- (1.) THIS is an Appeal by Bhurgiri and Manohar Singh who have been convicted under sec. 379 of the Indian Penal Code.
(2.) THE case relates to a dacoity which took place on the 26th November, 1951, in the jungle between Harel and Danthal at about sunset time. Ram Chandra, Gorilal, Rooplal, Mst. Gaikhi, Mst. Ganga and Mst. Roopi were returning from Bhilwara to Danthal when they were stopped by 7 or 8 daco-its in the way. One of these dacoits was armed with a gun, another had a sword, the rest had lathis with them. THEy began to these persons, and one of them shot Ramchandra through the abdomen. THEreafter, the dacoits forcibly removed the ornaments which the women were wearing, and also took away other property. After the dacoits had gone away. Ramchander and others reached village Danthal, and informed the Patwari of what had happened. THEreupon, a written report of the incident was sent by the Patwari to the Superintendent of Police Bhilwara next morning. Seven persons were arrested by the Police during the course of the investigation including the two appellants. Certain recoveries of looted property are also reported to have been made at the instance of the appellants. All the seven persons as the looted property were put up for identification. THEreafter, the case was sent to the court. All of them were committed by the Magistrate to stand their trial before the court of session. Five of them have been acquitted, while the two appellants have been convicted. Hence this appeal. There is in our opinion sufficient evidence to prove that a dacoity did take place on the 26th November, 1951, in the Jungle between Harel and Danthal. The question, that arises, therefore for consideration in this appeal, is whether the case against the two appellants has been proved satisfactorily by the evidence that has been produced. This evidence is of two kinds. There was first the evidence of identification of the two appellants, and secondly there was evidence of recovery of looted property from their possession. The learned Sessions Judge has not relied on the evidence of identification. He has convicted the two appellants on the evidence relating to recovery. The reasons why the learned Sessions Judge did not rely on the evidence of identification is that no steps were taken by the police to keep the faces of the accused hidden so that they might not be seen by the witnesses before the identification. The accused had alleged before the Sessions Judge that they were shown to the witnesses when they were confined in the police lock-up at Thana Bhilwara. They also alleged that the witnesses had seen then were being taken from the Thana to the court for purposes of identification. The accused did not raise these objections before the Magistrate who conducted the identification, their case then being that they were known to the witnesses who lived in an adjoining village. It was however, admitted by the investigating officer that the accused were sent on foot from the Thana Bhilwara to the court where the identification parade was held, and that the faces of the accused were not covered at that time. It is also in evidence that the identifying witnesses were already in Bhilwara and had an opportunity of seeing the accused on the way. The identification was held on the 8th December, 1951, about a week after the arrest of the accused. But, though the jail at Bhilwara is next door to the Thana, the accused were not sent to jail, and were kept at Thana Bhilwara for an unnecessarily long period. We are of opinion that in these circumstances, the learned Judge was right in looking at the identification proceeding with suspicion and rejecting it altogether. It has been urged by the learned Government Advocate that the substantive evidence of a witness is that which he gives in court, and that the identification proceeding held during the course of the investigation is only for the purpose of satisfying authorities that the persons arrested are right persons, and for corroborating the statements of the witnesses in court. As a proposition of law, this statement is correct; but it does not follow from this that it is not necessary to hold identification proceedings in cases where the accused are not known to the victims, and that where such identification is valueless, the statement in court still remains unaffected and should be believed by the court. Reliance in this connection is placed on the judgment of Desai J. in Satya Narain and others vs. The State (1) (AIR 1953 Alld. , 385.) A careful consideration of that judgment shows that it does not support the view urged by the learned Government Advocate unreservedly. Before we consider that judgment we may refer to certain principles which are well-established, and have been acted upon by courts as a matter of prudence when dealing with evidence of witnesses as to identification of strangers. Phipson, in his law of evidence, 8th Edn. , p. 392, observes as follows: - "in criminal cases it is improper to identify the accused only when in the dock; the police should place him, before hand, with others, and ask the witness to pick him out," In Davis vs. The King (2) (57 CIR 170 at p. 181), it was observed that it was "indisputable that a witness, if shown to the person to be identified singly and as the persons whom the police have reason to suspect, will be much more likely, however fair and careful he may be, to assent to the view that the man he is shown corresponds to his recollection," In Craig vs. the King (3) (49 CIR 429 at p. 450.) the learned Judges quoted the observations of Lord Guthrie at the Stater Trial in these words ': - "it would not be safe to convict the prisoner merely on the evidence of personal impression of his identity with the man seen flying from the house on the part of strangers to him, without reference to any marked personality or personal peculiarities, and without corroboration derived from other kinds of evidence. My proposition involves a distinction between the identification, by persona impression, of a strange person, and the identification, by personal impression, of a familiar person. " It is not necessary in multiply authorities on the point. The safe rule is that the sworn testimony of witnesses in the court as to the identity of stranger, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding, though it is not impossible for a court, if it is satisfied that the evidence of a particular witness is such that it can safely rely on it even without the precaution of an earlier identification proceeding to convict the accused on that evidence. But generally speaking the evidence of a witness in court that he identifies one or more persons out of so many standing in the dock as present at the time of the crime is of next to no value without an earlier identification proceeding in case the persons identified are strangers to the witness. Desai J. at page 393 (1) laid down the rule as follows: - "therefore the observation of my brother Sankar Saran that it cannot be said that on account of absence of identification proceedings the entire sworn testimony of witnesses should be discarded should be taken as modified by the rule of caution or prudence that there must be corroboration. " Learned Government Advocate contends that the recovery of looted property from the accused should be sufficient corroboration of the identification in court even if the earlier identification during the investigation is of doubtful value, as in this case. We feel that the corroboration of identification in court, which it would be safe to insist upon, should be of an earlier identification proceeding except in that exceptional case where the court for some reason is prepared to rely completely on the uncorroborated testimony of a witness in this matter. Recovery of property from an accused cannot, in in our opinion, be said to be corroboration of the sworn testimony in court as to the identity of the criminal, for it is possible that the property might have been passed on to the person from whom it was recovered by some one who might have taken part in the crime except in that rare case where the court comes to the conclusion that that was impossible as for example when the dacoits are intercepted when returning from the scene of crime and looted property is recovered from them. In such a case, however, they can be convicted of dacoity, even if there is no evidence of identification of person at all. We, therefore, feel that as a rule of caution and prudence courts should insist on proper identification proceedings during the investigation, and if that identification is satisfactory, then only the sworn testimony of a witness in court should be accepted. Of course, this does not mean that there cannot be that exceptional case to which we have referred already. The witnesses in the present case are not of that exceptional kind, and we are, therefore, not prepared to rely upon their sworn testimony in court when it has not been corroborated by a proper identification during the investigation. This only leaves the evidence of recovery against these two appellants. We shall first take the case of Bhurgiri. It is proved that certain ornaments were recovered from the Bara of this accused on the 1st December, 1951. The prosecution case further is that this recovery took place at the instance of the accused, but we are not satisfied as to that. The accused himself admits the recovery of these ornaments from his Bara, but says that they were not recovered at his instance. The story, that has been given in this connection, is that Bherusingh, Arjan barber and Jagannath came to him and asked him to lend Rs. 60/- as the police had arrested Bherusingh's brother Manoharsingh. He refused to land the money, but they persisted and Jagan Nath suggested that, if necessary, he could keep certain ornaments as security. Jagannath then gave him a pair of bracelets and asked for Rs. 53/ -. There was a bundle with Jagannath which contained other ornaments, namely two Naths, one Gajra and one Kanoda (Kangati ). Bhurgiri however, refused to take these ornaments, though he agreed to lend the money. Then he went away and brought the money from another person. On his return, Bherusingh, Arjan Singh, and Jagannath were found sitting outside bis house. He gave them Rs. 50/- and they went away. His suggestion is that these persons probably planted the ornaments which he had refused to take, and that he had no knowledge about thes|e ornaments being in his Bara. The recovery from the Bara in the possession of the accused having been proved all that has to be seen is whether these things were kept there to the knowledge of the accused and by him. The accused admits in his statement that these things were shown to him. The accused admits in his statement that these things were shown to him and were offered as security for a loan of Rs. 50/ -. He admits that he gave the loan, but does not admit that he had taken these things as security. We fail to understand why, when these things were being given to him as security, he should not have taken them. We are satisfied that he took these things and kept them in the Bara and gave Rs. 50/- as loan. We are not prepared to believe that he went out for some time, and during that interval Bherusingh and others planted these ornaments in his Bara. The other person from whom he says he borrowed the money in order to lend it to Bherusingh and others has not been produced. The evidence, therefore, of the recovery, taken along with the statement of the accused leaves no doubt in our mind that these ornaments, which were recovered from the Bara, were in possession of Bhurgiri accused. They have been proved to be looted in the dacoity which took place on the 26th November, 1951, and Bhurgiri has not claimed them to be his property. The next question is whether on this evidence Bhurgiri can be convicted for dacoity. The recovery took place five days after the dacoity. It is not impossible that during that period the property might have passed from the dacoits to a receiver. Under these circumstances, we are of opinion that it would not be safe to convict Bhurgiri of dacoity on the evidence of this recovery alone. It would be more proper to convict him as a guilty receiver. Then the question arises whether he should be convicted under sec. 411 or 412 I. P. C. So far as sec. 411 is concerned, he is clearly guilty under that section. The presumption under sec. 114 Evidence Act applies, and we can safely presume that he is a guilty receiver of stolen property particularly when we find that the property was kept in the Bara, and not at his own house. He must have had reason to believe that is was stolen when he received the property, and that is why he left it in Bara. But we feel that it would not be proper to convict him under sec. 412 because that section requires that the receiver should know or have reason to believe that the property had been transferred by the commission of dacoity. The prosecution, in our opinion, has to show something more than the mere possession of stolen goods for a conviction under sec. 412. It the prosecution is only able to show mere possession, the proper section to use is 411. In this connection we may refer to: Emperor vs. Malhari (1) (ILR 6, Bom. , 731. ). Surendra vs. The Emperor (2) (41 Calcutta Weekly Notes, 639.), Narayan Dinba vs. Emperor (3) (AIR 1947 Nag. , 57) and Ram Samuj vs. Rex (4) (AIR 1949 Alld. , 245. ). We are, therefore, of opinion that Bhurgiri should be convicted under sec. 411 I. P. C.
(3.) WE now turn to the case of Manohar Singh. The only recovery from him, on which reliance may be placed, is that of a Dhoti. The learned Judge relied on the recovery of a gun at the instance of the accused and of a sword from his house. These recoveries are of no value because there is no good evidence to prove that this gun and this sword were used in the dacoity. The Dhoti in question was recovered from a Bara. This Bara has got thorn fencing all-round. It is of the height of a man's knee. The place, therefore, from where the recovery took place, is unsafe, and anybody could have access to it, and place the Dhoti there if so minded. Reliance is placed on the fact that this Dhoti was recovered at the instance of the accused, and therefore he must be knowing that it was hidden at that place. The evidence of witnesses in court was that this Dhoti was recovered on the pointing out of the accused; but the recovery list Ex. P. 4 gives a somewhat different story. In the recovery list it is said that Manohar Singh and his brother Bheru Singh both said that the stolen property, namely a Dhoti and a pair of shoes, was at their house. They took the police to their house, and then Manohar Singh brought out this Dhoti Jora from the Bara, while Bheru Singh brought out the pair of shoes. WE are not satisfied, however, that this recovery took place at the instance of the accused. One Nanda was examined as a prosecution witness about recovery of the gun from him at the instance of Manoharsingh. He stated in cross-examination that he had been asked by the Head Constable to put a piece of Dhoti in a head of Karab in Manohar Singh's Bara, which he did, and thereafter the police recovered that piece after a few hours. Manohar Singh has denied that the Dhoti was recovered at his instance. He also denied that he was in possession of this Dhoti. Considering that the place where the Dhoti is found is quite unsafe, and the evidence of its recovery at the instance of Manohar Singh is doubtful, we are not prepared to hold that this Dhoti was recovered from the possession of Manohar Singh. If this evidence is discarded, three is nothing left against Manohar Singh. WE are, therefore, of opinion that Manohar Singh is entitled to an acquittal as the recovery of the Dhoti Jora from his possession is not proved beyond all doubt. So far as Bhurgiri is concerned, we are of opinion that ends of justice require that he should be given the maximum sentence under sec. 411. We dismiss the appeal of Bhurgiri with this modification that his conviction is changed to one under sec. 411, and the sentence is reduced from eight years' rigorous imprisonment to three years' rigorous imprisonment. We allow the appeal of Manohar Singh and giving him the benefit of the doubt order his acquittal. . ;