JUDGMENT
Jas Raj Chopra, J.
1. This is an appeal against the Judgment of the learned Additional Sessions Judge, Sirohi dated 9-6-1981 whereby the learned lower court has held accused-appellants Rajesh and Rampal guilty of the offence under Section 396 IPC and has sentenced them to imprisonment for life together with a fine of Rs. 500/- and in default, to undergo 6 months’ rigorous imprisonment. Although, the learned lower court has held that these accused-appellants are guilty of the offence under Sections 397 and 399 IPC also but they have not been separately sentenced for these offences because they have been sentenced under Section 396 IPC. However, accused Rajesh, Prabhudayal and Sheri have been acquitted of the offence under Sections 120B read with Section 397 IPC.
2. The facts giving rise to this appeal briefly stated are: that Kalu Ram and Kashiram belong to village Moongthala situated in the jurisdiction of P.S. Abu Road. Kashiram is the Sarpanch of Gram Panchayat, Moongthala. Kaluram is Kashiram’s elder brother. It is alleged that they are the rich people of the village. Kashiram’s family lived in the midst of the Abadi whereas Kaluram’s family started living just outside the village Abadi. It is alleged that accused Prabhudayal’s sister Savitri was married with one Richhpal Mali belonging to village Aaval Village Aaval is situated near village Moongthala. Accused Prabhudayal lived there for about one and half years. He belongs to village Tijara in District Alwar. It is alleged that Prabhudayal Mali hatched a conspiracy with one Sheri, Rajesh and Omi to commit robbery in the house of Kaluram in the month of October, 1978. It was given out to the accused persons by Prabhudayal that the family of Kaluram and Kashiram possessed of two kilograms of gold and one and half maunds of silver It appears that Omi and Rajesh are Bavaries by-caste and so, they did not like to share the wealth with accused Prabhudayal and, therefore, they told him that they will not commit robbery at that time. It is alleged that at that time, accused Rajesh, who was armed with a country made pistol, concealed that pistol in the field of PW 12 Abdul. The pistol (Article 16) and three cartridges (Articles 17 to 19) were noticed by PW 12 Abdul and he produced them before PW 25 Bhagwandass, SHO, who seized them vide memo Ex. P 28. It is alleged that accused Omi and Rajesh then went towards Kachh-bhuj side along with Sheri. Prabhudayal could read their intention and, therefore, in order to take revenge from them, he wrote a letter to Kashiram on 24-10-1978 that a dacoity will be committed at his house. On receiving this letter, Kashiram handed it over to the Police with an application. However, no dacoity took place upto 31-10-1978 It is alleged that one of the brothers of Kaluram and Kashiram viz., Kishorilal lived at Swaroopganj. His son’s marriage was fixed on 3-12-1978 and so, the entire family of Kashiram as also Kaluram, his wife and two sons of Kaluram’s son Poonamchand went to attend that marriage at Swaroopganj. Poonamchand and Gokulchand, who are sons of Kaluram along with Mst. Narangi, wife of Poonamchand and her two daughters remained in village Moongthala, Mst. Bhanwari wife of Gokul Chand has gone to her parents and she was there for the past about two months. It is alleged that in the night intervening 4th and 5th December. 1978, these four accused-persons alongwith 2-3 others came to the house of Kaluram, broke the shutter of the main gate and entered into his house. One of the accused stood at the main gate, as a guard, armed with a pistol. It is alleged that accused Rajesh was armed with pistol. The other accused-persons who were armed with the arms of the cots entered into the house of Kaluram in which Gokulchand was sleeping in a room adjacent of the kitchen. Mst. Narangi and her two daughters were sleeping in the kitchen and Poonam Chand was sleeping in the shop. Almost, all their boxes containing clothes etc. were lying in the Kitchen. A lantern was kept hanging outside the Oasari during the night when these persons entered into the Chowk of the house. When all this took place, the street dogs started barking whereby Mst. Narangi woke up She told her husband who was sleeping in the shop, which is adjacent to the kitchen, and a window existed without door in between kitchen and the shop from which discernible, that why the dogs are barking. Thereafter, she saw towards the Chowk and found some persons standing there She also noticed that the lantern which was kept hanging was lying on the ground of the Chowk and some persons were flashing the torch. She immediately raised a cry ‘CHOR CHOR BHAGO BHAGO’ etc. which attracted the attention of PW 5 Maghsingh, whose house is situated just near her own house and PW 14 Sankalsingh, who was working as Head Master in the Middle School, Moongthala. The movement of these persons was also noticed by PW 23 Fattaram, Upsarpanch of the Gram Panchayat who was requested to sleep outside the house of Kashiram Sarpanch because Kashiram went with his entire family to Swaroopganj. On hearing these cries and on noticing the movement of these persons (accused party), these persons started towards the house of Kaluram but the man who was standing outside the house, abused & told them to keep themselves away from the place of the occurrence or else he will shoot them. On hearing these threats, they retreated from that place. It is alleged that the accused-persons knocked the doors of the kitchen and asked Mst. Narangi to open the door. Poonamchand also came into the kitchen and they tried to block the opening of the doors but the accused persons pushed the doors with great force and thereby, the gates of the kitchen opened. The accused-persons then gave beating to Mst. Narangi and Poonam Chand and asked them to show their wealth. In the meanwhile, they took out the boxes from kitchen, broke their shutters and scattered the entire articles lying therein. Some cash was taken away which was lying in one box and some clothes were also taken away and then they started beating Poonam Chand in order extract information from him where the wealth was concealed. On seeing this, Mst. Narangi told them not to beat her husband and volunteered to show the place where the wealth was lying. It is alleged that Gokulchand came out of his room and he too was beaten and pushed back in the room and was threatened to keep quite. He then remained inside the room and in the meanwhile, Mst Narangi pointed out to the accused-persons the place where her own ornaments were concealed. There, a hole was dug in the ground and then her ornaments were taken out which consisted of one golden Chain, Shishphool, Singarpatti, Tika and Bajubandh etc. They were weighing about 11 tolas in weight. The accused persons then dug another hole in the ground after removing one stone but nothing was found. They then came out of Kitchen and then went inside the room of Gokul Chand. They started beating Gokulchand and asked him to show his wealth. When Gokul Chand did not show the place where his wealth was concealed, the accused persons started beating him. Mst Narangi then went inside the room of Gokul Chand and tried to rescue him and told the accused persons not to beat Gokul Chand and she again voluntered to show the ornaments of Gokul Chand’s wife Mst. Bhanwari and she pointed to the place where they were concealed.
3. The accused persons then dug a hole in the ground and took out the ornaments of Mst. Bhanwari also. After taking out the golden ornaments of Mst. Bhanwari which too were weighing about 11 tolas, they again went inside the shop of Poonam Chand and asked him to show where two and half maunds. Silver was lying because as per them he was possessed of that quantity of silver. Poonam Chand told them that he is not possessed of two and half maunds silver whereupon, accused Rajesh aimed his pistol towards Poonam Chand, and asked him either to disclose the place where the silver has been concealed or else he will kill him. When Poonamchand told them that no silver was there the accused Rajesh fired his country-made pistol of 303 bore and that fire hit Poonamchand. Poonamchand immediately fell down on the ground and succumbed to his injuries It is alleged that the accused who was armed with pistol was accused Rajesh & one of the accused who gave beating to Mst. Narangi Gokulchand & Poonamchand with the arm of the cot was accused Rampal. The others, who were there, were helping them in beating and taking a search of the house but they could not be identified. However, both these witnesses, i.e., PW 7 Mst. Narangi and PW 8 Gokul Chand have categorically stated that they were more than five in number and when Poonam Chand fell down and succumbed to the pistol injury received by him, the accused persons left the place of the occurrence. Thereafter Mst. Narangi and Gokul Chand raised a hue and cry that Poonam Chand has died. On hearing this PW 5 Magh Singh, PW 14 Sankal Singh and PW 23 Fatta Ram and many others went to the place of the occurrence and found that all the belongings of Kalu Ram’s family were scattered, in the Chowk, kitchen and the shop. Poonam Chand was lying dead in the shop and Mst. Narangi and Gokul Chand have also received number of injuries. On this, PW 14 Sankal Singh went to the Police Station, Abu Road and lodged a written report (Ex. P 38) at about 5 a.m. and on the basis of which, the formal FIR (Ex. P 39) was drawn.
4. The Police immediately came into action. PW 31 ASI, Kapura Ram immediately proceeded to the spot, inspected the site and prepared the site inspection memo. Ex. P. 8 and site plan (Ex. P 9). He also seized one blood stained Rilakiya (bedding) (Article 4) some glass pieces (Articles 5A and 5B) and one empty cartridge (Article 2) fired from outside the house. In the meanwhile, when this investigation was going on, PW 24 Hari Singh SHO arrived at the place of the occurrence and took up the investigation with him and prepared the Inquest memo Ex. P 4. He seized the blood stained clothes of Poonam Chand, i.e., Shirt, Baniyan, Underwear, Trousers (Article 5 to 9) vide memo Ex. P 12.
5. Kashi Ram and Kalu Ram were informed at Swaroopganj in the night by telephone that dacoity and murder have taken place. Kalu Ram and Kashi Ram arrived at the place of the occurrence at 5 a.m. in the morning on 5-12-1978 before the arrival of the Police. It is alleged that Kashi Ram prepared a list of the Articles which have been taken away by the dacoits & that list was handed over to the Police on 6-12-1978 after the arrival of Mst. Bhanwari wife of Gokul Chand. PW 24 SHO, Hari Singh called a Photographer and the Photographer took the photographs of the dead body and the scattered articles. The photographs have marked Ex. P 58 to 69. The SHO got the post mortem of the dead body conducted. The medical-examination of the injuries of Mst. Narangi and Gokul Chand was also got done. The injury reports of Mst. Narangi and Gokul Chand have been marked Ex. P 1 and 2 and the post mortem report of Poonam Chand has been marked Ex. P 18. It is alleged that after that the Dy. S.P. took up the investigation and he went to Alwar and there, on 11-1-1979, accused Rajesh and Rampal were arrested vide memos Ex. P 52 and 53 from a place near village Girwari situated in the jurisdiction of Police Station, Deeg District Bharatpur. When accused Rajesh was arrested, he was tying a watch on his right hand. He was carrying some slips of Gopal Dharam Kanta in which the weight of a golden chain was recorded. He was putting on one old woollen shawl, which was torn at some places. It is alleged that this shawl belonged to Mst. Narangi. The arrest was effected by PW 33 Lal Singh, Dy. S.P.
6. While in custody, accused Rajesh gave information about the recovery of one country made pistol, which was used in the occurrence. That information memo has been marked Ex. P 79 and on the basis of that, one country made pistol of 303 bore along with three live cartridges were recovered from the field of Ramp il from below a heap of manure. Accused Rampal gave information about the recovery of one torch of jeep make and one Teralyne trousers from his own house. That information memo has been marked Ex. P 77 and on the basis of that, both articles were recovered vide memo Ex. P 56. The pistol recovered at the instance of accused Rajesh was sealed in a cloth bag marked Article 33. The pistol was found tied in one handkerchief which too was seized vide memo Ex. P 54. PW 23 Fatta Ram was present at the time of the arrest of these persons and he has also proved the recoveries made at the instance of the accused persons either on their information or on account of the recoveries made from the person of accused Rajesh. He has stated that as soon as the accused persons were arrested, they were kept Baparda and this fact stands mentioned in the arrest memos Ex. P 52 and 53. When these accused persons were produced before the Munsif Magistrate. Laxmangarh for remand, a rote has been appended in the remand order by the Magistrate in his own hand that the accused persons have been produced before him by Dy. S.P. Lal Singh (PW3) Baparda. A similar note has also been recorded by the Chief Judicial Magistrate, Sirohi, before whom the accused persons were produced on 18-1-1979. It is alleged that accused Rajesh also gave information about the recovery of one golden chain which he has hidden at a place near about village Moongthala. He has stated that he concealed it, at the time when the other accused persons were searching each other. He has stated that on the pretext of making water, he went near a tree and dug a small hole in the earth and concealed the golden chain there. This information has been marked Ex. P 81 and on the basis of which, one golden chain was recovered vide memo Ex. P 40. It was sealed at the spot and a slip was affixed on it which has been marked Ex. P 48. The site plan of that recovery has been marked Ex. P 42.
7. It may be stated here that no facts relating to accused Shri Prabhu Dayal and Omi have been mentioned by us because they have already been aquitted and only the details of the incidents relating to accused Rajesh and Rampal, who are appellants before us, have been mentioned in detail. After effecting these recoveries, the recovered articles were put up for identification. The accused persons were also sent to judicial custody on 18-1-1979 and their identification was conducted on 19-1-1979. The identification of accused persons and the pistol recovered at the instance of accused Rajesh was done by Shri Jugraj Verma, Chief Judicial Magistrate, Sirohi whereas the identification of the recovered article i.e., Jeep Battery, Trousers, Teralyne Paints, golden chain and Shawl was done by PW 32 Padam Singh, Tehsildar and Executive Magistrate, Abu Road.
8. During the investigation, the Investigating Officer also found that these accused persons have travelled from Alwar to Abu Road in a reservation coach and, therefore, the reservation chart, in which their names have been mentioned, was taken into possession. The reservation-chart has been marked Ex.P 70 and in this respect, PW 2 Kanhaiya Lal and PW 26 Bheru Singh, TTI have been examined. The accused persons were identified by PW 7 Mst. Narangi and PW 8 Gokul Chand. Accused Rajesh has also been identified by PW 26 Bheru Singh and PW 29 Balkar Singh. The golden chain, Terelyne Pant, Shawl and Jeep Battery have been identified by PW 7 Mst. Narangi, PW 8 Gokul Chand PW 10 Mst. Bhanwari. The golden chain has also been identified by PW 11 Gauri Shanker Sonar.
9. To find out, whether any finger prints were received or imprinted on any of the articles left in the plundered house. PW 19 Hari Singh ASI was deputed and he took up the impressions of finger prints found on several articles. Those impressions were sent for expert examination along with the specimen finger prints of the accused-persons to the Finger Print Bureau Rajasthan, Jaipur and it has reported that a print marked D-4 was developed and it was found to tally with the specimen of accused Rajesh and this report has been marked Ex.P 84 and the specimen finger prints have been marked Ex.P 87 to Ex P 96. The recovered pistol, the recovered bullet from the dead body of Poonam Chand and one country made pistol and three cartridges produced before the Police by PW 12 Abdul were sent for ballastic examination and the result of the examination has been that the cartridge case found outside the house of Poonam Chand was fired from the country made pistol recovered from the possession of accused Rajesh. It has further been opined that this pistol recovered from the possession of accused Rajesh is serviceable and that the bullet recovered from the body of deceased is 303 calibre but it was not possible to link this pistol with bullet due to lack of sufficient characterstics marks. Regarding the pistol and cartridge which were handed over to the Police by PW 12 Abdul, it was opined that this pistol and cartridges are 303 calibre.
10. After usual investigation, the case against the accused appellants and two others, was challaned in the court of learned Judicial Magistrate, First Class, Abu Road, from where, it was committed for trial to the court of learned Additional Sessions Judge, Sirohi. The learned Additional Sessions Judge charged both these accused-persons with the offence under Sections 399, 397 & 396, IPC and in addition to that, accused Rajesh was charged with the offence under Section 120B read with Section 379, IPC. The accused-persons did not plead guilty to the charges and claimed trial where upon, the prosecution examined as many as 33 witnesses in support of its case. The statements of the accused-persons were recorded under Section 313, Cr. PC. Accused Rajesh has stated that he was arrested on 20-12-1978 and was taken to Sirohi on 24-12-1978 and was shown to the witnesses. He was again taken back to Sirohi on 15-1-1979 and he was shown to the witnesses on 17-1-1979. Nothing was recovered at his instance and consequently, he has denied his participation in the occurrence. Accused Rampal has stated that he was arrested in between 13th and 14th December from his own house and he was taken to Abu Road on 24-12-1978 and again on 17-1-1979 and was shown to the witnesses. He has denied that he got recovered any articles to the Police. Three witnesses have been examined in defence by the accused-persons.
11. After hearing the parties, the learned lower court has decided the case as aforesaid and hence, these two accused-appellants have preferred this appeal.
12. The learned lower court has held that accused Rajesh and Rampal have taken Dart in the occurrence. According to the learned lower court, the prosecution has been able to prove the participation of accused Rampal in the occurrence on the basis of the identification made by PW 7 Mst. Narangi and PW 8 Gokulchand as also on the basis of the recovery of the Jeep Torch on his information and at his instance. Although it has held that the Pant has also been recovered on the information and at the instance of accused Rampal but it did not rely on this piece of evidence. It has also held that one Rampal has travelled from Alwar to Abu Road on the night intervening between 3rd and 4th December in the up-mail train but it also did not take this fact into consideration because PW 26 Bherusingh TTI could not identify accused Rampal in the identification parade. So far as participation of accused Rajesh in this occurrence is concerned, the learned lower court has held that firstly he has been identified by PW 8 Gokul Chand and PW 7 Mst. Narangi; secondly it has been proved that he travelled in One up-mail train from Alwar to Abu Road via Ajmer and thirdly it has believed the recovery of the pistol on his information and at his instance, which was used in the crime. It has further held that although the shawl has been recovered from his possession and his finger prints were found in the house of Kalu Ram on the pieces of glass and a golden chain has been recovered on his information and at his instance but these circumstances were not pressed into service on account of the fact that the list Ex.P 3 submitted on 6-12-1978 by Kashi Ram is hit by Section 162, Cr. PC and the evidence regarding the finger prints has not been believed because the specimen finger prints were taken by the LCC Dharam Singh and he has not been examined to prove the report Ex. P 86.
13. We have heard Mr. K.C, Gaur, learned Counsel for the accused-appellants and Mr. L.S. Udawat and Miss Sumitra Sankhla, learned Public Prosecutors for the State. We have meticulously gone through the record of the case.
14. Mr. K.G. Gaur, learned Counsel appearing for accused-appellants has not challenged the factum of dacoity as well as the death of Poonam Chand in this occurrence. He has also not challenged the injury reports of Gokul Chand and Mst. Narangi. So far as post mortem examination report of deceased Poonamchand is concerned, he has submitted that no corresponding hole was found in the shirt of the deceased. According to the evidence of PW 1 Dr. R.C. Gupta, there existed an entry wound as well as an exit wound. According to this Doctor, the entry wound was of the size of 1/2″ x 1/10″ x 1″ and the exit wound was of the size of 1/10″ x 1/20″. He has, therefore, argued that if there was an exit wound then how was it smaller than the entry wound and secondly when there was an exit wound, then how, a bullet was found inside the wound. He has further stated that the Doctor has not said that this wound was ante mortem in nature and so, it is quite possible that the deceased might have died out of shock. We have considered the submission of Mr. K.C. Gaur, learned Counsel for the accused-appellants and we find no force in this submission. Simply because a hole has not been found in the shirt and it has not been mentioned in the seizure memo of the shirt, it does not mean that the man has not died on account of this injury as reported by the Doctor. The exit wound is smaller than the entry wound because the bullet did not go out of the body and it was found embeded just below the outer skin of the exit wound. It clearly means that the bullet has lost its force before it could go oat of the body because it was fired through a country made pistol. When it could not go out it could not have a hole bigger than the entry wound, ft was taken out from below the skin of the exit wound and in such circumstances, when the bullet has not pierced through the outer skin of the exit wound, it clearly meant that it has just touched the outer skin and it has lost force and so, it could not go out and in such circumstances, the exit wound is smaller than the entry wound and when it could not go out, it was taken out from the body itself. The Doctor has categorically stated that the cause of death was shock and haemorrhage due to gun shot injury. He has further stated that the injured might have died immediately after receiving the gun shot wound and that there was no other injury on the dead body except the gun shot wound mentioned in report Ex. P 18, which could have caused the death of the deceased The irresistible conclusion which can be drawn from the statement of the Doctor is that the injuries were ante-mortem and the man has died after receiving these injuries and precisely this has been the cause of his death and, therefore, we have no hesitation in concluding that this is an ante-mortem injury.
15. It was next contended that the learned lower court has erred in believing the testimony of PW 26 Bherusingh, TTI. The prosecution has examined PW 2 Kanhaiyalal, Station Master, to prove that these two tickets bearing No 4297 and 4299 were issued from Alwar for Aburoad but he was not able to prove these facts because he was not the Station Master on the relevant day and, therefore, the entries regarding these tickets made in the Tickets Issue Register were not in his hand and so, he could not prove them. However. PW 26 Bherusingh has stated that he was working as TTI on 4-12-1978. He took charge of the bogey from Ajmer. From Ajmer to Aburoad, bogey was to be checked and conducted by him. On checking the bogey, he found that it had sleeping reservation in the name of accused Rajesh and it had sitting reservation in the name of accused Rampal. Accused Rajesh was having ticket No. 4297 and accused Rampal was having ticket No. 4299. When he checked the apartment, he found that the name of accused Rajesh was entered in the reservation chart Ex. P 70 but the name of accused Rampal was not entered there in and even the name of accused Rajesh was not very clear and, therefore, he enquired from them about their names and entered their names in Ex. P 70. According to him, two persons each were sleeping on one berth where as one man was sitting on the floor of the bogey. When he found that four persons were sleeping on two berths and one of them was sitting on the floor and two reservations have been allocated to them, he asked to other three persons to get down at Beawar and he actually ousted them from that compartment at Beawar and entered the name of these two accused persons in Ex.P 70 in legible hand at place A to B and C to D. He has stated that the name of Rajesh was not legible in the Chart Ex.P 70. It will be worth while to mention here that the name of Rajesh can clearly be read at S.No. 21 just in front of the name AB recorded by PW 26 Bherusingh. The name of Rampal has been, of course, added by him after enquiry. No interpolation in this document was possible because this man has handed over this document to the incoming TTI at Abu Road, as he got down at Abu Road. Even PW 26 Bherusingh had no quarrel with these persons. He could identify accused Rajesh on account of that fact that he contacted him a number of times for allowing his three companions to travel in the same coach. He was unable to identify accused Rampal and, therefore, the learned lower court felt that on account of his non-identification, this evidence loses force. It is true that accused Rampal has not been identified by PW 26 Bherusingh but still he has proved this fact that one person bearing the name of Rampal has travelled with accused Rajesh from Alwar to Abu Road along with three more persons. Accused Rajesh has already been identified by him. He has proved the fact, that accused Rajesh has approached and persuaded him a number of times to allow his three companions in the same coach. Independently, this fact is not sufficient to link these accused persons with this crime, but considering it along with other facts, which the prosecution has been able to prove, that one Rampal having ticket No. 4229 has travelled from Alwar to Abu Road with accused Rajesh can be utilised and pressed into service to decide the involvement of the accused-persons in the crime. So far as accused Rajesh is concerned, the evidence about him is categorical and he has been identified by PW 26 Bherusingh.
16. Mr. K.C. Gaur, learned Counsel for the accused-appellants has argued that the behaviour of PW 26 Bherusingh was a bit queer because he has stated that he tried ascertain the names of these persons because looking to the pattern of their behaviour, he was to report the matter to their parents. This TTI, usually undertakes the journey from Ajmer to Abu Road and as such he might have some contacts at Abu Road and he might be known to certain families and if it is so, he might have thought it fit to bring this fact to the notice of their parents. There is nothing strange about it. It has been alleged by the accused-persons that the Police has shown them to these persons before the identification proceedings. Had it been so, he would certainly identified both these accused-persons. The very fact that he identified only accused Rajesh and he identified some other person as accused Rampal clearly goes to prove that these accused-persons have not been shown to these witnesses before the holding of the test identification parade. Thus the criticism which has been levelled by Mr. K.C. Gaur, learned Counsel for the appellants about the credibility of this witness has no force.
17. Mr. K.C. Gaur, learned Counsel for the accused-appellants has next addressed his argument regarding the actual occurrence and the possibility of identification by the witnesses. So far as the occurrence is concerned, the evidence of PW 7 Mst. Narangi and PW 8 Gokul Chand is most important. They are the injured witnesses. Their house has been plundered and looted. PW 7 Mst. Narangi has stated that on the night of Migsar Sudi 5, she along with her two daughters Manju and Sanju were sleeping in the kitchen. Her husband Poonamchand was sleeping in the shop and her brother-in-law Gokulchand was sleeping in the room adjacent to the kitchen. She woke-up on hearing the noise made by the barking of the dogs. She asked her brother-in-law Gokulchand to find out why the dogs were barking. She then peeped out from an opening in the door of the kitchen towards the chowk and found that the lantern which was hanging to a knock fixed in the Chowk outside the Oasari was lying on the ground. She told her husband why the lantern is lying on the ground and, therefore, she concluded that there must be some thieves inside the Oasari. She then raised cry to attract the attention of Mansingh and Laxmansingh who lived behind her house and cried out ‘BHGGO CHOR AAYE CHOR AAYE’. On this some of the accused persons started pushing the door of the kitchen. They told that they have a warrant for their arrest and so, the doors should bi opened. Her husband also came in the kitchen and she along with her husband tried to prevent the attack of the accused-persons to break open the door. However, the accused person succeeded in breaking the door and, thereafter, 3-4 persons came inside the kitchen and started beating her husband and commanded him to show the wealth. The accused-persons then took out the boxes lying in the kitchen, broke their shutters and scattered all the articles lying there in and took Rs. 250/- from one of the boxes The accused-persons then asked them to disclose the place where the gold ornaments have been concealed because no gold ornaments were found in the boxes. They started beating her and her husband Poonamchand. At that time, she heard the noise of Magansingh’s running towards her house and the raising of hue and cry by him. After that, she heard the sound of gun-fire and thereafter, that man who was holding the gun came inside. He then threatened her husband that either he must disclose the where abouts of the place where the gold ornaments have been concealed or else he will be killed. The man who was holding the pistol has been identified by her as accused Rajesh. She then requested the accused-persons not to kill her husband and she volunteered to disclose the place where her gold ornaments have been concealed. They then came to the kitchen and there, a particular place was pointed out, from where, her 11 tolas of gold ornaments were taken out by the accused persons, which consisted of Shishphool. Golden rings, golden Chain, Bajubandh, Singar Patti and Tika etc. In the, room, a stone was fixed in the floor. The accused-persons suspected that something was also lying below that stone and, therefore, they removed that stone but nothing was found there. The witness also pointed out towards the accused Rampal and has stated that it was he who gave beating with the arm of the cot to her and her husband. She has further stated that these two accused i.e. Rajesh and Rampal then went inside the Kothari of her brother-in-law PW 8 Gokulchand. Up to this time, Gokulchand who once came out of his room and was pushed inside the room was sitting in his own Kothari. She has stated that except these two accused-persons i.e. Rajesh and Rampal the rest of the accused were searching for the wealth in the other apartments of the house. These two persons started beating Gokulchand and accused. Rajesh pointed out his pistol towards Gokulchand and told him to disclose the place where the ornaments have been concealed and accused Rampal started inflicting injuries with the help of an arm of the cot to Gokulchand. She again tried to rescue her brother-in-law Gokulchand and volunteered to disclose the place where her sister-in-law’s ornaments were concealed. She pointed out that place to the accused-persons and at the place pointed out by her, a hole was dug in the ground and 11 tolas of gold ornaments belonging to her sister-in-law PW 10 Mst. Bhanwari were taken out. They again dug one more hole in the room of Gokulchand but nothing was found there. They also took out three boxes from the room. She has stated that accused Rampal took out her silver anklet which she was wearing. After that all of them went inside their shop. According to he, the accused persons have also torches with them and they were fleshing them time and again. After entering the shop, they threatened her husband to show two and half maunds of silver to them. When Poonamchand told that he is not possessed of this weight of silver, accused Rajesh fired from his pistol which hit Poonamchand on his back side and as soon as Poonamchand was hit, lie fell down-and died. After that, the accused-persons ran away from the place of the occurrence. According to this witness, the accused-persons remained in their house for about one and half hour.
18. PW 8 Gokulchand has stated that on the night intervening 4th and 5th December, 1978, he along with his brother Poonamchand, his sister-in-law Mst. Narangi and her two daughters were sleeping in their house. His uncle Kashiram and his whole family along with his father Kaluram, and one son and one daughter of Poonamchand went to attend the marriage at Swaroopganj He also went to attend the marriage at village Datrai and returned back on 4th December, 1978 at 6 p.m. After taking meals, they slept in the house. His brother Poonamchand slept in the shop and his sister-in-law Mst. Narangi and her two daughters slept in the kitchen and he himself slept in a room adjacent to the kitchen. In the night at about 1 a.m. he heard the noise of breaking of the doors of kitchen. He also heard the cries of his brother Poonamchand and his sister-in-law Mst. Narangi, who were crying ‘Chor Chor’. He then opened the door of the room and came out of the room but one of the accused pushed him back in the room and gave beating to him with the arm of the cot. He then sat in his own room although its doors remained open. He saw one of the accused flashing torch while standing in the Chowk. After some-time, he heard the noise of Magansingh, who lived just behind their house and then he heard the noise of gun-lire from outside his house. He also heard the noise of breaking of the boxes from the kitchen where his sister-in-law Mst. Narangi was sleeping. The accused-persons were threatening them to show the gold and silver ornaments. According to him, one short statured man was holding a pistol and the other was holding the arm of the cot and was using it as a weapon for beating. He has identified accused Rajesh as the person who was holding the pistol whereas accused Rampal has been identified as the person who was holding the arm of the cot. According to him, accused Rajesh put the pistol on his chest and asked him to show the wealth whereas accused Rampal gave beating to him with the arm of the cot. At that time, his sister-in-law Mst. Narangi came running and asked the accused hot to beat him and she volunteered to show the place where the ornaments were concealed. The accused-persons dug a hole in the floor of the room and took out one plastic box in which, his wife Mst. Bhanwari’s gold ornaments weighing about 11 tolas were lying. The accused-persons remained in his room for about 20 minutes and then,-they came out and went inside the kitchen. The accused-persons also took away his watch, a torch of Jeep make, pants and a Shawl of his sister-in-law Mst. Narangi. They also took away the bunch of keys of his uncle Kashi Ram’s house. After that, they asked his brother Poonamchand to show where one and half maunds of silver has been concealed. Poonamchand told them that he is not possessed of this quantity of silver. He was fired at and after that, the accused-persons ran away. He saw them running in the light of the lantern. They were 5 to 6 in number. They were also flashing the torch and the lantern was also burning and, therefore, he could identify them. He then heard the cries of his sister-in-law Mst. Narangi that Poonamchand has been killed and then, he went inside the shop and found that his brother Poonamchand has died and his wife Mst. Narangi was weeping. He came out of the room and raised hue and cry whereupon Sankalsingh, Head Master came there along with Up-Sarpanch Fattaram. They then disclosed the facts to them. On this, Sankalsingh and Fattaram both went to the Police Station, Abu Road to lodge a report. It is, therefore, clear from the evidence of these to witnesses that 5 to 6 persons have participated in the occurrence and they have used the pistol and arms of the cots as weapon of offence in order to commit the dacoity. They have actually committed dacoity by looting the house-hold articles as well as golden ornaments of Mst. Narangi & Mst. Bhanwari. It is clear from the testimony of these two witnesses viz. PW 7 Mst. Narangi and PW 8 Gokulchand that a lantern was burning at that time and the accused-persons were also flashing torches. According to Mst. Narangi, the accused-persons plundered their house for about one and half hour and according to PW 6 Gokulchand, these two accused-persons have remained in his room for about 20 minutes.
19. Mr. Gaur has submitted that in case of dacoity, the witnesses are frightened and it is very difficult for them to identify the accused-persons. In this respect, he invited our attention to a case of Hindu Singh v. The State (1952 KLW 130), where in a Division Bench of this Court has held that where the dacoity took place at night at about 8.30 p.m. and it has not been proved that there was sufficient light in which the accused could be identified and the accused did not remain standing at one place but moved to and from, it will be very risky to base conviction only on the evidence of identification. The facts of Hindu Singh’s case are totally distinguishable. In this case, there is a categorical evidence of PW 7 Mst. Narangi and PW 8 Gokulchand that a lantern was burning and the accused persons were also flashing torches and they remained for quit some time in the kitchen of Mst. Narangi where they have dug two holes to find out the property concealed therein. Likewise in the room of Gokulchand they remained for about 20 minutes to take out the wealth which was concealed therein. Thus Gokulchand had ample time at his disposal to identify them, when they have remained at all these three places for such a long time there. Mst. Narangi also had an ample opportunity to identify them as she was present at all these three places i.e. at the time of digging the holes in the kitchen and the room of Gokulchand and scattering of the house-hold articles and the clothes and cash lying in the boxes and at the time of killing of her husband in the shop. She could safely identify them in the light of the lantern and flashing of the torches which they must have flashed often in order to dig holes in the ground in the kitchen as well as in the room of Gokulchand to take out their gold ornaments. Thus it can safely be held that the witnesses had ample opportunity to identify the accused persons. This fact is fully borne out from the testimony of these two witnesses who have categorically stated that accused Rajesh was armed with a pistol and accused Rampal was armed with the arm of the cot and Rampal gave beating with that arm of the cot. As per these witnesses it was accused Rajesh who put the pistol on the chest of Gokulchand and fired it on Poonamchand. These witnesses have stated that accused Rajesh was initially standing outside the main gate of the house armed with a pistol and when Magansingh and others tried to come near the house of Poonamchand accused Rajesh who was standing outside the house threatened them that if they came near he will kill them and later, he fired from his pistol. One empty has been recovered from outside the house of Kaluram. The recovery of this empty has been proved by PW 6 Deeparam and PW 31 Kapooraram. These two accused persons have been put up for identification of these two witnesses. The identification was conducted by PW 13 Jugraj Verma, in which both of them have correctly identified these two accused persons in that identification parade.
20. It was contended by Mr. Gaur that actually, these accused persons have been arrested some where on 24th and 25th December, 1978 from their own houses. This is what has been stated by the accused persons in their statements under Section 313 Cr.PC. They have examined two witnesses viz. DW 2 Rameschandra and DW 3 Thakur as in their defence to prove this fact. The learned lower court has discused their evidence in detail and has rightly discarded their testimony. Actually, the accused persons were not traceable and it has been conclusively established from the evidence on record they have been arrested from a place near village Girwari situated in Police Station, Deeg vide arrest memos Ex. P 52 and 53 respectively. They were arrested on 11-1-1979 and in the arrest memos itself, it has been recorded that they have been given instruction to keep themselves Baparda because their identification proceeding will take place. The fact that they were kept Baparda is further corroborated from the fact that they were produced Baparda before the learned Munsif Magistrate, Laxmangarh on 12-1-1979 and the learned Munsif has himself recorded in note A to B that these accused were produced before him Baparda. Even before the learned Chief Judicial Magistrate, Sirohi, they were produced Baparda.
21. It was contended that the accused persons were arrested on 11-1-1979 and were sent to judicial custody on 18-1-1979 and their identification took place on 19-1-1979 No convincing explanation has been offered as to why they were kept in police custody for 7 days when they were to be put up for identification and so, the evidence of identification loses all significance. In this respect, our attention was invited to a decision of this Court in Hazari v. State of Rajasthan (1979 Raj. Criminal Cases 48), where in it has been held that if the accused is kept in police custody for 8 days without any reason, then the evidence of identification of the accused cannot be used to connect him with the crime.
22. Our attention was also drawn to a decision of this Court in Fateh Mohd. and Ors v. State of Rajasthan (1981 Cr.LR (Raj) 516), where in, M.B. Sharma, J. has been pleased to observe:
To my mind normally, if the identification parade is to be held the better course is to immediately send the accused to the judicial custody so that all reasonable possibilities of the accused being shown to the witnesses who are to identify him are excluded. Be that as it may the prosecution could not submit any reasonable explanation about 7 days in sending the accused to judicial custody when no recovery of any property was to be made from the accused.
In Hazari’s case (supra) and Fateh Mohd’s case (supra) have no application to the facts of the present case. In this case, the accused persons were arrested on 11-1-1979 at village Girwari in District Bharatpur and after their arrest, they gave information about the recovery of certain articles, and on account of those informations, certain recoveries were made from the village of accused Rampal which is situated outside Rajasthan and some recoveries were made from certain places situated in Rajasthan and after those recoveries were made, the accused persons were brought to Sirohi on 17-1-1979 and they were sent to judicial custody on 18-1-1979 and their identification was conducted on 19-1-1979. In such circumstances, when the recoveries have to be effected from those places, it cannot be said that the delay of 7 days has not been explained. The memos of their informations and the recoveries memos clearly show that this period of 7 days was utilised in effecting the recovery of the looted articles and the crime pistol and, therefore, the delay stands reasonably explained. Moreover, there is no suggestion from the side of the accused persons during the identification proceedings to the learned CJM that they have been shown to these two witnesses. Thus, this plea that they have been shown to these two witnesses is an after-thought plea, and, therefore, no significance can be attached to it. In evaluating the evidence in Fateh Mohd’s case (supra), M.B. Sharma, J. has held that whether or not the witness was in a position to identify will depend on the various circumstances such as the availability of light at the scene of occurrence, the time of occurrence, the closeness of the witness to the accused etc. It will also depend as to whether the identification parade which is a stage of investigation and corroborative piece of evidence was held without any undue delay. In this case, we have already observed that sufficient light was there to identify the accused-persons and the accused-persons have remained there with the witnesses for quite some-time and, therefore, the witnesses had an ample opportunity to identify the accused-persons. PW 13 Shri Jug Raj Verma has stated that all precautions for the proper conduct of the identification parade were taken. The accused were allowed to change their clothes. One of the accused had a scar and, therefore, a slip was put on it and similar slips were put on the persons who were mixed with them and the accused were allowed to change the place and the witnesses were called one by one and they had no opportunity to talk with each other. PW 7 Mst. Narangi and PW 8 Gokul Chand have correctly identified these two accused persons. This circumstance actually clinches the issue regarding the participation of these two accused persons in the occurrence. We, therefore, hold that the witnesses had sufficient opportunity to identify the accused persons and they have identified them not only in the test identification parade but they have also identified them before the court and have scribed their specific actions at the time of the commission of the dacoity and, therefore, testimony of these two eye-witnesses, is fully reliable. We, therefore, entirely agree with the learned lower court that both these witnesses had an ample opportunity to identify these two accused persons and they have correctly identified them.
23. Mr. Gaur has submitted that the evidence regarding the recovery of the articles and their identification is not reliable. The learned Public Prosecutor have submitted that the crime articles have been recovered on the information and at the instance of the accused persons and, therefore, the testimony of the witnesses in this respect is highly reliable. All these articles which have been recovered have also been identified in the identification parade and the witnesses have identified them in the Court and, therefore, great reliance should be placed on the evidence of the witnesses regarding the recovery of the looted articles and their identification. He has further submitted that although the list Ex P 3 submitted by PW 3 Kashi Ram on 6-12-1978 is hit by Section 162, Cr PC because it has been presented to the Investigation Officer after the investigation started but that is not the end of the matter. Even if the list of the articles is hit by Section 162, Cr.PC then too, if it is independently proved that the articles recovered form part of the looted articles and they have been correctly identified by the witnesses then that evidence can be used against the accused persons. We entirely agree with the submission of the learned Public Prosecutors. It is one thing that the articles are mentioned in the list which is hit by Section 162, Cr.PC and, therefore, that as list may not be admitted in evidence but independent of it, if the articles have been looted in a particular occurrence and the witnesses stated on oath about it and those articles have been recovered on the information and at the instance of the accused persons and have been correctly identified by the witnesses not only in their testimony given before the court but also in the identification parade, then this fact that they were looted in the course of the occurrence and they belonged to the complainant party & the fact that they have been recovered on the information of the accused persons from their possession can be pressed into service to bring home the guilt of the accused persons. The learned lower court, therefore, erred in not considering the recovery of the Pants at the instance of accused Rampal and golden chain at the instance of accused Rajesh.
24. Regarding the recoveries, PW 33 Lal Singh, Dy. S.P. has stated that on 11-1-1979, he arrested accused Rajesh from a place near village Girwari vide memo Ex. P 52 which bears his signatures at place C to D and that of the accused at place E to F. At the time of arrest accused Rajesh was wearing one watch. He had some slips in his possession and he was carrying one old Shawl on his body. That Shawl was seized vide memo Ex. P 32 which bears his signatures at place A to B and that of the accused at place C to D. A paper slip was affixed on that seized packet, which has been marked Ex. P 76 and on that X to Y seals were affixed. He has further stated that accused Rampal was arrested on 11-1-1979 vide memo Ex. P. 53. Nothing incriminating was found in his possession. On 12-1-1979. accused Rampal gave him information about the recovery of one Jeep make Torch of three shells and one Pant. According to him the cells of the battery were discharged and they were thrown away and the torch has been put under the fire wood lying in his house and the Terelyne Pant has been kept in his house along with his other clothes. This information has been recorded in Ex. P 77 at place A to B. Ex. P 87 bears his signatures at place C to D and that of the accused Rampal at place E to F. On the same day, accused Rajesh while in custody gave information about the recovery of one pistol along with three live cartridges, which he has concealed behind the house of accused Rampal under the heap of manure. This information was recorded in Ex. P 78 in portion A to B Ex.P 78 bears his signatures at place C to D and that of the accused Rajesh at place E to F. Accused Rajesh then took him to village Surawas where accused Rampal used to live and there, he took him to the place of concealment which is situated in the field of accused Rampal Where from below a heap of manure, accused Rajesh after removing the earth took out one pistol and three cartridges. That pistol was kept in a cloth bag Article 32 and the cartridges were wrapped in a cloth bag Article 34. The pistol has been marked Article 28 whereas the cartridges have been marked Articles 29 to 31. He seized them vide memo Ex. P 54, which bears his signatures at place C to D and that of the accused at place E to F. A paper slip was affixed on it which has been marked Ex. P 55, which bears the impressions of the seal X to Y and his own signatures at place C to D and that of accused Rajesh and one Fatta Ram at places E to F and A to B respectively. He has further submitted that in pursuance of his own information, accused Rampal took him to his house and took out one Jeep Torch from below the heap of fire wood. That Jeep Torch has been marked Article 13. He further got recovered one pant (Article 12) They were seized vide memo Ex. P.56 and were sealed at the spot and a slip was affixed on it which has been marked Ex. P. 57. Both these recoveries have been proved by PW 23 Fattaram.
25. The accused Rajesh further gave information on 24-1-197 to PW 33 Lalsingh Dy. S.P. that he is ready to recover the golden chain which he has concealed in the way after digging a hole under a tree and to locate it, he has put a round stone on it. This information has been recorded in Ex. P 81 in portion A to B, which bears signatures of Lalsingh Dy. S.P. at place C to Dand that of accused Rajesh at place E to F. On the same day, the accused Rajesh got recovered on golden chain from below a tree by digging a hole in the earth. That chain has been seized vide memo Ex. P 40 which has been proved by this witness viz. PW 33 Lalsingh, Dy. S.P. as also by Motbir PW 15 Jayantilal. Out of these recovered articles, the identification proceedings of gold chain (Article 10) Shawl (Article 10 Pant (Article 12) and Torch (Article 13) were conducted by PW 32 Padamsingh, Tehsildar and Executive Magistrate, Abu Road. In these identification proceedings, all these articles have been correctly identified by PW 7 Mst. Narangi PW 8 Gokulchand and PW 10 Mst. Bhanwari. They have stated that golden chain belonged to Mst. Narangi, and the torch is the house-hold article of their family. They further stated that the Pant was of Gokul Chand and the Shawl belonged to Mst. Narangi. The golden chain has also been identified by PW 1 Gauri Shanker Sunar. The learned lower court has been only placed reliance on the recovery of Torch and its identification by the witness. The rest of the recoveries and their identification have not been taken into consideration by it on account of the fact that they are contained in the list which is hit by Section 162 Cr. PC. We have already held above that merely because the list of the articles is hit by Section 162 Cr.PC it does not mean that if the witnesses independently prove the loss of these articles in the occurrence and if they identify them, such evidence cannot be pressed into service. We, therefore, disagree with the learned lower court in so far it has discarded the recoveries and their identification being hit by Section 162 Cr.PC.
26. Mr. Gaur, learned Counsel for the accused-appellants has submitted that in the information that has been given by the accused-persons, it has not been mentioned that they have concealed these articles and, therefore, it cannot be presumed that they alone concealed these articles, ft is quit probable that they only knew about their presence on those places. Regarding the recovery of the Jeep Torch and the Pant, the information is contained in portion A to B of Ex.P 77. Of course, in this information, the accused has not categorically stated that they have been concealed by him but if this information is read as a whole, the only irresistible conclusion that can be taken is that they have been concealed at the place by him. Similar is the case regarding the information given for the recovery of one pistol and three cartridges contained in portion A to B in Ex. P 78. So far as the information about the recovery of golden chain is concerned, it is contained in portion A to B of Ex. P 81. Accused Rajesh has categorically stated that it was he who has concealed the golden chain at that place. More over, if we read the information regarding the recovery of crime pistol and three cartridges contained in Ex.P 78, it can safely be inferred that it was concealed there by accused Rajesh himself. It has been held by their Lordships of the Supreme Court in Mohd. Inayatullah v. State of Maharashtra (1976 Cr.LJ 481) as under:
Section 27 is in the nature of an exception to the preceding Sections particularly Sections 25 and 26. The first condition necessary for bringing this Section into operation is the discovery of a fact albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such must be deposed to. The third is that at the time of the receipt of the information, the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”.
In Jaisingh v. State of Rajasthan (1984 Cr. LR (Raj.) 96), it has been held by one of us (S.S. Byas, J.) that a fair and free identification can be made foundation of conviction. It has further been held that the discovery of an article in consequence of information furnished by accused is relevant and admissible and it links the accused with commission of crime. The unexplained discovery of plundered property raises presumption that the accused took part in dacoity.
27. In the case before us, these articles have been discovered on the basis of the information given by accused-persons and, therefore, these discoveries in consequence of the information given by the accused are relevant under Section 27 of the Evidence Act. The accused-persons have not explained the possession of these articles and, therefore, the discoveries of the articles are sufficient to link the accused-persons with the crime.
28. Mr. K.C. Gaur, learned Counsel, for the accused-appellants argued that the evidence has not been produced to prove that the seals remained intact till the articles were identified or were sent for chemical and serological examination. In this respect, he placed reliance on a decision of this Court in State of Rajasthan v. Balbirsingh and Anr. (1981 Raj. Criminal Cases 199), where in it has been held that the prosecution must adduce evidence to prove that the articles seized remained intact till it reached the hands of Chemical Examiner. This Court has also held in State v. Motia (1953 RLW 640) that the Police Officer making recovery to seal atonce and evidence to be produced that the seals were not tampered with. In this case, the prosecution has produced PW 20 Dharamsingh, LC. of P.S. Abu Road, who has stated that all these articles were given to him for depositing them in the Office of S.P. Sirohi in sealed condition PW 21 Kishore Singh has stated that he got these articles in properly sealed condition and took them to Jaipur from Sirohi. PW 22 Babulal has been examined to prove that these articles were deposited by M.O.B. and he took them to Jaipur. PW 30 Fatehsingh has been examined to prove that all the articles brought by Dharamsingh were kept in the sealed condition. Thus, the prosecution has produced evidence to prove that these articles till they were sent for chemical and serological examination were kept in sealed condition. Thus, this argument also has no force.
29. So far as the recovery of pistol and three cartridges is concerned, PW 29 Balkarasingh has been examined by the prosecution and he has stated that these articles were kept at his house by accused Rajesh who came with accused Sheri who was known to him. They came to Kherthal and stayed at his place. They kept these articles in a cloth-bag and went to Abu Road and after 4-5 days, they came back and took away these articles but did not stay there. He has identified the pistol as Article 16, Actually, this is a country-made pistol and the pistols mixed with it were all factory made pistols of standard make and therefore, much reliance cannot be placed on the identification proceedings conducted by PW 13 Shri J.R. Verma. However, these articles were sent for forensic examination and the report of Forensic Science Laboratory has been marked Ex.P 83. It has been reported by the ballistic expert that the cartridge case recovered from the house of Kaluram is of 303 calibre and has been fired from the country made pistol recovered on the information of accused Rajesh. This pistol has been found serviceable. The bullet recovered from the body of Poonamchand is of 303 calibre but it could not be linked with pistol under reference due to lack of sufficient characteristic marks. It is therefore clear that the pistol recovered on the information and at the instance of accused Rajesh is serviceable and the empties found outside the house of Kaluram has been fired from the crime pistol. Even the bullet found in the body of Poonam Chand is of 303 calibre and therefore, it could have been fired from this pistol. It could not be specifically related to this pistol because of the lack of sufficient characteristic marks but when this bullet is 303 calibre and the pistol is also of the same make then it can be inferred that such a bullet has been fired from such a pistol and, therefore, this link also connects the accused with the crime.
30. The learned lower court has rejected the testimony of the finger prints of Rajesh on the ground that Dharamsingh L.C. who has taken the specimen finger prints of accused Rajesh has been produced in evidence although the report of the finger print expert Ex P 84 reveals that the finger prints found on the mirror D-4 are similar and identical with the specimen finger prints of accused Rajesh. We entirely disagree with the reasoning of the learned lower court. It is true that Dharam Singh has not been produced but accused Rajesh when he was examined under Section 313 Cr. PC was put a question that his finger prints were taken on slip Ex.P 87 and he has admitted that these were taken in the Police Station When he has not disputed that his finger prints were taken and if one of these prints tallied with the finger prints found on the mirror, then it can be inferred that accused Rajesh was involved in the crime because unless he has visited the house of Poonamchand, his finger prints could not have found on the mirror which belonged to Poonamchand.
31. To conclude, accused Rampal’s participation in the crime stands proved from the fact that he has been identified by PW 7 Mst. Narangi and PW 8 Gokulchand. His participation is further proved from the fact that a Torch bearing the inscription P.C. meaning thereby Poonamchand and pants belonging to Gokulchand was recovered from his possession and on his information and PW 7 Mst. Narangi, PW 8 Gokulchand and PW 10 Mst. Bhanwari have identified these articles. The participation of accused Rajesh in the crime is proved on the basis of his identification by PW 7 Mst. Narangi, PW 8 Gokulchand as also by PW 26 Bherusingh TTI. It is further proved on the basis of the recovery of shawl Article 11 which he has wrapped on his person at the time of his arrest and which belonged to Mst, Narangi. It is further proved by the recovery of golden chain which belonged to Mst. Narangi and was subject-matter of the looted property. It is further proved on the strength of the recovery of the serviceable crime pistol and the empty cartridges recovered from outside of the house of Poonamchand which has been fired from this pistol His involvement in the crime is further proved from the fact that his finger prints were found on the mirror belonging to Kaluram. Although, the bullet found from the body of Poonamchand could not be specifically related to crime pistol on account of the lack of sufficient characteristic marks but this circumstances has to be taken into consideration that was 303 calibre bullet and the crime pistol recovered on his information and at his instance was also of the same calibre and, therefore, such a bullet could have been fired such a pistol.
32. In this view of the matter, we entirely agree with the learned lower court that from the evidence of the prosecution it stands fully established that they have taken part in the dacoity that was committed on the house of Kaluram, Poonamchand, Gokulchand and Mst. Narangi. More than 5 persons participated in the occurrence. Blunt weapon injuries were inflicted to Mst. Narangi, Poonamchand & Gokulchand and the pistol was used to kill Poonamchand in order to loot one and half mounds of silver and, therefore, the learned lower court has rightly held the accused-appellants guilty of the offence under Sections 396 IPC. The learned lower court has also held the accused appellants guilty of the offences under Sections 396 and 399 IPC but it has not separately sentenced them. Looking to the facts and circumstances of the case, the sentence imposed against them does not appear to be excessive.
33. In the result, we find no force in this appeal and it is, hereby, dismissed. The accused-appellants are in jail. The result of this appeal be intimated to the accused-appellants through the jail authorities to serve out the sentence imposed against them.