BIBHUTI Vs. STATE

JUDGEMENT

(1.) THIS appeal by Bibhuti is directed against his conviction under Section 412 IPC and sentence of 5 years' rigorous imprisonment for the same.

(2.) THE appellant was committed for trial to the court of Sessions, Varanasi along with Murli, Sachan, Kartik, Sehasan and Harihar who were charged for the offence punishable under section 395 read with Section 397 IPC for having committed dacoity at the house of Lalji and for having used deadly weapons causing grievous hurt to Baijnath, Lalji, Nanku and Balkaran in the course of that dacoity in village Mathela on the night between the 6th ami 7th November, 1970. THE appellant was charged for the offence punishable under section 412 IPC on account of having been found in possession of certain gold and silver ornaments of Mb. November, 1970. Murli, Sachan, Kartik, Sinhusan and Harihar were found to be not guilty of the offence punisnable under section 395 read with section 397 IPC and were acquitted, but the appellant was found guilty of the offence punishable under Section 412 IPC by the learned 11 Temporary Civil and Sessions Judge, Varanasi.

(3.) ALTHOUGH the other accused charged for dacoity have been acquitted of the same, the learned counsel did not question before me the fact that a dacoity had been committed at the house of Lalji in village Mathela during the night between 6th and 7th November, 1970. The fact that certain ornaments were recovered by the police during the course of investigation into that dacoity cannot also be seriously disputed inasmuch as the ornaments have been in custody of the police. The fact that possession of these ornaments was transferred by the commission of the said dacoity is proved by the evidence of identification of the said ornaments. There were three identification witnesses, namely, Sri Lalji, Smt. Ram Dulari wife of Lalji and Smt. Malti Devi wife of Gopal, and all the three of them identified -all the ornaments correctly, vide Ex. Ka-11. These witnesses of identification also appeared in the court of Sessions, Lalji as PW 1, Smt. Ram Dulari as PW 5 and Smt. Malti Devi as PW 6 and proved that the ornaments belonged to them. After giving the details of the looted ornaments Lalji stated in his statement on oath that he saw them for the first time after the dacoity only in the presence of the Magistrate in the course of identification proceedings and did not see them during the intervening period. When asked about the details of the ornaments in his cross-examination he stood the test very well and categorically denied the suggestion that the ornaments had been shown to him or to his family members after the recovery by the police or that the ornaments with which they had been mixed were not similar. He also denied the defence suggestion that the ornaments did not belong to his house-hold. Smt. Ram Dulari PW 5, also stated in detail about the looting of ornaments and testified the fact that they had been taken away by the dacoits at the said dacoity. She also stated that she had seen the ornaments for the first time after the dacoity in the course of the identification proceedings and had not seen them in between. In her cross- examination, she also stood the test quite well. The learned counsel, however, laid some emphasis on her statement in the cross-examination to the effect that she did not remember who the strings had been tied to the ornaments in the course of the identification proceedings or that the strings had been tied to the ornaments belonging to her house-hold. She denied the suggestion that there were any labels on the ornaments and also the suggestion that the ornaments had been shown to her by the police or that she could identify the ornaments only because of the same. Smt. Malti Devi PW 6, also made a similar statement with regard to the identity of the ornaments and also stood the cross-examination well. The part of her statement in the cross-examination, which was emphasis by the learned counsel was to the effect that the necklace was found broken at the time of the identification though it was not broken earlier it was strewn earlier but was not at the time of the identification ; that the ornaments which had been mixed up were similarly broken and unstrewn. She stated that she could recognise the ornaments because she saw mem in the house and used them. She then stated that string was tied to certain ornaments at the time of identification, that string was tied to some of the other ornaments with which they were mixed. Red string was tied to the ornaments. The stolen Hansli as well as the Hansli with which it was mixed up had a red string tied to them. Red string was tied to all the ornaments of her house and also to all the ornaments with which they were mixed.