HABIB KHA vs KANISHA

Both the criminal appeals have arisen out of two separate judgments passed in same Sessions Trial No. 12/2005 and involve the same issue and are filed by different appellants for the same relief, therefore, they are heard together and are being decided with this common order.

For convenience facts are being taken from Criminal Appeal No.1170 of 2005.

This is a case of dacoity with double murder. Murder of Bhanvarlal could not be attributed to the appellants while they are found guilty for committing dacoity with murder of Premsingh.

The prosecution case is that in the intervening night of 26-27 April 2004, deceased Premsingh was sleeping with his wife and children outside his house situated in Village Peer Jhalar. At about 1:00 A.M., 8-10 miscreants assaulted them. They broke down the lights and started beating them by lathis (bamboo sticks). Premsingh sustained injuries on the head, his wife Leelabai sustained injuries on the head and hand, Gokul on the neck and Sunitabai on the hand. After beating them, the miscreants looted their jewelry (ornaments of silver and gold) (Chandi ke Aavla, Kan a Sulle, Bichhudi, Mangalsutra & Bichhiya) and cash. After loot, they tied their hands and legs and locked them in a room and fled away. In the morning, at about 6:00 A.M., Sunitabai could get herself free; she came out the house through window and informed about the incident to Harisingh. He with Ramsingh and few other persons reached their house and found that Premsingh died due to injuries sustained by him and other persons were severely injured. There, they also came to know that after looting the house of Premsingh, the miscreants invaded house of Bhanwarlal also and beat him to death.

Ramsingh reported the matter to the Police Station Badnagar. The police registered Crime No.108/04. Later, the accused persons were arrested by Police Narwar in connection with some other crime. During interrogation of that crime, the appellants/accused admitted commission of this crime also and revealed information regarding the stolen property of this crime. On the basis of their information, the police recovered stolen property from their possession. They were put for identification. The articles were also being identified from the complainant. After completing other investigations, like preparation of spot map, sending dead bodies for post-mortem, seizure of clothes etc, the police submitted the charge- sheet before the Court.

The accused were charged for the offence punishable under Sections 395 read with Section 397 and Section 396 (two counts) of IPC . They denied commission of the offence and pleaded innocence. They did not produce any evidence in their defence.

The charge-sheet was filed against 8 accused persons. After the trial, the learned trial Court found that involvement of the accused Ganesh @ Galianath S/o Naharnath and Sakunath S/o Heeranath could not be proved, therefore, acquitted them from all the charges under Sections 395 R/w 397 and Section 396 (two counts) of IPC . The learned trial Court further did not find the charge of causing death of Bhanwarlal proved during the course of dacoity and acquitted all the accused from the charge of Section 396 of IPC as it was related to the death of Bhanwarlal, but the charge of dacoity and causing death of Premsingh during the course of dacoity under Section 396 of IPC, was found proved against all remaining six appellants/accused and they were convicted for the offence punishable under Section 395 / 397 for 10 years R.I. and fine of Rs.5,000/- and for the offence punishable under Section 396 of IPC and sentenced them to life imprisonment with fine of Rs.5,000/-. In default of payment of fine, they were directed further to undergo imprisonment of 2-2 years respectively. It is directed that all the punishment of imprisonment shall run concurrently.

Case of the accused Dharmendra was first sent to the Juvenile Board. After the inquiry, the Juvenile Board, found him major; therefore, his case was remitted back for regular trial. Hence, he was tried separately and a separate judgment was passed in his regard.

Order regarding disposal of the property was not passed by the learned trial court looking to the pendency of the trial of other co-accused persons before Juvenile Court.

Against both these judgments, the appellants have preferred the appeals on the grounds that the judgment of the learned trial Court is erroneous and contrary to the law and facts. The statements of the witnesses are contradictory to each other. They have not supported the case of the prosecution. The prosecution witnesses Sunitabai (PW-1), Leelabai (PW-2) and Gokul (PW-7) could not identify the accused/appellants at the test identification parade. They could not identify them even in the Court, but the learned trial Court has convicted them ignoring this material fact. The learned Trial Court has erroneously presumed guilt of the accused persons only on the basis of seizure of stolen property, even when the prosecution could not establish the seizure. Both independent witnesses of seizure have not supported the case of the prosecution. There are serious discrepancies in the specification of the stolen property and the property recovered from the possession of the accused persons. The complainant has reported that Chandi ka Aavla was of half Kilogram weight while the recovered Chandi ka Aavla is only 150g.m. of weight. Similarly, Mangalsutra was of 8-10 beads, while recovered Mangalsutra has only 3-4 beads. Therefore, the learned trial Court committed error in relying upon the sole testimony of the Investigation Officer. The Trial Court has wrongly held that at the time of incident, the accused persons were wielding lethal or dangerous weapons while all the witnesses have stated that the assailants were carrying bamboo sticks at that time. Ignoring all these facts, the learned trial Court has held the appellants guilty which is against the settled principles of law, therefore, they are entitled for acquittal.

The learned public prosecutor has supported the judgment and prayed for dismissal of both the appeals.

We have considered rival contentions of the parties.

Sunita (PW-1), Leelabai (PW-2) and Gopal (PW-7) have stated before the Court that at the time of the incident, at about 12:00 p.m.-1:00 a.m., in the night, when they were sleeping in their house, 10-12 miscreants assaulted them, they broke down the lights of the house and started beating them by bamboo sticks (Lathi). They sustained injuries. They looted their jewelry, ornaments of silver and gold (Chandi ke Aavla, Kan a Sulle, Bichudi, Mangalsutra & Bichiya) and cash, tied their hands and leg, threw them into the house and fled away. Somehow, Sunita got herself free and informed Harisingh, who, came with some other persons of the village, freed them and took them to the hospital. Ramsingh reported the matter to the police, the police registered FIR (Ex.P-2), prepared spot map (Ex.P-3), seized packet of cigarette, blood stained soil etc. from the spot, sent body of the Premsingh and Banwarlal for post-mortem. It was found in the post mortem that the death of Premsingh and Bhanwarlal was homicidal. All these facts have not been challenged by the accused persons; therefore, they do not require detailed discussion. Thus, the learned trial Court has rightly held proved that at the date, time and place of the incident, some miscreants attacked Premsingh and his family, caused them injuries and vital injuries to the Premsingh and Bhanwarlal, who succumbed to the injuries and their death were homicidal. They also looted the articles; jewelry, cash etc from the victimâ??s family.

All the prosecution witnesses have stated that they could not identify the miscreants who assaulted them as they had broken down the lights of the house and they attacked them when they were sleeping. Thus, what remains for the prosecution to prove the guilt is identification of the accused persons and seizure and identification of the stolen property.

As far as identification of the miscreants is concerned, Gopal and Sunita could not identify the accused persons in test identification parade. They did not depose before the Court also about their identification. As per the identification memo (EX.P-12) only Leelabai (PW-2) could identify only 3 accused persons namely Padamnath, Bahanwarnath and Sakunath and could not identify Suraj, Dharmendra, Guddunath, Sundernath, Garia and Pappunath, but she has admitted that prior to their identification in jail, they were shown to her at the police station. Therefore, this identification is totally failed.

Thus what remains for the prosecution is recovery of articles from possession of the accused persons and its identification.

In this case, the accused persons were arrested by the Police of the Police Station, Narvar, District, Ujjain in connection with Crime No.174/03 and they were interrogated by Sub Inspector A.S. Chouhan of Police Station Narwar. In his statement before the Trial Court Mr. Chauhan has stated that during the course of the investigation of crime No. 174/2003, he took the accused persons in custody and interrogated them on 02/07/2004, they revealed information about several offences they had committed. He recorded their information under Section 27 of the Evidence Act and at their instance recovered Silver Bichhudi weighing approximately 25 gms from the accused Bhanwarnath, a Silver Aawla, weighing approximately 150 gms from Guddunath, a golden pendent and six golden beads weighing approximately 4 gms from Fundanath on 03.07.2004, a golden Suliya weighing approximately 5 gms from Surajnath on 04.07.2004, a golden Suliya weighing approximately 5 gms from Padamnath on 05.07.2004, a silver Aawla weighing approximately 150 gms from Dharmendra @ Ramesh on 08.07.2004. It is further stated by this witness that the accused persons took him to their houses and there they dug out the floor and took out the ornaments and handed them over to him. The statement of this witness could not be impeached even after cross- examination and it is supported by the memorandums prepared under Section 27 of the Evidence Act Ex.P-25 to 32 and memorandums of seizure Ex.P-33 to 38. His testimony does not suffer from any infirmity. Nothing contrary is available on record to disbelieve the statements of this witness which is otherwise fully supported by the documents prepared during investigation.

The main contention of the appellants is that out of two independent witnesses of discovery and seizure, the prosecution did not examine Ansaar and second witness Devisingh has turned hostile and has not supported the case of the prosecution. Therefore, statement of Anil Singh Chouhan (Sub Inspector) cannot be relied upon. But it is well settled that if the independent witnesses do not support the Investigation Officer, his statement cannot be discarded on this ground alone. In this regard, we can refer Rameshbhai Mohanbhai Koli vs. State of Gujarat judgment dated 20.10.2010, reported in (2011) 11 SCC 111 passed by Hon''ble the Supreme Court in Criminal Appeal Nos.1146 of 2008 and 1166 of 2009. It is held in this judgement that recovery from place exclusively within the knowledge of the appellant and the same could not have been affected by investigating agency in the absence of disclosure statements of the appellants. Panch witnesses turn hostile, is no ground to reject testimony of the Investigation Officer.

It is further held that prima facie, public servant must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servant, they are interested in the success of their case.

In Mohan Singh Vs. State of Gujrat (1978) 4 SCC 435 and Mohd Aslam Vs. State of Maharashtra (2001) 9 SCC 362 it is held that where the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version.

In Antar Singh Vs. State of Rajasthan (2004)10 SCC 657 also it is held that: 10. a even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.

In the case of Praveen vs. State of M.P . reported in (2008) 16 SCC 166, Hon''ble the Supreme Court has held that in absence of any explanation from the accused as to the possession of the articles belongs to the victim, the recovery of articles is reliable.

In the instant case, it is not the case of defence that testimony of Investigating Officer suffered from any infirmity or doubt. Thus, it is clear that recovery of stolen property from the possession of the accused persons can be relied upon on the basis of the statement of I.O. Sub Inspector A.S. Chauhan of Police Station, Narwar.

Second important evidence against the accused persons is identification of the stolen property.

Councilor Mumtaj Ali, has stated before the Court that he got the articles identified from the witness in a room of office of the Municipal Council and all the witnesses have identified their articles. His statement is supported by identification memo (Ex.P-50) and nothing could be revealed through his cross- examination contrary to his statement or which can dent or rebut his statement.

Leelabai (PW-2) has stated that she was called to identify her ornaments; which were looted in the incident and she has identified her ornaments. This identification cannot be doubted as it is held in Govinda sami Vs. State of Tamil Nadu AIR 1998 SC 2889 that it is a matter of common knowledge that a person has any uncanny sense of identifying his own belongings, particularly articles of regular personal use. In Earabhadrappa Vs. State of Karnataka AIR 1983 SC 446 the Honâ??ble Supreme Court observed that the ladies have uncanny sense of identifying their belongings. Para 12 of the judgement reads thus: "12. Our attention was drawn to the testimony of P. W. 13 Narayana Reddy who, during his cross-examination, stated that ornaments similar to the gold rope chain and the pair of gold bangles were available everywhere and that other ornaments were also in his house. From this it is sought to be argued that the seized ornaments cannot be treated to be stolen property as they are ordinary ornaments in common use. ....... It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards the identify of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement."

Beside, the statement of Leelabai has not been challenged in cross-examination. Only two questions were put before her to the effect that "she has submitted bills of ornaments to the police and the articles which she could identify were common articles and are easily available in the market", to which she answered affirmatively. Thus, she has identified the articles as her looted property is not challenged and the challenge made is of no avail as there is no evidence that the articles were obtained by the police from anywhere else. The accused persons have not claimed the articles as their own and they have not submitted any explanation as to how they come to their possession. Here presumption under Section 114 (a) comes into play that either the appellant have robbed these articles or they are receiver of stolen property. This is not defence of the accused that they have received the stolen property; therefore, the only presumption remains is that they have looted the articles in the alleged incident.

It is argued that the prosecution has withheld the bills of the jewellery allegedly looted in the incident. Therefore, ownership of recovered stolen jewellery articles is not proved and therefore prosecution story appears to be doubtful.

It is correct that no bill or receipt has been produced to prove that the recovered jewellery articles belonged to the complainant but it is in evidence that the complainant had described the stolen property even before its recovery from the accused persons. It is not the case of the accused persons that the recovered jewellery articles do no tally with the list of stolen articles. Leelabai has identified her stolen articles. Accused are not claiming that recovered jewellery belonged to them. They have failed to account for the possession of the stolen jewellery. The Apex Court in Ganesh Lal v. State of Rajasthan, reported in (2002) 1 SCC 731 : (2001 AIR SCW 5251) had convincingly clarified the situation when it held that if an accused fails to offer any explanation for his possession of the stolen property in a case built solely on circumstantial evidence, that would help the trial court to draw an inference against the accused in the case, the fact omitted by him to answer being one within his exclusive knowledge. Under these circumstances, non production of the bills or receipts of the jewellery articles has no consequence.

Issue of difference of specification between the property robbed and the property recovered has also been raised. But while filing FIR, the witnesses had only stated their estimated weight. Variation between estimated weight and exact weight are but natural. It is commonly known fact that at the time of lodging report for theft etc. people exaggerate cost of the stolen property for various reason. This does not make their statement false. Besides, in the presence case description of looted and recovered ornaments is the same. Therefore, difference in weight does not adversely affect quality of the evidence.

Thus, it is clear that the articles stolen or looted in the incident were recovered from the exclusive possession of the accused persons and they were identified by the complainant/victim. As no explanation is submitted by the accused persons as to the possession of these articles, it shall be presumed that these are the same articles which were looted by them in the alleged incident and this takes us to the natural conclusion that the appellants are the persons, who had committed the alleged dacoity with murder.

The learned trial court has rightly considered this fact and held the appellants guilty for the offence committed by them. The learned trial Court has discussed several judgments of Hon''ble the Supreme Court and High Courts like Himanshu vs. State reported in 1986 CR.L.J. 622, Brajmohan v. State of Rajasthan reported in 1993 Cr.L.R. S.C. 775, Surajpal and Others vs. State of M.P . reported in 1993 Cr.L.R. 114 ( M.P.), Limbaji and Others v. State of Maharashtra reported in AIR 2002 SC 491, Shiv Shahay Singh vs. State of M.P . reported in 1985 Cr.L.J 730 (M.P.) and Ayodhya Singh vs. State of Rajasthan reported in AIR 1972 SC 2501 on the various aspects of recovery and identification and correctly held that all these evidence is sufficient to hold the accused persons guilty for the offence with the assistance of presumption available under Section 114 (a) of the Evidence Act . Therefore, we do not find any ground for disturbing the findings of the learned trial Court.

The prosecution has examined ASI Idrish Khan of P.S. Badnagar (PW-13) and Kashiram (PW-9) as independent witness of memo prepared under Section 27 of the Evidence Act. Idrish Khan has arrested the accused persons in the present case crime No.108/04 of police station Badnagar and prepared arrest memos Ex.P 39 to 47 and their memos u/s 27 of the Evidence Act Ex.P-13 to 21. But Idrish Khan has done all the proceedings formally after arresting the accused persons in Crime No.174/03 of Police Station Narwar and no further recovery is made on the basis of any information given by the accused persons before Idrish Khan, therefore, his statement has no evidentiary value in respect of the prosecution except that of formalities of the investigation.

We have also considered the punishment awarded by the learned trial Court and found it just and proper in the facts and circumstances of the case and for an incident where the accused persons, during the course of dacoity committed by them, caused death of Premsingh and also caused injuries to the other persons, the sentence awarded by the learned trial Court cannot be said disproportionate or stringent.

In the result, we uphold the judgment and order of conviction and sentenced passed by the trial Court. Both the appeals are devoid of merit, liable to be and is dismissed hereby.

We are refraining ourselves from passing any order with regard to the property, as we are not aware of the fact of pendency of trial of other accused persons involved in the crime.