BHURGIRI Vs. STATE

JUDGEMENT

(1.) THIS is an Appeal by Bhurgiri and Manohar Singh who have been convicted under sec. 379 of the Indian Penal Code.

(2.) THE case relates to a dacoity which took place on the 26th November, 1951, in the jungle between Harel and Danthal at about sunset time. Ram Chandra, Gorilal, Rooplal, Mst. Gaikhi, Mst. Ganga and Mst. Roopi were returning from Bhilwara to Danthal when they were stopped by 7 or 8 daco-its in the way. One of these dacoits was armed with a gun, another had a sword, the rest had lathis with them. THEy began to these persons, and one of them shot Ramchandra through the abdomen. THEreafter, the dacoits forcibly removed the ornaments which the women were wearing, and also took away other property. After the dacoits had gone away. Ramchander and others reached village Danthal, and informed the Patwari of what had happened. THEreupon, a written report of the incident was sent by the Patwari to the Superintendent of Police Bhilwara next morning. Seven persons were arrested by the Police during the course of the investigation including the two appellants. Certain recoveries of looted property are also reported to have been made at the instance of the appellants. All the seven persons as the looted property were put up for identification. THEreafter, the case was sent to the court. All of them were committed by the Magistrate to stand their trial before the court of session. Five of them have been acquitted, while the two appellants have been convicted. Hence this appeal.

(3.) WE now turn to the case of Manohar Singh. The only recovery from him, on which reliance may be placed, is that of a Dhoti. The learned Judge relied on the recovery of a gun at the instance of the accused and of a sword from his house. These recoveries are of no value because there is no good evidence to prove that this gun and this sword were used in the dacoity. The Dhoti in question was recovered from a Bara. This Bara has got thorn fencing all-round. It is of the height of a man's knee. The place, therefore, from where the recovery took place, is unsafe, and anybody could have access to it, and place the Dhoti there if so minded. Reliance is placed on the fact that this Dhoti was recovered at the instance of the accused, and therefore he must be knowing that it was hidden at that place. The evidence of witnesses in court was that this Dhoti was recovered on the pointing out of the accused; but the recovery list Ex. P. 4 gives a somewhat different story. In the recovery list it is said that Manohar Singh and his brother Bheru Singh both said that the stolen property, namely a Dhoti and a pair of shoes, was at their house. They took the police to their house, and then Manohar Singh brought out this Dhoti Jora from the Bara, while Bheru Singh brought out the pair of shoes. WE are not satisfied, however, that this recovery took place at the instance of the accused. One Nanda was examined as a prosecution witness about recovery of the gun from him at the instance of Manoharsingh. He stated in cross-examination that he had been asked by the Head Constable to put a piece of Dhoti in a head of Karab in Manohar Singh's Bara, which he did, and thereafter the police recovered that piece after a few hours. Manohar Singh has denied that the Dhoti was recovered at his instance. He also denied that he was in possession of this Dhoti. Considering that the place where the Dhoti is found is quite unsafe, and the evidence of its recovery at the instance of Manohar Singh is doubtful, we are not prepared to hold that this Dhoti was recovered from the possession of Manohar Singh. If this evidence is discarded, three is nothing left against Manohar Singh. WE are, therefore, of opinion that Manohar Singh is entitled to an acquittal as the recovery of the Dhoti Jora from his possession is not proved beyond all doubt.