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R.P. Gupta, J.
1. These three appeals are directed against the judgment dt. 19-2-1988 of Additional Sessions Judge, Tikamgarh in Session Trial No. 43/81 whereby appellant Kunwarlal in Cr. Appeal No. 244/88 and appellant Shyamlal in Cr. A. 327/88 were convicted for offence Under Section 396, I.P.C. and sentenced to life imprisonment. The other accused namely; Murli, Dhaniram, Beni, Ghaseeta, Sunnulal and Kaluu alias Siromani Singh who are respondents in Cr. A. 1042/88 filed by the State of M.P. were acquitted of the charges.
2. The incident out of which this trial arose occurred on the night between 10th and 11th August, 1980 in the house of one Giloji, a large number of dacoits broke into the house of Giloji in village Najdanwada, P. S. Jairon, district Tikamgarh. The dacoits started beating Giloji and his other family members in order to commit dacoity in the house. Ram Kishor (PW 11), Ramdeen (PW 13), Deshraj (PW 14) and Tulsidas (PW 17) are the sons of Giloji. Betibai (PW 15) and Makkhan Devi (PW 16) are the daughter-in-law of Giloji. They (except PW 13 of PW 14) were in the house when the dacoits entered and beat them and looted the property. They forcibly took away the ornaments worn by the ladies. They fired shots also and used other weapons for attacking the inmates of the house. Dharam Bai, the wife of Giloji was killed as a result of that attack in the house itself. Deshraj had brought Rs. 10,000/- as sale proceeds of grains 2-3 days earlier and had kept them in the house. This money and other money was looted by these dacoits apart from the ornaments snatched from the bodies of the ladies.
3. The first information report Ex. P 19 in the case was given by Deshraj (PW 14) son of Giloji on 11-8-80 at Police Station Jairon. Deshraj was sleeping in his shop along with his wife and children. The shop is at some close distance from the house. At mid-night he heard shriek of his father who was rushing from the side of the village and told him that dacoits had entered the house and were looting and beating. He heard a gun shot also. His father rushed back towards village and he heard several fired shots. In the meantime, his younger brother Ram Kishor came running and shouting and informed him that 7-8 dacoits were beating the inmates of the house and were committing loot and that he had escaped by jumping from the roof of the house. About an hour later his father Giloji came back to him from the villages and informed him that nobody came from the village for help. These people continued sitting with Deshraj. His father went back to the house at about 2 a.m. and soon thereafter Chandra, Bhanji of Deshraj, came there and informed him about he death of Dharam Bai. Then Deshraj also rushed to the house and saw his mother dead in the house. His other brother Tulsidas had also suffered a gun fire shot. He found the amount of Rs. 10,000/- looted away. The dacoits had taken away the ornaments which his mother and Bhabhi were wearing and also the ornaments from the box. The dacoits were armed with’ lathis, katta and gun as told by inmates of the house.
4. So this first information report was on the basis of information received by Deshraj from his brother and other family members.
5. Dr. R.N. Mishra (PW 4) on 13-8-1980 medically examined the injured persons Tulsidas (PW 17), Ram Kishor (PW 12) Smt. Makkhan Devi w/o Tulsidas (PW 16). The Doctor found six injuries including the gun shot wound on the person of Tulsidas, three injuries on the person of Ram Kishore, five injuries on the person of Smt. Makkhan Devi. The same Doctor conducted the autopsy on the body of Dharam Bai deceased at 9 a.m. on 13-8-1980. The Doctor found that her spleen had become ruptured. The rupture was anti-mortem and death was the result of this rupture. There was also ecchymoses in front of left arm and right thigh. The death was the result of homicidal attack resulting in rupture of the spleen.
6. Giloji had died before he could be examined as a witness during the trial. So victims who are material witnesses in this case were Ram Kishor (PW 12), Deshraj (PW 14). Tulsidas (PW 17), Betibai (PW 15) and Smt. Makkhan Devi (PW 16). Ramdeen (PW 13) son of Giloji appeared as PW 13 regarding ornaments looted from the house and their identity. He was not in the house on the night in question as he was residing in. village Khakoron, about 2 k.m. from Nandanwada. The accused were arrested on the following dates :
Kunwarlal, Shyamlal, Beni & Murli on 30-1-1981 Dhaniram, Sunnulal & Kallu @ Siromani on 4-2-1981, Ghaseeta on 3-2-1981.
The faces of Kanwarlal, Beni and Shyamal were muffled at the time of arrest and they were instructed to keep their faces muffled. All these accused except Kallu were interrogated on 6-2-1981 and they made their disclosure statements to police while in police custody in the presence of the witnesses Koushlesh Pratap Singh and Mahadev Prasad. They had made the following disclosure about the ornaments having been kept in their rooms in their respective houses :
(i) Kunwarlal — vide Ex. P 20, about gold pungaria, half lalari of gold, one pair of gold bali.
(ii) Shyamlal–vide Ex. P 21, about one pair of silver chuda, one gold Bija putaria.
(iii) Beni — vide Ex. P 22 about one pair of silver Dori.
(iv) Murli — vide Ex. P 23 about one silver painjana, half gold lalari, one silver kardhona.
(v) Dhaniram–vide Ex. P 24 about one pair of gold chuda, one pair of silver panjana, 3 1/2 gold Tabeez of one katla of gold, one gold lalari of 8 muria.
(vi) Sunnulal–vide Ex. P 25, about half gold lalari, one pair of silver painjana and one Kardhona of gold.
(vii) Ghaseeta–vide Ex. P 26, about one pair of silver painjana, one lalari gold, having been kept in his house. He further disclosed about having sold four ornaments to one Memon Choudhary of Jhansi. These were half gold katla, 272 tolas, one gold Bindi, one lalari 1 1/2 tolas, one Bukharia of silver.
(viii) Kallu — vide Ex. P 41, about the wrist watch having been kept in his house.
They led to the recovery of the respective disclosed ornaments on the following dates :
Kunwarlal, Shyamlal and Beni vide Ex. P 27, P 28 and P 29 on 7-2-1981.
Murli, Dhaniram, Sunnulal vide Ex. P 31, P 32 and P 33 on 10-2-1981.
Ghaseeta vide Ex. P 30 on 8-2-1981.
Kallu led to recovery of wrist watch vide Ex. P 43 on 12-3-1981.
7. Test Identification parade in respect of accused Sunnulal, Shyamlal, Kunwarlal, Kallu and Beni was conducted by Shri Sen, Naib Tahsildar (PW 8) on 15-4-1981. Witnesses Ram Kishor (PW 12) and Tulsidas (PW 17) participated in the Test Identification Parade in District Jail, Tikamgarh vide TIP memo Ex. P 15. Beni and Kallu were not identified by any of these two witnesses. Sunnulai was identified by them. Kunwarlal was identified by Ram Kishore correctly and Shyamlal also by Ram Kishor. Subsequently, on 28-4-81 in other TIP conducted by Sri Pannalal Jatav (PW 24), Naib Tahsildar in District Jail Datia, accused Murli, Dhaniram and Ghaseeta participated. Tulsidas and Ram Kishor witnesses participated for identification. They correctly identified Dhaniram and Ghasseta accused. Murli was identified only by Tulsidas.
8. Shri Vinod Kumar Jain, Addl. Tahsildar (PW 9) conducted a Test Identification Parade about the recovered property on 27-4-1981 in the building of Higher Secondary School, Jairon. Witnesses Tulsidas (PW 17), Ramdeen (PW 13) and Smt. Betibai (PW 15) participated in it and Giloji (now deceased) had also participated in it. The various ornaments which have been recovered from the accused persons as noticed above and also the wrist watch, in all 21 articles were subject-matter of identification. The ornaments which have been recovered from Kunwarlal (detail already noticed above) were identified by Ramdeen, Tulsidas, Betibai. From the articles recovered from Shyamlal accused, the gold Bija ki putaria was identified by Betibai, Ramdeen as well as by Tulsidas and the silver Chuda was identified by Tulsidas. A pair of silver painjana recovered from Ghasseta accused were identified by Ramdeen (PW 13) and Tulsidas (PW 17). The ornaments recovered from Murli except one gold Chuda were identified by PW 13 Ramdeen and PW 15 Betibai. From the articles recovered from Dhaniram one pair of silver painjana could not be identified by any witnesses, but, half gold katla was identified by Betibai, Ramdeen and Tulsidas while one gold lalari half portion was identified by Ramdeen and Tulsidas. No articles recovered from Beni accused could be identified by witnesses and similarly the wrist watch recovered from Kallu accused could not be identified.
9. In the evidence before the Court, Ram Kishore (PW12), Tulsidas (PW 1) had identified all the 8 accused as having participated in the dacoity saying that they had identified them at the time of dacoity.
10. The witnesses on whose testimony mainly the prosecution put reliance are PW 12 Ram Kishore, PW 13 Ramdeen, PW 14 Deshraj, PW 15 Smt. Betibai, PW 16 Smt. Makkhan Devi and PW 17 Tulsidas. Apart from these, the investigating officers who arrested these accused and interrogated them and in whose presence disclosure statements were made by them which are claimed admissible Under Section 27 of the Evidence Act, are PW 22 N. K. Upadhyay, S. I., PW 23, I.B. Singh Bhadoria. Then there are two Naib Tahsildar and one Addl. Tahsildar who conducted the Test Identification Parade, namely; PW 9 Vinod Kumar Jain, Addl. Tahsildar, PW 24 P.L. Jatav, Naib Tahsildar and PW 8 K.S. Sen, Naib Tahsildar. The medical evidence consisted of the statements of Dr. R. N. Mishra (PW 4). The witnesses before whom the disclosure statements were made by the various accused on interrogation by the investigating officers were Koushlesh Pratap Singh (PW 18), Mahadev Prasad (PW 21) and Chhabilal (PW 19) and Kedarnath who has not been produced, while Chhabilal pertains only to Kallu alias Siromani Singh accused. The witnesses Koushlesh Pratap Singh (PW 18) and Mahadev Prasad (PW 21) pertain to disclosure and recovery at the instance of all other accused persons.
11. In Court the witnesses PW 12 Ram Kishor and PW 17 Tulsidas identified all the accused persons who were in the trial as some of the dacoits who had looted the ornaments on the lady and beaten them, forced their mother the deceased Dharam Bai, to disclose the whereabouts of the wealth i.e. money and ornaments and took. out the cash as well as ornaments from their bodies, the box as also dug out some ornaments from the spot where it has been buried by the deceased. They gave so much beating to Dharam Bai that she died at the spot. They gave severe beating to these witnesses and to their father and they fired shots from fire arms, one of which injured Tulsidas (PW 17). These witnesses and Betibai (PW 15) as well as Ramdeen (PW 13) identified the various ornaments which had been recovered from the accused persons. These ornaments have been identified as articles “A” to “Q”. The excerpt of their testimony in Court regarding identification according to the recovered articles has been prepared by the trial Court in a tabular form in para 64 of its judgment, which it is proper to reproduce at this stage of this judgment:
S.No. Article Name of ornament from which Ramdeen Tulsi Beti- accused it is PW-13 PW-17 bai seized para 3 para 4 PW-15 para 2 1 J one gold pugaria Kunwarlal 2 K half gold lalari " 3 O one pair gold " 4 Q one pair silver Chura Shyamlal 5 I one gold putaria " 6 - one pair silver Dori Beni 7 A one pair silver Painjana Ghaseeta 8 - one silver Bicchuwa " 9 - one silver Chudi " 10 V one pair silver painjana Murlidhar 11 L half gold lalari 12 D one silver kardboni " 13 F one gold chura 14 one pair silver payal Dhaniram 15 H half gold kathala Dhaniram 16 M half gold lallari 17 C one pair silver painjana Sunnulal 18 E one silver Kardhoni 19 N half gold lallari 20 G one gold Satdhana 21 -- one gold wrist watch Kallu * Item No. 9 one silver Chura, Item No. 14 one pair silver payal were identified by PW17 Tulsidas, on which article No. were not mentioned. * Item No. 4 was identified by PW 15 Betibai which is same as Article "Q".
12. The trial Court, however, did not rely upon the testimony of Ram Kishor (PW 12) and Tulsidas (PW 17) regarding identification of these accused at the time of dacoity on the ground that it did not find sufficient corroboration by timely Test Identification Parade. It was noticed that the Test Identification Parade was conducted more than two months after the arrest of the accused persons and no material has been brought on record as to in what condition and where the accused had been kept during this period and what had been their movement for seeking their remands in Court and how many times they were produced in Court. Although, there was noting in the arrest memo at the time of arrest of the three accused Kunwarlal, Beni and Shyamlal that their faces have been muffled, but, apart from that no material has been brought on record as to how they have been dealt with later on and why the Test Identification Parade was not organised till 15-4-81 in respect of five accused Kunwarlal, Shyamlal, Beni Prasad, Sunulal and Kallu alias Siromani Singh and till 28-4-81 in respect of Murlidhar, Dhaniram and Ghaseeta. So its corroborative value was not accepted.
13. The Trial Court, regarding disclosure statements of the various accused persons, held that so far as the witnesses Koushlesh Pratap Singh (PW 18) was concerned, it did not support the story of disclosure by any of the accused or their leading to recovery of any ornaments by any accused. The witness was hostile to prosecution case and went against his own previous statement to the police while admitting his signatures on the various disclosure memos, as also on the seizure memos. He gave no explanation why he signed those memos. The trial Court found that even Mahadev Prasad (PW 21) has specifically stated about disclosure by three accused Kunwarlal, Shyamlal and Beni Prasad only and about other accused he made general statement that he went from place to place for recovery which was effected and disclosures were made, but, he does not remember which of the accused made what disclosure and led to what recovery. He deposed that he had signed those disclosure memos and the seizure memos correctly. The trial Court however, was not satisfied with this part of the testimony, being not specific against other accused, and so held that it was not supportive evidence about disclosure of recovery by other accused namely Murlidhar, Dhaniram, Ghaseeta and Sunnulal. He was not a witness to disclosure of recovery by Kallu. As regard the testimony of investigating officer on this aspect, we find no discussion of the same in the trial Court judgment, why the testimony of the investigating officer PW 22 about the disclosure by these accused and their leading to various recoveries was not sufficient evidence while other witnesses were going hostile, has not been discussed by the trial Court. The trial Court has noticed in paragraph 60 of its judgment that the witness Mahadev Prasad (PW 21) has not narrated of having gone to village Simariya of Ghaseeta, village Uprai of Murlidhar, village Veejapara of Dhaniram and village Salormarra of Sunnulal from where recovery was made, nor has he admitted that he had been accompanying the police to various villages to effect recovery. We, however, find, from perusal of testimony of this witness that he stated that he did not remember if for effecting recoveries he visited other villages with police, however, he said that in whatever villages they went, recoveries were made and writings were prepared and he signed seizure memos Ex. P 30 to P 33. Even search of the houses of these accused were made and for that search members Ex. P34 to P40 were prepared and he signed them. He did not remember if he visited village Simariya with the Police and what recoveries were made from there. On cross-examination by Public Prosecutor this witness admitted when the contents of memo Ex. P 30 were brought to his notice, that he visited village Simariya and from the house of accused Ghaseeta one pair of silver painjana, Bicchuwa, Chudi of silver and one Kulhadi was recovered. Similarly, he admitted having visited village Uprai and recoveries having been made by police from Murlidhar accused vide seizure memo Ex. P 31 which he signed. Similarly he admitted that the recoveries made from Dhaniram accused in village Veejapara and Sunnulal in village Salormarra. He signed the documents Ex. P 31, P 32 and P 33 as witness for those recoveries. He merely explained that he had forgotten the fact because of lapse of time.
14. Thus, we find that the observations of the trial Court noted above are the result of ignoring the above relevant evidence on this aspect. This is unjustified. It is in the light of this evidence that the testimony of the investigating officer PW 22 Shri N. K. Upadhyay, S. I. has to be weighed. This testimony clearly proves that these accused made their disclosure statements respectively which are Ex. P20 to P26 by Kunwarlal, Shyamlal, Beni Prasad, Murli, Dhaniram, Sunnulal and Ghaseeta respectively and disclosure Ex. P41 was made by Kallu on 11-3-1981. The accused Kunwarlal, Shyamlal, Beni Prasad, Murlidhar, Dhaniram, Sunnulal and Ghaseeta led to recoveries of the various articles/ornaments from the rooms at the houses about which they had made disclosures, where they took the police party with witnesses vide memos Ex. P 27 to P 33. All these were on the dates noted in the seizure memos. The disclosures were on 6-2-1981. Both the witnesses Koushlesh Pratap Singh (PW 18) and Mahadev Prasad (PW 21) were present at the time of disclosures and recoveries and they signed these documents. There is no reason to discard this testimony merely because one witness becomes hostile and other partly supports and partly expresses loss of memory. Thus, we find, it is established that these seven accused; Kunwarlal, Shyamlal, Beni Prasad, Murlidhar, Dhaniram, Subbulal and Ghaseeta made their disclosure statements on 6-2-1981, accused Kallu made his disclosure statement on 11-3-1981. They led to recovery of ornaments detailed in Ex. P 20, P 21, P 22, P 23, P 24, P 25 and P26, details of which have already been noticed. Kallu led to recovery vide Ex. P. 27 and led to recovery of wrist watch on 12-3-1981 vide Ex. P 43. Thus, on these aspects the findings of the trial Court are totally infirm and unjustified, being result of ignoring relevant reliable evidence.
15. We, however, find that the findings of the trial Court in placing no corroborative value to the Test Identification Parade which was held about 2 1/2 months after the arrest of the accused, was justified. It is of utmost importance that a Test Identification Parade is held soon after the arrest of the accused and material is brought on record that no opportunity was given to the witnesses to see the accused before the Test Identification Parade. These aspects are missing and it appears that there has been unexplained delay in conducting the Test Identification Parade and no explanation has been brought on record to explain this delay or to explain where the accused were kept and where they were being moved during the intervening period. So this Test Identification Parade can be given no corroborative value.
16. It is important to note that an identification in Court without finding corroboration in a properly held Test Identification Parade cannot be given sufficient evidentiary weight to justify the conviction, but, if other independent evidence comes on record to establish the guilt of the accused, there is no bar to it.
17. At this stage we may look up whether the recovered articles were the looted articles, so identified by the witnesses. It has been conceded by the learned State counsel, and rightly so, that the wrist watch recovered from the accused Kallu was not identified by any witnesses. Even as regard to Beni Prasad and Dhani Ram, it is argued that there is no positive evidence to connect the ornaments recovered from them with the looted ornaments. The trial Court has noticed in excerpt of evidence tabulated at para 64 of its judgment as already noticed that there was no identification in Court made by any witnesses regarding silver Dori recovered from Beni Prasad vide Ex. P 22. No witness has spoken about silver Dori. So the State counsel has nothing to urge against Beni Prasad accused.
18. As regard recoveries from other accused we find that the other recovered ornaments from the accused persons have been identified by witnesses as has been noticed in the table above. So no distinction could be made in the cases of Kunwarlal and Shyamlal with the material available against Murlidhar, Dhaniram, Ghaseeta and Sunnulal.
19. On close perusal of the evidence of these witnesses and documents on record we find it sufficiently established that the accused persons; Kunwarlal, Shyamlal, Murlidhar, Dhaniram, Sunnulal and Ghaseeta had in their possession the ornaments looted from the house of the complainant in this dacoity committed on the night between 10th and 11th of August, 1980, in which Smt. Dharam Bai was done to death and injuries were caused to others including gun shot injury to Tulsidas (PW 17). The recoveries had been made between 7-2-1981 and 10-2-1981 from these accused on the basis of their disclosure statements on 6-2-1981. These disclosure statements are relevant evidence Under Section 27 of the Evidence Act as having led to discovery of fact i.e. recoveries of ornaments which in fact were identified as looted ornaments. These accused were in possession of these ornaments and led to their recoveries. The inference clearly is that they are either the looters or they were in possession knowing them to be property obtained by dacoity.
20. Learned counsel for the appellants and respondents accused argued, firstly, that the ornaments had not been proved to be looted ornaments or the ornaments recovered from the accused as I.O. has not stated that these were recovered from the accused and further that mere possession of the looted ornaments does not lead to inference of dacoity and the proper inference at worst should be of receiving stolen property. For this counsel cited some pronouncement of the Supreme Court : Chhotelal Singh v. State of M.P. AIR 1978 SC 1390 : 1978 Cri LJ 1411, Union Territory of Goa v. Boaventura D’Souza AIR 1993 SC 1199 : 1993 Cri LJ 181 and Achyut Das v. State of Assam AIR 1994 SC 968 : 1994 Cri LJ 1119.
21. It is also argued that even if inference of dacoity is taken, it is not known who caused the death of Dharam Bai and who gave injuries to Giloji and two sons Ram Kishor (PW 12) and Tulsidas (PW 17). The witnesses have stated that there were 15-16 dacoits and only 8 have been tried, some other are unknown and some persons were declared absconder and proceeded against Under Section 299, I.P.C. so inference of murder could not be taken against the appellants accused or the respondents accused in this case.
22. After close scrutiny of the evidence, we are satisfied that there is ample evidence to prove that the articles exhibited on record as Article “A” to “Q” and identified by the witnesses in Court are the looted articles so proved by the witnesses. These articles were recovered from the accused persons and it has been so stated by the Investigating Officer who has not only stated so, but, also proved the recovery memos.. The description of the articles tallies with the articles stated by the witnesses as looted and witnesses have identified them. These articles put in the Test Identification Parade also before the Additional Tahsildar. There was no suggestion to the Investigating Officer that the articles identified by the witnesses as looted articles were not recovered on from the accused or some other ornaments had been substituted. There is unshakable evidence that the respective ornaments were recovered from the respective accused mentioned in the seizure memos Ex. P 20 to P 26 except for the silver Dori recovered from accused Beni Prasad, Vide Ex. P 22. There is ample evidence of Tulsidas (PW 17) and Betibai (PW 15) as also Ramdeen (PW 13), that these are the looted ornaments. So this objection of the counsel for accused has no merit.
23. Coming to the legal point as to what inferences are justified from the recoveries of the looted articles by the respective accused about 5 1/2 months after the dacoity, it is important to keep in mind the circumstances that certain pieces of Lalaries which were looted from the house have been recovered from more than one accused suggesting a sharing of ornaments between them. The recoveries of these ornaments and pieces of Lalaries in particular show that these accused shared the loot. That is an important factor.
24. The three judgements cited by counsel for the accused clearly suggest that it depends on facts and circumstances established, of each case, as to what inferences may be taken from the recoveries of located articles. In the case of Boaventura D’Souza 1993 Cri LJ 181 (SC) (supra), it was a charge of robbery and murder of deceased. Accused allegedly stayed at the house of the deceased and allegedly committed murder for robbery. The alleged eye-witnesses did not implicate the accused. The deceased was a relative of the accused and it was doubtful if he stayed with the deceased. The recovery of stolen articles was made from the accused after one month of the incident. In the peculiar circumstances it was held that the inference of murder could not be drawn from the fact of recovery. Inference of guilt Under Section 411, I.P.C. was drawn. It may be noticed that in fact the High Court had acquitted the respondents accused, those are important circumstances.
25. In 1978′ s case of Chhote Lal Singh 1978 Cri LJ 1411 (SC) (supra) the detail facts are not mentioned. The articles stolen in the dacoity were recovered from the accused and there was no other evidence nor any other peculiar circumstances about the recovery. The apex Court said that in these circumstances there will be a presumption that the appellant was a receiver of the stolen property, transferred to him, in the course of dacoity. So, he was convicted under Section 412, I.P.C. instead of 397, I.P.C.
26. In 1994’scaseof Achyut Das 1994 Cri LJ 1119 (SC), also there is no detail of circumstances mentioned, so no additional circumstances except recovery of stolen article was established. It is not mentioned as to how long after the dacoity the stolen articles were recovered. There was evidence of one witness that he had purchased the stolen articles from the appellants. The appellants had not explained how they came in possession of these articles. It was observed that there was no material for conclusion that the appellants knew or had reason to believe that the articles were stolen in the course of the dacoity. So the presumption of offence Under Section 411, I.P.C. was taken. There was nothing special about the stolen articles.
27. In a case cited in AIR 1956 SC 54 : 1956 Cri LJ 150 titled Sanwat Khan v. State of Rajasthan, as regard scope of inference under illustration (a) to Section 114 of the Evidence Act, arising out of possession of stolen property, their Lordships of the Apex Court said that no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. The Apex Court had observed that there was no evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted.
28. There is a set of judgments in which, on the basis of circumstances established, surrounding the recovery of the stolen article, led to inference by the Court of robbery and murder. AIR 1956 SC 400 : 1956 Cri LJ 790 titled Wasim Khan v. The State of Uttar Pradesh is one such pronouncement. In this case the deceased had engaged the appellant’s cart on the night of occurrence for taking him to his village from the railway station. The deceased travelled in the cart with his goods. The appellant drove the bullock-cart and there were two other persons who got down in the middle. The deceased never reached the destination, but, was found murdered on the way, the next morning. The appellant had admitted that he and the deceased were alone in the cart after the other two persons had got off the cart. Thereafter, the deceased were never seen alive. The appellant was found in possession of deceased’s goods three days later. The appellant made no effort to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock cart. According to him deceased had gone away in the middle and he waited for the deceased who did not return. But, the appellant did not lodge any report and did not inform anybody. There was no explanation of his possession of stolen goods of the deceased. A big bloodstained knife of which the origin the blood was not known was recovered from him. In these circumstances, the Apex Court held that the inference of robbery as well as murder had to be taken against the accused. Even if the co-accused were acquitted, he then could be convicted with the help of Section 34, I.P.C. for the offence of murder and robbery.
29. In AIR 1985 SC 486 : 1985 Cri LJ 753 titled Lachhman Ram v. State of Orissa, the Apex Court found that there were dacoities on the same night in the houses of the complainants one after the other in quick succession and dacoits looted and bolted away. The dacoits belonged to Delhi and had come to commit dacoity at far off places in the State of Orissa. The looted property, by these dacoits, were recovered from them and this had been established beyond doubt. Their lordships said that “in view of our clear findings, the factum of recovery of articles at the instance of the accused persons in the presence of police officers and panch witnesses who have deposed to the same, is itself sufficient to bring the case not under the provisions of Section 412, IPC but also under Section 395, IPC with the aid of Section 114 of the Evidence Act because the recoveries were made very soon after the occurrence.” The judgment of the Court does not refer to what time had lapsed between dacoity and recoveries of the looted articles.
30. In another case cited at AIR 1978 SC 522 : 1978 Cri LJ 647 titled Baiju v. State of Madhya Pradesh, the Apex Court observed that the recent and unexplained possession of stolen articles can be taken to be presumptive evidence of the charges of murder as well. The stolen property was recovered from the house of the appellant or at his instance within a week’s time from the date of commission of the offence. Their Lordships stated that the question whether a presumption should be drawn under illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. It was a case where four murders and robbery were committed.
31. Another important case of the Apex Court is cited in AIR 1983 SC 446 : 1983 Cri LJ 846 titled Earabhadrappa v. State of Karnataka. The Apex Court said that “The nature of presumption under illustration (a) to Section 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession of stolen property sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand.
Where the accused was charged for murder and robbery, mere fact that a period of one year had lapsed between the commission of offence and discovery of stolen articles would not lead to the presumption that the accused was only a receiver of stolen property and had not committed murder, particularly when accused was absconding during that period. In this case the accused was a servant of the house and after the family had taken meals on the night of the incident, the deceased slept in the hall adjoining the kitchen. The accused slept in a room on the ground floor where the silk cocoons used to be reared and kept. The other family members slept at various spots. Next morning the son of the deceased noticed her dead body in the house. She had been strangulated to death and relieved of her ornaments such as Mangalsutra, Gold-rope chain, Gold-nose ring and Gold earrings. A towel was lying nearby, that had been given by one witness to the accused for his use. One bunch of keys of safe had been taken away by the accused and all the jewellery and cash of Rs. 700 had been taken away from the iron safe. Six silk sarees kept in the almirah were also missing. The appellant had absconded. Even he could be arrested only on 28th March, 1980 and stolen articles and four milk sarees were recovered from him. At his instance a gold chain and pair of gold bangles were also seized and two other silk sarees were also seized at his instance. Similarly he led to recovery of pair of gold earrings and a gold ingot. Their Lordships said that the material on record proved that the murder and robbery are integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. This presumption was raised inspite of lapse of one year between the robbery with murder and the recovery of stolen property. The appellant had no satisfactory explanation to offer for his possession of the stolen property. In these circumstances, the Apex Court had observed that no fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt, varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long, particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property. So the appellant’s conviction Under Section 302, IPC as well as Under Section 392, IPC were confirmed.
32. Thus, it is clear from the perusal of these judgment of the Supreme Court, of which last one cited above clearly declares so that the facts and circumstances of each case and surrounding circumstances are important factors for taking the necessary inference, from the recovery of the stolen property in each case.
33. In the case before us, the important factors are that it was on the night of dacoity that murder was committed as part of the transaction of dacoity. The dacoity was committed by large number of persons and large number of ornaments of gold and silver and cash were looted. Most of the inmates of the house were beaten and one lady died as a result thereof. Secondly, as soon as the accused persons were arrested, within 2 to 4 days, they led to the recovery of the looted articles.
34. The looted articles had apparently been apportioned between the accused persons from whom they were recovered. Of course, those who have not been arrested may be having the other parts of the looted property. That fact that the gold ‘lalaries’ which are like long beaded chain, were found in possession of these accused in half portion each, shows that the looted ‘lalaries’ were shared by them by cutting them into half and half. The accused could not find proper connection or customer to dispose them of. The fact and circumstance of sharing of the looted property is an important circumstance in this case.
35. From the above circumstances, it has been clear to us that inference of dacoity has to be taken, inter alia Under Section 114, Illustration (a) of Evidence Act, against accused Kunwarlal, Shyamlal, Murli, Dhaniram, Sunnulal and Ghaseeta. The murder in this case was part of the transaction of dacoity. Whichever dacoits participating in the dacoity (whether one or more) caused death of Smt. Dharambai, everyone of dacoits becomes punishable with offence Under Section 396, I.P.C. which is punishable with death or imprisonment for life or imprisonment of 10 years.
36. Thus, the accused persons namely; Kunwarlal, Shyamlal Murli, Dhaniram, Sunnulal and Ghaseeta committed offence punishable Under Section 395, I.P.C. as well as Under Section 396, I.P.C. Thus, the appellants Kunwarlal and Shyamlal in Cr. A. No. 244/88 and Cr. A. No. 327/88 were rightly convicted for offence Under Section 396, I.P.C. and sentenced to life imprisonment. They also committed an offence punishable Under Section 395, I.P.C. They have been rightly sentenced to imprisonment for life. In State appeal No. 1042/88, the respondents Murli, Dhaniram and Ghaseeta and, Sunnulal have been wrongly acquitted of the charges. It is established beyond doubt that they also committed offence punishable Under Sections 395 and 396, I.P.C. They are convicted accordingly, and each of them is sentenced to imprisonment for life on both counts Under Section 395 as well as Under Section 396, I.P.C.
37. As regard Beni and Kallu, we do not find evidence to connect them with dacoity. So their acquittal is confirmed.
38. As a result of above discussion, Cr. A. No. 244/88 and Cr. A. No. 327/88 are dismissed. Thus the appellants Kunwarlal and Shyamlal will suffer their sentence. The State appeal–Cr. A. No. 1042/88 is accepted against Murli, Dhaniram, Ghaseeta and Sunnulal. Their acquittal is set aside. They are convicted and sentenced as noted above. They shall surrender to their bails and the trial Court shall see that they are arrested and suffer their sentence. The State appeal against Beni and Kallu is dismissed.