LOTAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE two connected revisions arisc out of the judgment of the Ist temporary Sessions Judge, Hamirpur the three applicants, namely, Gumman,- Lotan and Hakia were prosecuted under Section 411 I. P. C. for being in possession of certain ornaments and other articles which had been stolen from the house of one Smt. Izzat Bai. On 7-9-1968 in the afternoon, the houses of these applicants, were searched and on their pointing, the ornaments were recovered. The applicants denied the recovery and pleaded that they have been falsely implicated due to entnity. The trial court believed this recovery and sentenced each applicant to undergo rigorous imprisonment for 18 months. On appeal, the learned Sessions Judge agreed with the finding recorded by the trial court and affirmed their conviction and sentences. One Ramma, who had also been coiwicted by the Magistrate was, however, acquitted by tfte learned Sessions Judges.

(2.) THE only point which has arisen in these two connected revisions is that on the pointing out of Hakia applicant, a country made pistol and three cartridges had also been recovered and for this recovery he was separately prosscuted under Section 25 of the Arms Act. By judgment dated 17-6-1969, Hakia was acquitted of that charge, because the oral evidence regarding the recovery was not found satisfactory and reliable. THE S. l who made the recovery is now dead an.d the prosecution relied on the statements of two witnesses, namely, Khalil Khan and Dhani Rani. THEse very witnesses were examined by the prosecution in the case under the Arms Act and were found to be unreliable. THE question, therefore, is whether this recovery. which is sought to be proved by the statemsnts of those two witnesses, can really be believed. THE line of reasoning adopted by the learned Sessions Judge seems to be that because the recovery of ornaments and the recovery of the pistol and cartridges was different in point of time and place, the acquittal under the Arms Act and the grounds of that acquittal should not adversely affect the prosecution case in the instant case. I have looked into the facts and in my opinion the approach of the lower appellate court is too technical. THE ornaments and the pistol were recovered from the same house and the only possibility is that they might had been recovered from two different portions of the same house. It is in this sense that the learned Sessions Judge has observed that the two recoveries are different as regards the place. Similarly, if the two recoveries had been made from two different portions of the same house, naturally there must have bccn a gap of at least a few minutes in the two recoveries. It would, therefore, be futile in these circumstances to observe that the two recoveries were different in point of time. In order to determine whether the various recoveries really formed one and the same transaction, we have to look into the various circumstances and the matter should not be decided on the basis of such techni-calities and hair-splitting. If the Police Officer questioned the applicants at one and the same time and all the recoveries were made one after the other in quick succession, although from different portions, the whole should be considered as one and the same transaction. It is true that because the charges are different, the trial is not barred. But as observed in the case of Mainpur Adininistration v. Thokchom Bira Singh (A. I. R. 1965 S. C. 87), it is a rule of estoppel. This rule precludes the reception of evidence to disturb the finding of fact, when the accused is tried subsequently even for a different offence. It is needless to say that the two witnesses. namely, Khalil Khan and Dhani Ram were examined by the prosecution to prove all the recoveries and if they have been found to be unreliable in respect of a part of that recovery, I am of opinion that it would not be fair and proper to sustain the conviction of these applicant on the basis of the testimony of those very witnesses. For these reasons,the conviction and sentence of all these applicants will have to be set aside.