R.A.Misra, J. - (1.) A gang of about 10 or 12 dacolts committed dacoity in the houses of Babu Ram and Lala Ram in village Kukrikhera within the Police Circle of Jahanabad in the district of Pilibhit on the night between 28th and 29th of May 76 at about 1.30 a m. Babu Ram lodged FIR on the following morning giving details of the articles looted The accused appellants Patras Masih and Ram Charan were arrested on 1st of June 16 and Chand Khan on 10th of June 76. They were put up for identification in the District Jail of Pilibhit on 16th of July 1976. Sri Sripat (PW 15) SDM conducted the test identification proceedings. The accused Patras Masih was correctly identified by Babu Ram (PW 3) Shyam Lal (PW 1), Ram Lal (PW 2) and Smt. Champa (PW 4). The accused Ram Charan was correctly identified by Babu Ram (PW 3), Shyam Lal (PW 1), Smt. Champa (PW 4) and Ram Lal (PW 2). The accused Chand Khan was correctly identified bv Shyam Lal (PW 1) and Smt. Champa (PW 4). A golden hasuli Exh. 35 was recovered from the possession of the accused Chand Khan when he was arrested. It was put up for identification and was correctly identified by Babu Ram (PW 3) and Smt. Nandini not produced. The Investigating Officer after completing the investigation submitted charge sheet against six persons. The learned Sessions Judge on a consideration of the entire evidence arrived at the conclusion that the charges under Section 395 IPC were proved beyond doubt against the accused Patras Masih and Ram Charan and the charge under Sec. 412 IPC was proved beyond doubt against accused Chand Khan. He has consequently convicted and sentenced them for the same. They have felt aggrieved and have come up in appeal.
(2.) THE remaining accused have been acquitted of all the charges. I have heard learned counsel for both the parties and have gone through the record with care. Sri Sripat (PW 15) has proved the identification memo Exh. Ka. 28 which shows that Babu Ram (PW 3) and his wife Smt. Nandini (not produced) correctly identified the golden hasuli Exh. 35 which is alleged to have been recovered from the possession of accused Chand Khan. A note in the memo shows that Lala Ram and Smt. Champa who participated in the identification proceedings were not required to identify Exh. 35 the golden hasuli. Thus there is the single testimony of Babu Ram to say that golden hasuli Exh 35 was looted from his house. The description of the golden hasuli as given in the FIR admittedly does not tally with the description of the golden hasuli Exh. 35 which is alleged to have been recovered from the possession of accused Chand Khan. Under these circumstances it is not safe to place reliance on the solitary testimony of Babu Ram (PW 3) and believe that golden hasuli Exh. 35 was looted from his house on the aforesaid night. According to the prosecution the accused was arrested while be along with others was making preparation for commission of a dacoity. The circumstances under which the accused Chand Khan is alleged to have been arrested make the prosecution story regardine the recovery of golden hasuli Exh. 35 from his possession highly improbable and does not appeal to reason. it is difficult to believe that a dacoit who was making preparation for commission of a dacoity would carry with him an article which had earlier been looted from some other house about one and a half months ago Under these circumstances the recovery of the golden hasuli Exh. 35 from the possession of the accused is not proved beyond doubt. As discussed above it is also not proved beyond doubt that this hasuli was looted by the dacoits from the house of Babu Ram on the night between 28th and 29th of May 76. The charge under section 412 IPC is therefore not proved beyond doubt against accused Chand Khan. He has wrongly been convicted and sentenced for the same by the court below. He shall be acquitted.
(3.) PATRAS Masih and Ram Charan accused appellants are residents of village Tumaria P. S. Nawab Ganj in the district of Bareilly. The dacoity has been committed in village Kukrikhera, P. S. Jahanabad in the district of "Pilibhit. Ram Charan accused appellant has stated before the court below that the witnesses knew him from before because he is married in village Kukrikhera where the dacoity has been committed. PATRAS Masih has stated that the witnesses knew him from before because Ram Charan the co-accused was married in village Kukrikhera and as such he used to visit that village. So the defence of both these accused as taken by them was that the witnesses knew them on account of the fact that Ram Charan was married in that village and they, therefore, used to visit that village. The learned Judge found no force in this contention and the learned counsel for the appellant has not pressed before me the fact that the witnesses knew these two accused because Ram Charan was married in village Kukrikhera. Learned counsel for the appellants on the other hand has taken pains to persuade me that the village Tumaria is at such a distance from village Kukrikhera that it can safely be presumed that the witnesses knew these accused from before. The witnesses of fact who were cross-examined on this point before the court below have deposed that the distance of village Tumaria is much more than two miles from the village Kukrikhera and according to them this distance is about 4 to 5 miles. The learned counsel for the appellants has referred a map prepared by Surveyor General of India which indicates that the distance of village Tumaria is two miles and about 1 or 2 furlongs according to the scale given in the map. Thus according to the map also village Kukrikhera is not situated within a radius of two miles from village Tumaria where the accused resides. The distance given by the prosecution witnesses of fact is not the distance as shown in the map. The witnesses have naturally given the distance which one has to cover for reaching village Tumaria from village Kukrikhera by the shortest route. It has been held in a number of decisions of this court that it is safe to assume that the witnesses happened to know the accused if the latter resides in a village situated at a distance of two miles from the place of the occurrence or within a radius of two miles. The distance which is material and relevant for consideration is the distance which one has to cover by the shortest route for reaching the place of occurrence from the place or village where the accused resides. The maps prepared by Surveyor General of India may be taken into consideration according to the provisions of Evidence Act for appreciating the evidence on record. In the instant case according to the map the distance of these two villages is more than two miles say two miles and one or two furlongs. According to the prosecution witnesses this distance is about 4 or 5 miles. As I have mentioned above the witnesses are not expected to give the distance mentioned in the map but the distance which one has to cover for reaching the village of Tumaria from Kukrikhera. This distance would obviously be more than what has been shown in the map. The learned Judge has rightly placed reliance on the testimony of prosecution witnesses on this point and refused to assume that the accused were known to the witnesses from before because of the distance in between the two villages. Moreover it so appears that this plea was not taken before the court below. The plea taken before the court below was that these accused used to visit village Kukrikhera on account of the fact that Ram Charan was married there. In all probabilities had these accused been known to the residents of village Kukrikhera on account of the short distance between the two villages, then the accused would never have taken the defence that the witnesses knew them from before because Ram Charan was married there. Having considered all the aspects of the matter 1 am unable to agree with the learned counsel for the appellants that the accused were known to the witnesses from before because of the short distance between the two villages. The prosecution witnesses of fact have given the details of the light and opportunity which was available for seeing the faces and features of the dacoits. They have been fully cross-examined but nothing has been pointed out which may go to discredit their testimony. The learned Sessions Judge has rightly placed reliance on their testimony. It is thus proved that the witnesses had sufficient light and opportunity for seeing the faces and features of the dacoits. Sri Sripat (PW 15) swears to have taken ail the necessary precautions for conducting a fair test identification of these two accused. It is in evidence that the witnesses mentioned above have correctly identified the accused in the test as well as before the learned Sessions Judge. Ram Charan has been correctly identified by Babu Ram (PW 3), Ram Lal (PW 2) and Champa (PW 4). Patras Masih has been correctly identified by Babu Ram (PW 3), Shyam Lal (PW 1), Ram Lal (PW 2) and Smt. Champa (PW 4). The learned Sessions Judge who had the advantage of watching their demeanour has rightly placed reliance on their testimony. They are good witnesses of Identification and swears to have seen these accused committing the dacoity. They further swear that these accused were not known to them from before and that they did not see them after the commission of the crime till the test identification. It is in evidence that both the accused were kept bapardah since their arrest till they were put up for identification. In the result the learned Sessions Judge has rightly convicted the accused appellants on the basis of evidence of identification as discussed above.;