Babu Singh vs State of Punjab

Ujagar Singh, J.—During the intervening night of 10th and 11th June. 1981 theft took place in the house of Zora Singh s/o Kartar Singh Jat of village Labhana Toku when he was sleeping in the chaubara thereof along with his children, after locking the door of the house. When in the early hours of the morning his wife Smt. Jagir Kaur got up and went towards the door it was found to be lying open with its lock broken. Her daughter Smt. Mohinder Kaur and her son Norang Singh stepped down and when they went inside the room they found the lock of the petti (box) containing clothes, articles and ornaments lying broken. The articles included kanta (golden), one pair of bangles (golden), one chain (golden) (belonging to the daughter of the complainant), one klip (golden), one tikka (golden), one golden kanta and one golden ring (belonging to Mohinder Kaur daughter of the complainant), two bangles (older,) ore necklace (golden), one pair of earrings (golden), one ring (golden), one kara (golden) belonging to Gurdial Kaur wife of the son of the complainant) besides clothes and one watch (H. M. T.), which was given to Gurjant Singh in his marriage. Report Exhibit P.A. was lodged and it was recorded by A.S.I. Gurbinder Singh (who has since expired) with an endorsement Exhibit P.A. 1. This formed the basis of F.I.R. Exhibit P A/2 recorded by M.H.C. Piara Lal. Spot was inspected and a seizure memo, Exhibit PC was prepared in token of taking into possession of some articles. Site plan Exhibit P.A, was prepared.

During investigation, Babu Singh petitioner was arrested on 22nd February, 1982 by Harjindarjit Singh, S.I. P.W. 4. On being interrogated by P.W. 4 Harinderjit Singh in the presence of one Zail Singh, Sarpanch and A.S.I. Bant Singh, the petitioner suffered a disclosure statement that he had kept concealed two gold necklaces, one pair or earrings (golden), one pair of silver chain one Tikka gold, one ring gold and some clothes and packed the same in a gathri (bundle) and placed the same under the turi in his house. This statement was recorded as Exhibit P.B. and in pursuance of this statement ornaments Exhibit P. 1, P. 2, P 3 and P. 4 were got recovered by the petitioner and taken into possession in a sealed parcel vide memo. Exhibit P.C. P W. 4 further stated that he got the ornaments identified from P.Ws. 5 & 6 Dosu and Jit goldsmiths after asking Sucha Singh Sarpanch for arranging identification parade, wherein Zora Singh and his daughterinlaw Gurdial Kaur also identified the ornaments.

The trial Court after recording the statements of Zora Singh P.W. 1 A.S.I. Bant Singh PW 2, Sucha Singh P W. 3, S,L Harinderjit Singh P.W. 4, Des Raj P.W. 5 and Jit Singh P.W. 6 found the petitioner guilty and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs, 1000/ or in default of payment of fine to undergo further rigorous imprisonment for three months. The petitioner went up in appeal and the lower appellate Court agreeing with the trial Court did not find any cause for interference and the petitioner has come up in this criminal revision.

Learned counsel for the petitioner in challenging the conviction and sentence imposed on the petitioner has argued that the identity of the articles stolen is not established with the ornaments recovered. To support his argument, he has referred to the statements of Sucha Singh Sarpanch, P.W.1 who conducted the identification parade. I have been taken through the statement of Sucha Singh P.W. 3 and I find that he has nowhere said in his statement that the ornaments recovered and exhibited were identified before him by the witnesses. Moreover he has not named Des Raj P.W.5 and Jit Singh P.W. 6 as the persons who were called were him for identification of the ornaments or that these two witnesses identified the ornaments in his presence.

For identification of articles, it is necessary that the articles to be identified should not be accessible to the witnesses before actual identification by them It is further necessary for the prosecution to see that the witnesses had no chance of seeing the articles to be mixed, which ought to be more than double the number of similar articles. In this case, there is no evidence on the file as to wherefrom the articles which are said to have been mixed were brought, Sucha Singh P.W. 3 stated that he himself had brought the ornaments from bazar but he did not remember from whom he had brought, the same and that there was slight difference in the stolen articles and that of the articles brought by him in a situation like this, identification its value.

Sucha Singh P.W.3 further admitted that Zora Singh and Gurdial Kaur were already in the police station before his arrival and it has not been shown further that the ornaments which were got identified were in a sealed parcel when the same were produced before Socha Singh P W. 3. Sucha Singh P.W. 3 is silent about and such sealed parcel indicating that there was every possibility Zora Singh and his daughterinlaw seeing the ornaments much before the identification parade. Des Raj P.W. 5 admitted that he did not identify the ornaments and further stated that at the time of handing over the ornaments after preparation by him, he had made any entry in the bahi but that bahi has neither been produced nor any explanation put forth for its keeping back Jit Singh P W. 6 has also come forward to support the prosecution in the sense that he had prepared then ornaments at the instance of Zora Sian. He stated that he had identified the ornaments Exhibits P. 1 to P. 5 before Sucha Singh Sarpanch who had arranged the identification parade in the police station itself, but failed to mention about the date or the month of identification by him. He further stated that Zora Singh had called him for identification and that he had given a receipt for preparation of these ornaments to Zora Singh P.W. 1. This receipt, like the bahi mentioned earlier, has not been produced. Apart from these facts, the alleged identification by Des Raj P.W. 5 and Jit Singh P.W. 6 has not been spoken of by Sucha Singh P W 3 who held the identification, parade. Keeping in view all these infirmities, the alleged identification parade held by Sucha Singh P.W. 3 becomes meaningless and no finding can be given on the basis of this identification parade report Exhibit P.D. before coming to a definite conclusion that the ornaments recovered were the same as mentioned in Exhibit P.A. and in the absence of definite identification, the conviction of the petitioner cannot stand.

Another circumstance which is required for proving an offence under Section 411, Indian Penal Cede, is that the petitioner dishonestly received or retained the stolen property knowing or having reason to believe the same to be stolen property and the same is missing in this case. The offence was committed during the night of 10th & 11th June, 1981 and it was only after a lapse of more than 8 months that the recovery is said to have been made. The ornaments did not have any special markings of identity and Des Raj P.W. 5 and Jit Singh P.W. 6 have not stated that they did not prepare any such ornaments before or after the date of theft. In these circumstances. It cannot be said that the petitioner knew or had reason to believe the ornaments to be the stolen property. The petitioner also cannot be said to have dishonestly received or retained the ornaments knowing it to be stolen property.

In view of the discussion above, this criminal revision petition is accepted. JUDGMENTs of conviction of the lower Courts are set aside and the petitioner is acquitted of the charge. Fine, if paid, be refunded to the petitioner.