STATE Vs. BANWARI

JUDGEMENT

(1.) THIS is an appeal against the acquittal of the respondents Banwari Godara, Ramrikh, Sahiram, Banwari Suthar and Budh Singh of offences under sec. 395 read with sec. 397 of the India Penal Code and sec. 450 of the Indian Penal Code by the Sessions Judge of Ganganagar.

(2.) THE case for the prosecution is that a dacoity took place at the house of Chet Ram, situate in Chak 58 L. N. P. on the 27th of November, 1955 at about 8 or 9 P. M. Mst. Chawli wife of Chetram was alone in the house, and Chetram had gone away from his house into the village in connection with some work. A first information report was orally lodged by Likhmichand son of Ghetram (who lived separately from his father) on the night between the 27th and 28th of November, at 2 a. m. at the police station Padampur which is at a distance of 23 miles from Chetram's village. THE Station House Officer Thana Padampur recorded this report Ex. P. 1 THE report made by Likhmichand was that some six or seven armed dacoits had raided his father's house in 58 L. N. P. at 7 p. m. on the previous evening, that they fired several shots and bear Mst. Chawli, his mother, in order to compel her to show the valuables. It was further stated that the dacoits continued the loot till about 8 p. m. and carried away cash and other property of the value of about ten to fifteen thousand rupees and also a 12 bore double barrel gun which was duly licensed. Likhmichand made it clear in this report that he was living separately from his father and, therefore, he was not in a position to give a full account of the looted property and that his father himself would give a detailed list, and he had been sent merely to lodge the report and, therefore, he prayed that necessary action be taken. On the 28th November. 1955 Chetram gave a list of the looted property Ex P. 2. to the investigating officer. THE police commenced the usual investigation, and among other things, which it is unnecessary to mention, recovered 11 fired 303 cartridges and 35 fired cartridges of 12 bore from the roof and angan of Chetram's house. As the culprits were obviously not known, the police could not lay their hands on them until the beginning of January, 1959. It was on the 8th January 1956 that P. W. 1 Lekhram, who subsequently became approver, voluntarily surrendered before the Deputy Superintendent of Police, Shri Man Singh, at Gangangar. THE case for the prosecution is that Lekhram disclosed all the facts to Shri Man Singh, and on the strength of the information thus furnished the police arrested the respondents Banwari Godara, Budh Singh, Sahiram and Banwari Suthar from their dhanis on that very day. THE respondent Ramrikh was arrested later in November, 1956. Certain recoveries are alleged to have been made at the instance of the accused person other than Ramrikh in between the period from the 9th of January 1956 upto the 20th January 1956, and the recovery of a khes was made from the house of Ram Rikh on 29th November, 1956. THE accused persons with the exception of one Maniram, who is alleged to be one of the dacoits and who is still at large, were eventually challaned and committed to the Court of the learned Sessions Judge, Ganganagar to stand their trial for offences under see. 395 read with sec. 397 of the India Penal Code and sec. 450 of the Indian Penal Code. THE learned Sessions Judge has acquitted all the accused and the State has come up to this Court in appeal. All the accused denied to have had anything to do with the offences with which they were charged. THEy also denied the recoveries alleged to have been made from them. So far as the currency notes recovered go, the accused claimed them to be their own. As for the firearms alleged to have been recovered from the accused, they completely denied these recoveries at their instance. Respondent Banwari Godara further alleged that there was enmity between him and the approver Lekhram,and there was intimacy between Lekhram and Chetram, and therefore, he had been implicated falsely.

(3.) IT is urged by the learned Deputy Government Advocate that such corroboration is available in the present case with respect to each of the accused, as recoveries were made at their instance as mentioned below. IT is said that one 12 bore gun Ex. 4 belong ing to Chetram and with his name engraved on it was found in Banwari Godara's house on the 9th of January 1956 at his instance, (vide Exs. 13 and 14 ). IT is further contended that this accused gave discovery of currency notes amounting to Rs. 1000/-which were also found at a place near his house and were recovered on the 19th of January 1956, ten days after the first recovery was made (vide Exs. 27 and 28 ). Similarly, it is contended in connection with the accused Sahiram that a 12 bore pistol and cash amounting to Rs. 711/- were recovered from his house and at his instance on the 15th January, 1956 (vide Exs. 15 and 16 ). So also a 303 rifle was recovered from the roof of Budh Singh's house at his instance on the 15th January, 1956 (vide Exs. 17 and 18 ). A further recovery is also alleged to have been made from Budh Singh's house of currency notes of the value of Rs. 440/- and a khes bearing the name of Chetram complainant and a piece of silver Chhailkara. This discovery was given on the 20th of January, 1956. Similarly, it is contended that a bandolier containing cartridges and a khes bearing Chetram's name on it and currency notes worth Rs. 1000/- were recovered from Banwari Suthar's house at his instance on the 20th January, 1956 (vide Exs. 21 and 22 ). So far as the accused Ramrikh is concerned, the only article which is said to have been recovered from him is a khes (vide Exs. 33 and 34 ). Apart altogether from the criticism that currency notes were unidentifiable and their recovery is of no consequence. The learned trial Judge has held these recoveries to be of a highly suspicious character principally on the ground that they were made a long time after the accused were arrested on the 8th of January, 1956. I have carefully examined the question of the weight which should be attached to the recoveries mentioned above, and I cannot help stating that the investigating officer acted in a clearly unintelligent manner when he failed to search the houses of these accused in almost all cases (except that of Banwari Godara, immediately after they had been arrested. The criticism of the learned Session Judge in this connection is not without force and I am not prepared for the reasons, which the learned Sessions Judge has given in his judgment and which I need not repeat here, that the recoveries made from the accused Budh Singh, Banwari Suthar, Sahiram and Ramrikh do not inspire much confidence. If these recoveries had been made on the 8th or 9th January 1956, they would have afforded fairly good corroboration of the statement of the approver, but as that was not done, I see no compelling reasons to take a different view from that taken by the learned Sessions Judge so far as these accused are concerned. The case of the recovery of the gun (Ex. 4) however from the house of Banwari Godara, in my opinion, clearly stands on an entirely different footing. IT is true that even the house of this accused was searched not on the 8th January 1956 but on the 9th January. But that, in my opinion may be due to good reasons, and one such reason which has given by the investigating officer is that he was anxious to arrest all the accused at once rather than to spend time in making the searches also on the 8th on which date all the accused were actually arrested. This reason cannot be said to be wrong. The recovery of the gun from Banwari Godara's house was thus made on the 9th January, 1956 (vide Exs. 13 and 14 ). As already stated above, the first information report clearly mentioned that a 12 bore double barrel gun of Chetram had been taken away by the dacoits. This fact was further mentioned in Ex. P. 2 which was the list of the stolen articles given by the complainant Chetram to the investigating officer as soon as he came on the spot. A contention was raised at the bar that this list was not admissible because it was a statement made by the complainant to a police officer during the course of investigation and was hit by sec. 162 of the Code of Criminal Procedure. This argument, in my opinion, has no force. The question whether this list is hit by sec. 162 of the Criminal Procedure Code depends upon whether the investigation had commenced before this list was handed over to the investigating officer. I am clearly of the view that the investigation in this case had not begun until the Sub-inspector Police Station Padampur arrived on the spot on the receipt of the first information report Ex. P. l. In this report, P. W. Likhmichand son of the complainant had clearly stated that he was living separately from his father, and that a detailed list of the stolen property would be given by his father who naturally was alone aware of the details of the looted property. I therefore, hold that the list given by Chetram (vide Ex. 2) of the stolen property was really part of the first information report and is legally admissible in evidence. The view taken by me finds full support from a Bench decision of this Court in Sanwalia vs. The State (4 ). Now what is very important in this connection is that in the list Ex. P. 2 (and there is nothing on this record to doubt the authenticity of this list) it was clearly given out by Chetram that his name was engraved on the 12 bore double barrel gun which had been taken away by the dacoits. The gun Ex. 4 recovered from Banwari Godara's house does bear Chetram's name. IT also gives the description of Chetram as son of Chenaram of Chak 58 L. N. P. , Tehsil Padampur State Bikaner. That Chetram held licence for this very gun is proved by the evidence of Hariram P. W. 36. This recovery has been proved by the evidence of the investigating officer Laxminarain P. W. 31 and of Hemaram P. W. 9. The evidence of Hemaram is that the accused took out the gun Ex. 4 from a bundle of clothes which were lying on a cot and handed over to the police. The witness also stated that the name of Chetram son of Chenaram Kumhar was engraved on it. I see no cogent reason to disbelieve the evidence of this witness. As already stated above, the recovery was made as early as 9th January, 1956. The accused had been arrested on the previous day. I have no hesitation in saying that the learned Sessions Judge fell into a serious error resulting in miscarriage of justice when he failed to give the circumstances of this recovery their due attention and weight. In this view of the matter, I hold that so far as the recoveries are concerned, the evidence of the approver receives the necessary corroboration in the case of the accused Banwari Godara only, but they do not afford reliable corroboration so far as the other accused are concerned.