JUDGMENT
Mahendra Bhushan Sharma, J.
1. The learned Additional Sessions Judge, Kishangarhbas, Alwar under his judgment dated January 27, 1987 while maintaining the conviction of each of the accused petitioner under Section 394 I.P.C. reduced the sentence of each of them from 4 years and 6 months RI and fine of Rs. 1,000/- to 3 years RI and fine of Rs. 1,000/- and in default of payment sentenced each of them to further suffer 3 months RI.
2. Generally this court does not interfere in revision in the findings arrived at by the appellate Court as well as by the trial court, but in the instant case, so far as the accused petitioners Shamsuddin s/o Murad and Habib are concerned, their complicity in the crime is not proved beyond doubt and the finding that they committed an offence under Section 394, I.P.C. appears to be perverse.
3. Sukhvir Singh PW 3 along with his master Mahesh Kumar PW 4 on November 14, 1985 had gone by Scooter No. RNI 3642 from Khairthal to Alwar to make recoveries of various dues. When they were at a distance of about 2 or 4 Km. at Kishangarh Road it is alleged that 2 miscreants gave Lathi blows to Mahesh who was driving the scooter and as a result of it both Sukhvir Singh and Mahesh Kumar fell down along with the scooter and one miscreant ran away with a bag containing currency notes, after picking it from the Scooter. On the report Ex. P. 5, a case was registered and investigation was commenced. Three accused appellants were arrested by the SHO on 15th November, 1985 that is the next date of the incident. They were sent to judicial custody on 21st of November, 1985 and there on 28th November, 1985 an identification parade was held by Vinay Kumar Goswami. ID the said identification parade only 2 accused petitioners were to be identified that is Samsuddin and Musddin. Both Musddin and Samsuddin were identified as accused persons. Each of three accused petitioners made discovery statements and on their statements from accused Musddin a bag containing currency notes was recovered The Magistrate placed reliance on the identification parade and the recovery of the stolen property within few days of the alleged occurrence and convicted and sentenced the accused petitioners as aforesaid and in an appeal as already stated earlier their conviction was maintained and the sentence was reduced.
4. The first contention of the learned Counsel for the accused petitioners is that no stolen property was recovered from each of the accused petitioner and has not been proved to be stolen properties. The recovery of the currency notes will not connect the petitioners with the crime. His further contention is that when no numbers of the currency notes were given how could it be held to be stolen property
5 The learned Counsel further contended that in the First Information Report there were only two persons in the entire occurrence but during the course of the evidence the case has been improved and a third person has been involved and the recovery of currency notes was made from 3 not from 2 persons.
6. It may be stated that the First Information Report Ex. P 5 was lodged by Sukhbir Singh PW 3. No list of stolen property was given either with the First Information Report Ex. P 5 or thereafter. A look at Ex. P 5 will show that it is mentioned therein that only Mahesh Kumar was in a position to give the account of the notes which were in the bag. It was further stated that because of Deepawali there were marks of ‘roli’ on the notes but their numbers were not mentioned. There is no other document on record that Maheshkumar after regaining consciousness gave a list of stolen property. Thus apart from Mahesh PW 4 who has stated that Rs. 34,000/- were in the bag there is no other evidence. I will first deal with the alleged identification of the two accused-petitioners namely, Samsuddin and Musddin.
7. The first challenge to the identification parade of Samsuddin and Habib by the learned Counsel for the petitioners is that in the First Information Report it is not mentioned that there was any source of light in which the accused persons could have been identified or were identified. According to the learned Counsel for the accused petitioners the light from the scooter (head light) was introduced only during the course of cross-examination before the Court. A look at the First Information Report will show that it is clearly mentioned that the two miscreants could make their escape in darkness. It can therefore be said that at the time of the incident there was darkness and no light. In Ex. P 5 it is not mentioned that in the head light of the Scooter the miscreants could be identified. As per the case of the prosecution there were two miscreants and one of them gave a Lathi blow to Mahesh who fell down with the Scooter which was damaged. I have my serious doubt that in that circumstance any of the accused petitioners could have been identified. From the statements of Mahesh Kumar PW 4 and Sukhbir Singh PW 3 it cannot be believed that there was light from head light of the Scooter. Thus it can be said that the introduction of only source of light, the head light of the Scooter, is an after thought. There was no source of light and therefore, the accused could not have been identified. Be that it may so. The identification before the court in these circumstances is not sufficient. That apart in the instant case as already stated earlier when the accused petitioners Samsuddin and Habib were arrested on 15th November, 1985 the recovery of the currency notes was made on the same day though the stick, Lathi and wrist-watch were recovered later on. They were sent to judicial custody on 21st November, 1985 after 5 days of recovery and 6 days of arrest. There is no documentary evidence on record that during the course of entire period from 15th November, 1985 to 21st November, 1985, the accused petitioners were kept in Baparda. Roznamcha entries when the accused petitioners were taken out from the Police Station for remand of judicial custody or for interrogation and they were again put in lock-up have not been produced.
8. The SHO Shri Banshidhar PW 9 has stated in cross-examination that at that point of time be has no knowledge about keeping any person in Baparda or being sent to jail under Baparda. Though he admitted that such entries are made in the general diary about the fact that the accused-petitioners are Baparda. Under these circumstances, the identification parade does not inspire confidence. At any rate it has been already said that there was no such source of light at the time of incident in which the miscreants could have been identified. As already stated earlier while dealing under the discovery statements that no list of stolen property was filed. No doubt in the identification of the currency notes Mahesh Kumar PW 4 has identified the currency notes recovered from him. In the instant case, so far as the recovery is concerned, the witnesses of recovery are only Bhuvanesh PW 5 cousin of Mahesh PW 4 and one Mahendra Kumar PW 6. Bhuvanesh resides in village Khairthal and so also Mahendra Kumar. The recovery is said to have taken place in village Nangla Dungar, Police Station Khairthal It is given in the statements of PW 9 Shri Banshidhar SHO that he inspected the village Nangla Dungar, there were only 30 houses. No doubt as far as search is concerned the witnesses should be persons of the locality. But if the witnesses of the locally are not willing to witness the search, it can be witnessed by other persons, even those who accompany the SHO and the Police party. In the instant case the witnesses could not be available in the village Nangla Dungar and, therefore, it will not make the search illegal. But so far as currency notes said to have been recovered from the possession of appellants Samsuddin and Habib are concerned, it may be stated that it cannot be said that they were stolen property. From the recovery statements Ex. P 29, Habeeb accused petitioner is said to have made recovery statements to the SHO, it can be said that he said that he had concealed Rs. 10,000/- in his house in ‘kotedo’. The Station House Officer Witness 9 so far as the accused petitioner is concerned it is stated that Habeeb had informed him that he kept Rs. 10,000/- in Kotha of his house and could get them recovered. The recovery was made but as already stated numbers of currency notes were not given and mere recovery of Rs. 10,000/- will not connect them with the stolen property. Thus though Rs. 10,000/- have been recovered and the accused Habeeb has not claimed the property as of his own, but this property has not been proved to be stolen property. Under Section 114 of the Indian Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to facts of the particular case. One of the presumption is 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, the presumption is in a case that the goods are proved to be stolen property. Thus the recovery of Rs. 10,000/- in the absence of evidence that they were stolen property does not make the accused liable. Similarly so far as the case of the accused Samsuddin is concerned, and from him also currency notes of Rs. 10,000/- were recovered, there is no material evidence that these Rs. 10,000/- were a part of the stolen property. No list and no numbers of the notes to prove that they were stolen property have been given. For reasons which have been stated already while dealing with the case of Habeeb it cannot be said that the accused committed robbery or received the stolen property. So far as the accused Musddin is concerned his case is distinguishable. In the First Information Report it is mentioned that a bag containing currency notes was taken away. Here it may also be mentioned that there were only two miscreants at the time of incident and it was latter on said that there were three persons though the third person could not be seen but had only raised a cry ‘hu’ ‘hu’. In a case the identification by voice may be held to be sufficient. But in the instant case none of the two witnesses said that the voice was that of Musuddin or that he was one of the miscreants who committed the crime-But the accused Musddin was arrested on 15th November, 1985 i. e., next date of the incident vide arrest memo Ex. P 9. Immediately after the arrest he made discovery statement to PW 9 the S.H.O. that one bag of leather which contained currency notes and other goods has been concealed by him in his house. PW 9 has proved this and his statement is corroborated by the discovery memo Ex. P 28, got the currency notes of Rs. 14,983.50 p. as also one bag of leather which contained a photo of Mahesh Kumar and some other papers were recovered from the accused. Therefore, it can be said that the bag which was taken by the miscreants which contained the photo of Mahesh Kumar was recovered along with currency notes. Shri Mahesh Kumar stated in his statements about it. The accused though produced his father PW 1 but his plea that the currency notes belong to him will be held to be an after thought, So far as Musddin is concerned; the recovery of the currency notes in a bag with photo of Mahesh Kumar can be said to have been proved to be stolen property and that too on next date of the incident and a presumption is raised under Section 114(a) of the Evidence Act that he is a thief or holder of stolen property.
9. Consequently, the revision petition of Sarva Shri Samsuddin and Habib is accepted. The judgment of the lower courts is set-aside. They are acquitted of the offence under Section 394 I.P.C. But they have not claimed the currency notes which had been recovered from each of the accused petitioners. The amount of Rs. 20,000/- shall stand forfeited to the State. So far as the petitioner Musddin is concerned, his revision petition is dismissed. The currency notes and other articles detailed in Ex. P 11 shall be returned to the informant.
10. The petitioners Samsuddin and Habib shall be released forthwith if they are not required in any other case.