MALIK, J. - (1.) A dacoity was committed at the house of one Lakkhan Singh on the night between 15th and 16th of October, 1947, in village Kukargaon, district Mathura. A report of the dacoity was made at the police station, which is at a distance of two miles from the place of occurrence, at 2 -30 A.M. on the early morning of 16.10.1947. It was mentioned in the first information report that fifteen or twenty dacoits had raided the house of Lakkha Singh, Mukhia, they had fired guns and after successfully committing the dacoity they had left the village. A list of properties that were removed by the dacoits was furnished to Sheodan Singh, Sub -Inspector, on 16.10.1947, when he went to make the investigation and when he prepared the site plan Ex. P30. Eight persons were sent up to stand their trial in the court of session under Sections 395/397 of the Penal Code. Maharaj Singh, accused, was in addition prosecuted under Section 412 of the Penal Code. By an order dated 7.6.1949, the learned Sessions Judge acquitted all of them. The Government has filed this appeal against Moti on the ground that he was wrongly acquitted.
(2.) MOTI accused was arrested on 15.3.1948. He is a resident of village Karkauli, district Mathura, which is at a distance of five miles from Kukargaon where the dacoity took place. The house of Moti accused was searched on 16.3.1948, and four things were recovered from his house which, it was said, the dacoits had removed at the time when the dacoity was committed. Those articles are Nos. 9, 12 and 37 of the list Ext. P18 which was, as we have already said, furnished to the police on 16.10.1947, and item No. 24 of the same list under the heading 'ornaments.' It is not necessary for us to deal with articles Nos. 9 and 12 as they were not satisfactorily identified and we may, therefore, omit those two from consideration. One of the articles recovered was a durrie, Ext. II, which had blue and red stripes and the other was a Moradabadi engraved tumbler, Ext. I. These articles were put up for identification by Lakkha Singh and his wife, Srimati Anandi, on 24.5.1948. The tumbler Ext. I and the durrie Ext. II were correctly identified by Lakkha Singh as well as by Srimati Anandi, who made no mistakes in the identification.
(3.) THE accused in the court of the Magistrate did not make a statement and he reserved his answers for the court of session. He was asked pointedly by the Magistrate whether the durrie Ext. II and the tumbler Ext. I were recovered from his house and whether they formed part of the property that had been looted. The answer given by the accused was that he would give his statement in the court of session. In the court of session, he denied that the durrie and the tumbler were recovered from his house. The prosecution produced Lakkha Singh and Srimati Anandi. Lakkha Singh stated in his examination -in -chief that the tumbler Ext. I and the durrie Ext. II belonged to him and that he had identified the two articles when the identification was held. Srimati Anandi identified these two articles and said that they were her property. In the cross -examination of Lakkha Singh not a single question seems to have been asked to challenge this part of his statement. Srimati Anandi was asked some questions in cross -examination and her answer so far as they related to Exts. I and II were as follows : "One used new 'gilas' was stolen. It was used for a month or two. I myself purchased this 'gilas'. I did not tell the description of the durrie stolen." The learned Sessions Judge has discarded the statement of Srimati Anandi on the ground that she did not produce the voucher in support of her contention that the tumbler had been purchased by her a month or two before the dacoity. We feel astonished that the learned Sessions Judge should have given that as a ground for rejecting the testimony of Srimati Anandi. When a person goes to purchase a tumbler in the bazar, especially in a village, a voucher is hardly, if ever, given, and even if it is given it is hardly ever preserved. Moreover, no questions were put to her in cross -examination to dispute her title nor was she asked about the voucher or its production.;