KALYAN DUTTA SHARMA, J. - (1.) THESE two appeals -one filed by Sangram Singh and another preferred by Madan Singh son of Ugam Singh and Laxmi Narain alias Laxman arise out of a common judgment passed by the learned Sessions judge, Jaipur City, on 19th February, 1973, in Sessions Case No. 24 of 1971 convicting and sentencing each of the three appellants in the following manner: 1. Sangram Singh i) Under Section 120B r/w Five years' R.I. and a fine of Rs. Section 457, I.P.C. 200/ -, in default to suffer further simple imprisonment for two months. ii) Under Section 120B r/w Three years' R.I. and a fine of Rs. Section 330, I.P.C. 200/ -, in default to suffer further simple imprisonment for two months. iii) Under Section 120B r/w Two years, R.I. Section 411, I.P.C. iv) Under Section 120B r/w Two years' R.I. Section 414, I.P.C. v) Under Section 109 r/w S. Five years' R.I. and a fine of Rs. 457, I.P.C. 200/ -, in default to suffer further simple imprisonment for two months vi) Under Section 109 r/w Three years' R.I. and a fine of Rs. Section 380, I.P.C. 200/ - in default to suffer further simple imprisonment for two months. vii) Under Section 411, I.P.C. Two years' R.I. viii) Under Section 414, I.P.C. Two years' R.I.
(2.) MADAN Singh i ) Under Section 120B r/w Seven years' R.I. and a fine of Rs. Section 457. I.P.C. 200/ -in default of payment of fine to suffer further simple imprisonment for two months. ii) Under Section 120B r/w Five years' R.I. and a fine of Rs. Section 380, I.P.C. 200/ -, in default to suffer further simple imprisonment for two months. iii) Under Section 120B r/w Two years' rigorous imprisonment. Section 411. I.P.C. iv) Under Section 120B r/w Two years' rigorous imprisonment. Section 414, I.P.C. v) Under Section 109 r/w S. Seven years' R.I. and a fine of Rs. 457, I.P.C. 200/ -, in default to suffer further S.I. for two months. vi) Under Section 109 r/w S. Five years' R.I. and a fine of Rs. 380, I.P.C. 200/ in default to suffer further simple imprisonment for two months. vii) Under Section 411, I.P.C. Two years' rigorous imprisonment. viii) Under Section 414, I.P.C.. Two years' rigorous imprisonment. Laxmi Narain alias Laxman i ) Under Section 120B r/w Seven years' R.I. and a fine of Rs. Section 457, I.P.C. 200/ -, in a default to suffer S.I. for two months. ii) Under Section 120B r/w Five years' R.I. and a fine of Rs. Section 380, I.P.C. 200/ -, in default to suffer further simple imprisonment or two months. iii) Under Section 120B r/w Two years' R.I. Section 411, I.P.C. iv) Under Section 120B r/w Two years' R.I. Section 414, I.P.C. v) Under Section 457. I.P.C. Seven years' R.I. and a fine of Rs. 200/ -, in default to suffer further simple imprisonment for two months. vi) Under Section 380 I.P.C. Five years' rigorous imprisonment and a fine of Rs. 200/ -, in default to suffer further S.I. for two months. The substantive sentences awarded to each of the appellants were ordered to run concurrently By this very judgment the learned Sessions Judge acquitted Madan Singh son of Gulab Singh co -accused of the offences with which he was charged at the trial and convicted another co -accused Bhanwar Singh under Sections 411, 414, and under Section 120B read with Section 411 and 414, I.P.C., but instead of sentencing him at once to a term of imprisonment he passed an order that Bhanwar Singh be released on probation upon his furnishing a personal bond in the amount of Rs. 5000/ -, with a surety in the like amount to appear and receive sentence whenever called upon to do so within a period of two years and in the meantime to keep the peace and to be of good behaviour. Bhanwar Singh has not come up in appeal to this Court against his conviction. 2. The Prosecution case against the appellants was, briefly stated, as follows: There is a store known as 'Surat Khana', which is situated on the first story towards the northern side of Birendra Pal of City Palace Tajpur. There were 42 almirahs kept in the 'Surat Khana'. Out of these almirahs, 7 were in a sealed condition having seals of Maharaja Jai Singh put on each of them. Out of these 7 almirahs, one was almirah No. 76, which contained valuable antique paintings of exquisite Article The 'Surat Khana' was locked from outside by Ram Gopal Mathur, Superintendent, City Palace, Jaipur under his seal. Almirah No. 76 used to be opened by the Maharaja, Jaipur or his Military Secretary or his son Maharaja Jai Singh for keeping in or taking out any paintings or for cleansing it or for sprinkling medicine therein in order to kill white ants. Sometimes the Maharaja used to call Sangram Singh appellant also at the time of opening Almirah No. 76 for having advice as to which of the paintings should be kept where in the almirah. Sangram Singh appellant used to deal in old paintings. He, therefore, thought of a plan to have precious paintings of almirah No. 76 stolen by some thief from the 'Surat Khana' and to earn lacs of rupees by selling them. In order to carry out this plan he entered into a conspiracy with Madan Singh, son of Ugam Singh, Ayodhya Singh (who later on turned an approver) and Laxmi Narain. In pursuance of this conspiracy, Ayodhya Singh approver and Laxmi Narain alias Laxman appellant agreed to commit theft of valuable paintings from almirah No. 76 and to hand them over to Sangram Singh for sale after the commission of theft. This conspiracy was hatched up prior to the commission of the theft. In pursuance of the said conspiracy, Madan Singh and Laxmi Narain bought from market one plas, one cutter and one iron bar at the instance of Ayodhyasingh approver, and, Laxmi Narain and Ayodhyasingh gained entry into the Palace through its ventilator at about 9 or 10 p.m. After taking precautions to conceal themselves both the miscreants reached the temple of Laxmanji and went upstairs on the roof. They kept themselves lying there on the roof upto 12 in the night. Thereafter Laxmi Narain climbed up the balcony and began to cut the iron gauge of the ventilator with the help of plas, cutter and iron bar. After cutting the gauge, he took out iron bars of the ventilator one by one and then went down into the room through that aperture. Ayodhya Singh approver followed him and succeeded in gaining entry into the room through the same ventilator. There was a stool lying near the window in the room, which facilitated their task of descending into the room without producing a sound. Ayodhya Singh had a torch with him. In the light of the torch he inspected all the almirahs and found almirah No. 76 lying in chat room. He and his companion removed the seals from the almirah and opened it. Out of almirah No. 76 they took out bundles containing valuable paintings. There were labels on the bundles which were removed by them. Then they opened the bundles and began to sort out and collect paintings. In this manner they selected a good number of paintings and kept them in three bundles. Ayodhya Singh approver took out collection of Geet Govind paintings and dishonestly concealed it in his Dhoti'. After committing the theft, Ayodhya Singh first came out of the room through the ventilator and asked Laxmi Narain to give him the bundles. As one of the bundles was a big one, it could not be taken out of the ventilator. He, therefore, asked Laxmi Narain to open it and to give him the albums contained therein. After handing over all the paintings to Ayodhya Singh, Laxmi Narain also came out of the room through the same ventilator. Both the thieves then remained on the roof and waited for day -dawn. At about 5 a.m. when the temple was opened and worshippers began to come in, they came down -stairs and decamped with the stolen properties. Both of them took the stolen properties to Laxmi Narain's house in a rickshaw and kept them inside his Kothi. After some time Laxmi Narain went away in the market to fetch milk for preparing tea. In his absence, Ayodhaya Singh approver took out nine albums containing some paintings, from the bundle, tied them with the Geet Govind collection in a separate bundle and concealed that bundle in a rubbish which was lying underneath the star case of the house of Laxmi Narain. At about 6 a.m. Madan Singh appellant visited the house of Laxmi Narain and saw the paintings. Madan Singh selected one album and told Ayodhya Singh and Laxmi Narain that he would show it to Sangram Singh appellant. After some time Madan Singh went away from there with one album. Ayodhya Singh and Laxmi Narain then counted all the paintings which they had stolen, except nine albums and the Geet Govind collection which was kept concealed by Ayodhya Singh in the rubbish. At about 9 or 10 a.m. Madan Singh again came to the house of Laxmi Narain and told him and Ayodhya Singh that he had brought a sum of Rs. 500/ -. He gave some money to Laxmi Narain and directed Ayodhya Singh to remove the mounts of the paintings and to tear them away. This was done accordingly. Then Laxmi Narain, and Madan Singh went to market and brought one box from there. They put a good number of paintings in the box. The rest of the paintings were tied in a bundle. Ayodhya Singh clandestinely took away all these albums which he had concealed in a rubbish lying under the staircase of the house of Laxmi Narain. Thereafter Madan Singh played a trick with Laxmi Narain and asked him to bring a taxi for taking the box to Nawalgarh House. Laxmi Narain brought a taxi and both carried the box and the bundle in it to Sansarchand Road where Laxman went to purchase cigarettes, Madan Singh got the taxi -car started and alone took away the box and the bundle leaving Laxmi Narain behind. Laxmi Narain was highly annoyed by the conduct of Madan Singh. He held out threats to Ayodhya Singh to make a full disclosure of all the facts to the police, Ayodhya Singh pacified him and after some days brought a currency -note of Rs. 5000/ -, from Sangram Singh appellant after handing over Geet Govind collection and the nine albums to him. He gave the currency note to Laxmi Narain and asked him to encash it. The note could not be encashed, so it was returned to Ayodhya Singh who brought fifty currency -notes of rupees one hundred each from Sangram Singh and gave them to Laxmi Narain. After ten or fifteen days Ayodhya Singh got a sum of rupees twenty thousand from Sangram Singh, out of which he gave a sum of rupees ten -thousand to Laxmi Narain. It is farther alleged that Laxmi Narain purchased a lathe machine out of this sum of rupees ten thousand and installed it in Udaipur. Thereafter Ayodhva Singh approver received further sums of money through Madan Singh and Amar Singh driver from Sangram Singh appellant. 3. The theft of paintings committed in the 'Surat Khana' from almirah No. 76 could not be detected till 11th January, 1969, Ram Gopal Mathur, Superintendent, City Palace, came to know of the theft when he opened the lock of the 'Surat Khana' for keeping some almirahs in it after removing them from the verandah at the instance of Rajmata Gayatri Devi, who had visited, the City Palace on that day. On opening the door when he entered the room, he saw that the seals of almirah No. 76 were broken and the contents thereof were missing. He found some chits and bundles lying outside the almirah and saw the gauge and iron bars of the ventilators being removed. Thereupon he lodged a written report Ex. P. 35 about the incident of theft with the police at police station, Manak Chowk, Jaipur. On the basis of this report Narendra Kumar registered a criminal case under Sections 457 and 380, I.P.C. and deputed Bhopal Ram, police officer to make an investigation. Bhopal Ram rushed to place of occurrence and after inspecting the site prepared a site -plan. Thereafter further investigation was made into the case by the Rajasthan Police till 26th May, 1969. On 27th May, 1969, the CBI took -up investigation of this case at the request of the Government of Rajasthan. During the course of investigation by the CBI the three appellants were arrested. Sangram Singh appellant was interrogated many a time during the period between July, 1969 and February, 1970. His house at Jaipur was searched under a search warrant obtained from the court of Shri N.L. Kackkar and about two thousand paintings were recovered there from out of which thirteen were identified to be stolen properties. It came to the notice of the CBI that the American gentleman Leneman had despatched some paintings to the United States of America. In pursuance of this information, the CBI recovered some paintings from British Overseas Airways Corporation, out of which thirty -seven were identified to be the stolen articles. The CBI made several other recoveries of paintings from different persons on different dates and from different places, the details of which are given in a Schedule appended to the judgment of the lower court which I need not reproduce here.
(3.) A good number of paintings, which were recovered by the CBI during the course of investigation, were put up for identification in test identification parades held by Shri Bal Krishna Sharma PW 42 City Magistrate, Jaipur, on 8 -5 -1969 and 9 -5 -1969 as is evident from the identification memos Exs. P. 47 to 54. Out of the paintings sought to be identified some were correctly identified by Ram Gopal, Kirpal Singh and Yadvendra Sahai identifying witnesses to be paintings of Maharaja of Jaipur, which were stolen from almirah No. 76. Likewise other paintings recovered by the C.B.I. were put up in test identification parades held by Shri N.L. Kakkar, P.W. 41, the then Additional Chief Judicial Magistrate, Delhi, dated on 29 -8 -1969, 5 -12 -1969, 16 -12 -1969, 22 -1 -1970, 23 -1 -1970, 9 -2 -1970, 10 -2 -1970, 11 -2 -1970 7 -4 -1970 and 8 -4 -1970 as is evident from identification memos Ex. P. 55 to P. 60 and P. 71 to 75. Out of the paintings sought to be identified, a number of them were correctly identified by each of the three identifying witnesses, namely Ram Gopal, Kirpal Singh and Yadvendra Sahai to be stolen paintings of Maharaja of Jaipur. On 12 -5 -1969 the investigating agency got Madan Singh son of Gulab Singh co -accused (who has been convicted by the trial Judge and released on probation) identified by D.P. Peter, Mr. A.Z. Leneman and Mrs. Leneman as is evident from the identification memos Exs. P 226, P 227 and P 228. The CBI took chits marked Ex. P 5 to P 25 into its possession. These chits were alleged to have been removed by the thieves themselves from the stolen albums at the time of commission of the offence. They were seen lying in the room outside almirah No. 76 by Ram Gopal on 11.1.1969. Some registers Ex. P 38, P 39, P 40, P 41, P 42, P 44 and Toziz Arts 233 to 235 were also taken into possession by the CBI, because they contained descriptions of paintings which were kept in and stolen from almirah No. 76. After collecting other necessary evidence, the CBI filed a charge -sheet against Sangram Singh, Madan Singh, Laxmi Narain, Bhanwar Singh, Madan Singh son of Gulab Singh, and Ayodhya Singh in the court of the Special Magistrate First Class, Jaipur, under Sections 457, 380, 411 and 414 read with Section 120B and 109, I.P.C. In the course of committal proceedings, Ayodhya Singh turned an approver The learned Magistrate held an inquiry, preparatory to commitment, and upon finding a prima facie case, under Section 120B read with Section 109 read with Sections 457, 380, 411 and 414, I.P.C. committed all the accused except Ayodhya Singh to whom pardon was tendered, for trial in the court of the Sessions Judge, Jaipur City. The learned Sessions Judge, Jaipur City, tried all the accused for the offences with which they were charged and relying upon the testimony of Ajodhya Singh approver and the evidence of recoveries of stolen paintings convicted the appellants in the manner indicated above. He, however, acquitted Madan Singh son of Gulab Singh of all the charges, because, in his opinion, the prosecution could not make out a case against him beyond reasonable shadow of doubt.;