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CASE NO.: Appeal (crl.)  175 of 2000

PETITIONER: Narayan Prasad & Ors.                            

RESPONDENT: State of M.P.                                                       

DATE OF JUDGMENT: 08/11/2005

BENCH: Arun Kumar & A.K. MATHUR

JUDGMENT: J U D G M E N T  W I T H :

Criminal Appeal No. 177 of 2000  

A.K. MATHUR, J.

               Both these appeals are directed against the common  judgment dated 27.8.1999 passed by a Division Bench  of the  Madhya Pradesh High Court at Jabalpur,  therefore they are   disposed of by this common order.

These appeals are directed against the judgment passed by the  learned Division Bench  of the Madhya Pradesh High Court at  Jabalpur dated 27.8.1999 wherein the learned Division Bench  has  reversed the acquittal of the accused persons and accepted the State  appeal and convicted the appellant namely Kishan Lal, Mihilal, Labru,  Ramswaroop, Mukundi, Phulloo and Mustapha Khan for the offences  of dacoity and murder under Section 395 and 396 IPC and sentenced  each of them to life imprisonment on both  counts with fine of  Rs.1000/- each, in default of which they shall undergo further rigorous  imprisonment for two years each. However Lalu, one of the accused,  died  during the  pendency of appeal in High Court as such appeal   abated against him due to his death.  Learned Division Bench  also  convicted Abbas Khan, Rahim Khan and Narayan Prasad under  Section 412 IPC and they were sentenced to rigorous imprisonment  for 10 years each and fine of Rs.2000/- each in default they will  further suffer rigorous imprisonment for two years each.  Aggrieved   against the aforesaid order appeals have been filed by the appellants.

       We have heard the learned counsel for the parties and perused  the record.

       The brief facts which are necessary for the disposal of these  appeals are that the FIR was lodged by one Ram Kishore, PW-3 at  1.40 p.m. at P.S. Barahi.  It is alleged that he was sleeping in the  Parchhi of the house while his wife Sushila was sleeping in the inner  room of which the doors had been chained from the outside.  At  about mid night he noticed 3 persons tying his feet.  He woke up and  sat down.  One person was lighting a torch and another was tying his  feet.  The third was hitting him with a hunter(Koda).  Then two  persons entered the room after opening the chain.  One person ran  out of the house and exploded some bomb and again approached  him and started hitting him.  After sometime this man went to some  distance,  therefore, he opened his rope and ran to the house of Bare  Gond.  Along with Bare Gond he went to the Basti of Dhimars and  returned along with about 20 persons.  He then saw three persons

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running towards the village.  Many other persons from the village had  also come there and they chased the miscreants but returned without  catching anybody.  On reaching home he noticed his wife tied with  rope and was bleeding from her head.  The rope had been tied  around her neck also and she was unconscious. She ultimately  succumbed  to injuries. The box was found open and ornaments of  gold and silver were found missing.  The details of gold ornaments,  sliver ornaments and other valuable articles were furnished by him.   However, no specific name was mentioned in the FIR.  After  recovering from shock,  he gave the further  list of the gold and other  valuable articles missing from his house.  The police took up  the  investigation and during the course of the investigation they caught  hold of the accused and they were got identified by Ram Kishore,   complainant.  It was alleged that there was one more identifying  witness that is Ram Naresh but he was not examined as a witness in  court.  The various test identification memos Ex.P-5 to P-15 were  prepared identifying the articles which were recovered from various  places on the disclosure made by the accused persons.  Accused Mr.  Kishan Lal made a disclosure statement ex.P-23 on 20.10.1982  which led to the recovery of 6 silver lachha and one hunter in his  village and further led to the recovery of one pair of silver Bagaliya  and one Dhagaliya chikni.  These articles were identified by PW- 3  Ram Kishore before Naib Tehsildar PW-6 Nirmal Tigga as well as by  PW- 20 Kammobai.  Likewise a recovery was made from the Phulloo,  Mihilal, Ramswaroop, Abbas Khan, Narayan Prasad, Labru,  Mustapha, Rahim Khan, Lalwa @ Makbhool, Mukundi  @ Munanuar.   All these articles recovered at the instance of these accused persons  were duly identified by  PW-3 Ram Kishore in identification parade  before  Naib Tahsildar.  Learned Division Bench has detailed all  these recoveries as well as identification by Ram Kishore  &   Kammobai,  therefore,  no  useful purpose will be served by giving  out them in detail here.

PW-6 Naib Tehsildar Nirmal Tigga has appeared in witness box  and has proved the identification memos.  Shri R.N. Tiwari, the  Investigation Officer has given out the detail about the information  given by  the accused persons and the recoveries made thereof.   Investigation was made by the investigation officer from 20.10.82 to  25.10.82.  The accused denied the information given by them which  led to the recovery but they did not claim the ornaments.  However,  the accused Narayan Prasad asserted that the police took from him 2  pairs of Bagaliya, 2 pairs of Payal, 2 lachhas, patti, Addhi, these  belonged to him and he had purchased them from Raghuveer on a  receipt.  He alleged that Thanedar had asked him for a motorcycle  which he declined, so he has been falsely implicated.  The important  features in this case is that PW-10 Chanderbhan,  PW-11   Ramnarayan Gupta,  the  recovery witnesses who have  turned  hostile.  They did not support the testimony of the prosecution case  with regard to recoveries.  Learned Division Bench  held that though  these  persons have turned hostile nonetheless the recovery of these  ornaments of large quantity cannot be planted by the police and  secondly that these ornaments were not claimed by the accused  persons except Narayan Prasad. The trial Judge disbelieved the  prosecution version & acquitted  them but in appeal the High Court  had reversed the acquittal of these persons  and held  that the  recoveries of these huge quantity of ornaments which were not  claimed by the accused persons (except Narayan Prasad) is self- evident and learned Division Bench after reviewing  all the evidence  of the recovery as well as the identification,  felt persuaded that  accused persons are guilty and accordingly convicted  as aforesaid.   Hence the present appeal.

       Learned counsel for the appellant has informed us that out of  appellants, 3 more appellants  died during pendency of appeal,  viz.   Ramswaroop,  Phulloo and Mustafa Khan.  So far as Lalu was

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concerned, he died during  the  pendency of appeal before the High  Court as such appeal qua him stood abated.  Accused  Ramswaroop,  Phulloo & Mustapha Khan died during the pendency of this appeal  here,  the appeal qua these appellants also stand abated.  Hence, the  present appeal against remaining accused persons.

       Learned counsel for the appellant has strenuously urged before  us that the information as well as the recovery which is crucial in this  case were not supported by the independent witnesses, therefore the  view taken by the learned Division Bench cannot be sustained.

       Learned counsel for the appellant has urged before us that in  view of the fact that the PW-10 Chanderbhan and PW-11  Ramnarayan both were recovery and identifying witnesses turned  hostile, therefore the information and recovery do not stand proved.   It is also submitted that identification was done before Naib Tehsildar  Nirmal Tigga but the evidence of Naib Tehsildar also does not inspire  confidence and his evidence does not disclose that whether the  ornaments of similar nature were mixed up or not.    We have considered the testimonies of all these witnesses.   We have gone through the evidence of investigation officer  Shri R.N.  Tiwari (PW-4) as well as Naib Tehsildar  Nirmal Tigga PW-6, Gulraj  Singh (PW-23) as well as the testimony of Kammobai (PW-20) and  Ram Kishore (PW-3).  Statement of these witnesses read together,   establishes guilty of these  accused   persons despite recovery  witnesses turn hostile. The testimony of Ram Kishore (PW-3) and  Kammobai (PW-20) who is  worthy of credit and there is no reason to  disbelieve them.  Since Sushila Bai wife of PW-3 Ram Kishore died  because of the assault by dacoit  PW-20  Kammobai wife of brother  of Ram Kishore has identified the ornaments.  Likewise, PW-3 Ram  Kishore has identified the accused persons at the time of  identification parade  therefore the testimony of all these witneses  support the prosecution case.    In cases of such dacoity  at mid night  it takes little time for the prosecution to collect evidence as  they have   to interrogate many people during the course of the investigation to  nab the real culprit.  It is also not unlikely that witnesses fear dacoits,  they shirk to come out and support the prosecution case.  But the fact  is that the recovery which has been effected at the instance of the  accused persons have not been claimed  by accused persons except  Narayan Prasad.  However, Narayan Prasad has claimed that these  were purchased by him under a receipt.  We will deal the cases of  these three accused persons in the appeal No.175 of 2000 at a later  stage.  So far as the accused persons in the appeal 177 of 2000 is  concerned, they were charged under Sections 395 and 396 and none  of these accused has claimed this property which has been  recovered at their instance.  It is also unlikely that the police will plant  these ornaments so as to implicate these accused persons. some  delay in identification parade or identification of property is likely in  cases of dacoity at mid night and the recovery of the ornaments.  The   delay is natural in such cases,  it is not  fatal as to throw the  prosecution case outright.  We failed to understand  the reasoning  given by the learned trial  court as it has proceeded purely on  mechanical way and threw the prosecution case.  The fact that the  recovery of these huge quantity of the ornaments have been made at  the instance of the accused persons duly  identified  by PW 10 & PW- 20  and there is no possibility of planting the case against the  accused persons by the police.  Delay in recovery in  such cases is  not unusual.  Therefore, we are of the opinion that the view taken by  learned Division Bench  has correctly found accused persons guilty  and there is no reason to disbelieve the prosecution version.

       Now coming to the three accused persons namely, Narayan  Prasad, Rahim Khan and Abbas Khan under Section 412 IPC for the   receiver of the stolen property pertaining to dacoity and their being  sentenced to ten years imprisonment.  We are of the opinion that

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there  is no evidence to show that these accused persons had full  knowledge that the ornaments purchased by them were of subject to  dacoity.  These ornaments were recovered from them and Narayan  Prasad has claimed the property as purchased from some person  under receipt but that person has not been examined as a defence  witness.  Therefore all these accused persons can at best be charged  under Section 411 IPC for receiver of stolen property.  Therefore we  convert their offence from 412 IPC to 411 IPC and reduce their  sentence and punish them with  imprisonment for three years instead  of 10 years under Section 412 IPC.  Therefore the appeal No.175 of  2000 is partly accepted and accused Narayan Prasad, Rahim Khan  and Abbas Khan are convicted and sentenced for a period of three  years under Section 411 IPC.  They are on bail, their bail bonds  should be cancelled and they should immediately be arrested and  sent to jail to serve out their remaining sentences.

       Now coming to the appeal No.177 of 2000 against accused  Kishan Lal, Mihilal, and Mukundi, the conviction and sentence  ordered by the learned Division Bench  is maintained.  The appeal of  appellants;  Ramswaroop, Phulloo, Mustapha  Khan stand abated as  they have died during pendency of this appeal.  The accused are on  bail, their bail bonds are cancelled and they should be sent to jail to  serve out their remaining sentences.