GUNDA Vs. STATE

JUDGEMENT

(1.) These are two appeals by three appellants. Criminal Appeal No. 299 of 1951 has been filed on behalf of Gunda alias Basudeo and Buddha through counsel. Criminal Appeal No. 984 of 1952 has been preferred by Ram Autar from jail. All the three appellants mentioned above have been convicted under S. 395, Penal Code, & sentenced to four years' rigorous imprisonment each. Along with them four other persons were sent up for trial by the Committing Magistrate. Their names are Jagjit, Ram Rup, Manni and Srimati Mahrania. Jagjit, Ram Rup and Manni were charged with the abovementioned appellants under Section 395. Srimati Mahrania was charged under Section 412, Penal Code. The trial court acquitted Bam Rup, Manni and Srimati Mahrania. The remaining four accused, namely, Gunda alias Basudeo, Buddha, Bam Autar and Jagjit were convicted by the trial court and sentenced to four years' rigorous imprisonment under Section 395, Jagjit does not appear to have filed any appeal and I am not concerned with his case. The case was tried with the aid of a jury. The unanimous verdict of the jury with regard to Ram Rup, Manni and Sm. Mahrania was that they were not guilty. The trial court, agreeing with the said verdict acquitted them. The majority of the members of the jury, however, gave their verdict in favour of the guilt of the aforementioned three appellants and they were accordingly convicted by the trial court.

(2.) The abovenamed appellants were charged with having committed dacoity on 30-1-1949, in the evening at about dusk, on the road near village Shahzadpur, police station Kohkiraj, district Allahabad. A first information report of this incident was made by Raja Ram, son of Moti Lal, on 31-1-1949, at about 6-35 A. M. This first information report gives a brief narration of the incident. In this report Raja Ram stated that his father Moti Lal a resident of village Shahzadpur had gone to Ajhwa bazar to lay his 'sarrafa' shop. He was returning from the said bazar. On the way Raja Ram met him at Ghulamipur. Prom Ghulamipur Raja Ram started for his house in village Shahzadpur along with his father Moti and one Bullah Faqir. Raja Ram took the 'sarrafa' box from his father and tied it on to his cycle. When they had reached about four or five furlongs near Shahzadpur and it was getting dark, five men armed with lathis intercepted them, surrounded the party and began beating them with lathis. Another batch of five or six persons remained standing at some distance armed with lathis. Raja Ram and Bullah raised an alarm. The dacoits snatched the 'sarrafa' box, which contained ornaments, and ran away. Raja Ram recognized Rajjan Brahmin of his village. The other dacoits were not recognized. Niwar Tamboli, Bhola Kalwar, Shiva Ghulam, Ram Nath and Sri Nath Vaish of his village also happened to be returning from the bazar & witnessed the incident. Raja Ram and his father had received injuries. Raja Ram and Moti Lal reached their house in the night. Owing to fear they did not go to lodge, the report till the morning.

(3.) Against all the aforementioned appellants the prosecution evidence is of two kinds. There is, firstly the evidence of identification by witness; and, secondly the evidence of the recovery of some property alleged to be stolen. Against Gunda there is the identification evidence of two identification witnesses, namely, Raja Ram. (P. W. 1) and Moti Lal (P, W. 4). In addition, some stolen property is also said to have been recovered from him. Against Buddha and Ram Autar there is the identification evidence of three witnesses, namely, Raja Ram (P. W. 1), Habibullah (P. W. 3) and Moti Lal P. W. 4. Further, there is the evidence or recovery of articles alleged to be stolen against these two appellants also. So far as the evidence of recovery of stolen property is concerned, it may De mentioned that the learned trial court severely criticised this evidence on various grounds in its charge to the jury. It would appear from his charge to the Jury that the learned Judge considered this part of the prosecution evidence to be quite unreliable. He invited the attention of the jury to the fact that no list of stolen property was given in the first information report in spite of the fact that the said report was made after a good deal of delay and deliberation. He also went on to consider the list of stolen property which was produced on behalf of the prosecution. In this connection he drew the attention of the jury to the serious contradiction that existed between the statement of the investigating officer and that of Raja Ram on the point/According to the statement of the investigating officer, the list was ready when he reached the spot. On the other hand, Raja Ram's statement would show that the list was dictated by Moti Lal after the investigation had started while Moti Lal was giving his statement to the investigating officer. The trial court considered the statement of the investigating officer unreliable on the point and held the list of stolen property to be inadmissible under Section 162, Cr. P. C. Further the trial court expressed its view to the effect that the identification proceedings in the case could not be relied upon as genuine. It was admitted by witnesses on behalf of the prosecution that all the stolen ornaments were new and it was also admitted by the said witnesses that all the ornaments mixed with them were old. Under these circumstances the trial Court did not consider the Identification proceedings relating to property as worthy of any credence. The trial court further pointed out the fact that the items of stolen property produced in the case were not properly exhibited. The exhibit marks on the said items did not tally with the list of material exhibits in the calendar. As a result all the material exhibits were in a total mess and it was impossible to say which article was picked out by which witness before the identification Magistrate and before the Committing Court. In view of this confusion, it was also not possible to say whether the witnesses had identified the same articles in the Court of Session as they had in the other two courts. After criticising the evidence of identification of the property in the above manner, the learned trial Judge summed up his conclusions as follows: Thus the identification proceedings in respect of the property is extremely doubtful and it cannot fix any crime against any accused without any doubt. The fact that old ornaments were mixed with these ornaments shows that a proper test was not applied and the witnesses were not put to sufficient test in order to assess their ability to point out the looted ornaments. Under the circumstances it cannot be said that these ornaments were looted in the dacoity and that they were properly Identified by the witnesses subsequently. It would, therefore, be dangerous to hold this point in favour of the prosecution on the fact as it stands before you.