R.C.Deo Sharma - (1.) THE appellant has been convicted by the learned IV Additional Sessions Judge, Rae Bareli, by his judgment and order dated 28-10-1980 under section 412 IPC and sentenced to undergo R. I. for two years. According to the prosecution a dacoity was committed at the house of Sukhlal in village Mahamadpur Chandaul, P. S. Mustafabad in district Rae Bareli at about 12.30 in the night between 23rd and 24th September, 1976. Dacoity was also committed in the house of Shyam Lal of the same village and injuries were caused to him as a result whereof Shyam Lal died. THE first information report was lodged by Sukhlal, the next morning. Some of the dacoits were named and about the rest it was said that they could be identified on being produced. Investigations were taken up. During the course of investigations the police raided the house of Ram Nihore Mallah, a resident of Village Baisan Ka Purwa, hemlet of Rasoolpur within the jurisdiction of police station Sultanpur Ghosh in district Fatehpur. While Ram Nihore could not be arrested, a search was taken of his house and on the opening of lock of the kothri by the appellant certain clothes and ornaments were recovered about which a memo was prepared and the articles were sealed. THE appellant was arrested and taken to police Station Mustafabad, district Rae Bareli along with the case property. Later the recovered property was put up for identification and on the receipt of the result thereof the appellant was charge-sheeted for an offence under section 412 IPC. Her contention at the trial was that nothing as alleged was recovered from her and it was incorrect to say that she was retaining the property knowing it to be property stolen in the dacoity. THE learned Sessions Judge on a consideration of the evidence agreed with the prosecution version and finding the appellant guilty convicted and sentenced her as above, and hence this appeal.
(2.) IT has been contended on behalf of the appellant that neither the fact of a dacoity having been committed at the house of Sukhlal had been established nor any property was recovered from the: appellant's possession much less could she be charged with the knowledge that the same was transferred as a result of the dacoity. The sentence awarded was also said to be severe. I have heard the learned counsel for the: appellant as also for the State and have also gone through the record. So far as the fact of dacoity is concerned, the matter has not been seriously challenged on behalf of the appellant and it would appear from the statements of PvV 2 Sukhlal and his son Mani Lal PW 3 that a dacoity was committed at the house of Sukhlal and Shyamlal deceased and in which Shyam Lal having received injuries died later. The main question for determination therefore, was as to whether the property claimed to have been recovered from the possession of the appellant and identified by the victims of the dacoity was actually recovered from her possession and if belonged to Sukhlal etc. The further point for determination will be whether the appellant was retaining it with the knowledge that the same had been stolen during the commission of a dacoity. Much stress has been laid by the appellant's learned counsel on the point that the property looted in the dacoity had not been detailed in the FIR nor the same appears to have been put in a list which according to the prosecution was handed oyer by the informant to the Sub-Inspector during investigations. It was also argued that any discovery about the particulars of the stolen property made during investigations and recorded in the statement of any witness under section 161 CrPC or otherwise during investigation, will not be admissible in evidence and will be hit by section 162 CrPC. It will appear that in the FIR list of property had not been given and it was rather mentioned therein that the list of looted property will be given after ascertaining or understanding it. The actual 'words used are "Lootey gaye samano ki soochi Samajh kar doonga". The FIR was lodged by Sukhlal after being dictated to his son Manni Lal. 'While in the witness-box, Sukhlal PW 2 stated in his examination-in-chief that he had given the list of looted property to the Sub-Inspector when he came to the village. This meant that during investigations the list of the looted properly was given to the Sub-Inspector. Initially investigations in the case were conducted by Sub-Inspector S. A. Raza who has since died. He went to the spot on 24-9-1976 i.e. the day on which the first information report was lodged and investigations were passed on to another Sub-Inspector the very next day i.e. 25-9-1976. Sub-Inspector Umesh Chandra Pathak PW 5 stated that Sri S. A. Raza, the former Investigating Officer had recorded in the first Parcha of the case diary the list of the looted property. I have seen the case diary for the purpose because the list of looted property has not been produced or exhibited at the trial. The case diary, however, revealed that some list of the property was handed over by Sukhlal to the Sub-Inspector but no such list is available on record and what the Sub-Inspector Umesh Chandra Pathak has stated is that the description of the looted property has been recorded in the first Parcha of the case diary by Sub-Inspector S. A. Raza. It will also appear from the case diary that Sri Raza had already commenced investigations and prepared the site plan after inspection of the locality at the indication of the informant and others. He had also inspected the torches and the lantern in the light of which the dacoits were said to have been recognised and had prepared the memos therefor. He had also recorded that he tried to contact certain witnesses but as it was late he would record the statements of those witnesses latter. Obviously, therefore, it was during the course of the investigations that either orally a list was dictated to the Investigating Officer by Sukhlal or a written list was handed over to him. There is therefore, nothing on record to indicate what actually the looted property was and whether it had any particular marks of identification with the help of which they could be recognised by the owner of the property. For the first time the description of the looted property was given by the witnesses when they came in the witness-box. This was, of course, apart from the descripation given by them during investigation to the Investigating Officer. The value of indentification of the looted property is therefore, considerably reduced.
(3.) IT will also appear from the identification memo Ext. Ka. 11 prepared by the Magistrate and the recovery memo Ext. Ka-2 that atleast two of the items said to have been recovered from the appellant and identified by two of the prosecution witnesses, had distinguishing marks on them and in the normal course they should have been mentioned by the informant either in the FIR or in the list supplied later which has, however, not come on record and would also be hit by section 162 CrPC. The informant should have also stated this atleast in the courre of his evidence at the trial but nothing like this has been done. The terrycot Pant Ext. 3 contains the tailor's mark on a label as "Star Tailors Mills Cinema Rae Bareli." Similarly, the handloom Saree Ext. 4 is stated to contain the name of the mill and some numbers printed thereon. Out of the various items of property said to have been recovered from the appellant, only four items were identified by Sukhlal and three by his son Manni Lal who were produced at the trial. Three of them were Clothes and the fourth is a pair of silver payal. Manni Lal, however, did not identify the silver payal. None of the ladies of the house, were examined at the trial although some of them had been sent to identify the property before the Magistrate. In view of these infirmities it is difficult to hold that these items belonged to Sukhlal and his family members and were looted in the dacoity. The value of the identification is also considerably reduced as already observed earlier. On this ground alone, therefore, the appellant deserves to be acquitted. As regards the recovery of the property from her house there is the evidence of the Sub-Inspector Umesh Chandra Pathak PW 5 and two witnesses, namely. Ram Sajiwan PW 4 and Mahendra Singh PW 9. From the general diary entry, however, it appears that the appellant's husband and his brother were sleeping outside the house in a Chhappar when the police party arrived in the early morning at about 4 but they succeeded in running away and the appellant who was also there opened the house with the help of a key in her possession. From the recovery memo, it appears that the lock was placed on a Kothri which she had opened with the help of (the key tied to a corner of her Dhoti. Although, there is nothing particular in the statements of these witnesses to discard their testimony but the fact remains that her conscious possession of these articles with the knowledge that they were stolen property is also not proved beyond doubt inasmuch as her husband and his brother both were also living in the house and it appears from the evidence that they were living jointly and the Kothri in question was also in their joint possession. Assuming that she had opened the lock with the key tied to her Dhoti, it would not mean that she had placed the clothes etc. in the box or that it was her possession and not the possession of her husband and the latter's brother from which the recovery was made. In view of what has, been observed above, the case against the appellant could not be held to have been proved by reliable and legal evidence beyond dobut and consequently she is entitled to acquittal.;