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1949 DIGILAW 325 (ALL)

Babu v. Rex

1949-12-07

CHANDRAMANI

body1949
JUDGMENT Chandramani, J. - The Appellants, Babu, Ram Autar and Dharamgaj were convicted by Mr. Raja Ram Mehra, Additional Sessions Judge Sitapur on 15th June, 1949. u/s 395, I.P.C. Babu was sentenced to rigorous imprisonment for 7 years and u/s 412, I.P.C. Ram Autar and Dharamgaj were each sentenced to rigorous imprisonment for 6 years. 2. It appears that on the night of 14th/ 15th April, 1948 a dacoity took place at the house of Kunj Behari in village Ragnunathpur, Police Station Laharpur, district Sitapur. During the course of investigation various raids were organised and on 29th April, 1948, the three Appellants and some other persons were arrested in their own villages. On search a nose-pin (Ext. IV) and Tarias (Exts. II and III) are alleged to have been recovered from inside a box inside the room occupied by Ram Autar and from the nest room was recovered a Hansh (Ext. V) from behind a corn-bin and this room was said to be in the exclusive possession of Dharamgaj. The property recovered was put up for identification and was identified. As a result of the investigation 9 persons were sent up for trial. The defence of the three Appellants was that they were innocent. Ram Autar and Dharamgaj stated that no property was recovered from their possession. The learned trial Court believed the identification evidence of Ram Bilas, P.W. 6 and Kunj Behari, P.W. 5 against Babu and convicted him u/s 395, I.P.C. The learned Judge also believed the prosecution evidence about the recovery of stolen articles (Exts, II to V) from the possession of Ram Autar and Dharamgaj in the result the three Appellants were convicted. 3. It has now been urged in appeal that the evidence on the record does not justify the conviction of the Appellants. I have heard the counsel and am satisfied that the appeal must be allowed. 4. As already stated the only evidence against Babu Appellant was his identification by Ram Bilas, P.W. 6 and Kunj Behari, P.W. 5. Neither of these witnesses made any mistake in the identification. It was, however, pointed cut that the Appellant Babu had pockmarks on his face and there was a sear l"X l/4 on the left side of his neck, to cover which no effort whatever was made by the Magistrate, Sardar Chaman Singh, who held the identification proceedings. Neither of these witnesses made any mistake in the identification. It was, however, pointed cut that the Appellant Babu had pockmarks on his face and there was a sear l"X l/4 on the left side of his neck, to cover which no effort whatever was made by the Magistrate, Sardar Chaman Singh, who held the identification proceedings. The learned Sessions Judge thought that this failure on the part of the learned Magistrate is of no consequence because in India there is quite a good number of people who have pockmarks and further when the witnesses go in the parade(sic) for indetification, they see from a distance of 4 or 5 feet. The view taken by the learned Judge is not correct. It is possible that there are some men who have pockmarks but that is no justification for holding that in a certain parade there are of necessity men with pockmarks. Again, hen a witness goes for identification he is wallowed to examine closely every person in the parade. He is not directed to watch from a distance of 3 ft or 4 ft. but he is asked to go and identify the person. It is the duty of every Magistrate who holds identification proceedings to see for himself whether any accused person for identification has such visible marks on him which are likely to facilitate the identification of the accused. There is no duty whatever on the accused person to specifically bring it to the notice of the Magistrate that he has a certain identifying mark. It is the duty of the Magistrate to satisfy himself and not for the accused to point out to him how his duty is to be performed. It seems to me that this failure on the part of the Magistrate holding identification proceedings to take steps to cover the scar on the neck of Babu Appellant or to mix Babu with several other persons having pockmarks is sufficient to discredit the identification evidence. Babu must get the benefit of the doubt and be acquitted. 5. So far as Ram Autar and Dharamgaj are concerned, both of them are brothers. The prosecution case is that both these persons lived in one compound but in two separate rooms. Both the rooms have thatched roofs. Babu must get the benefit of the doubt and be acquitted. 5. So far as Ram Autar and Dharamgaj are concerned, both of them are brothers. The prosecution case is that both these persons lived in one compound but in two separate rooms. Both the rooms have thatched roofs. The two witness relied on by the prosecution in respect of the search and recovery are Suraj Baksh Singh, P.W. 10, and Sub-Inspector, Syed Raza, P.W. 14. Both these witnesses came to the house of these Appellants for the first time and so they were not in a position to know which other people really lived in these rooms and whether the two brothers were in fact separate or otherwise. Suraj Baksh Singh, however, admitted that at the time of search, the wives of the two Appellants were present in their house. The articles recovered are small ornaments and not such that the Appellants may be presumed in the ordinary course to know of their existence in their houses. It may be pointed out that the articles recovered from Ram Autar Appellant was said to have been found lying in a box. There is no evidence to show what other contents of the box were, whether it contained other things belonging to the wife or whether it contained things belonging both to the husband and wife. There is no evidence to show that the box was locked. Merely because some articles alleged to have been stolen were found from a box in a room in the joint occupation of two persons and more particularly in the joint occupation of the husband and the wife, it cannot be said with certainty that the husband knows of the existence of the things. It appears to me that the prosecution altogether failed to prove the exclusive possession of the Appellant Ram Autar and in the circumstances he cannot be convicted u/s 412, I.P.C. In the case of Dharamgaj too his wife has been living in the room with him. The hansli (Ext. V) was found behind a corn-bin and it cannot he said that that is a place where it could be seen by the Appellant. It may have been hidden there by the wife of Dharamgaj. It is impossible to hold that the exclusive possession of Dharamgaj has been proved. 6. The hansli (Ext. V) was found behind a corn-bin and it cannot he said that that is a place where it could be seen by the Appellant. It may have been hidden there by the wife of Dharamgaj. It is impossible to hold that the exclusive possession of Dharamgaj has been proved. 6. In the circumstances the conviction of Dharamgaj u/s 412 also cannot be maintained. 7. The result, therefore, is that I allow the appeal, set aside the convictions and sentences of the three Appellants and direct that they be released forthwith unless required in any other case. The property alleged to have been recovered from the Appellants shall be restored to the complainant who has identified the property as his.