to work of preparing biscuits. On the 8th or 9th month of 1981, one Bhaiyabhai who was known as Ahmed Mia, had come to him and gave him one chit of Phoorkan who was also resident of Aligarh. That chit was in Hindi. So, Phoorkan read it over to him. In that chit, it was written that Arif and Aghaz who were residents of Aligarh and at that time residing at Jaipur, had called 2-3 boys from Aligarh for work. Phoorkan had told him that those boys were, he himself, (Dilshad) Mohammed Sadiq and Ishrat Ali. Bhaiyabhai gave him Rs. 20/- and he brought his clothes from the washerman. Thereafter, he (Dilshad), Phoorkan, Mohd. Sadiq, Ishrat Ali and Ahmed Hussain came to Agra by bus, and from Agra they boarded the night bus for Jaipur, and in the morning at about 4.30 or 6 O'clock, they came to Jaipur. At Jaipur, from the bus-stand they went to house of one tailor master, Zahid Hussain who was not known to him. There, they took their meals, and he asked about Aghaz and Arif. After some time, Aghaz and Arif came, and they took him for sight seeing at Jaipur. After wandering here and there, in the evening, they came to a park, where, one person aged about 30-32 years of age talked to Arif and Bhaiyabhai. That man then left the place saying that the work should be done on that day because, the person was all alone and they were only two in the house. The name of that man was given as Mustafa. Then, they all went to see the second-show of a picture which started at about 9 p.m.After seeing the picture,they all came to the house of that tailor. Aghaz and Arif came down from that house to call Mustafa, who had also come there. Mustafa then took Arif and Aghaz to show the house where the work was to be done. After some time, they came back and Arif told them that they should proceed then. He (Dilshad), Arif, Aghaz, Mustafa, Sadiq, Ishrat and Phoorkan then came to that house, which was shown by Mustafa White they were leaving the house of the tailor, Arif took three knives, one 'Saria' of iron, one 'Katta' (revolver) and three cartridges in his pocket. The 'Saria' was given to Dilshad. At the house where they came in the night, Arif, after opening the look went inside, and after about 15 minutes, he came back and called all of them inside the house. They then went inside the house. He (Dilshad) was asked to stay in the dark. All of them put off their clothes and by their 'Banyans' (vests) tied their mouths, and thereafter, again wore their clothes; and then went upstairs, while he remained in the downstairs after some time,heard a sound of firing. He, thereupon, went upstairs. He saw that three of them were breaking the almirah. They were, Phoorkan, Aghaz and Sadiq. Arif asked him as to why he had come upstairs, and aksed him to go back to downstair. He came back, and again after some time, he went upstairs and saw that the articles which were taken out of the almirah, were being filled into bags. There were three bags. Then, they smoked cigarettes there, and after some time, they all came down. He (Dilshad) has also stated that at the time of occurrence, inside the room, there was couple and two small children. He had seen that the husband and the wife were tied with hands and feet, and there were tapes on their months. After this, they all came out with those three bags, and while leaving the place Sadiq and Aghaz told the couple that if they cried, they would be murdered, because, one of their persons, is standing outside. In the statement, Dilshad has further stated that they then hired two cycle-rickshaw and came to the room of Arif, and there he saw to the articles which were brought in the bags. He was given Rs. 3,200/- and some money by Phoorkan and was told that he should leave for Aligarh by the first morning bus, and that, when those articles would be sold,he would be paid his share later on.He has also stated that when he saw the bags in the room & when they were opened, he saw silver and gold ornaments, jewels and emeralds etc. He was also given one ladies-watch by Arif, and by the morning; bus, he and Phoorkan left Jaipur for Aligarh. He has then stated that he did this work at the instance of Mustafa.
15. After the recording of the statement under Section 164, Cr.P.C., Dilshad was again produced before the Judicial Magistrate No. 1, Jaipur City, Jaipur, on 27th August, 1982 for recording his statement under Section 306, Cr.P.C.
16. The learned Magistrate, after warning and satisfying himself that the statement was being given voluntarily without any fear, threat or greed, recorded the statement of Dilshad under Section 306, Cr.P.C. He was also satisfied that while giving the statement, Dilshad was in proper senses and his mental condition was alright. In the statement, Dilshad has stated that 8-9 months before, he was doing the business of preparing biscuits, at Aligarh. As the business was stopped and his financial condition had become worst, Bhaiyabhai alias Ahmed Ali of Jaipur, who was resident of Agra, came to Aligarh with one chit in the name of one Phoorkan. Arif and Aghaz two boys of Aligarh were living at Jaipur. Arif had written in the chit to Phoorkan to bring 2-3 boys from Aligarh as some work was to be done. Phoorkan told him about this, and he (Dilshad) then asked as to who were those boys. Phoorkan, thereupon, told him that one was he himself, and the others were Sadiq and Ishrat. He was also introduced to Sadiq and Ishrat who were residents of Aligarh. Thereafter, he was given Rs. 20/- by Bhaiyabhai and he brought his clothes from the washerman. From Aligarh, they came by train to Agra. At Agra, they took their meals in a hotel and from Idgah-Bus-stand, Bhaiyabhai brought 5 tickets and by the night bus, they came to Jaipur. From the Jaipur bus stand, Bhaiyabhai took them to the house of a tailor, Bhaiyabhai alias Ahmed Mia told that that was the house of his brother who used to do tailoring work. He asked Bhaiyabhai about Arif and Aghaz, where upon, Bhaiyabhai told him that he should take his meal and they would come there. While they were taking their meals, Arif and Aghaz came there. Arif then took them for sight-seeing at Jaipur; and in the evening, they came to a park. In the park, Bhaiyabhai, Arif, he himself, Sadiq, Ishrat and Phoorkan were sitting. After some time, one person of sound health and whose name was later on told as Mustafa came there. Arif, Bhaiyabhai and Mustafa then sat at a distance and they talked in themselves. They were talking in a low voice. So, he could not hear their talk. After some time, Mustafa stood up and told Bhaiyabhai and Arif that the work should be done that day, because, there would be only two persons in the house. By that time, it was about 9 p.m. So, they went to see a picture, and the picture hall was near the garden (park). At about 12-30 p.m. they came out of the picture-halland came to the house of that tailor. It was also asked there whether they were seen by any body. Thereupon, they replied that they were not seen by any body. Then, they were asked to sit there and Arif and Aghaz went to call Mustafa. They then came to the house of the tailor-master, and Mustafa told them to come with him and to see the house where they should do the work. Thereafter, Mustafa, Bhaiyabhai and Arif went away and the others remained at the house of the tailor. After about 18-20 minutes, Arif asked them to be ready. The tailor then told them that he would give them weapons. Arif had asked the tailor to give the weapons. The tailor then took all of them to the roof and from the 'Burada' (wooden-dust), he took out three knives, one'Katta' (revolver) one gun and a 'Saria' of iron. Aghaz, Phoorkan and Ishrat each kept one knife. The iron Saria was given to him. The 'Katta' and the cartridges were kept in the pocket by Arif. Then, they all came down, and arrived at the house where the work was to be done. The gate of the house was of iron. Arif broke the lock of the iron-gate and warned them not to talk with each other. It was about 2 O'clock in the night. Arif after some time came back and called all of them upstairs. Arif then asked them to put of their clothes. Their mouth was then tied with their 'banyans'(vests). Then, they all put on their pants and bush-shirts. Arif told Dilshad to remain down stair and that, if some body came, then, to inform them. He (Dilshad) and Mustafa remained at the gate which was opened by Arif, and the remaining persons went upstairs. After about half an hour, he heard a sound of firing. Mustafa, thereupon, asked him to go upstairs and see as to what had happened. He then came up stairs and saw Bhaiyabhai snatching the 'Bali' from the car of one lady, and Ishrat, Aghaz and Arif were breaking the almirah which was fixed in the wall. Arif asked him as to way he had come upstairs, and asked him to go down and watch there. One man and one woman were there in the room, and tapes were fixed on their mouth. Their hands and feet were tied. He then came down and told Mustafa that nothing had happened, nor was any body shot at by the fire. After some time, he again went upstairs and saw that Arif, Aghaz and Ishrat were filling gold and silver ornaments and some pieces of green glass, in three suit cases. Arif asked him also to sit there. Then they all sat there and smoked. After some time, they all came down and Mustafa asked as to whether the work had been done. They replied that they had done the work. All of them came on the road through another 'Gali' (lane) and hired three cycle-rickshwas for Arif's room. Mustafa did not accompany them. They then came to the room of Arif. The three bags were carried by Arif, Ishrat and Aghaz. At the room of Arif, they all took out the articles from the bags and all saw them. Bhaiyabhai also called his wife, Rehana. There were cash also in those bags. Phoorkan then gave him Rs. 3,200/- and something more and then told that after selling the articles, he would be given his further share. He was also asked to go back by morning bus. Then, he left Jaipur for Aligarh by the morning bus. Coming home, he gave the money to his brother and mother. Both then became very angry with him, because, he told them that he had committed theft. He was beaten by his brother and his mother and his mother asked him to get out of the house, otherwise, she would hand him over to the police.
17. On being questioned as to what he had seen in the room at the time of the occurrence, in the might, Dilshad stated that clothes were scattered on the floor of the room, and one man, one woman and two small children were present in the room. The man was wearing a Tamad' and was without any cloth on his body; and the woman was wearing Salwar and Kamiz. The two children were of about 2 years of age. Their hands and feet were tied and tapes were applied on to their mouths. So, they were unable to speak or get themselves freed. Blood was also coming out from one of the ears of that woman, of very small quantity. In that room, Aghaz, Phoorkan, and Ishrat were having knives in their hands. They broke the almirah with the knife and then took out the articles. Phoorkan having a revolver in his hand, was standing near the man who was tied with his hands and feet. After the recording of the statement of Dilshad under Section 306, Cr.P.C., he was given pardon and made approver.
18. The learned counsel for the appellants laid much stress on the argument that the statement of the approver, Dilshad, is not a reliable statement, and it should not be believed and based for convicting the accused-appellants. They have argued that Dilshad in his cross-examination has denied his own statement given in Exs. D1 and D2. It was pointed out that in Ex. D. 1, Dilshad has not mentioned that the accused appellants were putting 'Purias' in bags and Arif had two 'Purias' in his hand. It is also not mentioned therein that there was one 'thaili' which was smeared with mustard-oil. According to them, he has also not mentioned in his statement about the 'dibhas', and nor has be mentioned the design of the bargles or the other ornaments. Also, in his statement, he has not mentioned that when he went upstairs, he saw blood coming out from the person of the woman. It is also not mentioned in his statement that from the house of Abdul Aziz, they went to Indra-Market. He has also not mentioned in that statement that at the house, the articles were taken out from the bags where he saw them. It is also not mentioned therein that when he went upstairs after hearing the firing sound, he saw Bhaiyabhai sitting near the woman. He has also not mentioned in that statement that they got down from the rickshaws at Ghatgate and went near the house of Zahid Hussain. According to the learned counsel for the accused-appellants, it is also not mentioned that Arif had asked Musafa about the house where the work was to be done; Arif gave the 'Saria' to him; and Arif asked him not to put off his clothes. It is also not mentioned in that statement that statement that blood was corning out from the ear of Mst. Mazida, Phoorkan and Ishrat were breaking the almirah; and Sadiq was standing with a 'Katta'. It is also not mentioned therein that Aghaz and Arif went to call Mustafa. It was also pointed out by the learned counsel that in the Statement. Ex. D 1, it was stated by Dilshad that Phoorkan, Aghaz and Sadiq were breaking the almirah, where as in his court-statement, he has named Ishrat. In his statement, Ex. D 1, he has also not mentioned about the recovery of the watch.
19. It was further pointed out that in the statement Ex. D. 1, it is not mentioned that there were 15-16 gold-bangles. Nor has it been mentioned as to which accused had which weapon in his hand. Also there is no mention in that statement that there was a door or any 'Jaali', nor is there any mention that the weapons were hidden in the ' Burada' from where, the tailor-master distributed them to the accused-persons. Similarly, it does not find mention in his earlier statement that when they returned from the picture, the tailor-master opened the door. It is not mentioned in thestatement Ex. D. 2 that on asking by Arif, the tailor-master took out the weapons. In this way, while pointing out so many other minor points, the learned counsel for the accused-appellants argued that from the cross-examination of Dilshad approver it has become clear that this witness is an unreliable witness. Who has denied his previous statement in Ex. D. 1 and Ex D. 2. According to them, no reliance should be placed on the statement of such a witness.
20. AH the above contradictions and discrepancies in the statement of Dilshad, were also pointed out by the learned counsel for the accused-appell-ants before the trial court at the time of final arguments, and these points have been discussed in detail in the judgments, by the learned Additional Sessions Judge who has found the contradiction's and the dicrepancies as of very minor nature, and according to him, therefore, the entire statement of Dilshad cannot be thrown away.
21. I have also considered the arguments of the learned counsel for the accused-appellants with regard to the statement of Dilshad approver and his reliability and credibility. No doubt, there are a number of contradictions in his statement, as argued by the learned counsel, and some of them, as mentioned above, in my opinion, they are very minor and immaterial from which, it cannot be concluded that the accused persons did not assemble at the house of the tailor-master. From the above contradictions and discrepancies, it cannot be disbelieved that Dilshad came from Aligarh along with Bhaiyabhai and co-accused Phoorkan, Sadiq and Ishrat. So, all these contradictions pointed out by the learned counsel for the accused-appellants, are of minor nature, which cannot be accepted for throwing the entire case of the prosecution.
22. The statement of Dilshad approver, PW 2 was read by me very minutely. He has stated that Aghaz and Arif were residents of Aligarh. Phoorkan and Bhaiyabhai alias Ahmed Mia had come to Aligarh and Phoorkan read over a chit which was sent to him by Aghaz and Arif, from Jaipur. In that chit they had written that 2-3 boys be brought from Aligarh to Jaipur, and those boys as Phoorkan told him, were Sadiq, Ishrat and Aghaz, himself. From Aligarh, they all came together to Agra and then from there to Jaipur. So, this statement of Dilshad has not been shattered in his cross-examination. A very lengthy cross-examination was held, but, on this aspect, his statement remained solid and he has not been proved unreliable on this aspect.
23. Another important aspect is that the accused persons were arrested prior to the arrest of Dilshad. Gulam Mustafa was arrested on 7th October, 1981; Ahmed Hussain on 9th October, 1981; and Zahid Hussain on 29th December, 1981, but, Dilshad was arrested on 10th May, 1982. When Gulam Mustafa was arrested, the name of Dilshad was disclosed. After his arrest, Aghaz Mehandi was arrested on 17th May, 1982; and Ishrat Ali and Mohammed Sadiq also on 17th May, 1982. The statement of Dilshad under Section 164 Cr.P.C., which is Ex. D. 1, was recorded on 13th May, 1982, and that under Section 306, Cr.P.C., Ex. D. 2, was recorded on 27th August, 1982.
24. Both the statements Exs. D1 and D2 were recorded by the Judicial Magistrates, and they have appeared as prosecution witnesses and proved them. From a perusal of those statements, it becomes clear that before recording the said statements, Dilshad was made to understand the implication of giving that statement. He was explained that that statement could be used against him. After understanding every thing, Dilshad voluntarily gave that statement. Therefore, it cannot be said that the prosecution in order to falsely implicate the other accused persons, prepared Dilshad and made him agreed to become approver in this case. Hence, I am of the opinion that the statements of Dilshad, Ex. Dl recorded under Section 164 Cr.P.C. and that Ex. D2 recorded under Section 306 Cr.P.C., were given by him without any sort of threat or pressure, and he has given the correct picture of the case. I, therefore, see no reason to disbelieve the statement of Dilshad approver. The learned Additional Sessions Judge also, after discussing the entire circumstances in detail, came to the conclusion that approver Dilshad is a reliable witness, and I also agree with him.
25. The next argument that was advanced on behalf of the accused appellants was that the entire case depends on the recovery of the articles from the possession of the accused persons. The learned counsel have argued that the recovery was illegal and no reliance can be placed on it.
26. I have considered the argument of the learned counsel regarding the recovery of articles. Gulam Mustafa was arrested on 7th October, 1981, and on that date, he gave information under Section 27 of the Indian Evidence Act, which is Ex. P. 48. On the basis of this information and at the instance of Gulam Mustafa, the articles were recovered vide memo, Ex. P. 33. He then gave further information on 10th October, 1981, which is Ex. P. 66. On the basis of this information, further articles were recovered vide memo, Ex. P. 61, Then, on 11th October, 1981, he gave further information for recovery of some other articles which is Ex. P. 67, and on the basis of this information, the articles were recovered vide memo Ex. P. 34. On 11th October, 1981, he further gave information that he had pledged some articles with Vasudev accused. This information is Ex. P. 68. On the basis of this information, further recovery was made from Vasudev, at the instance of the accused vide memo Ex. P. 45.
27. The statements of the recovery-witnesses were also perused by me, and I see no reason to disbelieve their statements, The recovery-memo, Ex. P. 33, P. 51, P. 34 & P. 45 bear the signatures of Gulam Mustafa as well as the witnesses.
28. Aghaz Mehandi was arrested on 17th May, 1982. He gave information under Section 27 of the Evidence Act, on 19th May, 1982 which is Ex. P.76. On the basis of this information, recovery Was made on 22nd May, 1982 vide memo Ex. P. 77, in presence of witness, Rais Ahmad PW 36. Rais Ahmad has stated that Aghaz Mehandi got recovered two gold bangles, one watch, one calculator and one cigarette-lighter, vide memo Ex. P. 77.
29. Ishrat AH was arrested on 17th May, 1982. He gave information under Section 27 of the Evidence Act on 19th May, 1982, which is Ex. P. 80. On the basis of this information and at his instance, recovery was made vide memo Ex. P. 81, on 22nd May, 1982. Recovery witness was Rais Ahmad, PW 36, who has proved the said recovery in his statement.
30. Accused Sadiq was arrested on 17th May, 1982. He gave information under Section 27 of the Evidence Act on 19th may, 1982, which is Ex. P. 78. On the basis of this information, and at his instance, recovery was made on 22nd May, 1982, vide memo Ex. P. 79. This recovery was also made in presence of Rais Ahmad PW 36, who has proved it.
31. About recovery witness, Rais Ahmad, PW 36, it was argued by the learned counsel for the accused appellants that in all the recoveries, Rais Ahmad was the witness, and, as it cannot be believed that at that time Rais Ahmad would be present. He is a man of the police, and hence, he should not be believed at all. I see no force in this argument. This is correct that Rais Ahmad is witness in all these recoveries. He belonged to Aligarh. The articles were also recovered from Aligarh. This case was of Rajasthan State, and the alleged recoveries were made from Aligarh of U.P. State. What interest had Rais Ahmad with the Rajasthan Police There is nothing on the record to show that Rais Ahmad had any enmity with the accused persons. Hence, I see no reason to disbelieve the testimony of witness Rais Ahmad. No doubt, the other recovery witness has not been examined, but the statement of Rais Ahmad PW 36, is corroborated by the statement of the Investigating Officer, who recovered the said articles. So, I believe the statement of the Investigating Officer, Inder Kumar, PW 34 and that of Rais Ahmad PW 36. Therefore, all the recoveries from the accused persons, have been proved by the prosecution.
32. Recovery was also made from the possession of Dilshad approver PW 2. Dilshad was arrested on 10th May, 1982. He gave information under Section 27 of the Evidence Act, on 11th May, 1982, which is Ex. P. 3. On the basis of this information and at his instance, recovery of a watch was made on 17th May, 1982 vide memo, Ex. P, 4, in presence of Rais Ahmad and Mohammed Khalil,both residents of Aligarh. Rais Ahmad PW 36 has stated that Dilshad got recovered a watch from his house, and the police seized that watch after its recovery. The reeovery memo in this regard, Ex. P. 4, bears his signature. Inder Kumar, the Investigating Officer also corroborates the statement of Rais Ahmad. The recovery is, therefore, proved. Dilshad approver has also admitted the recovery of the watch from his house. In this regard, the argument of the learned counsel for the accused appellants, was that the watch was on a hook inside the house which was visible to every body. The police entered into the house, and took the watch from the hook. So, it cannot be said that a recovery at the instance of the accused, because, the watch was visible to every body. This argument too has no force. Accused Dilshad was arrested, and when he gave information under Section 27 of the Evidence Act, about the watch, the police party proceeded to his house and recovered the watch. So, the watch was not discovered, but it was actually recovered at the instance of Dilshad approver. Therefore, the recovery of the watch, article 1 is also proved, and I see no reason to disbelieve this recovery.
33. Thus, the prosecution has proved the recoveries of the articles from the possession of the accused persons including Dilshad approver. As it is on the recovery, the identification parade of the recovered articles was held and Abdul Aziz PW 3 and Mst. Mazida Begum PW 22 have identified the articles to be theirs. The identification parade was conducted by the Judicial Magistrate, Smt. Chandrakala Yadav PW 23 and Shri Siddarth Jain PW 31.
34. It was argued by the learned counsel for the accused-appellants that the identification-parade of these articles should not be believed. According to them, the articles which were mixed with the recovered articles, were not brought by the Magistrates, but by the police. It was argued that precious stones of such a high value should not have been brought by the Reader of the Magistrate, and hence, the whole identification was a farce. In this light, I have perused the statements of the two Magistrates, who conducted the identification-parade as well as recorded the statements of Abdul Aziz and his wife, Mst. Mazida Begum, who identified them. From a perusal of their statements, I see no reason to disbelieve them. There is no reason also as to why the Magistrates who conducted the identification-parade would be unfair towards the accused persons. The identification-parade was conducted in a proper and regular manner, and there is nothing to discard the said identification. Thus, the prosecution has proved that the recoveries of the articles were made from the accused persons at their instance. It has also been established that the recovered articles belonged to Abdul Aziz and his wife, Mst. Mazida. From the statement of Abdul Aziz PW 3 and his Parcha-Bayan, Ex. P. 1, it is clear that the dacoity was committed at the house of Abdul Aziz, and ornaments, articles and precious stones were looted from there. Abdul Aziz identified all the articles to be his, and stated that they were looted from his house. So, it has been established beyond reasonble doubt that the recovered articles were looted property, which were taken away by the accused persons from the house of Abdul Aziz. The learned Additional Sessions Judge, has, therefore, correctly relied on the statements of Dilshad and other prosecution witnesses, and has rightly held that dacoity was committed at the house of Abdul Aziz and the recovered articles were looted property which belonged to Abdul Aziz and Mst. Mazida Begum.
35. The learned counsel for the accused-appellants have then argued that Dilshad was arrested at Aligarh. So, at the time of his arrest, the SHO, Inder Kumar PW 34 could have searched the house of Dilshad, and had the watch been in his house, the SHO could have recovered and taken it in possession, but, as the police wanted to prepare a case, the SHO did not take the search of the house of Dilshad, and subsequently, after recording information under Section 27 of the Evidence Act, effected the recovery. So, according to them, the recovery at the instance of Dilshad should not be believed. The police has power to take a search under Section 102, Cr.P.C. They may seize any property. So, there was no necessity of recording any statement under Section 27 of the Indian Evidence Act, and the property could have been seized if the house of Dilshad was searched at the time of his arrest. This argument too has no substance. The accused was arrested, and after that, he gave information under Section 27 of the Evidence Act, and on the basis of that information, the recovery was made.
36. The learned counsel have then argued that the identification parade of Dilshad, approver, has no value. According to them, he was identified by Abdul Aziz and Mazida Begum. It was argued by them that before identification-parade, Dilshad was shown to both these witnesses. According to them, in the identification-memo, Ex. P. 20, the learned Magistrate has mentioned that Dilshad told him that he was kept 'baparda' (muffled-face), but he was shown to the witnesses, Mst. Mazida Begum and Abdul Aziz. No doubt, it is mentioned in the said memo, but, there is no proof to this effect that he was shown to witnesses, Mst. Mazida Begum and Abdul Aziz. He was identified by both these persons as soon as he entered into the room. He was kept 'baparda'. It was then argued that this case relates to Ramganj Police Station, but, as admitted by Inder Kumar, PW 34, the SHO, Dilshad was taken to Gandhi Nagar Police Station, which had no connection with this case, for a very specific purpose, where, he was shown to Mst. Mazida Begum and Abdul Aziz. I do not agree with this argument. It cannot be presumed that because Dilshad was taken to Gandhi Nagar Police Station instead of Ramgunj Police Station, he was shown to the witnesses. It has also argued that Siddarth Jain, PW 31 was the Magistrate who recorded the statement of Dilshad under Section 164, Cr.P.C. and also held the test identification-parade. The learned counsel argued that for the purpose of putting the more solidity, the Investigating Officer arranged that first Abdul Aziz and Mst. Mazida Begum would be shown Dilshad and after seeing them, it would be easy for them to identify before the Magistrate. In my opinion, this argument also has no force. Dilshad was kept 'baparda', and Abdul Aziz and Mst. Mazida Begum identified him before the Magistrate. So, no doubt is created about the identification-parade.
37. Much stress was laid on the conduct of the approver, by the learned counsel for the accused-appellants. According to the prosecution, the stolen properties were of lakhs of rupees, and certain gold and silver ornaments and precious stones were taken away from the house of Abdul Aziz so, it could not be possible that Dilshad would not take any of them at that time and would only take a wrist-watch Rs. 150/-.
38. It was also argued that it is on the record that Dilshad is a hardened criminal and apart from this case, so many other cases are pending against him. He committed dacoity in this case on the intervening night of 15th and 16th September, 1981, but, was arrested on 19th May, 1982. If he had any repentence, he could have surrendered on 17th September, 1981, but, there is no explanation as to why he did not surrender and why he had no repentence till such a long period, and there is no answer as to why he did not demand his share from the other accused persons, argued by the learned counsel for the accused-appellants. It was also argued by them that Rs. 3,200/-were given to Dilshad, but, he gave no explanation as to what happened to that money. This argument too has no force. No doubt, some other criminal case might be pending against Dilshad. He had no means of living at that time. After the dacoity, he saw the entire looted property and when he demanded one watch, he was told that the watch would be sent to him at Aligarh, but, a ladies-watch and Rs. 3,200/- were given to him and about the remaining share, he was told that after the sale of the remaining properties, his share would be given to him. So, there was no unnaturality in not demanding his share. Immediately after the dacoity, he was paid Rs. 3,200/- and a ladies-watch, and he was assured that his remaining share would be given to him later on.
39. So, merely because, some other criminal case was pending against Dilshad approver, and for this reason, his conduct should not be believed, is no argument.
40. The learned counsel for Zahid Hussain accused argued that this appellant has been found guilty under Section 120B and 402, IPC only, and he has been acquitted of the offence under Section 395 and 397, IPC, by the trial court. According to him, it is also admitted position that Zahid Hussain was arrested on 29th December, 1981, and no article was recovered from his possession. He further argued that none of the accused has said that some articles were entrusted to Zahid Hussain. He was not found in possession of any article. It was further argued that this appellant was not even present at the spot where the dacoity was committed. According to the learned counsel, the only statement against this appellant is that of Dilshad approver, PW 2 and Shafiq Ahmad PW 19. Shafiq Ahmad PW 19 has stated that on 15th September, 1981, in the afternoon, when he visited the shop of Kadir Nai, Jabed told Zahid Hussain that the persons who were staying at their residence, were 'Goondas' of Aligarh. Zahid Hussain replied that they were friends of his brother, and as his wife and the children were not at the house, so, they were staying there. In his examination-in-chief, this witness has admitted that he did not state this incident to any other person, and that, for the first time, he went to police station on 31st December, 1981 and stated that some persons were staying at the house of Zahid Hussain. He had no suspicion about the persons who were staying at the house of Zahid. He has also admitted that he did not identify those persons. According to this witness, he had seen those persons who had come from Aligharh. Thus, while pointing out the statement of Shafiq Hussain, PW 19, it was argued by the learned counsel that the incident took place on 15th September, 1981, but, he went to the PS on 31st December, 1981 for the first time, and he kept, quiet during this period of 108 days, and did not state the incident to anybody. No explanation has been given by this witness as to why he kept quiet for such a long period of 108 days, and after such a long delay, he for the first time, disclosed this fact to the police, so, according to the learned counsel, this type of statement cannot be believed. It was also argued by him that Shafiq Ahmad PW 19 stated that the persons who were staying at the house of Zahid Hussain were friends of the brother of Zahid Hussain and were not 'goondas', but this statement is contradicted by him in his police statement, Ex. P. 16. In his police statement, this witness has not stated that he talked to Zahid Hussain on 15th September, 1981 about this. No date was mentioned by him in his police statement. He admitted that while his statement was being recorded on 31st December, 1981 by the police, he was not asked by the police to see the 'goondas' who were arrested. Zahid Hussain was arrested before 31st December, 1981. Thus, while bringing this statement to my notice, the learned counsel for Zahid Hussain argued that the statement of Shafiq Ahmad PW 19 was recorded by the police after the arrest of Zahid Hussain, who was arrested on 29th December, 1981. The statement of this witness was recorded on 31st December 1981. This shows that this witness is a manufactured witness and no reliance can be placed on such statement.
41. I have considered the arguments of the learned counsel with regard to this witness PW 19, Shafiq Ahmad. I have also gone through the statement of this witness, and I see no reason to disbelieve his deposition. The argument with regard to this witness, therefore, has no substance.
42. Regarding PW 2 Dilshad approver, it was argued that he was not knowing accused Zahid Hussain previously. So, it was the duty of the prosecution to have got him identified by Dilshad. As there is no identification of this accused appellant by Dilshad, the statement of his brother, should not be believed. This argument too has no force. It was also argued that the statement of Dilshad approver, so far as Zahid Hussain is concerned, is contradictory on material portions. When Dilshad left Aligarh, he was not aware of the fact with regard to dacoity. Dilshad had no money at that time. He was paid some money Bhaiyabhai. He came from Aligarh to Jaipur for sight-seeing because, he had never come to Jaipur earlier. He came to Jaipur without informing his brother and mother, and only for a day. While pointing out the statement of Dilshad, it was argued that it is clear that while they were leaving Aligarh, Dilshad was not aware of the dacoity going to be committed. But, to the contrary, he came to Jaipur for sight-seeing, and he was to stay at Jaipur only for one day. If they had any plan of dacoity, and Dilshad was to accompany that mission, they could have prepared a plan or programme at least for 3-4 days before. So, in these circumstances, it cannot be said that any message was sent from Jaipur for the purpose of committing dacoity and Dilshad was called for that purpose. It was also argued that so far as Zahid Hussain is concerned, no talk took place in between him and Dilshad on 15th September, 1981, that some dacoity would be committed and he should be ready. If there was really any plan for committing dacoity, they should have prepared a plan and made arrangements so that persons might not recognize the dacoits. The house of Dilshad was in the vicinity of the complainant party. So he could not have dared to stay in that vicinity. I have considered this argument also. Dilshad who had not come to Jaipur earlier, prior to 15th September, 1981, was contacted at Aligarh by Phoorkan and Bhaiyabhai, and was told that a chit had been received from Jaipur, and Arif had asked for bringing 2-3 boys, and Dilshad was one of them. He (Dilshad) did not know Bhaiyabhai. But,he accompanied him to Jaipur.He was called for some purpose but that purpose was not mentioned in the chit, which was read over by Phoor kan. However, the purpose was obvious. For only one day, Dilshad would not have been called for sight-seeing. Jaipur being such a big city, one day was not sufficient for sight-seeing. Hence, the purpose was not for sight-seeing, but some other, and that was committing dacoity. From the evidence on record, it has been established that Gulam Mustafa who was in relation of complainant Abdul Aziz knew that on a particular day, Abdul Aziz and his wife would be alone at the house and all others in the family would be out of Jaipur for 'Ziarat' and that would be proper opportunity for committing dacoity. With this plan, the accused persons were called from Aligarh and they were asked to stay at the house of Zahid Hussain at Jaipur. There they planned how to commit dacoity. The whole day, they waited and passed time in the Park and then went to see a picture and thus passed time till 12 O'clock in the night. There after, they went to the house of the complainant Abdul Aziz and committed the dacoity. So there is no force in the argument that Dilshad had come to Jaipur for sight-seeing. Actually, he was brought from Aligarh to Jaipur along with two other accused persons simply for committing the dacoity, which had been planned by the other accused persons, who were at Jaipur. So, all these accused persons had conspired to commit the dacoity at the house of the complainant, Abdul Aziz. Therefore, the statement of approver Dilshad, who was one of the conspirators, and who was present while the dacoity was being committed, cannot be thrown away. It was also argued that approver Dilshad tried to exculpate himself from the act of dacoity, and his statement is not an inculpatory statement. So, according to the learned counsel, his statement should not be believed.
43. This argument too has no substance. It is not necessary that Dilshad should be present and actually acted at the time of committing the dacoity. Dilshad has stated in his statements under Section 164, Cr.P.C., 306, Cr.P.C. that he was present at the house of Zahid Hussain, and from there, he along with the other accused persons came to the house of Abdul Aziz, complainant. He remained there till the dacoity was committed. He, thereafter, accompanied all the accused persons along with the articles taken from the house of the complainant, in rickshaws, and came to the room of Arif. There he saw the looted articles. He was paid a watch as well as Rs. 3,200/-in cash. All these prove that Dilshad was a participant in the act of committing the dacoity. Therefore, his statement cannot be said to be exculpatory. Hence, I see no reason to discard the statement of Dilshad approver. His statement is corroborated by the other evidence which is on the record of the case. There is sufficient material which corroborate the testimony of the approver with regard to his participation in the act of committing dacoity. The additional evidence corroborating the approver's statement cannot be said to be tainted evidence. The recovery of the articles at the instance of the approver, Dilshad; his identification by Abdul Aziz and his wife, Mst. Mazid Begum, is sufficient to confirm and corroborate the statement of Dilshad, approver. Hence, charge under Sections 120B & 402, IPC, has been clearly established by the prosecution.
44. In view of my above discussion, I am of the opinion, that the prosecution has completely established its case against the accused-appellants, The learned Additional Sessions Judge, who has also discussed the evidence in detail, has found that the case against the accused-appellants, has been made out. I perfectly agree with the finding of the learned Additional Sessions Judge.
45. In the result, Criminal Appeals Nos. 124,141, 146 & 228 of 1984, filed by accused-appellants Zahid Hussain, Gulam Mustafa, Ishrat Ali, Aghaz Mehandi and Mohammad Sadiqrespectively, having no force, are hereby dismissed. The convictions and the sentences of all these accused-appellants awarded by the learned trial court, are maintained. All these accused appellants except Ishrat Ali, are on bail. The trial court is, therefore, directed to issue warrants of arrest and send them to jail to undergo the sentence of imprisonment awarded to them by the learned trial court confirmed by this Court.
46. Criminal Appeal No. 191/84, filed by Abdul Aziz appellant, also has no force and is hereby dismissed with the direction that the recovered articles including the articles which were received from accused Gulam Mustafa, Mohammed Sadiq, Aghaz Mehandi. Ishrat Ali and Dilshad approver, be returned to Abdul Aziz and Abdul Hameed, after lapse of the period of limitation. The Customs Department and the Sales-Tax Department be also informed and given notice about the handing over the articles to Abdul Aziz and Adbul Hameed.
47.Articles 20 & 25 to 30 which were recovered from the possession of accused Ahmad Hussain, who is absconding, be not returned.