BALYA ALIAS BALA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS jail appeal ii directed against the judgment dated September 29. 1976 of the learned Additional Sessions Judge, Bundi whereby he convicted the accused -appellants Balya, Madan, Sheoji, Chhitar and Nand Lal under Section 395, IPC and sentenced each of them to five years' rigorous imprisonment, and a fine of Rs. 200/ -, in default of the payment of which each to suffer further rigorous imprisonment for three months.

(2.) THE facts giving rise to this appeal are that on the intervening night of 8th and 9th March, 1975 the appellants in the company of other persons committed a dacoity at the house of Bhar warlal, son of Shri Kana Dhakar, situated in village Gordhanpura. The first information report Ex. P.2 of this occurrence was lodge d at the Police Station, Jawaharsagar Dam on March 9, 1975. During the course of investigation a test identification parade was held under the supervision of PW 31 Shri Deochand Meena, in which the accused -appellants Madan, Balaram and Nandlal were identified. The identification memos are Ex. P.54, Ex P.55 and Ex. P.56. Various articles were recovered at the instance of the accused -appellants during the course of investigation, in consequence of the information given by them. The Police after usual investigation submitted a challan against all the five accused -appellants in the Court of Chief Judicial Magistrate. Bundi, who committed them to the Court of Sessions for trial and ultimately the case was tried by the learned Additional Sessions Judge, Bundi The evidence relied upon by the prosecution for getting the accused -appellants convicted can be classified under the following -heads:

(3.) THE controversy in this case has been reduced to a narrow compass. Looking to the preponderance of the evidence on record the learned Counsel, appearing on behalf of the appellants, has conceded that there are no sufficient grounds to challenge the evidence regarding recovery of the stolen property from the possession of the accused -appellants He has further urged that there is sufficient evidence on the record to hold that the various articles recovered from the possession of the accused -appellants have been identified to be that of the complainant. I have looted into the relevant portions of the record and am satisfied that the learned Counsel appearing on be half of the accused -appellants has rightly conceded on this point. I find considerable merit in the contention of the learned Counsel for the appellants that the evidence of PW 9 Ramkaran regarding making of extra judicial confessions to him by the accused -appellants Chhitar and Sheoji cannot be relied upon. This witness was declared hostile and the prosecution was given permission to cross -examine him. He has made a vacillating statement. In his examination -in -chief he did not state that the above mentioned two accused -appellants made extra -judicial confessions before him, but in his cross -examination he made a voltaire face and stated that the) made extra -judicial confessions. The statement of this witness read as a whole does not inspire any confidence. There was no occasion for these two accused -appellants to make extra -judicial confessions to this witness, and the evidence regarding the extra -judicial confessions against these two accused -appellants, cannot be relied upon. As regards the appellants being seen near the place of the occurrence prior to the commission of dacoity it would suffice to say that the only evidence on this point is that of PW 9 Ramkaran, who is alleged to have seen the accused -appellants in the comply of other persons drinking liquor in his own village Budhpura ar.d later on going out of the village the dacoity did not lake place in his own village. It took place in village Gordhanpura. Thus there is no nexus between the occurrence and his seeing them in his village. Moreover this witness has been held to be unreliable by me for the reasons mentioned above. The evidence on record on this point cannot be said to be sufficient to connect the accused -appellants with the crime. Thus the only evidence which remains against the accused -appellants is that of the recovery of the articles, in consequence of the information given by the accused -appellants, alleged to have been taken away by the miscreants during the course of dacoity, which took place in village Gordhanpura, at the house of Bhanwar Lal on the intervening night of 8th and 9th March, 1975.