Deoki Nandan - (1.) THIS appeal by Bibhuti is directed against his conviction under Section 412 IPC and sentence of 5 years' rigorous imprisonment for the same.
(2.) THE appellant was committed for trial to the court of Sessions, Varanasi along with Murli, Sachan, Kartik, Sehasan and Harihar who were charged for the offence punishable under section 395 read with Section 397 IPC for having committed dacoity at the house of Lalji and for having used deadly weapons causing grievous hurt to Baijnath, Lalji, Nanku and Balkaran in the course of that dacoity in village Mathela on the night between the 6th ami 7th November, 1970. THE appellant was charged for the offence punishable under section 412 IPC on account of having been found in possession of certain gold and silver ornaments of Mb. November, 1970. Murli, Sachan, Kartik, Sinhusan and Harihar were found to be not guilty of the offence punisnable under section 395 read with section 397 IPC and were acquitted, but the appellant was found guilty of the offence punishable under Section 412 IPC by the learned 11 Temporary Civil and Sessions Judge, Varanasi. The first contention raised by Mr. Keshav Sahai, learned counsel for the appellant, is that the learned Sessions Judge having disbelieved the witnesses with regard to the charge of dacoity against Murli, Sachan, Kartik, Sinhasan and Harihar, he could not convict the appellant on the same evidence. At any rate, the learned counsel argued, the evidence has to be looked into with a great deal of caution and the learned Sessions Judge was in error in having accepted the evidence of the very same witnesses, particularly, the Investigating Officer, for convicting the appellant. He further argued that the only material in support of the charge against the appellant was that relating to the recovery of the alleged stolen ornaments from a corner of the open roof of the appellants' house, which are said to have been recovered at the instance of Guari alias Gauri Nandan who was one of the accused along with the o hers in the dacoity case, but had died in the meanwhile, and, the case having abated as against him, the evidence of recovery may have been admissible as against him but was certainly not admissible as against the appellant. Thus, according to the learned counsel, the recovery memo (Ex. Ka-17) and the testimony of the Investigating Officer, PW 12, proving the recovery memo and the facts leading upto the recovery, are wholly inadmissible and irrelevant as against the appellant. The witnesses of recovery were not produced, with the result that there is no evidence in law to prove the recovery of the alleged stolen ornaments from the roof of the appellants' house. The evidence of identification of the ornaments said to have been recovered at the instance of Gauri, as being the ornaments whose possession was transferred by the commission of the dacoity is also, therefore, wholly irrelevant in so far as the appellant is concerned. Further, the learned counsel attacked the evidence of identification of the said ornaments as unworthy of credence on account of certain illegalities alleged to have been committed in the identification proceedings. Under the circumstances, the first question which calls for determination in this case is whether the appellant had dishonestly received or retained the ornaments and had knowledge or reason to believe that their possession had been transferred by the commission of the dacoity.
(3.) ALTHOUGH the other accused charged for dacoity have been acquitted of the same, the learned counsel did not question before me the fact that a dacoity had been committed at the house of Lalji in village Mathela during the night between 6th and 7th November, 1970. The fact that certain ornaments were recovered by the police during the course of investigation into that dacoity cannot also be seriously disputed inasmuch as the ornaments have been in custody of the police. The fact that possession of these ornaments was transferred by the commission of the said dacoity is proved by the evidence of identification of the said ornaments. There were three identification witnesses, namely, Sri Lalji, Smt. Ram Dulari wife of Lalji and Smt. Malti Devi wife of Gopal, and all the three of them identified -all the ornaments correctly, vide Ex. Ka-11. These witnesses of identification also appeared in the court of Sessions, Lalji as PW 1, Smt. Ram Dulari as PW 5 and Smt. Malti Devi as PW 6 and proved that the ornaments belonged to them. After giving the details of the looted ornaments Lalji stated in his statement on oath that he saw them for the first time after the dacoity only in the presence of the Magistrate in the course of identification proceedings and did not see them during the intervening period. When asked about the details of the ornaments in his cross-examination he stood the test very well and categorically denied the suggestion that the ornaments had been shown to him or to his family members after the recovery by the police or that the ornaments with which they had been mixed were not similar. He also denied the defence suggestion that the ornaments did not belong to his house-hold. Smt. Ram Dulari PW 5, also stated in detail about the looting of ornaments and testified the fact that they had been taken away by the dacoits at the said dacoity. She also stated that she had seen the ornaments for the first time after the dacoity in the course of the identification proceedings and had not seen them in between. In her cross- examination, she also stood the test quite well. The learned counsel, however, laid some emphasis on her statement in the cross-examination to the effect that she did not remember who the strings had been tied to the ornaments in the course of the identification proceedings or that the strings had been tied to the ornaments belonging to her house-hold. She denied the suggestion that there were any labels on the ornaments and also the suggestion that the ornaments had been shown to her by the police or that she could identify the ornaments only because of the same. Smt. Malti Devi PW 6, also made a similar statement with regard to the identity of the ornaments and also stood the cross-examination well. The part of her statement in the cross-examination, which was emphasis by the learned counsel was to the effect that the necklace was found broken at the time of the identification though it was not broken earlier it was strewn earlier but was not at the time of the identification ; that the ornaments which had been mixed up were similarly broken and unstrewn. She stated that she could recognise the ornaments because she saw mem in the house and used them. She then stated that string was tied to certain ornaments at the time of identification, that string was tied to some of the other ornaments with which they were mixed. Red string was tied to the ornaments. The stolen Hansli as well as the Hansli with which it was mixed up had a red string tied to them. Red string was tied to all the ornaments of her house and also to all the ornaments with which they were mixed. Having heard the learned counsel for the appellant I am fully satisfied that the ornaments alleged to have been recovered on 8th November, 1970 from the open roof of the appellants' house were in fact those which had been taken away by the commission of the dacoity committed in the house of Lalji. Learned counsel for the appellants could not say anything plausible on this point. The witnesses stood the test of cross-examination well and beyond vague suggestions thrown out to the witness, no irregularity in the identification proceedings could be made out and it is not possible to say that the ornaments in question were shown to the witness before the identification. The learned counsel laid great emphasis on the last sentence in the statement of Lalji (PW 1) under cross-examination, in which he denied the suggestion that the ornaments did not belong to his house hold, the actual words being "YAH BHAI KAHAN GALAT HA1 KI YEH ZEBART MERE GHAR KE NAHIN HAIN". The commission of the dacoity at the house of Lalji and the looting of the; ornaments therefrom was the context in which the question was put. It was not necessary for the prosecution to establish the ownership of each individual ornament as belonging to a particular member of the family of Lalji. I accordingly find that the prosecution has satisfactorily proved the fact that the ornaments recovered from the roof top of the appellants' house were those which had been looted in the course of the dacoity committed at the house of Lalji on the night between the 6th and 7th November, 1970 and, therefore, they were stolen property within the meaning of Section 410 IPC the possession whereof had been transferred by the commission of dacoity.;