RAMADAS & ORS. Vs. STATE

JUDGEMENT

(1.) These are five appeals by the accused 1 to 5 against their conviction and sentence by the Asst. Sessions Judge, Warangal for offences under. Section 395 Indian Penal Code. The sentence awarded to each of them was five years rigorous imprisonment.

(2.) The prosecution case is that about 17 persons including these five accused committed dacoity in the village of Paidapalli, Warangal District armed with guns, lathis and torch lights, in the house of P.W.1 Manmatha Reddy and P.W.2 Anantha Reddy and took away property, gold and silver ornaments and other property valued at about Rs. 6,351-80 np and they further stole a double barrel 12 bore gun belonging to Manmatha Reddy and caused injuries to some persons in the course of this depredation. P.W.1 Manmatha Reddy, the Police Patel of Paidapaili said that on 9.3.1958 at about 6.30 p.m. when he was taking his food, his daughter aged about 11 or 12 informed him that she saw light from flash light torches coming from the house of P.W.2. P.W.1 immediately washed his hands and was about to ascertain what it was when the thieves clad in khaki police dress came to his house posing as policemen and one of them stated that Sub Inspector, Balakrishna wanted to inspect the gun and made P.W.1 get it. When he brought it, one of the thieves snatched it away and A-2 and A-5 armed with rifles caught him by the hands and took him upstairs where they broke open his almirah and took away hit cartridges and the gun licence No. 183 Warangal. Then he was taken by A-2 to A-5 to the house of his brother P.W.2 which was adjacent to his house and situated in the same compound when some of the members of the gang were present. The thieves then made him, P.W. 2 and 3 and others sit in a hall after which they were watched by the person who first snatched away his gun. The persons who first snatched away the gun then present pointed out the gun at him and threatened to shoot him if he moves. As they were kept under arrest in this way the other thieves broke open the boxes and almirahs in P.W. 2's house and removed valuables. They heard the weeping of P.W. 6 who was beaten in that compound. The thief watching them slowly stepped out of the hall. After that they heard some gun shots in the street and knowing that the thieves have gone away, they ran away through P.W-2's back door and ran to the agricultural farm from where they phoned the Warangal Police. The circle Inspector Rangarao who took the telephone came thereafter to the farm, picked up P.W.1 and 2 in their jeep and went northwards in search of the dacoit as he was informed that they had gone in that direction. The chase was unsuccessful. P.Ws. 1 and 2 and Rangarao returned home. The police inspected the scene of the occurrence, they saw the broken boxes etc, and examined the inmates. On the next morning they prepared a panchnama Ex. P-2 and seized the broken locks M.Os. 1 to 4. P.W. 1 also stated that the dacoits have also removed four gold bangles, a gold chain from his wife's person, one rolled gold wrist watch of his wife, a pair of silver chains and cash of Rs. 75/-. He further stated that while the other dacoits were looting A-1 dressed like the Sub Inspector of Police was hastening them to finish soon and was standing outside the house and be was coming often. M.Os 1 and 2 were seized from his house and M.Os 3 and 4 were seized from P.W. 2's house. P.W.2, Ananta Reddy, the cousin brother of P.W.1 deposes that his brother-in-law lives with him in his house, that on 9.3.58 thieves came in khaki dress and asked for his rifle and when he said he had no rifle they entered his house, broke open the lock of the room, that he, P.W. 3 and two servant boys were made to sit in a hall where P.W. 1 was also brought by A-2 and another armed with guns. He gives much the same version as that of P.W 1 relating to the commission of the dacoity. According to him thieves took away Rs. 290/- from the drawers and Rs. 1215/- from the Almirah, a gold cycle chain, gold chandraharam, mutyalagolusu, six rings, three pairs of earrings three jada puvvulu, one broach pin, a pair of lolaks, one hand kadiyam one gadiyarm golusu, one gopu tradu, four gold bangles, all made of gold, a silver kadiyam, two pairs of leg chains from the boxes besides snatching away the mangalasutram from his wife and from the wife of P.W. 3, four gold bangles and a chain from his mother. He identified A-1 and A-2 only.

(3.) The accused A-1 to A-3 were arrested in the village of Naidargi, Sholapur District, Bombay State on 29-3-1958 and A-4 and A-5 were arrested by Baramathi Police, Poona District on 5-7-1958 as a consequence of certain information given by one of the accused. After the arrest A-1 is alleged to have made a statement on 11-4-1958. On 16-4-1958, a few furlongs away from Akkalkot near a dilapidated toll-tax house A-1 brought out from the grass a bundle wrapped in an old news paper packet. From this M.Os 5 and 6 were seized. The mediatornama is Ex. P. 21 dated 16-4-1958. It may be stated that except for this recovery no other property including the gun, cartridges etc., were recovered from any of the accused. M.O. 6 is said to be a piece of Gopu Thradu while M.O. 5 is a piece of a wrist-watch chain. These two M.Os have been identified, M.O.6 as belonging to the mother of P.W.2, namely P.W. 6 and M.O.5 as belonging to P.W.2. These have been identified by P.Ws. 1, 2, 16 and 17 before P.W. 19, Nazir of the Munsiff Magistrate's Court, Warangal, who however, admits that he did not have other similar articles to mix M.Os. 5 and 6 at the time of the identification by the witness. The learned advocate for the accused states that M.O. 6 was not even mentioned in the list given to the police with the first information report Ex.P.1 and in so far as M.O. 5 is concerned he says that the watch chain is of an ordinary type and cannot be identified as particularly belonging to P.W.2. He further contends that the recovery is suspicious. It was made from an open place to which the public could have access and that it was not recovered as a consequence of any statement by the accused, as it took place at least five days after A-1 is alleged to have made a statement. In these circumstances the recovery should be rejected. Apart from the fact that the Gopu Thradu has not been mentioned in Ex.P-1, the recovery is artificial and suspicious. If A-1 had made a statement relating to his having hidden the case property M.Os 5 and 6 in a packet on 11-4-1958, there was no reason why the police did not get the things recovered. It is futile to say that the accused did not disclose the place but only said that he would get it. If he said soon 11-4-1958, it is incredible that the police did not persuade him to disclose the place where the packet was hidden. There can be no doubt that information must have been given. If so there was already a discovery and a subsequent recovery cannot come within the ambit of Section 27 of the Evidence Act. That apart, the place from which the articles were recovered is an open place. It is not as if he dig up and picked up. The bundle was lying on grass in a public high way to which any one could have access. I have no hesitation in rejecting this evidence as being inadmissible.