- (1.)THIS is an appeal against a judgment of acquittal of the learned Additional Sessions Judge, Jodhpur, in a case of robbery.
(2.)THE prosecution case is that in village Bhambhor, some 18 miles away from the City of Jodhpur, around mid-night intervening 27th and 28th September, 1956, 3 persons reached the premises of Seth. Jugraj. It appears that the residence and shop of Jugraj are in the same premises. One of these 3 persons made a gunfire apparently to intimidate Jugraj and on the threat of instant death or grievous hurt demanded from him his valuables. Two of them entered the residential part of the premises in the first instance where Bhanwarlal (Jugraj's son) and his wife were sleeping. Bhanwarlal awaked by gunfire endeavoured to come out of the residential part but two of the robbers caught hold of him. THEse robbers put instant fear of death or grievous hurt to Bhanwarlal if he did not produce cash and ornaments. Over-awed by this fear Bhanwarlal's wife parted with the ornaments which she had on her person. This did not appear to satisfy the robbers' expectations and they, therefore, brought Jugraj inside the house with his hands tied and resorted to physical violence to extort more valuables. Bhanwarlal was threatened to be burnt alive, he was throttled, his son was put in danger of death; injuries were inflicted on Jugraj who received as many as 9 injuries including the fracture of his 9th rib. Bhanwarlal was beaten by Dandas, kerosene oil was poured on his head and Jugraj was threatened that his nose would be cut. This worked terror. Jugraj and Bhanwarlal pointed out places where cash, ornaments and gold mohars were concealed. THE robbers collected goods of the value of about Rs. 15,000/- and burnt the Bahis of Seth Jugraj and decamped.
Jugraj was terror-stricken and therefore, next morning he got a report written by one Jamnalal and sent it to the Police Station Dugar through Lunia Bhil. A case under secs, 394 and 307 IPC was registered. The Sub-Inspector proceeded to the house of Jugraj who produced a list of goods which were looted.

Police arrested Birdhichand at whose instance the aforesaid crime was alleged to have been committed by Amar Singh, Ramchandra and Narayandas. Out of the property alleged to have been robbed considerable part is said to have been recovered and a substantial portion thereof was identified by Jugraj and his son Bhanwarlal. All the four accused persons namely Bhirdhichand, Amar Singh, Ramchandra and Narayandas were committed to the court of Session for trial. The learned Sessions Judge transferred the case for trial to the Additional Sessions Judge, Jodhpur.

The Additional Sessions Judge on an application by Birdhichand made a reference to this Court recommending that his commitment be quashed. Accordingly Birdhichand was not tried jointly with the other three accused persons.

The Learned Additional Sessions Judge after trial came to the conclusion that while the commission of the offence stood fully proved it was not proved that the three accused persons namely Amar Singh, Ram Chandra and Narayan Das committed the offence. He accordingly acquitted them.

The State has come up in appeal under Section 417 of the Code of Criminal Procedure.

Amar Singh is said to be absconding. He has not been served with notice of this appeal. Appeal against his acquittal, therefore, cannot be considered and disposed of.

We have heard Shri Kan Singh, Government Advocate on behalf of the State and Sarva Shri Than Chand Mehta and Bheem Raj learned counsel for respondents Ram Chandra and Narayan Das respectively.

(3.)THE learned Government Advocate's argument is that despite dependable oral and documentary evidence the court below has erred in holding that the case against the respondents was not proved. THE respondents were identified. Property said to have been looted has been recovered at the instance of the accused persons and has been identified. THE crime and the respondents have been inescapably linked and yet the court erroneously acquitted them altogether ignoring the significance of the recovery of the property at the instance of the respondents in accordance with the provisions of sec. 27 of the Indian Evidence Act.
In order to weigh the evidence led against each respondent and arguments advanced it is proper to consider the cases of the two respondents separately.

Regarding Ram Chandra the prosecution evidence available on the record is, (a) his having been identified by Jugraj (P. W. 5) and Bhanwarlal (P. W. 4) and (b) recovery at his instance of one gold Kada bearing the name of Chanda Bhera, a gun and 5 mohars from a deserted and dilapidated house situated in Chopasni a few miles away from Jodhpur.

The trial court has refused to place reliance on the evidence of identification against Ram Chandra. His reasons for this rejection are (1) "jugraj and Bhanwarlal are father and son and are persons whose property has been looted. They are therefore, very much interested in this case and cannot be said to be independent witnesses. " (ii) Because Jugraj and Bhanwarlal failed to identify Narayan Das and both these witnesses identified a particular individual as Narayan Das. According to the learned Additional Sessions Judge because both these witnesses pointed out an identically wrong person for Narayan Das it showed that these witnesses were given previous hints. (iii) Identification memo Ex. 33 is a simple document lacking in details and does not help in showing if persons as fair in complexion as Ram Chandra were mixed up in the parade or not. The Magistrate was unable to furnish details and therefore, the identification test proceeding failed to inspire confidence.

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