P.S. Mishra, J.@mdashIn the night between 12th and 13th April, 1980 a dacoity was committed in the house of late Hafiz Abdul Raquib, who
was the Anchal Adhikari of Ramgarhwa Anchal in the district of East Champaran. He was killed in the said dacoity. His wife, Ismat Bano (P.W.
14) lodged information at Ramgarhwa Police Station at about 11 P.M.. Her information to the police disclosed that she was sleeping in a room
with her husband and children were sleeping in the adjacent room and the servant Wahid Ali was sleeping in the kitchen. Some miscreants began
to push the main door of the house. To her husband''s enquiry, as to who were they, the miscreants asked him to open the door. Before, however,
anything else could be done, the miscreants uprooted the door planks and her husband had to open the door. Six persons entered into the room
and began assaulting her husband. She entreated them to desist from assaulting her husband, but one of them, who was armed with a big gun, fired
at her husband from a close range hitting at his chest. Her husband died instantaneously. She claimed that she had seen the face of the dacoits who
was armed with the gun. The dacoits asked her to make over the properties. She handed over to them ornaments which were on her person. The
dacoits then demanded the key of the Godrej almirah and enquired from her about other ornaments which she possessed. One of them also said to
kill her in case she did not part with her ornaments. She gave them a case containing batteries saying it contained ornaments. The dacoits, however,
took away the boxes and other articles of the house. One of them was carrying a big gun, another a small gun, yet another a Farsa and other
dacoits were carrying lathis and torches. She claimed that when the door was opened, she saw 13 to 14 dacoits. After the dacoity, the dacoits fled
away. She raised alarm and her driver and others arrived. Wahid Ali informed her that he identified four persons whom he had seen in the
verandah and in the courtyard and disclosed their names to be Raghunath Prasad, Triloki Prasad, Jagannath Sah and Basant Sah. She further
informed the police that her husband had seized some papers in the shop of Raghunath Prasad, Triloki Prasad, Hari Narayan Prasad and Basant
Sah, who conspired and got the dacoity committed in her house. The Officer-in-charge (P.W. 24) of the Police station visited the place of
occurrence in the night itself and on the statement of P.W. 14 recorded the Fardbeyan (Ext. 9). She put her signature on it. Besides the informant,
one Bharat Prasad Singh (P.W. 21) also put his signature on it. A formal first information report was drawn up, the case was investigated and
thirteen persons including the appellants were put on trial.
2. The learned first Additional Sessions Judge, East Champaran at Motihari has, however, found only the three appellants guilty for the offence u/s
396 of the Indian Penal Code and although it appears he has noticed the evidence and proof in support of the charge u/s 412 of the Indian Penal
Code against them, he recorded no order of conviction for the said offence against appellants Radha Sah alias Radheshyam Sah and Banka Sah,
saying that they need not be convicted for the said offence as they were convicted for the offence u/s 396 of the Indian Penal Code. He has
sentenced the appellants to undergo rigorous imprisonment for life.
3. Since no appeal has been preferred by the State against the acquittal of the ten accused persons, who were put on trial with the appellants, only
a few particulars need consideration.
4. None of the appellants were named in the first information report, but in the first information report the informant gave a precise description of
the miscreants and following some clues that some miscreants had assembled in a Banswari in Raxaul, a police party raided the said Banswari. Safi
Ahmad, (P.W. 1), Bijli Singh (P.W. 3) and Shiv Nath Singh (P.W. 6), who were present in the raid of Banswari, identified appellant Banka Sah as
one of (he assembled miscreants, who fled away. The police thereafter searched the house of appellant Banka Sah on 19.4.1980 in presence of
witnesses, Abdul Shakur (P.W. 3) and Chandrika Sah (P.W. 9) and prepared seizure list (Ext. 1/1) of the articles seized. P.Ws. 9 and 3 who are
seizure list witnesses have accepted that they put their signatures on the seizure list and proved their respective signatures, have deposed that in the
search nothing was recovered in their presence. Shafi Ahmad (P.W. 1) has, however, said that he seized the articles as per the seizure list. The
seizure list shows that fourteen pieces of Eveready battery (eight blue and six red in colour packed two in each plastic bag) were recovered from
the possession of Banka Sah. The batteries are material exhibits ''V''. Shiv Nath Singh (P.W. 6) is another witness examined on behalf of the
prosecution who has said that the batteries were recovered from the possession of appellant Radha Sah. The batteries were put on test
identification parade mixed with several other batteries. In the said test identification parade held on 22.4.1980 at the residence of Md. Abid
Ansari (P.W. 19), Ishmat Bano (P.W. 14) identified the fourteen batteries. Sha has, however, not been cross-examined on behalf of the appellant
Banka Sah. In her cross-examination on behalf of appellant Radha Sah she has said that she had mentioned theft of two dozen batteries to the
police. She had kept the batteries in a box after packing them in plastic bags. There is no other evidence against this appellant. He was put on test
identification parade, but he was not identified by any witness. Evidently, except the evidence of P.W. 1, that in the search conducted by aim in the
house of appellant Banka Sah on 19.4.1980, fourteen pieces of Eveready batteries (eight blue and six red in colour packed two in each plastic
bag) were recovered, there is no other evidence of recovery of the batteries from the possession of this appellant.
5. P.W. 6 has stated that the batteries were recovered from the possession of appellant Radha Sah. True, Ishmat Bano has identified the batteries,
but it is relevant to notice that the box which contained the batteries, which she handed over, according to her evidence, to the dacoits, has not
been recovered. She had not said before the police that she had kept the batteries packing two in each plastic pack. In her cross-examination, on
behalf of appellant Radha Sah, she has, of course, said that she had kept the batteries in the box after packing in plastic pack, but this evidence has
come after the alleged recovery and the exposition of the batteries packed two each in plastic packs. To identify batteries, which are unused, out
of several, is rather unusual. On such evidence alone, it will not be wise to convict appellant Banka Sab.
6. The case of appellant Radha Sah is, however, different. When P.W. 1, on a confidential information that some dacoits assembled in a Banswari
on the bank of river Sariswa located at Naga Road near Raxaul, raided the Banswari, he arrested Radha Sah in the said raid. He searched the
person of Radha Sah in presence of witnesses Chandrika Sah and Abdul Shakoor and recovered one country-made single barrel gun of twelve
bore, five live cartridges, one leather hand bag containing Kashmiri woolen shawl and other articles. The seizure list, exhibit 1/2 bears the signature
of witnesses Chandrika Sah and Abdul Shakoor. The evidence of P.W. 1 about the raid and search is supported by P.W. 3 and P.W. 6. P.W. 1
has stated that he sent the seized gun and cartridges to Sergeant Major for test who returned it after testing with his report. The report of the
Sergeant Major, however, has not been produced. Although exhibit ''3'', the communication by P.W. 1 to the Sergeant Major in the bottom
contains the said report that it has not been proved in accordance with law. Abdul Shakoor and Chandrika Sah have, however, not supported the
prosecution version about the search and recovery of the gun and the shawl. They have said that they had not accompanied P.W. 1 on 18.4.80 in
the alleged, raid and search at the Banswari. Yet they have not been able to deny their signature on the seizure list and accepted that they have
signed the seizure list. The court permitted the prosecution to cross-examine them and they were cross-examined by the prosecutor. Yet it is not
possible to take their evidence to corroborate the evidence of P.W. 1 that there was a raid and search at the Banswari where Radha Sah was
found and from his possession the gun and the Shawl were recovered. With such apparent attempt on the part of P.Ws. 8 and 9 to suppresio veri
there is evidence of Bijuli Singh (P.W. 3) and Shivnath Singh (P.W. 6) that there was a raid in the Banswari in which raid Radha Sah was arrested
by the police and on search the police recovered from his possession certain articles. In his statement u/s 313 of the Code of Criminal Procedure
appellant Radha Sah has said that he was arrested at 11 A.M., at Raxaul Bus stand on the charge of smuggling. He has denied any recovery from
his possession. But no witness has been examined on behalf of the defence to prove this fact. An attempt has been made to suggest that a case for
possession of the alleged gun and cartridges u/s 25(a) and 26 of the Arms Act, 1959 had been filed relating to the said arrest and seizure which
ended in acquittal of Radha Sah. No witness has, however, been examined to prove this fact. Even the judgment has not been filed in this case to
prove the said fact. In his statement u/s 313 of the Code of Criminal Procedure also appellant Radha Sah has said nothing about the institution or
the result of the said case. P.W. 1 in his cross-examination has admitted that a case under the Arms Act was instituted alleging recovery of a gun
from the possession of appellant Radha Sah, but he has said that he had not been examined in that case and that he had no information that Radha
Sah had been acquitted in that case. It is, however, of no consequence whether the case instituted for the alleged possession of gun ended in
acquittal or conviction, because the said gun is not said to be one belonging to the victim or stolen away by the dacoits in the dacoity.
7. The recovered gun has been produced in this case and P.W. 3 has stated that the gun, material exhibit ''6'', was recovered from the possession
of appellant Radha Sah. The five cartridges have also been produced in court. They have been proved by Sheonath to have been recovered from
the possession of appellant Radha Sah. Ishmat Bano (P.W. 14) has said in her cross-examination that she had seen the gun earlier and
remembered it since it was somewhat long, old and its front part somewhat shrunk and that her husband was murdered by the shot fired with the
said gun. She was not a search witness and so she was not expected to identify the gun as she identified the Shawl in the test identification parade
which was held on 22.4.80. It appears that besides saying that there was a big gun and a small gun in the hands of the dacoits, she gave no further
description of the guns either to the police or to any Other person before her evidence in court. In the court, however, she identified the gun as the
weapon used in the dacoity.
8. The lady who lost her husband, who was shot dead before her eyes, is expected to remember every detail of what happened when her husband
was done to death. Unless the gun was brought to her sight and she was asked to identify whether the same was used for killing her husband or
not, she could not possibly think of the gun becoming available and produced in court. The police could go to her to seek identification of the
properties stolen away by the dacoits, but if it did not go to ask her to identify the gun, which was recovered from the possession of appellant
Radha Sah and Ishmat Bano also did not go to the police to tell it that she could identify the gun if it was the same which was used by the dacoits,
it cannot be said that the prosecution could not prove the case by identifying the weapon in the court.
9. Radha Sah was found in possession of the Kashmiri shawl which P.W. 14 identified in the test identification parade. She also produced in court
the receipt showing its purchase by her. A wearing apparel is identified by the senses and distinguished from similar other apparels. It is not unusual
for a lady, who had used the shawl, to know that it was the shawl she had purchased and used. Her identifying the shawl which was recovered
from the possession of appellant Radha Sah is a proof beyond doubt of the fact that the shawl had been stolen away by the dacoits in the dacoity
committed in the house of Hafiz Abdul Raquib in the night of 12.4.80 and 13.4.1980 and that appellant Radha Sah was in possession of a stolen
property.
10. Radha Sah had been put on test identification parade. In the said test identification parade he was identified by, Wahid Ali, the servant of the
victim. The said servant, however, has not been examined as a witness on behalf of the prosecution. It is said that his where-abouts could not
become available and so he could not be called as a witness. This evidence of identification by Wahid Ali in the test identification parade, however,
is of no avail to the prosecution, still the fact that Kashmiri shawl belonging to P.W. 14, which had been stolen away, by the dacoits, was
recovered from the possession of appellant Radha Sah, is proved by acceptable legal evidence of the prosecution witnesses.
11. Learned Counsel for the appellant, Radha Sah, has however, submitted that on such evidence, particularly when the recovery is said to have
taken place after a lapse of about 5 days, if at all, the only offence made out is one punishable u/s 411 of the Indian Penal Code. He has placed
reliance on a judgment of the Supreme Court in Sheonath Vs. The State of Uttar Pradesh, . Considering the question, whether Sheo Nath should
be convicted u/s 396 of the Indian Penal Code or section 411 or section 412 thereof on the facts as found by the court that a dacoity was
committed at the shop of Ram Murat in Dhaneja village by 15 to 20 persons on August 19, 1966 at about 11.30 P.M., in which one dacoit was
armed with gun while others carried spears, Gandasas and Lathls and during the course of dacoity Ram Murat was injured; one Pancham, who
lived in his house and two others came running on hearing noise; Pancnam was shot down by the dacoits; the dacoits then escaped with clothes,
ornaments, cash etc. looted from Ram Murat''s shop; after the dacoits left, Ram Murat dictated a report about the dacoits in which he named Ram
Shanker Singh and others as having been among the culprits; on 22.8.1966 the house of Sheo Nath was searched and three lengths of cloth were
recovered which were subsequently identified by Ram Murat and a tailor named Bismillah; the Supreme Court found that the prosecution proved
the case only for the offence u/s 411 of the Indian Penal Code. The Supreme Court, however, accepted the statement of law in the case of Sanwat
Khan and Another Vs. State of Rajasthan, and Wasim Khan Vs. The State of Uttar Pradesh, to the effect that no hard and fast rule can be laid
down as to what inference should be drawn from a certain circumstance. Recent and unexplained possession of the stolen property while it would
be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder. But,
however, where the only evidence against an accused person is the recovery of a stolen property and although the circumstances may indicate that
the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen
property was the murderer. This principle is only ancillary to the principle that the suspicion cannot take the place of proof. Presumption which is
drawn on the basis of possession of the stolen property is in section 114, illustration (a) of the Evidence Act that a man who is in possession of a
stolen goods, soon after the theft, is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.
On the basis of such presumption the offence proved, unless the presumption is rebutted, will be u/s 411 of the Indian Penal Code, which says
whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished
with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Besides what is provided in section
411 of the Indian Penal Code, a case also may fall u/s 412 of the Indian Penal Code, if there is material to show that the person in possession
knew or had reason to believe that the stolen property had been transferred by the commission of dacoity or had been received from a person
whom he had known or had reason to believe to belong or to have belonged to a gang of dacoits. In that case the punishment provided is
imprisonment for life or rigorous imprisonment for a term which may extend to ten years as also fine. Had the only evidence been the recovery of
the Kashmiri Shawl from the possession of Radha Sah, Learned Counsel could legitimately contend that the conviction of the appellant u/s 396 of
the Indian Penal Code on the basis of possession of the appellant is not valid.
12. In the instant case, however, in addition to the possession of the stolen property, there is sufficient evidence in the shape of the oral testimony
of the wife of the victim who has got no reason to depose falsely that the gun found in possession of the appellant was one used in the dacoity and
that the gun was used for the murder of her husband. This, in my view, is that evidence which takes the case beyond the ambit of section 411 of
the Indian Penal Code and even beyond the ambit of section 412 thereof. Radha Sah, in my view is guilty for the offence u/s 396 of the Indian
Penal Code and he has been rightly so convicted by the learned Additional Sessions Judge.
13. The case of Jagdish Sah is also based on identification, this time, however, his having been identified by Ishmat Bano (P.W. 14) in the test
identification parade held on 23.4.80. Jagdish Sah was identified by P.W. 14 also in court as the person who had a Farsa in his hand and had
demanded ornaments from her. Identification of appellant Jagdish Sah by P.W. 14 is definite and there can be no doubt in her identifying him as
one who participated in the dacoity. His defence on his identification is that he was brought at the Circuit House at Motihari where P.W. 14 was
staying and also he was allowed to be identified by P.W. 14 before the test identification parade was held, in which test identification parade she, it
is said, identified. Jagdish Sah had been taken in custody in connection with Raxaul P.S., case no. 9(4)80 on his arrest by the police in connection
with the said case on 22.4.80. The Sub-Inspector, Ramgarhwa Police station prayed for remand of Jagdish Sah in connection with this case on
23.4.80 and on that very date the test identification parade was held. There is nothing except the suggestion on behalf of defence about this
appellant having been identified at the court Hajat and at the jail by P.W. 14 and/or any other witness. P.W. 14 identified appellant Jagdish Sah in
the court also and thus affirmed the identification made by her in the test identification parade.
14. Wahid Ali, the other prosecution witness, who identified appellant Jagdish Sah in the test identification parade has not been examined, I have
already noticed, for his whereabouts could not be found. But even solitary identification by P.W. 14 in the instant case is beyond any doubt.
15. There is enough evidence on the record that there was sufficient means of identification. There were lanterns burning in the house and there
were torches used. P.W. 14 was face to face with appellant Jagdish Sah when he demanded from her ornaments and that is why she identified
him. Appellant Radha Sah was one, who was holding gun which was fired at her husband. She saw the weapon of assault of her husband and she
could not forget that. She has given a vivid description of the ghastly murder committed to achieve the ends of dacoity. On such evidences, I am
satisfied that Jagdish Sah is also guilty for the offence u/s 396 of the Indian Penal Code.
16. In the result, Criminal Appeal no. 127/83 is allowed, conviction of appellant Banka Sah u/s 396 of the Indian Penal Code is set aside and he is
acquitted of the charge levelled against him. He is, accordingly discharged of his liabilities of the bail bonds. Criminal Appeal no. 141/83 is
dismissed and conviction of the appellants Radha Sah alias Radheyshyam Sah and Jagdish Sah u/s 396 of the Indian Penal Code is affirmed. On
the question of sentence, however, it has been brought to our notice that appellants Radha Sah and Jagdish Sah have remained in jail for about
seven years as under trial prisoners, and after conviction, during the pendency of this appeal. The ends of justice, in my view, shall be satisfied if
they are sentenced to undergo rigorous imprisonment for ten years each.
B.P. Griyaghey, J.
I agree.