JUDGMENT
Binodanand Singh, J.
1. Criminal Appeal No. 679 of 1983 and Criminal Appeal No. 705 of 1983 have been heard together with the consent of the parties since both the appeals arise out of a common judgment. Kusmi Devi is the sole appellant in Criminal Appeal No. 705 of 1983 whereas Babulal Musahar, Ram Deo Musahar, Ramjee Musahar and Aatu Musahar are the appellants in Criminal Appeal No. 679 of 1983. The sole appellant of Criminal Appeal No. 705 of 1983, namely, Kusmi Devi, has been convicted under Section 412 of the Indian Penal Code (hereinafter to be referred to as the Code) and has been sentenced to undergo rigorous imprisonment for seven years. So far as the other four appellants of Criminal Appeal No. 679 of 1983 and concerned, they have been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years each.
2. At the very out-set it may be pointed out that two session cases, namely Sessions Trial No. 252/51 of 1981-82 and Sessions Trial No. 368/86 of 1981-82 were tried analogously by the 7th Additional Sessions judge, Sasaram, which have been disposed of by judgment and orders dated 15th of November, 1983 and this judgment is under challange in both the appeals. In Sessions Trial No. 368/86 of 1981-82 Kusmi Devi, the sole appellant of Criminal Appeal No. 705 1983 was facing trial where as in sessions trial No. 252/51 of 1981-82 these were eight accused persons on trial including four appellants of Criminal Appeal No. 679 of 1983
3. Prosecution case is that on 12.7.1980 at 8.30 a.m. First Information Report (Ext. 3) was drawn up at Bhabhua police station on the statement of Niranjan Pandey (P.W. 8) and a case under Section 395 of the Code was instituted against Angad Singh, Tribhuvan Chamar, Keshaw Dasadh and Aliyar Chamar of village Kurasan, Tola Sansaripur, P.S. Bhabhua, District Rohtas. The allegation as contained in the first information report is that in. the night between 11th and 12th of July, 1980 when the informant (PW 8) was sleeping on the roof of the room, a torch was also by his side. The father-in-law of his younger brother Ghanshyam Pandey and Ram Janam Pandey were sleeping in a marai. He was aroused alter hearing hall a and heard sound of gun firing. He saw that five to six persons were standing with guns. He flashed his torch on them and identified them as mentioned in the first information report. Thereafter he saw towards his angan and found that 18 to 20 persons had entered into the room and ware taking away the articles from his house. Two to three persons were surrounding his father Ram Murat Pandey (PW 5) while his father was standing in the angan. On the halla raised by Jhulan Tiwary (PW 7) other villagers raised alarm whereupon the dacoits went toward north of the village with the articles. The informant (PW 8) found that his father Ram Murat Pandey (PW 5) and his brother Ghanshyam Pandey (PW 6) had been injured K.M. Lal (PW 10) the Investigating Officer who was then posted as Junior-Sub-Inspector of police at Bhabhua Police Station, who had drawn up first information report, took up investigation, went to the place of occurrence and visited the same. He also prepared injury report with reaped, to the injured persons and sent them to Bhabhua Sub-divisional Hospital for examination. Place of occurrence was visited in presence of Niranjan Pandey (PW 8). It was situated in village Korasan tola Sansaripur. It was the house of the informant which was double storeyed facing north . He found rooms in the angan. He also found a marai made of straw in front of the house. He found the articles scattered in all the rooms. The informant handed over a list of the articles taken away by the docoits at the P.O. On the same day PW 10, the Investigating Officer went to village Dumraitha at 8.30 p.m. in the night and stayed in that village. On the next day, i.e. on 13.7.1980 at 4 a.m. the Investigating Officer (PW 10) saw appellant Kusmi Devi trying to run away after seeing the police. He, therefore, searched the person of appellant Kusmi Devi in presence of the witnesses, namely Charitar Musahar and Bitan Musahar and recovered the following articles from her possession:
1. Cotton Sari printed of green colour, (Material Ext. III).
2. One Sari of rose colour printed. (Material Ext. III/1).
3. One piece of cloth meant for petticoat of orange colour. (Material Ext. IV).
4. One bag of green colour having its boarder of red ribbon, (Material Ext. XI).
The Investigating Officer seized these articles and prepared seizure list which has been marked as Ext. 2/1 and arrested her. This appellant is a resident of village Udasan, P.S. Bhabhua, District Rohtas. On the same day at 5.45 a.m. PW 10 searched the house of appellants. Babu Lal Musahar and others in presence of witnesses, namely Chandrika Singh and Arnbika Singh (both not examined) and recovered one Sari of yellow colour (Material Ext. III/2) one terricotton Sari (Material Ext. III/3) and one pillow cover (Material Ext, VII) and some other articles which are not exhibited in this case. He prepared seizure list which has been marked as Ext. 2/4. At 6.15 a.m. on the same day PW 10 also searched the house of Ramjee Musahar and others in presence of vitnesses, namely, Ambika Singh and Chandrika Singh (both not examined) and recovered one cotton Sari of blue colour embroidered (material Ext.III/4) one terricotton Sari printed (material Ext. III/5), two petticoats (material Ext. IV/1 to IV/2) besides other articles. He prepared seizure list with respect to these articles which has been marked as Ext. 2/2, At 6.45 a.m. on this very day PW 10 the Investigating Officer also searched the house of appellant Ram Deo Musahar and recovered one Sari printed (material Ext. III/6) one petticoat (material Ext. XIII). He prepared seizure list which has been marked as Ext. 2/3. He searched for the other accused persons but they were not found.
4. Subsequently PW 10 K.M. Lal made over charge of the investigation of the case to another police Officer K.C. Dubey who has not been examined. It appears that all the appellants of Criminal Appeal No. 679 of 1983 were forwarded to the court of Additional Cheif Judicial Magistrate, Bhabhua, on 21.8.1980 under arrest. On 23.8.1980 T.I. parade of suspects including appellants of Cr. Appeal No. 679 of 1983 was held by PW 9 (Lal Bahadur Singh) in which these appellants were identified T.I. Parade chart has been marked as Ext. 5. On 24.8.1980 the same Officer held T.I. Parade of suspected articles some of which were also identified by witnesses and the T.I. Parade chart has been marked as Ext. 5/1. The police after completing investigation submitted charge-sheet against the appellants of both the appeals and four other accused persons, who were named in the first information report, faced trial and against some others. After cognizance and commitment for some reasons two separate tidal were held analogously. Kusmi Devi was tried in Sessions Trial No. 368/86 of 1981/1982, whereas appellants of Criminal appeal No. 679 of 1983 alongwith others in Sessions Trial No. 252/51 of 1981/82. At the trial all of the accused persons except appellant Kusmi Devi, were charged under Section 395 of the Indian Penal Code of Committing dacoity alougwith others in the house of the informant in the night of occurrence. Appellant Kusmi Devi was charged under Section 412 of the Code for having dishonestly retained the stolen property of the aforesaid dacoity on 13.7.1980 at village Kurasan. The appellants pleaded not guilty to the charge.
5. In support of its case the prosecution produced ten witnesses out of whom PW 7, Jhulau Tiwary, was tendered and the rest were examined. The statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure. However, no witnesses on their behalf has been examined.
6. At the conclusion of the trial the learned trial count came to the finding that the charge under Section 395 of the Code could not be established against the other four accused persons exepting the appellants of Criminal Appeal No. 679 of 1983 on the ground that there was absence of means of identification and therefore, the identification as claimed by the witnesses should not be accepted. The learned trial court, therefore, acquitted those accused persons who were named in the F.I.R. but so far as the appellants of Criminal Appeal No. 679 of 1983 are concerned it concluded that the charge under Section 395 of the Code has been established against them. It, therefore, convicted and sentenced them as stated in the very beginning. The learned trial court also came to the finding that the charge under Section 412 of the Code framed against the appellant, Kusmi Devi, of Criminal Appeal No. 705 of 1983 has been proved and it, therefore, convicted and sentenced her as already stated.
7. The learned Counsel appearing for the appellants has contended that the findings and conclusions of the learned trial court on the basis of which it was convicted and sentenced the appellants, are not based on proper appreciation of evidence. From the consideration of the record it appears that the P.O. lies in village Kudaran, Tola Sansaripur and the four named accused persons were the co-villagers of the informant. So far as appellants of Criminal Appeal No. 679 of 1983, namely, Babulal Musahar and others are concerned they are resident of village Dumraitha, P.S. Bhabhua and appellant, Kusmi Devi, of Criminal Appsal No. 705 of 1983 is the resident of diherent village. Bishwanath Panday (PW 1) and Ram Janam Pandey (PW 2) are not material witnesses since they are only hear say. Sitatuani (PW 3) is the sister of the informant and Draupdi Davi (PW 4) is the mother of the informant (PW 8) Ram Murat Panday (PW 5) is the father of the informant whereas PW 6, Ghanshyam Pandey is the brother of the informant. PWs 3 and 4 are the witnesses on the point of identification of the suspected articles which are said to have been recovered from the possession of appellant, Kusmi Devi of Criminal Appeal No. 705 of 1983 and others of Criminal Appeal No. 679 of 1983 PW 5, Ram Murat Pandey, PW 6, Ghanshyam Pandey and PW 8 Niranjan Panday (the informant) are the witnesses on the point of identification of the appellants by face. So far as the evidence with respect to the recovered articles as well as the appellants of Criminal Appeal No. 679 of 1983 is concerned all the articles have been identified by PWs 3 and 4 in court. These articles were identified by the two witnesses in the T.I. Parade as well held by PE 9. With respect to appellant Nos. 1 to 4 of Criminal Appeal No. 679 of 1983 regarding their identification it is found that all these appellants have been identified in court by PWs 5, 6 and 8 but from the evidence of PW 9 and T.I. Parade chart (Ext. 5) it would appear that only PW 6 had identified Babulal Musahar in the T.I. parade. Obviously, therefore, there is only one reliable identification against Babulal Musahar. But this is not very significant. Learned Advocate appearing for the appellants has contended that the trial court has not convicted the appellants of Criminal Appeal No. 679 of 1983 on the evidence of identification by PWs 5, 6 and 8 since the learned trial court has disbelieved the testimony of the aforesaid witnesses with respect to identification of any of the accused persons in the absence of the means of identification, The submission of the learned Counsel for the appellants appears to be correct after going through the judgment of the trial court. The learned trial Court for good reasons has disbelieved PWs 5, 6 and 8 with respect to their claims of identification of the accused persons since from the evidence of the witnesses would appear that the testimony with respect to the means of identification i.e., the torch was not acceptable. Torch is mentioned in the first information report but the informant did not produce the torch before the Investigating Officer. Besides, according to the F.I.R. the torch was by the side of the bed of the informant but he did not show the bed to the Investigating Officer. The torch was produce for the first time in court. On this ground the evidence of identification of the accused persons including the appellants was disbelieved by the learned trial court, so far as PW 8 is concerned. Regarding PWs 5 and 6 learned trial court has rightly concluded that the story of torch by them has been introduced for the first time in court and thus, in the absence of means of identification in the dark night, which is an admitted fact, was not possible.
8. First of all I take up the case of four appellants of Criminal Appeal No. 679 of 1983. All these appellants have been convicted under Section 395 of the Code and sentenced therefore. Evidence of identification of these appellants while participating in the commission of the crime has not been accepted by the trial court. The learned trial court has some to the conclusion that these appellants had also participated in the dacoity on the presumption that certain articles of dacoity were recovered from their possession. In my view, the presumption Which has been made by the learned trial court is not justified in the circumstances of this case. The dacoity took place in the night between 11th and 12th of July, 1980, whereas recovery was made on 13th of July, 1980, i.e. after much delay. Recourse cannot be taken under Section 114 of the Evidence Act in the circumstances of this case and it was not proper for the court to presume on the basis of the recovery that these appellants had participated in the commission of the dacoity. Section 114 of the Evidence Act says that the court may presume existence of any fact which it thinks likely to have happened regard being and to the common course of natural event human conduct and public and private business, in their relation to the facts of the particular case Illustration (a) says that the court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account, for his possession. Therefore, from illustration (a) it is clear that the recovery must be soon after the commission of the crime. Proximity of time gap between the commission of docoity and recovery of looted properties is the essence. An inference under Section 114(a) should never be reached unless it is a necessary inference from the circumstances of the given case, which can not be explained on any other hypothesis save that of the guilt of the accused. Presumption under Section 114, illustration (a) can be of two types-one is that a man who is in possession of stolen goods soon after the theft is either the their or has received the goods knowing them to be stolen. Here in the context of thing. I am concerned only with the first part of the presumption as to whether on the basis of the recovery of the articles which are said to have been looted away in the docoity the appellants of Criminal Appeal No. 679 of 1983 can be held to have participated in the dacoity in view of the time lag between the dacoity and the recovery of the suspected articles. In this case the recovery was made after two days. Therefore, in the circumstances, the presumption as envisaged under Section 114 of the Evidence Act cannot be made basis for conviction. Besides illustration (a) shows that this presumption can be made only when this goes unrequited. So on the basis of mere recovery it was not correct to hold that these appellant were guilty under Section 395 of the Code. When the identifying witnesses have been disbelieved, regarding participation of these appellants in the dacoity their conviction under Section 395 of the Code in view of the above discussion has to be interfered with and set aside. So far as recovery of certain articles from the houses of these appellants which are said to have been taken away by the dacoits is concerned, neither any charge under Section 412 of the Code was framed against them nor they have been convicted thereunder. Hence, at this stage it is needless to examine the evidence with respect to the offence under Section 412 of the Code relating to these appellants.
9. So far as appellant Kusmi Devi of Criminal Appeal No. 705 of 1983 is concerned, as already stated above, she has been convicted under Section 412 of the Indian Penal Code for being in possession of the stolen properties of dacoity committed in the house of the informant (PW 8). The articles are Sari (material Exts. III to III/1), petticoat (material Ext. IV) and one bag (material Ext. XI). The evidence of PW 10 which has already been stated is that he found this appellant trying to run away after seeing the police and then her person was searched and the aforesaid articles were recovered from the bag. Seizure list is Ext. 2/a. In the T.I. Parade held on 24.8.1980 these articles which were recovered were identified by Sitamani (PW 3) and Draupdi Devi (PW 4). No doubt these two identifying witnesses appear to be competent on the point of identification of the amities which are mostly of female use, but the evidence with respect to the recovery of these articles from the possession of this appellant is not complete since the two witnesses of seizure, namely, Charitar and Bitaa Musahar have not been examined in court to say that really these articles were recovered from the possession of this appellant. Even any explanation has not been submitted by the prosecution for non-examination of these two material witnesses relating to this appellant. Another aspect of the matter is that in the First Information Report the list of articles has not been given. Only a vague statement has been made that clothes, ornaments, cash etc. were taken by the dacoits. No doubt a First of stolen articles was given to the Investigating Officer but that was done after the investigation had already started and that must be hit by Section 162 of the Code of Criminal Procedure, In these circumstances, it is difficult to hold that really the articles found in the possession of the appellant, Kusmi Devi, were the articles which had been looted away by the dacoity in course of the dacoity, Kusmi Devi having bean charged under Section 412 of the Code which charged has not been established beyond reasonable doubts, she is also entitled to benefit of doubt in the circumstances of this case.
10. In the result both the appeals are allowed and the judgment and orders of conviction and sentence passed by the learned trial court are here by set aside. All the appellants of both the appeals are acquitted of the charge.