MOTI LAL Vs. STATE

JUDGEMENT

(1.) This case raises an interesting point of law in regard to the interpretation of Section 27 of the Evidence Act. The case came up for hearing before a learned single Judge of this Court and was referred to a Division Bench.

(2.) The petitioner, Moti Lal, has been convicted under Section 411 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- or in default to undergo further rigorous imprisonment for three months. One Lakhan Lal, who is a close agnatic relation of the petitioner and lives in the same premises where the petitioner lives, was also convicted under the same section along with the petitioner. Both the convicts filed an appeal before the lower appellate court and their appeal was dismissed. Only Moti Lal has come up to this court in revision.

(3.) On the night between the 14th and 15th of July, 1955, there was a theft in the house of one Bhagwan Das (P. W. 1) in village Hasua, district Gaya. There was an alarm and the thieves were running away with valuables and articles from the house of Bhagwan Das but they could not be caught. Information was lodged at the police station Hasua at 8 a.m. on the 15th July. A list of properties stolen was also given along with the written information. A formal first information report was drawn up and investigation started. During the course of the investigation, the Sub-Inspector of Police got some information against Moti Lal and Lakhan Lal about their complicity in the crime. He made a requisition to the Assistant Sub-Inspector of Police, R. N. Singh (P. W. 2) to search the house which was jointly occupied by the said two persons. The Assistant Sub-Inspector went to the house the same day, that is, on 15-7-55 and in presence of the search witnesses he is said to have recovered from the roof of the southern verandah upstairs a gold 'tabiz' and 12 Government Currency notes of Rs. 10/- each. The tabiz was found wrapped up within the notes and kept concealed in the olti of the verandah which is in common use of both Moti Lal and Lakhan Lal. He also recovered 9 Government Currency notes of Rs. 10/- each from a tin dibba which was on a takha of a western room upstairs occupied by petitioner Moti Lal. He seized the recovered articles and prepared their search list in presence of the accused and the search witnesses, who attested the document. Thereafter, the prosecution case further is, the two accused were questioned and both of them are said to have given out that they had kept some utensils in a sota, (stream) which was close to their house. On getting such information from the accused, the Assistant Sub-Inspector went to that sota and both the accused are said to have pointed out the place. Thereafter the part which is ascribed to the petitioner Moti Lal is that he took out the utensils from the said sota in presence of the Assistant Sub-Inspector. The utensils were kept concealed in the sota and on their being taken out a search list (Ext. 4) was prepared in presence of both the accused and the search witnesses. After that, the two accused are said to have pointed out a well in their house as a place where some ornaments had been concealed, but, by that time, there was sufficient darkness and nobody could be found out to go into the well that night. The well was kept under guard by the police and on the following day, i.e. on 16-7-55, one Shree Charan Dusadh entered the well at the instance of the Sub-Inspector (P. W. 9) and brought out some ornaments. A search list was prepared about this recovery of the ornaments also. A test identification parade of the recovered articles was arranged and the' articles were identified by P. W. 1, the informant. The two accused were put on trial and were convicted and sentenced under Section 411 of the Indian Penal Code.