Kalyan Dutta Sharma, J.
1. These two appeals-one filed by Sangram Singh and another preferred by Madan Singh son of Ugam Singh and Laxmi Narain alias Laxman arise out of a common judgment passed by the learned Sessions judge, Jaipur City, on 19th February, 1973, in Sessions Case No. 24 of 1971 convicting and sentencing each of the three appellants in the following manner:
1. Sangram Singh
i) Under Section 120B r/w Five years' R.I. and a fine of Rs.
Section 457, I.P.C. 200/-, in default to suffer further
simple imprisonment for two
ii) Under Section 120B r/w Three years' R.I. and a fine of Rs.
Section 330, I.P.C. 200/-, in default to suffer further
simple imprisonment for two
iii) Under Section 120B r/w Two years, R.I.
Section 411, I.P.C.
iv) Under Section 120B r/w Two years' R.I.
Section 414, I.P.C.
v) Under Section 109 r/w S. Five years' R.I. and a fine of Rs.
457, I.P.C. 200/-, in default to suffer further
simple imprisonment for two
vi) Under Section 109 r/w Three years' R.I. and a fine of Rs.
Section 380, I.P.C. 200/- in default to suffer further
simple imprisonment for two
vii) Under Section 411, I.P.C. Two years' R.I.
viii) Under Section 414, I.P.C. Two years' R.I.
2. Madan Singh
i ) Under Section 120B r/w Seven years' R.I. and a fine of Rs.
Section 457. I.P.C. 200/-in default of payment of fine
to suffer further simple imprisonment
for two months.
ii) Under Section 120B r/w Five years' R.I. and a fine of Rs.
Section 380, I.P.C. 200/-, in default to suffer further
simple imprisonment for two
iii) Under Section 120B r/w Two years' rigorous imprisonment.
Section 411. I.P.C.
iv) Under Section 120B r/w Two years' rigorous imprisonment.
Section 414, I.P.C.
v) Under Section 109 r/w S. Seven years' R.I. and a fine of Rs.
457, I.P.C. 200/-, in default to suffer further
S.I. for two months.
vi) Under Section 109 r/w S. Five years' R.I. and a fine of Rs.
380, I.P.C. 200/ in default to suffer further
simple imprisonment for two
vii) Under Section 411, I.P.C. Two years' rigorous imprisonment.
viii) Under Section 414, I.P.C.. Two years' rigorous imprisonment.
3. Laxmi Narain alias Laxman
i ) Under Section 120B r/w Seven years' R.I. and a fine of Rs.
Section 457, I.P.C. 200/-, in a default to suffer S.I.
for two months.
ii) Under Section 120B r/w Five years' R.I. and a fine of Rs.
Section 380, I.P.C. 200/-, in default to suffer further
simple imprisonment or two
iii) Under Section 120B r/w Two years' R.I.
Section 411, I.P.C.
iv) Under Section 120B r/w Two years' R.I.
Section 414, I.P.C.
v) Under Section 457. I.P.C. Seven years' R.I. and a fine of Rs.
200/-, in default to suffer further
simple imprisonment for two
vi) Under Section 380 I.P.C. Five years' rigorous imprisonment
and a fine of Rs. 200/-, in default
to suffer further S.I. for two months.
The substantive sentences awarded to each of the appellants were ordered to run concurrently By this very judgment the learned Sessions Judge acquitted Madan Singh son of Gulab Singh co-accused of the offences with which he was charged at the trial and convicted another co-accused Bhanwar Singh under Sections 411, 414, and under Section 120B read with Section 411 and 414, I.P.C., but instead of sentencing him at once to a term of imprisonment he passed an order that Bhanwar Singh be released on probation upon his furnishing a personal bond in the amount of Rs. 5000/-, with a surety in the like amount to appear and receive sentence whenever called upon to do so within a period of two years and in the meantime to keep the peace and to be of good behaviour. Bhanwar Singh has not come up in appeal to this Court against his conviction.
2. The Prosecution case against the appellants was, briefly stated, as follows: There is a store known as 'Surat Khana', which is situated on the first story towards the northern side of Birendra Pal of City Palace Tajpur. There were 42 almirahs kept in the 'Surat Khana'. Out of these almirahs, 7 were in a sealed condition having seals of Maharaja Jai Singh put on each of them. Out of these 7 almirahs, one was almirah No. 76, which contained valuable antique paintings of exquisite Article The 'Surat Khana' was locked from outside by Ram Gopal Mathur, Superintendent, City Palace, Jaipur under his seal. Almirah No. 76 used to be opened by the Maharaja, Jaipur or his Military Secretary or his son Maharaja Jai Singh for keeping in or taking out any paintings or for cleansing it or for sprinkling medicine therein in order to kill white ants. Sometimes the Maharaja used to call Sangram Singh appellant also at the time of opening Almirah No. 76 for having advice as to which of the paintings should be kept where in the almirah. Sangram Singh appellant used to deal in old paintings. He, therefore, thought of a plan to have precious paintings of almirah No. 76 stolen by some thief from the 'Surat Khana' and to earn lacs of rupees by selling them. In order to carry out this plan he entered into a conspiracy with Madan Singh, son of Ugam Singh, Ayodhya Singh (who later on turned an approver) and Laxmi Narain. In pursuance of this conspiracy, Ayodhya Singh approver and Laxmi Narain alias Laxman appellant agreed to commit theft of valuable paintings from almirah No. 76 and to hand them over to Sangram Singh for sale after the commission of theft. This conspiracy was hatched up prior to the commission of the theft. In pursuance of the said conspiracy, Madan Singh and Laxmi Narain bought from market one plas, one cutter and one iron bar at the instance of Ayodhyasingh approver, and, Laxmi Narain & Ayodhyasingh gained entry into the Palace through its ventilator at about 9 or 10 p.m. After taking precautions to conceal themselves both the miscreants reached the temple of Laxmanji and went upstairs on the roof. They kept themselves lying there on the roof upto 12 in the night. Thereafter Laxmi Narain climbed up the balcony and began to cut the iron gauge of the ventilator with the help of plas, cutter and iron bar. After cutting the gauge, he took out iron bars of the ventilator one by one and then went down into the room through that aperture. Ayodhya Singh approver followed him and succeeded in gaining entry into the room through the same ventilator. There was a stool lying near the window in the room, which facilitated their task of descending into the room without producing a sound. Ayodhya Singh had a torch with him. In the light of the torch he inspected all the almirahs and found almirah No. 76 lying in chat room. He and his companion removed the seals from the almirah and opened it. Out of almirah No. 76 they took out bundles containing valuable paintings. There were labels on the bundles which were removed by them. Then they opened the bundles and began to sort out and collect paintings. In this manner they selected a good number of paintings and kept them in three bundles. Ayodhya Singh approver took out collection of Geet Govind paintings and dishonestly concealed it in his Dhoti'. After committing the theft, Ayodhya Singh first came out of the room through the ventilator and asked Laxmi Narain to give him the bundles. As one of the bundles was a big one, it could not be taken out of the ventilator. He, therefore, asked Laxmi Narain to open it and to give him the albums contained therein. After handing over all the paintings to Ayodhya Singh, Laxmi Narain also came out of the room through the same ventilator. Both the thieves then remained on the roof and waited for day-dawn. At about 5 a.m. when the temple was opened and worshippers began to come in, they came down-stairs and decamped with the stolen properties. Both of them took the stolen properties to Laxmi Narain's house in a rickshaw and kept them inside his Kothi. After some time Laxmi Narain went away in the market to fetch milk for preparing tea. In his absence, Ayodhaya Singh approver took out nine albums containing some paintings, from the bundle, tied them with the Geet Govind collection in a separate bundle and concealed that bundle in a rubbish which was lying underneath the star case of the house of Laxmi Narain. At about 6 a.m. Madan Singh appellant visited the house of Laxmi Narain and saw the paintings. Madan Singh selected one album and told Ayodhya Singh and Laxmi Narain that he would show it to Sangram Singh appellant. After some time Madan Singh went away from there with one album. Ayodhya Singh and Laxmi Narain then counted all the paintings which they had stolen, except nine albums and the Geet Govind collection which was kept concealed by Ayodhya Singh in the rubbish. At about 9 or 10 a.m. Madan Singh again came to the house of Laxmi Narain and told him and Ayodhya Singh that he had brought a sum of Rs. 500/-. He gave some money to Laxmi Narain and directed Ayodhya Singh to remove the mounts of the paintings and to tear them away. This was done accordingly. Then Laxmi Narain, and Madan Singh went to market and brought one box from there. They put a good number of paintings in the box. The rest of the paintings were tied in a bundle. Ayodhya Singh clandestinely took away all these albums which he had concealed in a rubbish lying under the staircase of the house of Laxmi Narain. Thereafter Madan Singh played a trick with Laxmi Narain and asked him to bring a taxi for taking the box to Nawalgarh House. Laxmi Narain brought a taxi and both carried the box and the bundle in it to Sansarchand Road where Laxman went to purchase cigarettes, Madan Singh got the taxi-car started and alone took away the box and the bundle leaving Laxmi Narain behind. Laxmi Narain was highly annoyed by the conduct of Madan Singh. He held out threats to Ayodhya Singh to make a full disclosure of all the facts to the police, Ayodhya Singh pacified him and after some days brought a currency-note of Rs. 5000/-, from Sangram Singh appellant after handing over Geet Govind collection and the nine albums to him. He gave the currency note to Laxmi Narain and asked him to encash it. The note could not be encashed, so it was returned to Ayodhya Singh who brought fifty currency-notes of rupees one hundred each from Sangram Singh and gave them to Laxmi Narain. After ten or fifteen days Ayodhya Singh got a sum of rupees twenty thousand from Sangram Singh, out of which he gave a sum of rupees ten-thousand to Laxmi Narain. It is farther alleged that Laxmi Narain purchased a lathe machine out of this sum of rupees ten thousand & installed it in Udaipur. Thereafter Ayodhva Singh approver received further sums of money through Madan Singh and Amar Singh driver from Sangram Singh appellant.
3. The theft of paintings committed in the 'Surat Khana' from almirah No. 76 could not be detected till 11th January, 1969, Ram Gopal Mathur, Superintendent, City Palace, came to know of the theft when he opened the lock of the 'Surat Khana' for keeping some almirahs in it after removing them from the verandah at the instance of Rajmata Gayatri Devi, who had visited, the City Palace on that day. On opening the door when he entered the room, he saw that the seals of almirah No. 76 were broken and the contents thereof were missing. He found some chits and bundles lying outside the almirah and saw the gauge and iron bars of the ventilators being removed. Thereupon he lodged a written report Ex. P. 35 about the incident of theft with the police at police station, Manak Chowk, Jaipur. On the basis of this report Narendra Kumar registered a criminal case under Sections 457 and 380, I.P.C. and deputed Bhopal Ram, police officer to make an investigation. Bhopal Ram rushed to place of occurrence and after inspecting the site prepared a site-plan. Thereafter further investigation was made into the case by the Rajasthan Police till 26th May, 1969. On 27th May, 1969, the CBI took-up investigation of this case at the request of the Government of Rajasthan. During the course of investigation by the CBI the three appellants were arrested. Sangram Singh appellant was interrogated many a time during the period between July, 1969 and February, 1970. His house at Jaipur was searched under a search warrant obtained from the court of Shri N.L. Kackkar and about two thousand paintings were recovered there from out of which thirteen were identified to be stolen properties. It came to the notice of the CBI that the American gentleman Leneman had despatched some paintings to the United States of America. In pursuance of this information, the CBI recovered some paintings from British Overseas Airways Corporation, out of which thirty-seven were identified to be the stolen articles. The CBI made several other recoveries of paintings from different persons on different dates and from different places, the details of which are given in a Schedule appended to the judgment of the lower court which I need not reproduce here.
4. A good number of paintings, which were recovered by the CBI during the course of investigation, were put up for identification in test identification parades held by Shri Bal Krishna Sharma PW 42 City Magistrate, Jaipur, on 8-5-1969 and 9-5-1969 as is evident from the identification memos Exs. P. 47 to 54. Out of the paintings sought to be identified some were correctly identified by Ram Gopal, Kirpal Singh and Yadvendra Sahai identifying witnesses to be paintings of Maharaja of Jaipur, which were stolen from almirah No. 76. Likewise other paintings recovered by the C.B.I. were put up in test identification parades held by Shri N.L. Kakkar, P.W. 41, the then Additional Chief Judicial Magistrate, Delhi, dated on 29-8-1969, 5-12-1969, 16-12-1969, 22-1-1970, 23-1-1970, 9-2-1970, 10-2-1970, 11-2-1970 7-4-1970 and 8-4-1970 as is evident from identification memos Ex. P. 55 to P. 60 and P. 71 to 75. Out of the paintings sought to be identified, a number of them were correctly identified by each of the three identifying witnesses, namely Ram Gopal, Kirpal Singh and Yadvendra Sahai to be stolen paintings of Maharaja of Jaipur. On 12-5-1969 the investigating agency got Madan Singh son of Gulab Singh co-accused (who has been convicted by the trial Judge and released on probation) identified by D.P. Peter, Mr. A.Z. Leneman and Mrs. Leneman as is evident from the identification memos Exs. P 226, P 227 and P 228. The CBI took chits marked Ex. P 5 to P 25 into its possession. These chits were alleged to have been removed by the thieves themselves from the stolen albums at the time of commission of the offence. They were seen lying in the room outside almirah No. 76 by Ram Gopal on 11.1.1969. Some registers Ex. P 38, P 39, P 40, P 41, P 42, P 44 and Toziz Arts 233 to 235 were also taken into possession by the CBI, because they contained descriptions of paintings which were kept in and stolen from almirah No. 76. After collecting other necessary evidence, the CBI filed a charge-sheet against Sangram Singh, Madan Singh, Laxmi Narain, Bhanwar Singh, Madan Singh son of Gulab Singh, and Ayodhya Singh in the court of the Special Magistrate First Class, Jaipur, under Sections 457, 380, 411 and 414 read with Section 120B and 109, I.P.C.. In the course of committal proceedings, Ayodhya Singh turned an approver The learned Magistrate held an inquiry, preparatory to commitment, and upon finding a prima facie case, under Section 120B read with Section 109 read with Sections 457, 380, 411 and 414, I.P.C. committed all the accused except Ayodhya Singh to whom pardon was tendered, for trial in the court of the Sessions Judge, Jaipur City. The learned Sessions Judge, Jaipur City, tried all the accused for the offences with which they were charged and relying upon the testimony of Ajodhya Singh approver and the evidence of recoveries of stolen paintings convicted the appellants in the manner indicated above. He, however, acquitted Madan Singh son of Gulab Singh of all the charges, because, in his opinion, the prosecution could not make out a case against him beyond reasonable shadow of doubt.
5. Aggrieved by their convictions and the sentences, Sangram Singh, Madan Singh and Laxmi Narain alias Laxman have come in appeal to this Court. Bhanwar Singh was released on probation under Section 4 of the Probation of Offenders Act, 1958. He has not filed any appeal against his conviction.
6. I have carefully gone through the entire evidence oral as well as documentary on the record and heard arguments at length. Firstly, it has been contended by the learned Counsel for the appellants that the statement of Ayodhya Singh approver relied upon by the prosecution is full of lies and is so uncorroborated that no conviction can safely be based upon it. In support of his above contention the learned Counsel for the appellants referred me to several rulings i.e Bhuboni Sahu v. The King AIR 1949 PC 257, Sarwan Singh v. State of Punjab : 1957CriLJ1014 , Haricharan Kurmi v. State of Bihar : 1964CriLJ344 and Saravanabhavon v. State of Madras AIR 1964 SC 1273, which have dealt with the rule of prudence that must be kept in mind while acting upon the evidence of an accomplice. In these authorities it has also been laid down that the approver's evidence will have to satisfy a double test before an accused can be convicted on it. The first test is whether the approver is a reliable witness. In determining this question, the Court has to ascertain by applying the usual checks whether the version given out by him is true and whether his evidence fits in with the probabilities of the case or whether it is self inculpatory or exculpatory or whether he has deposed to facts falsely in order to shift the criminal liability from himself and so on. If upon scrutiny of his entire evidence he is not found a trust worthy witness, there is no deed of considering the question as to whether his testimony stands corroborated or not by some independent evidence. Their Lordships of the Supreme Court have made it clear in Saravanabhavan v. State of Madras (Supra) that while considering the question whether the approver is a reliable witness, the court may take into consideration all other available corroborative pieces of evidence and may then arrive at a conclusion whether his evidence is inherently credible or incredible. If the court is convinced that the approver is a reliable witness, it will look for corroboration from independent source with regard to the occurrence narrated by him and also with regard to the identity of each and every accused whom he has implicated with him in the commission of the crime. The reason for subjecting the approver's testimony to double test is that an accomplice is a participant in a crime who may swear falsely in order to shift the guilt from himself and that there is every likelihood that he may have a strong bias on favour of the prosecution on account of a promise of pardon being made to him. It is, therefore, necessary to find out in the first instance whether the evidence of the approver is worthy of credence in itself. For this purpose I have scrutinised the evidence of Ayodhya Singh with great care and caution. In my opinion, reliance can be placed on his evidence as there is nothing in it to show chat it is inherently incredible. The learned Counsel for the appellants have assailed the evidence of Ayodhya Singh on several grounds and I proceed to deal briefly with them. The first attack made upon his evidence is on the ground that he is a habitual thief and a man of disrepute, who had been convicted and sentenced to various terms of imprisonment in the past for similar offences of theft and that, according to his own version, he committed this offence also for mercenary motive. The above contention has no force. The evidence of an approver cannot be rejected out right solely on the ground that he is a notorious thief or man of bad character. His evidence will have to be accepted or rejected on its own merits. There is no dispute that Ayodhya Singh has committed several thefts in the past and he has been convicted and sentenced to undergo imprisonment for some of them but this fast alone is not sufficient to discard his testimony if upon close scrutiny it is found trust-worthy on merits and if it finds corroboration in material particulars from other independent evidence. Another criticism directed against his statement is that it is full of such material contradictions as may render it highly unbelievable. In support of the above contention the learned Counsel for the appellants invited my attention to a discrepancy appearing between his previous statement Ex. D 1 and his subsequent deposition at the trial. The discrepancy pointed out by the learned Counsel is that in his statement Ex. D 1 Ayodhya Singh admitted that he had been committing thefts for the last 30 or 32 years. In his statement at the trial he resiled from his previous statement and denied to have been committing thefts for the last 30 or 32 When confronted with portion A to B of his previous statement Ex. D 1. Ayodhya Singh gave a reply that he had been arrested many a time in cases of thefts. The above discrepancy is not a material one, because when further cross-examined by Shri Kanti Chandra Soni, Advocate, he admitted that he was bound down under Sections 109 and 107, Cr. P.C. for a period of six months but on appeal he was discharged. Similarly he admitted that on 20-5-1940 he was convicted under Section 457, I.P.C. and sentenced to imprisonment for five years but he was acquitted by the Chief Court Jaipur, on his filing an appeal against his conviction and sentence. He further admitted that on 22-5-1967 he was again convicted in two cases under Sections 457/75 and 380/75, I.P.C. respectively and sentenced to undergo imprisonment for two years and to pay a fine of Rs. 2000/-, in each case and that his appeal is pending in the Supreme Court. The statement of Ayodhya Singh cannot be disbelieved merely because he could not furnish details of thefts which he has committed in the past and because he denied to have been convicted and sentenced in some such cases. Another discrepancy pointed nut by the learned Counsel for the appellants is that in portion E to F of his previous statement Ex. D 1 he admitted that be turned an approver merely to avoid imprisonment. In his subsequent deposition at the trial he did not go back from his previous statement and further deposed that he knew it well that inspite of being an approver he may or may not escape punishment and that he has turned approver to make a full disclosure of true facts. The discrepancy, if any, is not of material significance. The other discrepancy pointed out by the learned Counsel for the appellant is that in his previous statement Ex. D 2 he did not mention the name of Sheonarain peon who had seen him and Madan Singh coming out of the inner gate of City Palace. In his subsequent statement at the trial he mentioned the name of the peon as Sheonarain. When confronted with portion A to B of his previous statement Ex. D 2 Ayodhya Singh gave an answer that he might not have remembered the name of Sheonarain at the time of giving his previous statement. No weight can be attached to the above contradiction also because in portion A to B of his statement Ex. D. 2 Ayodhya Singh clearly said that one Jalebdar (Peon), whose name he did not remember, had met and wished him. The discrepancy, if any, loses its weight because, Sheonarain stated on oath that he had seen Ayodhya Singh and Madan Singh coming out of the inner gate of the City Palace and had talked to Ayodhya Singh similarly the mere fact that Ayodhya Singh could not mention the name of Amar Singh driver of Sangram Singh appellant in his police statement is not sufficient for rejection of his testimony which does not stand discredited on any material point. No other discrepancy has been pointed out by the learned Counsel between his previous statements and his subsequent deposition at the trial. Consequently. I have no hesitation in holding that the statement of the approver is consistent throughout.
7. It is next argued that the narrative of the occurrence unfolded by the approver is highly improbable. The above contention also is devoid of force. The approver has not suppressed any material fact. He has implicated himself fully in the commission of the crime of theft by making a clear expression as to the active role played by him along with his associated Laxmi Narain in gaining entry into the 'Surat Khana' and in taking out paintings from almirah No. 76. It cannot be said that his statement is self-exculpatory. Besides it is confirmed by other independent evidence in material particulars not only with regard to the commission of the crime but also with regard to the role played by each of the three appellants in the nasty game. Before proceeding to examine the corroborative evidence coming from independent source, I may like to say that the question of the nature and extent of corroboration has been considered in several cases by the Supreme Court and the following principles are laid down in this regard:
1. It is not essential that every detail given out by the approver in his deposition at the trial should receive confirmation by some independent evidence in the sense that independent evidence should in itself be capable of sustaining a conviction apart from the evidence of the approver. All that is necessary is that there must be some additional evidence which may lend assurance to the story deposed to by the approver.
2. The additional evidence must not only make it reasonably certain that the crime was committed but must also corroborate the testimony of the approver in some material circumstances of particulars with regard to the participation of the accused concerned;
3. The additional evidence must be free from taint i.e. it should come from sources which art not likely to be tainted.
4. That it is not necessary that such evidence must be direct. It is sufficient if the testimony of the approver is confirmed in material points by circumstantial evidence with regard to the commission of the crime and with regard to the participation therein of the accused concerned.
Judged from these yard sticks, the following pieces of independent evidence, which confirm the testimony of the approver in material points with regard to the commission of the crime and qua each appellant can be safely relied upon:
1. The statement of the approver is that soon-after the commission of theft of paintings from 'Surat Khana' by him and his companion Laxmi Narain, Madan Singh appellant came to the house of Laxmi Narain wherein the stolen paintings were kept and desired that the paintings be handed over to him. Laxmi Narain refused to part with them unless the agreed sum of Rs. 10,000/-was paid to him. Thereupon Madan Singh appellant asked Laxmi Narain to take the paintings to Nawalgarh House for showing them to a customer. Laxmi Narain acceded to his request and at his instance brought a taxi-car driven by Shri Sheo Shanker Mishra. Both of them kept one box and a bedding containing stolen paintings in the taxi and directed the driver to take them to Sansar Chandra Road. Sheo Shanker Mishra, PW 2, has corroborated the statement of Ayodhya Singh approver on this point. He stated in hit deposition that Laxmi Narain had taken his taxi-car to his house where Madan Singh and Laxmi Narain kept a box and a bundle in his car and asked him to take them to Sansar Chandra Road.
2. The approver further stated that on the next day he went to the house of Laxmi Narain and met him therein. Laxmi Narain disclosed to the approver that Madan Singh played a trick with him by asking to get down from the taxi-car for fetching cigarettes and when he got down and went away to purchase betel leave and cigarettes, Madan Singh did not wait for him and took away the box and bundle in the taxi-car. This fact is confirmed by the testimony of Sheo Shanker Mishra taxi driver in all its essential details.
3. Ayodhya Singh approver has further stated that a currency note of Rs. 5000/-, which he received from Sangram Singh was handed over by him to Laxmi Narain as a part payment for the role he played in the commission of the crime of theft but Laxmi Narain returned it to him on the next day saying that it could not be encashed. This part of the approver's statement finds corroboration from the evidence of Sheo Shanker Mishra, who stated in his deposition that Laxmi Narain met him and asked him whether he had some acquaintance with a bank employee. Sheo Shanker Mishra told Laxmi Narain that his father's, sister's son is an employee of the State Bank. Laxmi Narain then gave him a currency note of Rs. 5000/- and asked him to get it encashed from the bank. Sheo Shanker Mishra took the currency note of Rs. 5000/-to his brother Chetan shrivastava, PW 31 in the bank for encashment but Chetan Shrivastava refused to encash it unless either full particulars thereof were given or two guarantors were produced. sheo Shanker Mishra took the currency note back from his brother and returned it to Laxmi Narain. Chetan has appeared in the witness-box from the side of prosecution and confirmed the statement of Sheo Shanker Mishra by stating that the latter had brought a currency note of Rs. 5000/- to him in the bank for encashment and that the currency note could not be encashed in the absence of its particulars or two guarantors.
4. The approver's evidence is that later on he received a sum of Rs. 25000/-from Sangram Singh out of which he gave Rs. 8000/-, to Laxmi Narain, and advised him to go out of Jaipur as his stay in Jaipur was not free from risk. Thereupon Laxmi Narain told the approver that he would install a lathe machine at Udaipur where his brother had already been working. The above statement of the approver carries conviction because it is established by independent evidence that Laxmi Narain got a lathe machine purchased through his brother out of this sum from Sohan Singh and that his brother Pritam Singh had no sufficient bank balance in account to purchase the machine for a sum of Rs. 5701/-. Sohan Singh P.W. 5 stated on oath that he had sold away one lathe machine to Pritam Singh brother of Laxmi Narain appellant for Rs. 5701/-, on 6.1.69 and on the next day executed a sale-deed Ex. P. 66. He further deposed that shortly after the sale he saw Laxmi Narain appellant working on the lathe machine at Udaipur. Ramdhan Mittal PW 39 was a clerk in post office City Kotwali on 30.8.68. His evidence is that one Pritam Singh opened a S.B. account No. 253383 in the post-office by depositing a sum of Rs. 5/-, only on 30.8.68 and that thereafter he did not make any deposit in his account.
5. The statement of the approver is that he requested Sangram Singh appellant to help him it inspecting the site of the 'Surat Khana' from inside the palace. Sangram Singh expressed his inability to give such an assistance because site inspection of the 'Surat Khana' from inside the palace was not possible on account of the palace guard being always posted therein but when he was again requested he told Ayodhya Singh to come tomorrow along with Madan Singh and to go round the museum and see the 'Surat Khana'. On the next day he and Madan Singh went into the court yard of the museum with the help of 2 passes given to them by Sangram Singh, and Madan Singh pointed out the enclosure of 'Surat-Khana' from there. When they were coming out of the Museum they met Sheonarain Jamadar' who was known to Ayodhya Singh Ayodhya Singh began to talk to Sheonarain and Madan Singh went inside the room of Sangram Singh appellant. The above statement of the approver is corroborated by the testimony of Sheonerain Jamadar P.W. 22, who stated in his deposition that he saw Ayodhya Singh and his companion Madan Singh (whom he later on correctly identified in a test parade and subsequently in the trial court) coming from the side of 'Surat Khana' in the middle of December, 1968. On seeing Ayodhya Singh, whom he knew previously, he enquired whether Ayodhya Singh had come to see 'Surat Khana'. Ayodhyasingh gave a reply in the affiramative Thereafter, he saw Ayodhya Singh waiting outside and Madan Singh entering the office of Sangram Singh appellant.
6. The approver further stated that Sangram Singh appellant asked him to commit theft of paintings from almirah No. 76 as soon as possible, because the paintings sought to be stolen were scion going to be kept in Godrej almirahs. The above statement finds corroboration from the evidence of Ram Gopal, PW 2, who stated in his deposition at the trial that in the year 1968 'Surat Khana' was opened in the presence of Sangramsingh. At that time Sangramsingh gave a suggestion to Maharaja Jaisingh that almirah No. 76 might be shifted to the museum and in lieu thereof he would give two Godrej almirahs. Maharaja Jai Singh accepted the suggestion. Sangram Singh then suit two Godrej almirahs-one in the month of October and the other in November. The bills of these two almirahs were sent in the name of Ram Gopal, Superintendent, City Palace, by the Rajasthan Central Stores. He sent these bills to Sangram Singh for payment along with letter Ex. P. 28 but Sangram Singh adopted delaying tactics and refused to make the payment by making an endorsement marked A to B to this effect on letter Ex. P. 28 Later on Sangram Singh agreed to pay a sum of Rs. 1000/-, out of the museum funds towards the price of these almirahs;
7. The evidence of Ram Gopal on this point is fully supported by the documentary evidence Exs. P. 28, P. 32, P. 33, P. 34 and by the statement of Maharaja Jai Singh, who also testified to the fact that Sangram Singh appellant had given him a suggestion to take over almirah No. 76 from the household and in lieu thereof to provide the household with two Godrej almirahs;
8. The approver's statement is that there was an electric bulb fitted on a pole near the spot. He asked Madan Singh to get the bulb broken by some person in order to facilitate the commission of theft. Madan Singh promised him to get it broken with the help of Hari Singh. This fact is confirmed by the evidence of Hari Singh, PW 25, who admitted at the trial that Madan Singh had asked him to break the electric bulb fitted on a pole infront of the City Palace and that, he refused to do that work.
9. The evidence of approver that he left some stolen paintings articles. 595 to 644 and 645 to 775 with Ram Sharan Shraff at Agra is fully corroborated by the independent evidence of Ram Sharan Shraff PW 21 from whose house these stolen paintings were recovered by Ramendra Singh, Deputy Superintendent of Police, vide memo of recovery Ex. P. 4 at the instance of the approver and in consequence of his information which he furnished to the said Deputy Superintendent of Police while being under police custody. These paintings were, later on proved to be the stolen properties of Maharaja of Jaipur. Likewise stolen paintings were recovered from the house of Ram Sharan Shraff at Agra by Superintendent of Police Harbansh Singh vide memo of recovery Ex. P. 2. which are articles 595 to 775, 796 to 799 and 825 to 831 and 853 to 860 Some of the paintings Articles 861 to 866 were recovered from the house of Ayodhya Singh approver also. These recoveries are fully proved by the evidence of PW 40 Harbansh Singh, Superintendent of Police and PW 60 Ramendra Singh, Deputy Superintendent of Police and the Motbirs who were present at the time of the recoveries. Further corroboration of the statement of the approver is available from the recoveries of the stolen paintings from the possession of Sangram Singh and Madan Singh appellants.
8. A large quantity of stolen paintings belonging to Maharaja of Jaipur were found in the possession of Madan Singh, which were recovered by the CBI, in three recoveries at his instance and in consequence of his informations recorded under Section 27 of the Evidence Act on 18.12.1969. In pursuance of his information, which was reduced to writing in Ex. P. 212, Madan Singh led the police party to Dhuni Raoji-ka Bagh and dug out 41 paintings from the ground. The paintings were taken into possession by the CBI vide memo of seizure Ex. P. 214 and were sealed properly in the presence of Motbirs. The sealed bundle was opened by Shri N.L. Kakkar, P.W. 41 on 22.1. 70 and the paintings that were taken out of it were put up for identification in a test-parade, wherein 41 stolen paintings were correctly identified by the identifying witnesses namely Yadvendra Sahai, Kripal Singh and Ram Gopal to be the properties of Maharaja of Jaipur. These 41 paintings were later on identified by these identifying witnesses in the court. The stolen paintings identified are Articles 1236 to 1276.
9. On 31.12.1969 Madan Singh gave another information which was recorded as Ex. P. 240 and volunteered to produce the property at village Badwasi. Madan Singh led the police party to the village and on 2.1.1970 dug out from the ground 47 paintings which were seized and sealed vide seizure memo Ex. P. 221. These paintings were later on put up for identification in a test, parade held by Shri N.L. Kakkar, P.W. 41: The identifying witnesses identified 47 paintings to be the properties of the Ex-ruler of Jaipur. The articles identified are 1082 to 1125, 1195, 1703, and 1704. The identification memo is Ex. P. 58.
10. On 4-l-1970 Madan Singh accused gave one more information, which led to the recovery of 518 stolen paintings from his field wherein they were lying buried in the ground. These paintings were also correctly indentified by the aforesaid identifying witnesses in a test-parade held by Shri N.L. Kakkar on 23-1-1970 and thereafter in the court. The articles identified are Articles 381 to 429, 868 to 902-A, 962 to 983, 1126 to 1157, 1304 to 1537, 1548
to 1571. 1610 to 1619, 1647 to 1666, 1705 to 1754, 1756, to 1774, 1787 to 1791, 1792, 1667 to 1702.
11. The three recoveries of a good number of stolen paintings raise a presumption of guilt against Madan Singh appellant and amply corroborates the statement of the approver that he was concerned in the theft and that he took away stolen paintings from the house of Laxmi Narain co-accused soon after the commission of the crime.
12. Apart from the evidence of recoveries and the testimony of the approver, there are admissions of guilt by Madan Singh appellant which he made in his statement Ex. P. 269 which was recorded under Section 342, Cr. P.C. by Shri Sunil Kumar Garg, Special Magistrate Jaipur; on 22-4-1971. Madan Singh again pleaded guilty to the change read over to him by Shri D.D. Gupta on 4-6-1971 by stating in clear and definite terms that he had pointed out the room, wherein the paintings were kept, to Laxmi Narain and Ayodhya Singh and after they had committed theft of the paintings from that room, he took away stolen paintings in a taxi-car to the quarters of his nephew Bhanwar Singh PW 28 Chowkidar, and that he later on handed over the stolen property to the police and that he absconded after the arrest of Sangram Singh.
13. It is undoubtedly true that the confession of Madan Singh appellant cannot be used to corroborate the evidence of Ayodhya Singh approver because such a confession is a tainted piece of evidence and cannot be placed on a higher footing than the evidence of the approver itself but the retracted confession of Madan Singh appellant may be relied upon against himself along with other evidence to prove his guilt.
14. The approver's testimony that he handed over a good number of stolen paintings including Geet Govind collections to Sangram Singh shortly after the commission of the theft finds material corroboration from recovery of a large quantity of paintings belonging to Maharaja of Jaipur, from Sangram Singh's possession and from the possession of others, namely, Har Gopal Mehra, Kishan Gopal Mehra, C.L. Bharani, Babulal, and Mrs. Gera Sarabhai. On 26-4-1909 Sangram Singh got four paintings recovered from his house vide seizure memo Ex. P. 205 on 29-4-69. 100 paintings were recovered from the shop of Har Gopal Mehra at the instance of Sangramsingh vide seizure memo Ex. P. 85. Again on 30-4-69 Kishan Gopal Mehra PW 16, produced 40 paintings before the CBI at the instance of Sangramsingh which were taken into possession vide seizure memo Ex. P. 130. On the same day 24 paintings were recovered from the possession of C.L. Bharani, r/o Sunder Nagar, Delhi, at the instance of Sangram Singh vide seizure memo Ex. P. 131. On the same day Kishan Gopal produced 195 paintings before the CBI. at the instance of Sangram Singh appellant, which were taken into possession by the CBI. vide memo of seizure Ex. P. 134. Likewise 29 paintings were recovered from Babulal on 1-5-1969 at the instance of Sangram Singh: vide recovery memo Ex. P. 200. On 3-5-1969 Sangram Singh, while being under police custody gave an information Ex. P. 206 which led to the recovery of 51 paintings from his house it Jaipur. On 5-5-1969 also he furnished another Information Ex. P. 208 which led to the recovery of 97 paintings from Lalit Kala Academy at his instance, out of which Sangramsingh selected 3 paintings only which were taken into possession by the CBI vide memo of seizure Ex. P. 209. Sangram Singh furnished another information to the CB1 on 9-5-69 which led to the recovery of 2 paintings which he had sold to Shri Gotam Sehgal. These paintings were recovered under seizure memo Ex. P. 239 from Shri K.L. Kakkar. The very day Sangram Singh gave another information to the CBI on the basis of which 3 paintings were recovered on 29-5-1969 from A.G. Krishna Murthy, P.A. to Mrs. Gera Sarabhai which were seizd vide memo Ex. P 70, dated 19-5-69, on 4-8-69, 18-8-69 and 10-9-69. Krishna Gopal Mehra produced, 31, 46 and 15 paintings respectively which were seized, vide seizure memos Ex. P. 121, Ex. P. 122 and Ex. P. 123. On 17 and 18-9-69, the house of Sangram Singh at Jaipur was searched by the CBI and 2009 paintings were recovered vide seizure memo Ex. P. 204. All the paintings recovered in 17 recoveries from him and from possession of others at his instance were put up for identification in several test-parades held by Shri N.L. Kakkar. PW 41 and Bal Krishna PW 42 on different dates. Kripal Singh, Ram Gopal and Yadvendra Sahai correctly identified them to be the paintings of Maharaja of Jaipur, which were kept in almirah No. 76.
15. Thus 566 stolen paintings belonging to Maharaja of Jaipur, which were correctly identified, were recovered either from the possession of Sangram Singh or from the possession of others at his instance. Sangram Singh has not disputed these recoveries in his statement under Section 342, Cr. P.C. Consequently, these recoveries of stolen articles go a long way to confirm the testimony of the approver in material particulars with regard to the part played by Sangram Singh in the commission of the crime and in the disposal of the stolen properties.
16. Next it has been vehemently contended by the learned Counsel for the appellants that no reliable evidence has been led by the prosecution to prove conclusively that the theft of paintings from almirah No. 76 was committed in the night between 22nd and 23rd December, 1968. According to the learned Counsel, there is sufficient material on the record to show that the paintings were stolen away on any day between 5th and 10th January, 1969. In support of his above contention he relied upon a material contradiction appearing between the deposition of Ram Gopal Mathur at the trial and his previous statements, which he gave before the investigating officer. The contradiction pointed out by the learned Counsel for the appellants is that in portions marked A to B of his statements Exs. D 3 and D. 4, with which he was confronted at the trial, Ram Gopal clearly stated that on 4-1-1969 he had opened the room in which almirah No. 76 was lying for getting it cleaned by two persons namely Nand Kumar and Nathu Lal and that on opening the room, he found that its ventilator was unbroken and the almirahs were lying in it with seals intact. On the strength of the above statements made by Ram Gopal Mathur, Superintendent, City Palace Jaipur, before the investigating officer, the learned Counsel argued that no theft was committed in the room till 4-1-1969 and that the story of theft having been committed in the intervening night of 22nd and 23-12-1968, was, later on, invented by CBI in order to falsely implicate Sangram Singh in the commission of the crime, because the CBI came to know during the course of investigation that good number of paintings had been disposed of by Sangram Singh prior to 4-1-1969. The above contention was raised before the trial court also but the learned Sessions Judge found it un-acceptable for reasons given out in his judgment, with which I fully agree. It is a settled law that a previous statement made by a prosecution witness before the investigating agency during the course of investigation can be used, if duly proved, by the accused at am inquiry or trial in respect of any offence under investigation at the time such statement was made, to contradict such witness in the manner provided by Section 145, Indian Evidence Act, It cannot be used by the accused for any other purpose. It is not admissible as a piece of substantive evidence in favour of the accused or against him. Consequently, 1 am unable to hold that the portions marked A to B of the statements of Ram Gopal, which were recorded by the police during the course of investigation, are usable as substantive pieces of evidence in favour of the appellants. It is undoubtedly true that such earlier statements made by Ram Gopal with reference to the facts of the occurrence can be used to test the veracity of the witness when examined in court and to show that the evidence given by the witness in court is false. But before those portions of the statements with which he has been confronted should be relied upon for the purpose of contradiction, his explanation, if any, about the apparent discrepancies, should be taken in to consideration. In this case Ram Gopal, when confronted with portions of his previous statements has tendered his explanation which requires consideration. The explanation is that in fact he had opened the room of 'Surat Khana' about 20 or 25 days prior to 11-1-69 but on account of nervousness caused by the theft and due to absence of any record of the dates on which 'Surat Khana' was previously opened, he made a wrong statement before the police that he had opened the room or 4-1-1969 for the purpose of getting it cleaned by Nand Kumar and Nathu Lal Farash. The above explanation furnished by Ram Gopal to clear up the points of discrepancy is not unconvincing in the circumstances of the case. He was in charge of 'Surat Khana' in those days. Naturally he was perturbed when he found that somebody had broken open the ventilator and had stolen away a good number of valuable paintings from almirah No. 76 by gaining access into the room through it. He has kept no record of the dates on which the 'Surat Khana' was opened by him for the purpose of cleaning it or for any other purpose. It appears that on account of perturbation and nervousness and in the absence of any record he could not remember the correct dare on which the 'Surat Khana' was last opened by him. Be that as it may, but even if his testimony on this point is rejected on account of the referred-to-above discrepancy between his deposition at the trial and his previous statements recorded by the police during the course of investigation, there is other satisfactory evidence led by the prosecution to prove that in fact the theft was committed in the intervening night of 22nd and 23rd December, 1968. The direct evidence about the crucial date on which the theft took place in the Surat Khana' is of Ayodhya Singh approver, who confessed to have committed the theft himself along with Laxmi Narain appellant in the night immediately preceding the day of 'Mithi Id', which was celebrated on 23-12-1968. I have already held above that the approver is a reliable witness and his evidence is amply corroborated in material particulars by other independent direct as well as circumstantial evidence The evidence of approver on by this point is further corroborated by the statement of Sheo Shanker Mishra. PW 12 who clearly stated in his deposition that in the last week of December, 1968, his taxi-car was hired by Laxmi Narain & was taken to his house. When he was standing out side the house Laxman and Madan came out and brought one box and one bedding wrapped in a blanket which they put in the dickey of his taxi-car and asked him to take them towards Chandpole & Sansar Chandra Road near Nawalgarh house. As soon as the taxi reached near Navalgarh house, Laxman got down from the taxi-car to fetch match box & cigarettes at the instance of Madan singh. When Laxmi Narain went away from there, Madansingh asked this witness to start the car and to take him to the quarters of Ball Bearing Company. When the car reached there, Madan Singh, called out Bhanwarsingh & took the box and the bedding out of the dickey and carried them inside the quarter with the help of Bhanwar Singh. The evidence of this witness finds correction from the statement of Bhanwar Singh s/o Bharat Singh, PW 28 Bhanwar Singh PW 28 also stated in his deposition at the trial that Madan Singh appellant had brought a box and a bedding wrapped in a blanket to his quarter in a taxi-car in the 3rd or 4th week of December, 1968, and that he and Madan Singh had taken away the box and the bedding into the quarters. This witness identified the box Article 1836 to be the very box, which was brought by Madan Singh to his quarters and kept therein. He gave this box to Bhupendra Singh alias Bhanwar Singh on the next day in pursuance of a direction given to him by Madan Singh appellant at the time of keeping the box and bedding in his quarters. This box was, later on, recovered from the field of Bhupendra Singh alias Bhanwar Singh accused at the latter's instance and in consequence of his information, which he furnished to the CBI on 20-10-1969. This box contained a number of stolen paintings and was found lying buried in the field Hence it is proved by the evidence of Sheo Shanker Mishra, PW 12, and Bhanwar Singh, PW 28 that the box Article 1826 was taken by Madan Singh from the house of Laxmi Narain to the quarters of Bhanwar Singh in a taxi-car driven by Sheo Shanker Mishra in the latter half of December, 1968.
17. There is another reliable piece of evidence which unmistakably leads to a conclusion that the theft took place in the 'Surat Khana' on the night intervening 12nd and 23rd December, 1968. The piece of evidence is the recovery of paintings Articles 317 to 335, 1796 to 1798, 1804 and 1807 from the possession of C.L. Bharani resident of Surendra Nagar, Delhi. This recovery was made at the instance of Sangramsingh on 30-4-1969, vide recovery memo Ex. P. 131. These paintings were sealed properly after they were recovered by the investigating officer. They were later on put up for identification in a test-identification parade held on 9-5-1969 by Shri Bal Krishna Sharma, the then City Magistrate Jaipur, PW 42. These paintings were mixed with 50 other similar paintings secured by the Magistrate from his own sources & out of a total number of 74 paintings, the identifying witnesses, namely, Kripal Singh, Yadvendra Sahai and Ram Gopal correctly identified these paintings marked Articles 317 to 335 and 1796 to 1798 and 1804 to 1807 to be the properties of Maharaja of Jaipur. There after these paintings were correctly identified by the aforesaid identifying witnesses in the trial court. It will not be out of place to mention that there is reliable evidence from the side of the prosecution that these paintings were entrusted to Brij Mohan PW 8 on 25th December, 1968 by Sangramsingh with a direction to sell them for Rs. 2500/. Brij Mohan PW 8 has clearly stated in his deposition at the trial that he met Sangram Singh on 23rd or 24th December, 1968. Sangram Singh asked him to come on the next day as the former had to give some paintings to the latter for sale. Brij Mohan met Sangram Singh on the next day and received 25 paintings from the latter for sale. He handed over these paintings to his nephew Shri Mohan with a direction to sell them at Delhi. The evidence of Brij Mohan on this point is amply corroborated by the statement of his nephew Shri Mohan P.W. 10 who stated, in clear and definite terms, that on 25.12.1968, 25 paintings and some other articles were handed over to him by his uncle Brij Mohan for sale in Delhi. He sold away those paintings to Kishori Lal Mehra for Rs. 1500/-. The other articles were also sold to the same vendee for Rs. 500/-. Shri Mohan gave a receipt to Kishori Lal Mehra after the transaction of sale, which is Ex. P. 126 and which bears his signatures marked A to B therein. Shri Mohan further stated that he came back to Jaipur from Delhi on 27.12.68 by air which fact is admitted by Brij Mohan in his deposition at the trial. Out of these 25 paintings, which were purchased by Kishori Lal Mehra from Shri Mohan, 24 were later on sold away by him to Shri Chotey Lal Bharani P.W. 15, for Rs. 1500/-, vide cash memo Ex. P. 127. Chotey Lal Bharani P.W. 15 clearly deposed that in the last week of December, 1968 he had purchased paintings Articles 3 17 to 335, 1804 to 1807 and 1796 to 1798 from Kishori Lal vide cash memo Ex. P. 127 and that, later on, these paintings were recovered from his possession by the police at the instance of Sangram Singh appellant. If the theft had been committed in the 'Surat Khana' on some day between 4th and 11th January, 1969, Sangram Singh would not have been found in possession of these stolen paintings articles 317 to 335, and 1794 to 1996 on 25.12.1968 as alleged by Brij Mohan P.W. 4. The evidence of Shri Brij Mohan, Shri Mohan and P.W. 15 Krishna Gopal Mehra is free from infirmity, Nothing has been elicited from their cross-examination which may tend to show that they have spoken lies before the court in order to falsely implicate Sangram Singh appellant in this case. These witnesses have no enmity or grudge against Sangram Singh. Their evidence is fully corroborated by the documentary evidence as indicated above.
18. It is further stated by Brij Mohan P.W. 4 that on 27.12.1968 he again met Sangram Singh appellant who asked him to come on the next day for taking other paintings for sale. There upon he went to the house of Sangram Singh on 29th or 30th December 1968, but that day no paintings were given to him for sale and he was directed to come on the next day. He accordingly visited Sangram Singh's house on the next day and received 117 paintings in 2 lotsone of 39 and the other of 78 paintings. Sangram Singh asked him to sell both the lots for Rs. 25000/-. Brij Mohan took both the lots to Delhi and sold them away to Har Gopal Mehra for Rs. 7800/- and for Rs. 11700/-, respectively. Har Gopal Mehra (P.W. 17) paid a sum of Rs. 7800/-only to Brij Mohan and the remaining sum was promised to be paid in the first week of February, 1969. Brij Mohan came back to Jaipur and paid the price of 39 paintings to Sangram Singh on 5th, 6th or 7th January, 1969 after deducting his commission at the rate of 5%. On the day when the price was paid to Sangram singh, the latter handed over 69 more paintings to Brij Mohan for sale. Out of them 40 paintings were sold by Brij Mohan to Kishori Lal for Rs. 1500/-, and the rest were kept by him with his friend Babu Lal. The above statement of Brij Mohan finds corroboration from the testimony of Shri Mohan P.W. 10 and Har Gopal Mehra P.W. 17. Shri Mohan stated on oath in the trial court that on 1st or 2nd January, 1969 he had gone to Delhi with his uncle Brij Mohan for the purpose of selling 117 paintings and that they had sold them away to Har Gopal Mehra. Likewise Har Gopal Mehra admitted in his deposition at the trial that on 3.1.1969 Shri Mohan and Brij Mohan had brought 39 paintings of Geet Govind and that he had purchased those paintings from them for Rs. 7800/-: vide receipt Ex. P. 86, which was signed by Brij Mohan and attested by Shri Mohan. He further stated that on 4.1.1969 they again came to his shop and sold away 78 paintings out of which 40 were of Geet Govind of Malwa school, 30 were of Rag Ragini and 8 of Bara Masa. According to him, he had no money with him at that time, so he promised Brij Mohan to pay the price of those paintings in the month of February, 1969 and in fact he made full payment of the price on 4.2.1969 vide cheque Ex. P. 87 for Rs. 11700/-. Later on Har Gopal sold away some of those paintings to customers and sent some of them to foreign countries. He produced cash memos Ex. P. 89 to Ex. P. 120 to prove the sales. After some days the C.B.I. officials came to his shop and asked him to product the paintings which were sold to him by Brij Mohan. So he collected 103 paintings from customers to whom he had sold them away and produced them before the C.B.I. In this manner the C.B.I. succeeded in recovering 103 paintings vide memo of seizure Ex P. 121 to P. 125. All the 103 paintings were correctly identified by Ram Gopal, Yadvendra Sahai and Kripal Singh identifying witnesses in test-parades as well as in the trial court to be the stolen properties belonging to Maharaja of Jaipur. These facts proved by the prosecution clearly establish that Sangram Singh bad been in possession of a large number of stolen paintings belonging to Maharaja of jaipur in the last week of December, 1968 and that he handed over a good number of them to Brij Mohan for sale during the period between 23.12.68 and 4.1.1969.
19. Another contention put forward by the learned Counsel for the appellants is that an adverse inference ought to have been drawn by the trial Judge against the prosecution for its failure to produce Nathu Lal and Nand Kumar Farash who were alleged to have cleaned the 'Surat Khana' on 4.1. 1969 and who, if examined by the prosecution at the trial, would have proved the innocence of the appellants. In support of the above contention reliance has been placed on an authority of the Hon'ble Supreme Court of India reported as Habib Mohammed v. State of Hyderabad : 1SCR475 , wherein it was observed by their Lordships that prosecution must call all material witnesses before the court, whose evidence is necessary to the unfolding of the narrative on which the prosecution case is founded and that if any such witness is deliberately with held by the prosecution, not only an adverse inference should be drawn against it for not-examining him but the non production of such a witness itself throws a serious doubt on the fairness of the trial. Therefore, it has to be determined whether these two witnesses Nathu Lal and Nand Kumar could be regarded essential witnesses who could speak to any material part of the prosecution case. It is not disputed before me that these two witnesses were not present at the time when the theft was committed. They had no knowledge as to who were the thieves. Even if they were examined at the trial, they could not have spoken to facts which are essential to the unfolding of the prosecution story. Consequently, I am unable to draw an adverse inference against the prosecution on that score, because, in my opinion, the prosecution cannot be expected to discharge the functions both of prosecution and defence. It was open for the defence to call for these witnesses to give evidence or to make a request to the trial court to summon them as court witnesses. Apart from this, the fact, which these witnesses, if examined, could have deposed to, has been found untruthful by me after judging the evidence adduced in the case as a whole. I have already discussed the other reliable evidence, which unmistakably points to the conclusion that the theft in this case was committed before 4th January, 1969 in the night between 22nd 23rd December, 1968. Hence the argument of the learned Counsel for the appellants that the circumstances of these two witnesses being with held without assigning any reason throws a considerable doubt on the fairness of the trial is not well-founded.
20. The learned Counsel for the appellants further argued in this connection that Ayodhya Singh approver himself wrote a letter Ex. D. 71 to Madan Singh appellant on 30-12-1968, the contents of which clearly reveal that upto 5th January, 1969, no theft of paintings was committed in almirah No. 76 of the 'Surat Khana' and that Ayodhya Singh asked Madansingh to meet him before that date. This letter was alleged to have been sent to Madansingh at village Badwasi, District Jhunjhunu by post in an envelope Ex. D 72, which bore postal seals dated 30-12-68 and 1-1-69, (though not clearly visible). The contents of this letter are in Devnagari script. When translated into English it reads as follows:
Brother Madanji, accept salutation of Ayodhyasingh. Further the message is that you did not give reply until now about the work of City Palace. I sent two or three letters to you but you did not give any reply. The work of city palace is a difficult one but if it is done, it will bring about lift-long comforts. I am feeling difficulty on account of being alone. So I could not do this work until now. Now in accordance with a Panchang (almanac) the date of 5th January, 1969 is the auspicious date. So you surely meet me before this date. Do not commit any mistake in this respect. Rest we will talk in our meeting.
Sd. Ayodhya Singh
If the contents of this letter are true, they go a long-way to establish that the theft was not committed in the city palace upto 30-12-1968 and that it was contemplated to be committed on 5-1-1969. The prosecution has brought certain facts on record to controvert the contents of this letter. First of all, according to the prosecution, this letter was written by Ayodhya Singh approver on 3-10-72 in the prison under some pressure which was brought to bear upon him by the jail officials at the instance of Sangramsingh appellant. The approver, who is admittedly the scribe of this letter, stated in his deposition taken down under Section 540, Cr. P.C. that he had written this letter at the instance of Madansingh on dated 3-10-1972. The above statement of the approver appears to be true for the following reasons:
(1) Ex. P. 274 is a part of the paper on which the letter Ex. D. 71 had been written by the approver. There are marks of lines on this paper Ex. P. 274 which shows that at the time of writing the contents of the letter Ex. D. 71, both the pieces of paper, i. e. D. 71 and Ex. P. 274 were not separate but formed one paper which was divided into two parts by the scribe after writing the letter. When both the pieces are put together it appears that writings of Ex. D. 71 are carried over on the other part, i.e. Ex. P 274. While writing the letter ' ^j^' in word' ' ^ueLdkj ^' the scribe has carried over the tail of letter ' ^j^' on paper Ex. P. 274. Similarly the lines which join all the heads of letters of words' ' ^ueLdkj ] vkius ] dkxt] vdsyk] fnuk] vkidk] v;ks?;kflag ' in writing Ex. D. 71 were carried forward to paper Ex. P. 274. Similarly the tails of the letters, in word of letter ' ^t^' in word ' dkxt' of letter ' ^j^' in word and of letters ' ^flag^' in word' ' ^v;ks/;kflag ^' appear in Ex. P. 274 also in such a manner as may clearly indicate that at the time of writing Ex. D. 71 there was one piece of paper which, later on, was divided into two parts by the scribe, one part Ex. D. 71 was given to Madan Singh and the other Ex. P 274 was kept by Ayodhya Singh with him for the purpose of showing if need arose, that he was pressurised to state wrong facts in the letter Ex. D. 71. It bears a date, i.e. 3-10-72 and also bears the signatures of one Narendrasingh, who was alleged to be a Circle Officer in the office of the Social Welfare Department.
(2) Another circumstance is that the seal of the post-office, Jaipur, on the envelope Ex. D. 72 has been proved to be a forged one by the evidence of CW 3 Radhey Shyam Bari. The evidence of Radhey Shyam Bari. The evidence of Radhey Shyam Bari on this point is that the impression of the seal put on Ex. D. 72 does not tally with the impression of the seal which was affixed on a genuine receipt Ex. P 277 which he brought from his office. He has assigned good reasons for the dissimilarity found in the two impressions of the seals. The reasons are that in the impression of seal put on Ex. P 277 the letters 'DES' are inscribed at the bottom and letters 'REG' are written at the top. Letters 'DES' denote despatch while letters 'REG' denote registration. To the contrary in the seal impression put on Ex. D. 72 the positions of the letters 'REG' and 'DES' are just the reverse. Radhey Shyam Bari has further stated that only the seal which is used in registration branch, contains letters 'REG' in other seals which are used in other branches do, not contain such letters. Although this witness could not produce specimen impression of the seal, which had been used in G.P.O. registration booking office on 30-12-68, because of its destruction after two years by the postal department, yet he has definitely stated that the impression of the seal put on registration receipt Ex. P 277 was used on 30-12-68 at the counter of the GPO booking only and that the impression of the seal found on Ex. D. 72 is a forged one. It will not be out of place to mention that the letter Ex. D. 71 alleged to have been sent by Ayodhyasingh approver to Madansingh at his village address (Badwasi) does not appear to have been sent through registered post although it contains an impression of seal which was used in registration branch of the post office only on 30-12-68. There is further evidence of N.K. Jain, Senior Scientific Officer, Documents, Central Forensic Science Laboratory, CBI New Delhi, CW 4 that there is apparent dissimilarity between the impression of the seal put on Ex. D. 72 and the impression of seal embossed on Ex. P 277. He has arrived at the above conclusions after examining the two impressions of the seals with the aid of ordinary ultra violate light, transmitted light. He has given out reasons for his above view in his deposition at the trial which appear to be convincing.
(3) There is another circumstance which heavily tells upon the veracity of the defence version on this point. If Madansingh appellant had received this letter Ex. D. 71 by post soon after 30th December, 1968, there appears to be no reason why he could not produce it earlier on or before the date when the approver was examined and cross-examined at the trial. Curiously enough this letter was brought to the notice of the court on or about 18th October, 1972 when Ayodhyasingh was again summoned for cross-examination under Section 540 Cr. P.C.
(4) It appears from a bare look into the letter Ex. D. 71 that the scribe thereof had first dated it at two places as 20-12 68 and thereafter made variations in the dates so as to appear 30-12 68 by converting figure '2' into figure '3'. The approver has testified to this fact in his cross-examination. According to him, he put a date, i.e. 20-12-68 on the letter at two places in the first instance but it was changed by him, later on, to 30-12-68 at the instance of Madansingh appellant by converting the figure '2' into figure '3', because Madansingh told him that if the letter was dated 20-12-68, it would confirm the approver's previous statement which he had given in the court.
21. For the above reasons I feel inclined to hold that the statement of the approver relating to the circumstances under which this letter was written by him in jail at the instance of Madansingh appellant is worthy of credence.
22. It has been strenuously urged before me by learned Counsel for the appellants that the prosecution ought to have produced Narendrasingh to show that in fact this letter was brought into existence in jail under some pressure on the approver and that non-production of this material witness raises a strong presumption that had he been called to give evidence, he would have deposed against the prosecution. The above contention has no force, because, no adverse inference can legitimately be drawn against the prosecution for its failure to examine Narendrasingh, Welfare Officer, who has signed Ex. P. 274. The prosecution came to know of this witness for the first time during cross-examination of the approver when he was later on called as a court witness under Section 540, Cr. P.C. Apart from this, there is ample evidence on the record that Ex. D. 71 was fabricated, later on, in prison to show that the theft took place on or alter 5-1 1969. It was open for the defence also 10 call for this witness for the purpose of controverting or falsifying the statement of the approver relating to the circumstances under which letter Ex. D. 71 was written by him. The prosecution is not bound to multiply evidence in proof of a particular fact. Consequently, I am unable to accept the contention of the learned Counsel for the appellant that the theft in this case had been had been committed after 4-1-1969 and before 11-1-1969.
23. It was further urged by the learned Counsel for the appellants that the paintings recovered at the instance of Madan Singh and Sangram Singh appellants have not been proved to be stolen properties and in the absence of such proof, no presumption of guilt can arise under illustration (a) to Section 114 of the Evidence Act. According to him the prosecution has failed to adduce satisfactory evidence to show that the articles which were recovered from the possession of the appellants were stolen from almirah No. 76 and, that in the absence of any connection having been established between the articles alleged to have been stolen and those recovered at the instance of the appellants, it cannot be safely held that the appellants are the thieves or the receivers of the stolen properties.
24. I have given my anxious consideration to the above contention and have found it unacceptable. As stated earlier, all the paintings recovered at the instance of Sangram Singh and Madansingh appellants and the approver were put up for identification in test-parades held by Bal Krishana and N.L. Kakkar Magistrate. The identifying witness namely, Ram Gopal Yadvendra Sahai and Kirpal Singh correctly identified them in the test parades and thereafter in the trial court to be the properties of Maharaja of Jaipur, which were kept in almirah No. 76 of the 'Surat Khana'. The evidence of these three identifying witnesses has been challenged by the learned Counsel for the appellants on several grounds, firstly it has been contended that no value can be attached to their evidence of identification as they could not point out any specific features of distinguishing marks on the numerous paintings which they were called upon to identify. The above contention is not sound. The identification of property in a case is a question of fact and no invariable rules, can be formulated to govern all cases alike. A particular article may be identified by any distinguishing mark on it or by frequent use or observation, which causes an invisible impression on the mind of the identifier that leads to recognition. However, chances of mistake in identification are not rare where articles in question are of ordinary make and answers the description of unmistakable articles of the same kind. In this case the paintings recovered at the instance of the two appellants and the approver are not of ordinary make which are found with every body. It is proved by the testimony of O.P. Sharma. PW 34, who is incharge of the paintings section, National Museum, New Delhi, that the paintings recovered by the CBI were placed before a committee consisting of himself, Ram Krishna Das and V.P. Dwivedi, which was constituted by the Government of India, for finding out the value, style, age etc. of these paintings. The committee examined each and every painting and made a report, which is Ex. P 219 on the record. From his evidence it is established that Articles 2 to 231 are paintings of the Geet Govind of Malwa style which is a rare set of paintings prepared in the first half of seventeenth century near about 1630. Similarly other paintings, according to his report are old precious paintings of different schools of art, such as Mugal, Persian, Jaipur, Bundi, European etc. Ram Gopal, Yadvendra Sahai and Kripalsingh are the principal witnesses who claimed to have been familiar with the paintings kept in almirah No. 76 of the 'Surat Khana'. They have identified the paintings in the test identification parades as well as in the trial court by remembrance of their general appearance on account of impressions made on their mind by frequent sight of them in the past. Ram Gopal PW 2 stated in his deposition that he could identify the paintings, because he had the opportunity of seeing them frequently and because a good number of paintings bore royal seals of Raja Jayamal, Sita Ram, Maharaja Jai Singh First etc, and because words such as 'Achha', 'Uttam', 'Badhiya', 'Aval' were written on some of them. Ram Gopal was working as a Superintendent, City Palace since 1952 and in such capacity was incharge of 53 stores including the 'Surat Khana' in which almirah No. 76 was kept. Whenever, almirah No. 76 was opened for putting in or taking out paintings from it was opened in his presence. Hence he had good opportunities of seeing the paintings placed in almirah No. 76. The learned Counsel for the appellants assailed his evidence on the ground that he, being an employee of Maharaja of Jaipur, it an interested witness and that he admitted in his cross-examination that he had no connections with the paintings contained in almirah No. 76 and had never taken them in his hand for observation before the commission of the theft. The above criticism levelled against his evidence of identification is devoid of force, because by frequent sight of the paintings he could identify them by remembrance of their general appearance without minutely examining them.
25. The other identifying witness is Yadvendrasahai, PW 3. His evidence is that he was working on the post of Chemist at the Maharaja of Jaipur Museum since 1961 and that he was frequently called upon by the Maharaja to see the personal collection of paintings kept in almirah No. 76 and to suggest effective measures to be taken to check their determination. He claimed to have seen the personal collection of the paintings kept in almirah No. 76 many a time on or about 30 occasions. His statement is that Maharaja Jai Singh showed him the album of Geet Govind paintings in the presence of Sangram Singh. The album was in loose leaves like a manuscript and it was placed between two 'Pattas' of wood and a cloth was wrapped round it and it was tied in a 'Basta'. As some oil had seeped from the wooden 'Pattas' into the cloth and in some of the leaves of 'Geet Govind paintings', this witness made a suggestion to Maharaja Jai Singh that the 'Partas' and the cloth should be changed and non greased 'Pattas' and new cloth should be placed in lieu of them. His suggestion was accepted and the 'Pattas' and the cloth were changed in the year 1967. About two or three months there after he again had an opportunity to see the album of 'Geet Govind,' because he was interested in translating and interpreting the verses and symbolism upon which the paintings were made by the artists. With the permission of Maharaja of Jaipur, he examined the various paintings and the album of 'Geet Govind'. In the test identification parade as well as into court he was able to identify Geet Govind collections Articles 2 to 231. Besides other stolen paintings he identified two paintings Articles 277 and 278 prepared by Mansur who was a famous naturalist painter of the time of Mugal Emperor Jahangir. Likewise, he correctly identified two paintings of ladies (Articles 277 and 316) with their breasts embossed in paper by putting some colour pulp. According to him, these two paintings of ladies depicted a rare phenomenon. He further made no mistake in identifying the said paintings depicting six seasons (Articles 1740 to 1745), two sets of 'Nav Graha' (Articles 1746 to 1754 and 1755 to 1764), paintings of Saints, Sadhus and Gusians Articles 840 to 860 and 934 to 961, twelve sets of 'Dashavtars' (Articles 1538 to 1547) and 'Ragmala' paintings Articles 1010 to 1039) There is no reason to disbelieve his evidence as to the identification of the stolen paintings belonging to Maharaja of Jaipur, because he had frequently seen them minutely when they were lying in almirah No. 76
26. The third identifying witness is Kripal Singh. He is an artist & is well-versed in the art of Rajput & Mugal paintings. He also claimed to have seen paintings belonging to Maharaja of Jaipur as main as thirty times prior to the commission of the theft. According to him, this collection of 'Geet Govind' had three paintings Articles 18, 54 and 97, which were comparatively of latter age than the rest. At the time when he was called for to identify 'Geet Govind' paintings in the test-parade, he found these three articles also in the collections sought to be identified. He has given out reason, for identification of other stolen paintings also which I need not reproduce, because they are set out in detail in his deposition at the trial. From his evidence, it appears that he was quite familiar with the stolen paintings as he had seen them, as many as, thirty times in almirah No. 76 prior to the commission of the theft.
27. The last witness produced by the prosecution to establish the identity of some of the paintings is Maharaja Jai Singh PW 50. This witness has stated on oath that the paintings kept in almirah No. 76 were in his direct charge and were used to be normally kept under his seal. He further stated that when almirah No. 76 was opened, he used to be present along with Ram Gopal, Kripalsingh, Sangramsingh appellant & Yadvendra Sahai but at time the paintings were taken out from the said almirah by Col. Harnath Singh, Controller of the household also. From his evidence it is established that whenever Kripal Singh and Yadvendra Sahai obtained permission to study the collection of paintings, almirah No. 76 was opened. He corroborated the testimony of Yadvendra Sahai by stating that the latter had pointed out see-page of some oil from the protecting cover of 'Geet Govind'. Maharaja Jai Singh could identify 'Geet Govind' collections Articles 2 to 231 Article 1414 to 1438 and paintings marked Articles 932 to 944, Article 277 and 278 only. He has assigned good reasons for his ability to identify the aforesaid articles As for 'Geet Govind' collections, Articles 2 to 231, he remembered that Yadvendra Sahai had pointed out some oil seepage from protecting cover of these paintings and that they were in a rectangular form and some verses in Hindi were written on them. As regards Articles 1414 to 1438 his evidence is that he definitely remembered to have seen them for the reason that it was a big set of paintings containing human figures with animal faces Likewise it is possible that he could remember paintings Articles 277 & 278 because they were prepared by the famous Artist Mansur who lived in the time of Mugal Emperor Jahangir. As for paintings Articles 944 and 932-A. Maharaja Jai Singh remembered to have seen them in almirah No. 76 He identified Article 944(Sadhu kiTasvir), because he remembered that there was a borer mark in this painting at the top, and because out of the two paintings of a Sadhu one of rectangular in shape and the other of oval shape, it was oval shaped one which was found missing from the almirah and the other was intact therein. The evidence of Maharaja Jai Singh relating to the identificaton of the aforesaid paintings is true and reliable, because almirah No. 76 in which these paintings were kept was in his direct charge and because he used to see them frequently whenever the almirah was opened. It was further urged that the evidence of Ram Gopal, Yadvendra Sahai and Kripal Singh relating to identification of stolen paintings does not inspire confidence as they ace interested witnesses and have given no description if the paintings to the police and had been familiar with those paintings of Sangram Singh which were mixed with the suspected paintings at the time of conducting the test identification proceedings. It is admitted by Yadvendra Sahai that his father had been in the service of His Highness, Jaipur and that he received scholarships From the house hold for pursuing studies and that the Maharaja of Jaipur gave him a house also to live in. Similarly there is no dispute that Ram Gopal also is an employee of the Ex-Ruler of Jaipur and Kripal Singh too might have received favours from him, but these facts alone are not sufficient to discard their evidence relating to identification of the stolen paintings, especially when they had seen them many a time in almirah No. 76 prior 10 the commission of the theft. Those persons or employees in whom Maharaja of Jaipur reposed confidence could alone have an access to the paintings contained in almirah No. 76. Others could have no opportunity to go there and see the paintings. The other objection that they admitted in their depositions that they were familiar with the paintings which were mixed with the suspected paintings is not well founded for the simple reason that Shri N.L. Kakkar, Shri Bal Krishna and Shri Amar Lal Magistrates, who a ranged test-identification parades, have definitely stated on oath that the other paintings mixed with the paintings sought to be identified were brought by their own men at their instance. Yadvendra Sahai and Kripal Singh have no doubt stated in their depositions that the other paintings mixed with the suspected paintings in the test-identification parades were of Sangram Singh with which they were familiar before hand. It appears that there was some confusion in their minds. From the record it appears that on I7th and 18th September, 1969, the house of Sangram Singh was searched by the C.B.I. in the presence of Motbirs and a large quantity of paintings i.e. 2009 were recovered under seizure memo Ex. P. 204. These paintings were seized and sealed by the C.B.I. and handed over to Shri N.L. Kakkar for identification proceedings. Shri N.L. Kakkar held four identification parades with respect to these paintings in the following manner:
1. On 16 12-1969 the Magistrate put up for identification 358 paintings mixed with 800 paintings procured from his own sources. Out of them 1 painting was identified by the witnesses as is evident from identification memo Ex. P 56.
2. Again on 8-2-1970 the Magistrate mixed 400 paintings recovered from the house of Sangramsingh with 700 other paintings procured from his own sources and put them up for identification. The witnesses identified 5 paintings only. The identification memo is Ex. P 73.
3. Again on 10-2-1970 the Magistrate put up for identification 550 paintings recovered from the house of Sangramsingh after mixing them with 800 other paintings procured from his own sources. The witnesses identified 2 paintings. The identification memo is Ex. P 72.
4. On 11-2-70 the Magistrate put up for identification 701 paintings recovered from the house of Sangramsingh after mixing with them 100 paintings procured from his own sources and the identifying witnesses identified 5 paintings. The identification memos is Ex. P. 71. It seems that the 2 identifying witnesses were under the wrong impression that the 13 paintings which they could identify out of the lot in the 4 test parades were mixed with the other 199(SIC) paintings of Sangramsingh with which they claimed to be familiar before hand. The fact on the other hand was that all the 2009 paintings recovered from the house of Sangramsingh were suspected to be stolen and out of them 13 were picked up by the witnesses. 13 paintings thus identified in these four test-identification parades are Articles 949, 1034, 1159, 1776 to 1781, 1805, 1234, 1233 and 932-A.
28. Prior to these four identification-parades, other test-parades were held on different dates during the period between 28-4-1969 and 15-12-1969 by these Magistrates in which a good number of paintings, which had already been recovered prior to the seizure of 2009 paintings from the house of Sangramsingh on 17th and 18th September, 1969, were put up for identification after being mixed with a large number of other paintings which were procured by three Magistrates themselves through their own agencies. The three Magistrates who conducted all the identification parades have appeared in the witness box and testified to these facts. I see no reason to disbelieve their evidence on this point, especially when there is nothing on the record to show that the other paintings were brought from the house or possession of Sangramsing for the purpose of mixing them with the paintings sought to be identified in the test-identification parades held by these Magistrates during the period between 28-4-1969 and 15-12-1969. As 2009 paintings were recovered upon search of the house of Sangramsingh on 17th and 18th September, 1969 and were sealed properly there and then, and, as several test-parades were held prior to these recoveries, there was no possibility of private paintings of Sangramsingh having been mixed with the suspected paintings put up for identification in those several test parades. Consequently, I do not feel inclined to hold that the identification proceedings were defective.
29. Apart from the oral evidence of identification, there is reliable documentary evidence of registers and tozies in which description of the stolen paintings is found:
(a) The entries about 'Geet Govind' are found in Ex. P 37, P 38 and P 43. These are registers of the Maharajas of Jaipur. They are for the years 1941-42, 1924 and 1905.
(b) Articles 232 to 276 have been referred in Ex. P 37, P 38, P 43, P 233 and P 234.
(c) Articles 277 to 316 find reference in Exs. P 37, P 38 and P 43.
(d) Articles 317 to 338. Reference to them is found in Exs. P 37. P 38, P 43, P 233, P 234 and P 236
(e) Article 371 to 380 is an album of 10 pictures. There reference is found in Exs. P 37, P 38. P 43, P 233, P 234, and P 235.
(f) Articles 381 to 430. Their reference is found in Exs. P 37, P 38 P 43 and it is an album.
(g) Arts 431 to 457. Their reference is found in Exs. P 37, P 38 and P 43.
(h) Arts 458 to 594 Sada Brij ka Bhav. Their reference is found in Ex. P 37, P 38 and P 43.
(i) Articles 595 to 644 is Durga Path. Their reference is found in Exs. P 37, P 38 and P 43.
(j) Articles 840 to 860 are paintings of Swami and Gusain. In these are found paintings of Kabir and others. Their reference is found in Ex. P 37, P 38 and P 43.
(k) Articles 868 to 902 A are Ragmala. Their reference is found in Ex. P 37, P 43, P 233, P 234 and Ex. P 235.
(l) Articles 907 to 932 A. Their reference is found in Ex. P 38.
(m) Article 932-A recovered from Sangram Singh, Article 917 to 920, 928, 931, 922 recovered from Bhanwar Singh, Arts 907 to 914, 922, 928 to 927, 929, 930 and 932 recovered from Har Gopal.
(n) Articles 933 to 961 are Swami Sidh. Their reference is found in Ex. P 37, P 38 and P 49.
(o) Articles 962 to 983 are pictures of Rajas. Their reference is found in Exs. P 37, P 38 and P 49.
(p) Articles 1041 to 1082 are pictures of kings. Their reference is found in Exs. P 37, P 38 and P 43.
(q) Articles 1083 to 1125 are pictures of Firangis. Their reference is found in Exs. P 37, P 38 and P 43.
(r) Articles 1129 to 1169 Their reference is found in Exs. P 37, P 38, P 43, P 233 and 234.
(s) Articles 1170 to 1207. Their reference is found in Exs. P 37, P 38, P 43 and P 234.
(t) Articles 1304 to 1326 are Ragmalas. Their reference is found in Exs. P 37, P 38 and P 43.
(u) Articles 1327 to 1359, 1610 to 1619, 1126 to 1128. Their reference is found in Exs. P 37, P 38, P 43 and P 233.
(v) Articles 1360 to 1396. Their reference is found in Exs. P 37, P 38, P 43, P 233 and P 234.
(w) Articles 1399 to 1413 are pictures of Rajasthan of Ajmer. Their reference is found in Exs. P 37, P 38 and P 43.
(x) Articles 1414 to 1438 are pictures of people of 25 countries. Their reference is found in Ex. P. 37, P. 38 and P. 43.
(y) Articles 1439 to 1474 are pictures of Rag Raginis. Their reference is found in Ex. P. 37, P. 38, and P. 43.
(z) 1475 to 1503. Their reference is found in Exs. P. 37, P. 38, P. 43. P. 233 and P. 234
(aa) Articles 1504 to 1537 are Rag Malas. Their reference is found in Exs. P. 37, P. 38, P. 43, P. 233, P. 234 and P. 235.
(ab) Articles 1538 to 1547 (Dashavtar). Their reference is found in Exs. P. 37, P. 38, P. 43, P. 233, P. 234 and P. 235.
(ac) Articles 1572 to 1699. Their reference is found in Exs. P. 37, P. 38, and P. 43.
(ad) Articles 1620 to 1646. Their reference is found in Ex. P. 38.
(ae) Articles 1647 to 1666 are pictures of Firangis. Their reference is found in Ex. P. 37, P. 38, P. 43, P. 233, P. 234 and P. 235.
(af) Articles 1667 to 1702. Their reference is found in Exs. P. 37, P. 43, P. 233 P. 234 and P. 235.
(ag) Articles 1703 to 1739 are pictures of Firangis Firangiyans. Their reference is found in Exs. P. 37, P. 38, P. 43, P. 233, P. 234 and P. 235.
(ah) Articles 1740 to 1745. Their reference is found in Exs. P. 37, P. 38, P. 43, P. 233, P. 234 and P. 235.
(ai) Articles 1746 to 1754 are pictures of Navgrah. Their reference is found in Exs. P. 37, P. 43, P. 233, P. 234 and P. 235.
(af) Arts 1756 to 1764 are pictures of Navgrah. Their reference is found in Exs. P. 37, P. 43, P. 233, P. 234 and P. 235.
(ak) Articles 1765 to 1774 are pictures of Umraos. Their reference is found in Ex. P. 37, P. 38, and P. 43.
These documents are produced from proper custody and are proved to be the registers and Tojies in which descriptions of the private collections of paintings the to Maharajas of Jaipur are found. There is reliable evidence of PW. 2 Ram Gopal (at pages 6 & 8), PW 57 Gopal Narain (at pages 2 & 3) PW 54 Gyarsi Lal (at page 16), PW 29 Kalyan Narain of the contents of these documents. But there is reliable evidence of PW 2 Ram Gopal (pages 6 and 8), PW 26 Bhagwati Narain, PW 29 Kalyan Narain, PW 48 Ghanshyam Lal Mathur, PW 54 Gyarsilal and Gopal Narain PW 57 from which it is established that these registers and Tozies are old and genuine records of Maharaja of Jaipur and they contain descriptions of the stolen paintings of almirah No. 76. It will not be out of place to mention that detailed and complete reference of each of the 22 paintings Articles 317 and 338 is found in the Tozies as part of the same album which originally contained 50 paintings. This fact cannot be a mere coincidence. The learned Counsel for the appellants further contended that, as no satisfactory account of the origin and the possession of these registers and Tozies is being given by the prosecution, no credit can be attached to them. The above contention has no substance, because registers marked Exs. P. 37 to P. 40 both inclusive were produced by Ram Gopal, Superintendent, City Palace, Jaipur, before the police, which were taken into possession vide memo of seizure Ex. P. 41. Gopal Narain PW 57 also stated that registers Ex. P 37, P. 38, and P. 43 were the records of Pothi Khana, City Palace, Jaipur. Similar is the evidence of Gyarsilal, PW 54, who stated that register Ex. P. 37 is of the year 1941-42, while registers Exs. P. 38 and Ex. P. 43 were of the years 1924 and 1925 respectively. Bhagwati Narain and Kalyan Narain Mathur corroborate the evidence of Ram Gopal and Gyarsilal on the point that they were the records of the Pothi Khana of the City Palace, Jaipur. As regards Tozies Ex. P. 233, P. 234 and P. 235, it may be observed that they were brought by Gyarsilal Mathur, PW48, who was an officer of the Rajasthan Archives Department. His evidence is that Tozies Exs. P. 233, P. 234 and P. 235 are of Samvat years 1813, 1815 and 1816 respectively and are kept in the custody of the Director and that the Director has sent him to produce these tozies in the court. This witness has not been cross examined at all by the learned Counsel for the appellants. There is further evidence of Maharaja Jai Singh, PW 50, that after the merger of the then Jaipur State with the State of Rajasthan, the record of City Palace was bifurcated into State record and the private record of the Maharaja but there remained some such record which though was private property of the Maharaja but was kept in the State Archives, Bikaner. In these tozies the word 'Sawai' is written, which indicates that they are records of the Maharajas of Jaipur, who used to prefix the title of 'Sawai' before their names. Under these circumstances, the tozies and registers were found in the best and the most proper custody. It is, therefore, satisfactorily proved by the prosecution that the stolen paintings belonged to Maharaja of Jaipur and that they were lying in almirah No. 76 prior to the commission of the theft.
30. Madan Singh appellant did not put forward a reasonable explanation for having in his possession a large number of stolen paintings which were proved to have been recovered at his instance and in consequence of his informations recorded under Section 27 of the Evidence Act. He merely denied the recoveries. His base denial of the possession of the stolen paintings, not in common circulation, is not sufficient to rebut the cogent and unimpeachable evidence of recoveries led by the prosecution against him. Although the stolen paintings were recovered thrice from his possession on 18-12-69, 31-12-69 and 4-1-1970 i.e. about one year after the commission of the theft, yet in the circumstances of this case, his possession amounts to recent possession. What shall be deemed 'recent possession' has to be determined by the nature of the articles stolen. The articles stolen in this case are old paintings of exquisite art which were not likely to pass readily from hand to hand. Apart from this, these valuable paintings of distinctive art were found lying buried under ground in Dhuni Raoji-ka Bagh and in two fields of village Badwasi, from where they were dug out by Madan Singh appellant in pursuance of his information which he gave to the investigating agency while being under police custody.
31. There is another circumstance which rendered it difficult to make these recoveries earlier. The circumstance is that soon after the commission of the crime Madan Singh appellant absconded in order to avoid arrest and was later on arrested in Mathura on 13-12-1969 by M.P. Singh, Sub-Inspector of CBI. This fact has been admitted by Madan Singh in his statement recorded by the trial court under Section 342, Cr. P.C. Consequently, I do not attach any importance to the lapse of time after theft in drawing presumption of guilt against Madan Singh appellant under illustration (a) of Section 114 of the Evidence Act.
32. Sangaram Singh, appellant, however, has pleaded that all the paintings recovered from his possession or from the possession of other persons at his instance belonged to his ownership and that he had collected or acquired them from different sources much prior to the alleged commission of theft but the explanation given by him is far from being satisfactory. The prosecution has been able to establish some such facts and circumstances which rendered his explanation inherently or payably false. One of the circumstances is that Sangram Singh claimed that he had received 400 paintings including Geet Govind collections from Thakur Sahib of Chandrawal for sale through his agency but his plea appears to be false on account of the following reasons:
i) Thakur Sahib of Chandrawal has hot been produced and no reason has been given for not summoning him to give evidence in support of the pleas.
ii) No record has been shown under which the said paintings were handed over to Sangram Singh by Thakur Sahib of Chandrawa'.
iii) Sangram Singh has not kept any account of the price of these paintings which he would certainly have maintained, if he was selling the same on behalf of another.
iv) Sangramsingh sold the paintings at almost throw away price and made no attempt at all to get the maximum price for the paintings. In fact he received and accepted through the broker whatever money was paid to him inspite of the fact that he had put them at a higher price and yet he did not protest. Even on the second occasion when the paintings were handed over to PW 9, Sangramsingh did not warn the broker that he should not sell them for less than Rs. 25000/-, and eventually he accepted only about Rs. 19000/-.
v) There is no evidence from i.e. side of Sangram Singh to show that the money collected by him was entered in his account books.
vi) There is no evidence that he passed over the money to Thakur Sahib of Chandrawal.
vii) In answer to question No. 32 put to him in his statement under Section 342, Criminal Procedure Code, Sangramsingh took a stand that the Geet Govind paintings were from his own collections but in answer to question No. 118 he took up another plea that they belonged to Thakur Sahib of Chandrawal. The above inconsistency in the pleas taken by the accused is a circumstance against him.
viii) Even though Sangramsingh used to keep the account in Ex. P 82, there is no mention of these transactions therein which he would have surely made if he had been selling the paintings on behalf of Thakur Sahib of Chandrawal.
ix) In answer to question No. 118 in his statement under Section 342, Cr. P.C. Sangram Singh says that he sold these paintings in September, and November, 1968. No evidence has been produced in support of this contention as indicated above. On the other hand, there is unimpeachable evidence that the sale of paintings started after 23rd and 24th December 1968, i.e. shortly after the theft.
x) Sangram Singh appellant could not disclose particulars as to the sources from which he had obtained these paintings. He merely stated chat 400 paintings only including Geet Govind collections were received by him from Thakur Sahib of Chandrawal but his above plea is palpably false. As for the other paintings, he could not say from whom he bad obtained them. In the absence of any particulars as to the origin of his possession, it is difficult to hold that the plea set up by him with regard to the ownership of these paintings may be reasonably true, especially when the prosecution has succeeded in proving beyond reasonable doubt that these paintings belonged to Maharaja of Jaipur and they were stolen from almirah No. 76.
33. Sangram Singh has produced Tarachand DW 3, Rajeshwar Das Khanna. DW 5 and Ram Gopal Vijaivargia, DW 6, in support of his plea of ownership of the paintings recovered at his instance. In support of plea of ownership of the appellant. Tarachand claimed to have seen a collection of Geet Govind and other paintings in the possession of Sangram Singh on the next day of Dipawali festival of 1968. According to him, he had gone to Sangram Singh's house to salute him on the occasion of Diwali and had seen his paintings continuously for two hours. He admitted in his cross-examination that he did not disclose to any person or to the police that he had seen Geet Govind paintings Articles 2 to 231 with Sangram Singh, although according to him, he was examined by the police in this case. This witness could not tell the date and the month in which he had visited the house of Sangram Singh. He appears to be a chance witness on whose evidence no reliance can be placed.
34. Another witness is Rajeshwar Das Khanna, retired IAS officer. He also claimed to have seen Geet Govind collections with Sangram Singh in the year 1968 before Dushera festival. According to his version, he wanted to buy 12 paintings for his friend, but he could not purchase paintings from Sangram Singh who demanded higher price than his friend could afford to pay. Rajeshwar Das Khanna admitted in his cress-examination that he had no record with him of the requests made by his friend. He further admitted his inability to say that the paintings Arts 2 to 231 were of the same set which he had seen with Sangram Singh. Hence the evidence of this witness also is not worthy of credence.
35. The third witness is Ram Gopal Vijaivargia, who denied to have seen Articles 2 to 231 with Sangram Singh. He, however, claimed to have seen some of stolen paintings in the possession of Sangram Singh in the past. He could not say on which occasion and on which dates he had seen the paintings with Sangram Singh. He was specifically questioned whether the paintings which he claimed to have seen with Sangram Singh are mentioned in catalogue Ex. P 272, Ex. D 6 and Ex. D 66. The witness went through these documents and replied that there are no entries of those paintings in them. The evidence of this witness also does not inspire confidence.
36. Hence there is not the slightest doubt that the recoveries of stolen paintings of almirah No. 176 from Sangram Singh's possession and at his instance raises a presumption that his possession was dishonest, especially when he could not give a reasonable explanation for them.
37. It was further contended on behalf of the appellant that the charge of criminal conspiracy has not been made out at all from the proved facts and circumstances of this case and that the trial court committed a grave error in convicting the appellants for the offence under Section 120B I.P.C.. The above contention is not well-founded. It may be observed at the outset that the charge of conspiracy can be proved by either direct evidence or by proof of circumstances which irresistibly lead to an inference of the existence of an agreement between the accused persons to do an illegal act or a legal act by illegal means or by both. As criminal conspiracies are generally hatched up in secrecy, direct evidence is seldom available to prove them and they have to be inferred from the conduct of the parties and over acts done in pursuance of agreement. In the present case the appellant committed such overt acts as would go a long way to establish that there was in fact an agreement between them to commit theft of old paintings from almirah No. 76 of the 'Surat Khana' and to dispose them of and to share their sale-proceeds. These acts on the part of each appellant were isolated and unconnected acts but they were done to achieve the same object which they were pursuing. There is direct evidence of Ayodhya Singh approver that he and Laxmi Narain committed theft of old paintings belonging to Maharaja of Jaipur from almirah No. 76 which was kept in the Surat Khana'. According to the approver the theft was committed at the instance of Sangram Singh appellant who had asked him and Madan Singh to perform that illegal act. After the commission of the theft, a good number of paintings were given to Sangram Singh, by the approver and to Madan Singh appellant by Laxmi Narain. As indicated above, the approver is a reliance witness and his evidence is confirmed in material particulars by independent evidence. The approver's testimony on this point is further corroborated by recoveries of large number of stolen paintings from possession of Madan Singh and Sangram Singh and by the overt acts committed by Sangram Singh in selling a large number of stolen paintings to several persons, namely, Har Gopal Mehra, Krishna Gopal Mehra, C.L. Bharani, Baoulal, K.L. Kakkar, and Mrs. Gera Sarabhai, etc. soon after the commission of the theft, which were later on recovered from them at his instance and which clearly leads to an inference that he wanted to dispose of the stolen properties as soon as possible for any price they might fetch. Hence from the approver's statement, it is established that there was a criminal conspiracy to commit theft of stolen paintings from almirah No. 76 of the 'Surat Khana' and to dispose them of for valuable consideration to which Sangram Singh, Madan Singh, Ayodhya Singh and Laxmi Narain were parties.
38. Lastly, it was argued that the trial Judge has released Bhanwar Singh on probation after convicting him for the offences punishable under Sections 414, 411, read with Section 120B. I.P.C. and did not extend the benefit of Section 4 of the Probation of Offenders Act to Sangram Singh and Madan Singh although there is no proof that the role played by them was greater than the part assigned to Bhanwar Singh. In support of this above contention, the learned Counsel for the appellants placed reliance on Jose v. State of Kerala : 3SCR388 wherein it has been observed by their Lordships that where the part played by an accused is not greater than that played by other, both of them should be awarded the same punishment and there should not be any discrimination in the matter of sentence. In the present case the roles played by Sangram Singh, Madan Singh and Laxmi Narain are greater than the part played by Bhanwar Singh Laxmi Narain appellant played a major role along with the approver in the actual commission of the theft of the paintings from the 'Surat Khana'. Madan Singh appellant also played an important role in persuading the approver and Laxmi Narain appellant to commit theft at the instance of Sangram Singh and soon after the commission of theft he took away a large number of stolen paintings in a box from Laxmi Narain's house and out of those paintings gave a good number of them to Sangram Singh appellant and received a sum of Rs. 25000/-, for them. In this manner he is an important link in the chain of conspiracy. Likewise Sangramsingh appellant played greater part in the whole affair than the role played by Bhanwarsingh. He is the person at whose instance Ayodhya Singh and Laxmi Narain agreed to commit the theft in question. He directed Madan Singh to help the approver and his companions in the commission of the theft There after when the theft was committed, he received a large number of paintings from Ayodhya Singh and Madan Singh and started selling them to several persons. Consequently, I do not feel inclined to extend the benefit of Section 4 of the Probation of Offenders Act, 1959, to Sangram Singh, Madansingh and Laxmi Narain appellants. However, the trial Judge should not have made a discrimination in awarding severer substantive sentences of imprison to Madan Singh appellant under Sections 120B/457, 120B/380, 109/457 and 109/380, I.P.C.. For the aforesaid offences Sangramsingh was awarded a lesser sentence of five years and three years, Madansingh was not with Ayodhyasingh and Laxmi Narain when the latter had committed the theft of paintings from the 'Surat Khana'. The part played by him is not in any way greater than the role played by Sangramsingh. Hence there is no sound basis for making a discrimination between the two as regards the sentences.
39. There is another flaw in the judgment of the trial which deserves notice. Under sub-section (1) of Section 120B.I.P.C. appellants are liable to be punished for the same manner, as if they had abetted the offences. The trial court passed separate sentences on Madan Singh and Sangram Singh under Sections 120B read with Section 457 and Section 120B read with Section 380; 109 read with Section 380 and 109 read with Section 457. I.P.C. Separate sentences for the offences under Section 109 read with Section 457 and 109 read with Section 380, I.P.C. were not called for, because Madan Singh and Sangram Singh appellants were awarded sentences under Section 120B read with Section 457, and Section 120B read Section 380, I.P.C.. Similarly the trial court should not have inflicted separate sentences on Sangram Singh and Madan Singh under Sections 414 and 411 I.P.C.. In such a case only one sentence must be passed on each of them for both the offences.
40. For the foregoing reasons the appeal filed by Sangram Singh is partly accepted and while his convictions under Sections 109 read with 457, 109 read with 380 and 414, I.P.C. are confirmed, the sentences awarded to him on each of these three counts are set aside. His convictions and sentences for the offences under Sections 120B read with 457, 120B read with 414 and 411, I.P.C. are maintained and confirmed. Sangram Singh appellant is on bail He shall surrender to his hail bonds. As Sangram Singh is not present today in this Court, the Chief Judicial Magistrate, Jaipur City, is directed to get him arrested and sent to jail to serve out the sentences.
41. The appeal preferred by Madan Singh is also accepted in part and while his convictions under Sections 120B read with 457, 120B read with 380, I.P.C. are confirmed, the substantive sentence of seven years' rigorous imprisonment awarded to him under Sections 120B read with 457, I.P.C. is reduced to five years' rigorous imprisonment and the substantive sentence of five years' rigorous imprisonment passed against him under Section 120B read with Section 380, I.P.C. is reduced to three years' rigorous imprisonment The sentences of fine imposed on him under Sections 120B read with Section 457, I.P.C. and 120B read with Section 380, I.P.C. are however, maintained. His convictions and the sentences under Sections 120B read with Section 411, 120B read with Section 414 and 411. I.P.C. are thereby maintained and confirmed. His convictions under Sections 109 read with 457, 109 read with 380 and 414, I.P.C. are also maintained but the sentences awarded to him on each of these three counts are set aside.
42. The appeal filed by Laxmi Narain alias Laxman fails and is hereby dismissed. All the substantive sentences of imprisonment awarded to each of the three appellants shall run concurrently.