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
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.
