PETITIONER: NARAYAN SINGH Vs. RESPONDENT: STATE OF M.P. DATE OF JUDGMENT31/03/1993 BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION: 1994 SCC Supl. (1) 62 ACT: HEADNOTE: JUDGMENT:
ORDER
1. These appeals are filed under Section 379 of the Code
of Criminal Procedure. These five appellants along with two
others were tried for offenses punishable under Sections
395, 396, 397 and 449 of the Indian Penal Code. Two of them
were tried under Section 25 read with Section 27 of the Arms
Act. Mithlesh was tried for offenses punishable under
Sections 216 and 412 IPC. The trial court acquitted all of
them. The State preferred an appeal. During the pendency
of the appeal the two accused Devi Singh and Kishore Singh
died and the appeal against them stood abated.
2. The High Court, however, relying on the evidence of the
eyewitnesses who participated in the identification parade
and the recovery effected allowed the appeal and set aside
the acquittal and convicted Mansingh, Rati Ram, Narayan
Singh and Shiv Ratan under Sections 395/397, 396 and 449 IPC
and sentenced each of them to undergo rigorous imprisonment
for ten years under each count. Rati Ram was further
convicted under Section 25 read with Section 27 of the Arms
Act and sentenced to undergo three years’ rigorous
imprisonment. Mithlesh was convicted under Section 412 IPC
and sentenced to undergo five years’ rigorous imprisonment.
His acquittal under Section 216 was affirmed. Sentences
were directed to run concurrently.
3. Aggrieved by the said judgment of the High Court the
convicted accused have preferred these two appeals. The
prosecution case is as follows.
4. On the night of November 11, 1978 at about 11 p.m.
there was a dacoity with murder in the house of Premchand
(PW 22) in village Hardi, within the
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limits of Gadhakota police station, District Sagar. It is
alleged that the dacoits removed gold and silver ornaments
and cash of Rs 500, total valued at Rs 22,465 by breaking
open the box and the safe. On the ground floor, Nathuram
and Jagrani parents of the complainant, were sleeping and
they were first assaulted. On the first floor,
complainant’s sister-in-law Rajrani was killed with a
Katarna. The complainant saw the incident from the second
floor. Dacoits were unknown to the witnesses. After
committing the looting the dacoits left the place.
Premchand went and lodged a report (Ex. P-42) in the police
station. The injured Nathuram and Jagrani were admitted in
the hospital. Rajrani also received injuries and she died.
In postmortem examination it was found that she died because
of the incised wound cutting maxilla bone. Nathuram had 13
injuries including fracture of right forearm. The
prosecution examined PWs 17 and 18 who received pellet-
injuries and Jagrani who received one lathi injury. On
receipt of the information PW 23, PSI reached the scene of
the occurrence and prepared a Panchnama and effected some
recoveries. He took into custody Mansingh in village Sewda
and the other accused were also arrested on different dates
after the expiry of three months and some more recoveries
were effected. A Panchnama was drawn in respect of the
recoveries and the recovered articles were identified as
those belonging to the complainant.
5. An identification parade was held on two dates namely
March 16, 1979 and March 30, 1979. The accused were said to
have been identified by the eyewitnesses. On April 4, 1979
another identification parade was held in respect of the
articles recovered and they were said to have been
identified by PWs 2, 17 and 22. The trial court acquitted
the accused holding that identification of the persons as
well as of the articles was doubtful.
6. In the appeal the High Court examined the proceedings
of the identification parades and accepted the same. The
High Court also accepted the prosecution case regarding the
recovery of the stolen articles and accordingly convicted
the accused as stated above.
7. In these appeals Shri Ranjit Kumar, learned counsel for
the appellants submits that the dacoity took place during
night-time and the assailants were totally strangers to the
victims and they were arrested after a lapse of three months
and identification was held again 22 days thereafter.
Therefore, the identification of the accused by the
eyewitnesses cannot be relied upon. In this regard he also
submits that the reasons given by the trial court while
rejecting the evidence regarding the identification of the
eyewitnesses as well as the recovered articles are quite
sound and the High Court erred in reversing the same. We
have examined the proceedings and also the evidence given by
the respective eyewitnesses. The dacoity is not in dispute.
Though Mithlesh belonged to the same village but none of the
eyewitnesses stated that he was present during the dacoity.
Therefore, he was not put up for identification parade. The
dacoits were strangers to the eyewitnesses. Then the
question arose whether there was sufficient opportunity for
these witnesses to recognise the accused. It is noted that
none of their features (sic was) even suggestively mentioned
in the FIR not even in the case-diary as noted by the High
Court. It is also to be noted that none of the eyewitnesses
said that they recognised the dacoits while they were inside
the house and on the other hand it becomes highly doubtful
whether they could not have identified the strangers in the
moonlight. Taking all these aspects into consideration the
trial court was not
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prepared to accept the evidence regarding the identification
parade of the persons. We think this is a reasonable view
in the matter. Therefore, the participation of the
appellants in the actual dacoity becomes doubtful.
8. However, the recoveries are duly effected and the Sub-
Inspector as well as the witnesses spoke about the same.
Merely because certain stolen articles were recovered from
the accused they cannot be held to be dacoits by invoking
the presumption unless there is a recent possession. In
this case admittedly, there is a lapse of nearly three or
four months. In these circumstances, we think it would be
safe particularly when they were acquitted by the trial
court to convict them only for the offence of being in
possession of the stolen property.
9. A serious dacoity took place and must be known to all
the people in the village as well as in the surrounding
places. The accused who were found to be in possession of
the stolen property which is the subject-matter of the
dacoity would be held liable under Section 412 IPC. In the
result the convictions of Narayan Singh and Shiv Ratan in
Crl. A. No. 573 of 1983 under Sections 395/397, 396, 449
IPC, and the sentence of ten years’ rigorous imprisonment
under each count are set aside. Instead they are convicted
under Section 412 IPC and each of them is sentenced to three
years’ rigorous imprisonment. With regard to the appellants
Mansingh and Rati Ram in Criminal Appeal No. 623 of 1984
their convictions under Sections 395/397, 396 and 449 IPC
and the sentence of ten years’ rigorous imprisonment awarded
under each count are set aside. Instead they are convicted
under Section 412 IPC and each of them is sentenced to three
years’ rigorous imprisonment. The conviction of Rati Ram
under Section 25 read with Section 27 of the Arms Act and
the sentence awarded thereunder are confirmed. The
conviction of Mithlesh one of the appellants in Crl. A. No.
573 of 1993 under Section 412 IPC is confirmed and the
sentence is reduced to three years’ rigorous imprisonment.
His acquittal under Section 216 IPC is confirmed. Sentences
are directed to run concurrently.
10. Appeals are disposed of accordingly.
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