BHAGWATI Vs. STATE OF M P

JUDGEMENT

(1.) THE judgment in the appeal shall also dispose of Criminal, Appeal No 1306 of 1982 (Khilawan and two others v. The State of Madhya Pradesh)

(2.) INITIALLY , seven accused were prosecuted for offences under sections 450 and 395 read with section 397 of the - Indian Penal Code for committing armed dacoity in the night intervening 4th and 5th November, 1982, in the house of Ramgulam alias Suraj Singh (P.W.1) in the village Russalla under the jurisdiction of the Police Station, Khurai. The report of the - incident was lodged by Ramgulam (P.W.1) Vide Ex. P -03 the next day at 1.30 P.M. at the said police station, situated at a distance of 8 Kilometers from the place of incident. According to the prosecution case, while Rarngulam (P.W.1) was sleeping on his Alar; in the Dahlan 2nd his son Jagdish (P.W.2) and daughters Phulatai (P.W.3) and Chandrabai (P.W.4) were sleeping in the courtyard, four persons, two of them armed with Katamasand the other two with lathis, entered the premises each carrying a torch and threatened Ramgulam (P.W.1), tied him and asked him to awake his daughter it is further the case of the prosecution that these dacoits thereafter asked Phujabai (P.W.3) and Chandrabai (P.W.4) to remove the ornaments, as detailed in the First Information Report. It is alleged that these persons took Ramgulam (P.W.1) inside the house and removed ornaments from the box and finally fled from the spot. The First Information Report also discloses the featutes of the dacoity. It has also been mentioned in the First Information Report that Ramgulam (P.W.1) would be able to identify the dacoits.

(3.) 1.1981, in which Ramgulam (P.W. 1), Jagdish Prasad (P.W. 2), Phulabai (P.W.3) and Chandrabai (P.W.4) have identified the appellants/accused Bhagwati, Munna and Kailash. It was pointed out from the evidence of J.P. Abirwar (P.W.10) that the defence has not put any question so as to reject his testimony. Further argument of the learned panel advocate was that the prosecution has also proved beyond all reasonable doubt that threats were given by the accused persons when they entered the premises. It was pointed out that Ramgulam (P.W.1) was tied with ropes. It was also pointed out from the evidence of Phulabai (P.W.3) and Chandrabai (P.W.4) that they were asked to remove the ornaments and hand over the same to the accused persons. The test identification of the ornaments was conducted on 31. 1 .1981, in which all the ornaments were identified by Phldabai (P.W. 3) and Chandrabai (P.W.4) So far as Ramgulam (P.W. 1) was concerned, it was pointed out that he had identified all the ornaments except Bangri (Article I -I and 1 -2). The learned Panel Advocate further submitted that mere denial of the seizure of ornaments at their instance -by the appellants would not make the prosecution case weak. 8. Having considered the arguments advanced on behalf of the parties and perused the records, it is seen that the conviction of the appellants is based on their identification and the identification of the ornaments connected with the dacoity. Under these circumstances, it may be first seen whether the appellants could have been identified during the commission of the dacoity. Ramgulam (P.W. 1) in his testimony has stated that the dacoits had torch with them. This fact is also mentioned in the First Information Report lodged by Ramgulam soon after the incident. His testimony further discloses t1mt he could identify three of the dacoits in the light of the torch. In the test identification held on 4.1.I981, Ramgulam (P.W.1), has identified the appellants Bhagwati, Munna and Kailash. It is true that this witness has not stated about lantern of which he speaks in his testimony in the F.I.R: Ex. P. 3, This contradiction is of some weight but in view of the fact that torch was flashed during the commission of the dacoity, it cannot be said that Ramgulam (P.W.1) could not have noted the features of the dacoits. According to him, he could note the feetures of only three of the dacoits. Perusal of the F.I.R. Ex. P -3 shows details as regards features of the docoits. These three appellants have also been identified by Jagdish Prasad (P.W. 2), Phulabai (P.W.3)and Chandrabai (P.W.4) in the test identification parade. It is also noted from the testimony of Ramgulam (P.W.1) that curing the trial he had pointed out appellants Munna and Kailach and also testified to the fact that the appellant Bhagwati was one of the decoits, who had entered his premises. So far as Jagdish Prasad (P.W.2) is concerned, he has, in his testimony, stated that he was threatened by the dacoits. He had identified also Bhagwati, Kailash and Munna during the test identification but could point, out appellants Kailash and Munna during the trial. The testImony of Phulabai (P.W. 3) and Chandrabai (P.W. 4) is also to the same effect. However, it may be stated that in addition to what has been stated by Ramgulam (P.W. 1) and Jagdish Prasad (P.W. 2), Phulabai (P.W. 3) and Chandrabai (P.W. 4) had further the opportunity of observing the dacoits since ornaments worn by them were asked to be removed and handed over. It is also seen that there is no cross -examination of any of the aforesaid witnesses so far the identification of appellants Bhagwati, Kailash and Munna are concerned. Under these circumstances. I see no reason to reject testimony of Ramgulam (P.W.1), Jagdish rasad (P.W. 2), Phunabai (P.W.3) and Chand at (P.W. 4) so far as it relates to the identifierion of the appellants Bhagwati, Kai1as and Munna. Learned counsel for the appellants, however, relied on Ram Pukar Thakur v. state of Bihar1 to show that the dacoits should not have been identified in the torch light. In that case, there was the testimony of a soliry eye -witness who claimed to have identified eight of the assailants in the flash of the torbh but in the report submitted by him in writing, he had failed to mention about the, torch. Even the names of the family assailants were not disclosed by the other members of the family and the explanation offered for this omission was accepted by the High Court but was rejected by their Lordships of the Supreme Court. This is not the position in the present case where in addition to the testimony of Ramgulam (P.W.1) and Jagdish Prasad (P.W.2) there is evidence of Phulabai (P.W. 3) and Chandrabai (P.W. 4) from whom the ornaments were asked, to be removed and handed over to them and thus both Phulabai (P.W.3) and Chandrabai (P.W. 4) had ample opportunity to note the features. The other decision relied upon by the learned counsel for the appellant Bala Huddar v. Hmperor2 lays down the principle that under the provisions of section 27 of the Evidence Act, only statements which directly bear on the discovery of property are admissible and that confessional statements not directly bearing upon the discovery are inadmissible. The learned counsel, however, could not point out from any of the memorandums recorded under section 27 of the Evidence Act that any of the confessional statements made by any of the appellants have been taken into consideration by the trial Court. So far as the question of the application of the provision of section 120 -B of the Indian Penal Code is concerned, the same is not relevant nor is it the case of the prosecution that these appellants had conspired to commit the offence. Constructive liability as regards the persons who were not armed whether could be convicted with the aid of section 397 of the Indian Penal Code will be dealt with at appropriate stage. 9. The next question to be considered relates to the identification of the ornaments seized at the instance of the appellants Bhagwati, Kailash and Munna, From the appellant Kailash Titlana (Art. A) Silver Lachha (Art, F.6 to F -8) and from the appellant Munna pair of silver Bangri (Articles I -1 and 1 -2) were seized on 11 -11 -1980. The ornaments seized from the appellants Bhagwati are one pair of silver Ayal (Articles C -1 and C -2), which have been identified by Ramgulam (P.W.1), Phulabai (P.W.3) and Chandrabai (P.W. 4). It has already been noted that the appellants have - not claimed any of the ornaments seized at their instance. In his testimony, Ramgulam (P.W.1), has, however, stated that there is no other identifying marks on the ornaments. So far as Phulabai (P.W.3) is concerned, she has identified all the ocents in the identification vide Ex. P. 2. The testimony of Chandrabai (P.W.4), Who has also identified all the ornaments in the test identification has stated that she could identify the ornaments as belonging to her. According to the testimony of J.P. Ahirwar (P.W.10), who had conducted the test identification of the ornaments, the ornaments which were to be identified were mixed with almost identical ornaments and all precaution was taken during the said identification. There is, thus, no reason to reject the test identification of the ornaments. In view of the consistent prosecution evidence on record, the finding recorded by the learned trial court that the appellants Bhagwati, Kailash and Munna had committed robbery needs no interference., 10. So far as the other appellants, namely, Khilawan, Motisingh and Kisan (Criminal Appeal No. 1306 of 1982) are concerned, the trial court has held that the ornaments seized at their instance formed part of the ornaments looted during the dacoity and that these three appellants knowing acquired the possession of these ornaments, is based on proper appreciation of the prosecution evidence on record which does not call for any interference in this appeal. These three abovementioned appellants have not tendered any explanation for the possession of the ornaments connected with the dacoity. In view of the clinching prosecution evidence on record, the appeal preferred by the aforesaid appellants has no merit and is accordingly dismissed. 11. Lastly, the question that remains to be considered is whether the appellants Bhagwati alias Prakash, Kailash and Munna could be convicted with the aid of the provision of section 397 of the Indian Penal Code. The First Information Report lodged by Ramgulam (P.W. 1) shows that out of the four persons who had trespassed into the house, two of them were armed with knives while the other two had lathis with them Ramgulam (P.W.1), in his testimony, while identifying the appellants Munna, Kailash and Bhagwati during the trial, has not testified to the fact as to which of the appellants carried which of the weapons although this witness has stated that he was threatened and tied by the dacoits. His testimony is corroborated by Phulabai (P.W.3) and Chandrabai (P.W.4) Although there is no specific allegation as regards which of the appellants had carried which of the weapons against any of the appellants, this witness has stated that each of the decoits carried a torch and either a Katarna or lathi. 1 t is also pertinent to note that this witness has not been put any question in the cross -examination relating to the fact that Ramgulam (P.W.1) was tied up or on the question of the weapons carried by them or even on the point that these dacoits during the commission of the crime had threatened this witness. The testimony of Ramgulam (P.W.1), is corroborated by. the other two eye -witnesses; namely, Phulabai (P.W.3) and Chandrabai (P.W.4). Under these circumstances, I see no reason to discredit the testimony of these witnesses. It may be observed that for purposes of conviction with the aid of the provision of section 397 of the Indian Penal Code, it is not necessary to cause any injury. In my opinion, the evidence tendered by the prosecution completely makes out a case within the meaning of the provisions 'contained in section 397 of the Indian Penal Code. In view of this, the conviction of the appellants Bhagwati alias Prakash, Kailash and Munna with the aid of section 397 of the Indian Penal Code does not call for any interference in this appeal. 12. For the reasons aforesaid, there is no substance in the appeals and are accordingly dismissed. Appeal dismissed 1.1944 3S.C.C.664 2. A.I.R. 1933 Nagpur 252.