SAMIYA ALIAS SONIYA Vs. STATE

JUDGEMENT

(1.) THE appellant has been convicted by the learned IV Additional Sessions Judge, Rae Bareli, by his judgment and order dated 28-10-1980 under section 412 IPC and sentenced to undergo R. I. for two years. According to the prosecution a dacoity was committed at the house of Sukhlal in village Mahamadpur Chandaul, P. S. Mustafabad in district Rae Bareli at about 12.30 in the night between 23rd and 24th September, 1976. Dacoity was also committed in the house of Shyam Lal of the same village and injuries were caused to him as a result whereof Shyam Lal died. THE first information report was lodged by Sukhlal, the next morning. Some of the dacoits were named and about the rest it was said that they could be identified on being produced. Investigations were taken up. During the course of investigations the police raided the house of Ram Nihore Mallah, a resident of Village Baisan Ka Purwa, hemlet of Rasoolpur within the jurisdiction of police station Sultanpur Ghosh in district Fatehpur. While Ram Nihore could not be arrested, a search was taken of his house and on the opening of lock of the kothri by the appellant certain clothes and ornaments were recovered about which a memo was prepared and the articles were sealed. THE appellant was arrested and taken to police Station Mustafabad, district Rae Bareli along with the case property. Later the recovered property was put up for identification and on the receipt of the result thereof the appellant was charge-sheeted for an offence under section 412 IPC. Her contention at the trial was that nothing as alleged was recovered from her and it was incorrect to say that she was retaining the property knowing it to be property stolen in the dacoity. THE learned Sessions Judge on a consideration of the evidence agreed with the prosecution version and finding the appellant guilty convicted and sentenced her as above, and hence this appeal.

(2.) IT has been contended on behalf of the appellant that neither the fact of a dacoity having been committed at the house of Sukhlal had been established nor any property was recovered from the: appellant's possession much less could she be charged with the knowledge that the same was transferred as a result of the dacoity. The sentence awarded was also said to be severe. I have heard the learned counsel for the: appellant as also for the State and have also gone through the record.

(3.) IT will also appear from the identification memo Ext. Ka. 11 prepared by the Magistrate and the recovery memo Ext. Ka-2 that atleast two of the items said to have been recovered from the appellant and identified by two of the prosecution witnesses, had distinguishing marks on them and in the normal course they should have been mentioned by the informant either in the FIR or in the list supplied later which has, however, not come on record and would also be hit by section 162 CrPC. The informant should have also stated this atleast in the courre of his evidence at the trial but nothing like this has been done. The terrycot Pant Ext. 3 contains the tailor's mark on a label as "Star Tailors Mills Cinema Rae Bareli." Similarly, the handloom Saree Ext. 4 is stated to contain the name of the mill and some numbers printed thereon. Out of the various items of property said to have been recovered from the appellant, only four items were identified by Sukhlal and three by his son Manni Lal who were produced at the trial. Three of them were Clothes and the fourth is a pair of silver payal. Manni Lal, however, did not identify the silver payal. None of the ladies of the house, were examined at the trial although some of them had been sent to identify the property before the Magistrate. In view of these infirmities it is difficult to hold that these items belonged to Sukhlal and his family members and were looted in the dacoity. The value of the identification is also considerably reduced as already observed earlier. On this ground alone, therefore, the appellant deserves to be acquitted.