- (1.) M. C. Agarwal, J. This appeal by seven persons, namely, Molhar, Ram Dia, Inder Singh, Kurdi, Mir Hasan, Birbal and Bulli is directed against a judgment and order dated 23-8-1980 passed by the Addi tional District & Sessions Judge, Saharan-pur in Sessions Trial Nos. 353 of 1975, 353-B of 1975,354 of 1975 and 355 of 1975 all of which were consolidated and dis posed of by the judgment under appeal and by which Birbal appellant was convicted for an offence under Section 412, I. P. C. and sentenced to undergo rigorous imprison ment for a period of four years. The others have been convicted of an offence under Section 397, I. P. C. and sentenced to under go rigorous imprisonment for a period of seven years each.
(2.) DURING the pendency of this ap peal, appellant Inder Singh has died. The other accused also did not appear and their bail was cancelled. Accused Molhar, Ram Dia and Bulli alias Boolchand were ar rested and brought before this Court on 26-3-1998. Sri S. L. Kesharwani, Advocate appeared for Molhar and Birbal appellants. Ram Dia and Bulli appellants were unrepresented and expressed their in ability to engage a Counsel. Sri S. L. Kesharwani, Advocate was, therefore, ap pointed Amicus Curiae who assisted the Court on behalf of Ram Dia and Bulli accused. Sri G. S. Hajela, Advocate ap peared on behalf of Mir Hasan appellant and Kurdi accused remained unrepresented. I have heard the learned Counsel named above on behalf of the appellants and the learned Additional Government Advocateon behalf of the State. The prosecution story briefly stated is that in the night between the 11th and 12th of July, 1975 at about 1. 00 a. m. a gang of about 10-12 dacoits committed dacoily at the house of Fakira in village Randor P. S. Behai district Saharanpur. The inmates of the house including the head of the family Sri Pitamber Singh, his son Fakira Singh, grand sons Sher Singh and Ajmer Singh and ladies Madhowati, Saroj Bala etc, were sleeping at various places and there was light of two lanterns in the two verandahs. In addition two lanterns were burning in the portion where the ladies resided. The clacoiis trespassed into the house. They tied down Pitamber Singh to a cot and started loot ing. They took Ajmer Singh in their cus tody and took him to the roof. They were threatening that they would kill him if the valuables were not handed over. The in mates of the house raised an alarm that attracted several villagers. One Satish Kumar was alleged to have brought his gun and fired shots from the roof of the house of Ravinder Singh while Ravinder Singh is alleged to have set fire to a heap of straw lying outside the house. that too created sufficient light. Three of the dacoits had guns, one had & Bhala and had remained at the spot for about one hour. They carried about Rs. 70,000 in cash along with a large amount of jewellery, silver coins etc. They also carried away a double barrel licenced gun belonging to Fakira Singh. The various persons put up for trial were ar rested on various dates. One Sheo Singh who died during the trial was arrested along with Molhar, Nathi etc. in the night between 28th/29th July, 1975. According to the prosecution story the double barrel gun looted from the house of Fakira Singh and belonging to the later was recovered from the possession of Sheo Singh. Later the residential house of Sheo Singh is said to have been raided on 30-7-1975 where his brother Birbal, the present appellant, is alleged to have taken out a bundle from a wall from which 11 silver ornaments, 11 gold ornaments, 105 silver coinsofrs. 1. 00 each, silver coins of eight annas and 11 silver coins of four annas were recovered. The accused as well as the property aforesaid having been identified by the witnesses at test identification parade. They were put up for trial.
(3.) AT the trial, a large number of witnesses were examined. In addition, af fidavits of large number of formal wit nesses were filed Mehar Singh son of Fakira Singh P. W. 9, Balraj Singh P. W. 10, Rajpal Singh P. W. 11, Gyan Singh P. W. 12 and Saroj Bala P. W. 23, are the witnesses who were examined to establish the factum of the dacoity and the identity of the daeoits. Fakira Singh the first informant of this case was also examined as P. W. 6 but he died before ever his examination-in-chief was complete. As regards the recovery of the goods mentioned above, it was sought to be proved by producing Jhamman Singh, who at the relevant time was Sta tion Officer of Police Station Gangoh as P. W. 13 and Harish Chandra, Dhan Pal and Narain Singh as P. Ws. 14,15 and 16. It may be mentioned here that the public wit nesses, namely, Harish Chandra, Dhan Pal and Narain Singh did not support the prosecution case and stated that no recovery was made in their presence and that their signatures etc. were obtained at the police station. They were treated as hostile by the prosecution. Thus, as regards Birbal appellant who has been convicted for an offence under Section 412, I. P. C. , there remains the single tes timony of Jhamman Singh P. W. 13. He merely stated that he along with the other policemen and public witnesses reached the house of Sheo Singh where accused Birbal was available. He was questioned about the dacoity and taken into custody and them he i. e. Birbal took out the potli (bundle) containing the aforesaid orna ments etc. which had been concealed in a wall. Jhamman Singh does not state what was the statement made by Birbal that led to the recovery of the said articles. Thus, taking the statement of Jhamman Singh at its best what it could establish was merely that Birbal knew where the said articles were kept and the statement does not es tablish that Birbal was in possession of those articles or that he knew the same to be stolen property. Thus, even without going into the credibility of the evidence of Jhamman Singh the same did not estab lish the charge under Section 412, I. P. C. against Birbal accused. The statement of Birbal appellant that was recorded under Section 313, Cr. P. C. shows that he was a young boy of about 25 years of age. That means at the time of recovery he was just about 20 years of age. It appears that he was younger to Sheo Singh who was his brother. In other words. Birbal was not a person whose participation in the dacoity could be ruled out in view of the alleged recovery. Illustration (a) of Section 114 of the Evidence Act slates that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them 10 he stolen, unless he can account for his pos session. Therefore, if the investigation agency was of the view that Birbal was in possession of the property alleged to have been recovered from him, the law provided that he could be presumed to have par ticipated in the dacoity. Even otherwise at the investigation stage if there was recovery it was natural that the Birbal should have been suspected of participat ing in the dacoily and should have been put up for test identification. However, Birbal appellant was not put up for test identifica tion and no explanation has been given during the trial why this was not done. The omission to put Birbal for test identifica tion shows that in fact he has been impli cated simply because he happened to be the brother of another accused Sheo Singh. Therefore, the charge against Bir bal was not made out and his conviction cannot sustained.;