1988 Supreme(Raj) 702
RAJASTHAN HIGH COURT
S.N.Bhargava, S.S.Byas, JJ.
Bashir - Appellant
Versus
State Of Rajasthan - Respondent
D.B. Cr. Appeal No. 129 of 1986.
Decided On : 10-08-1988
The identification of a suspect in a criminal case must be reliable in order to be admissible as evidence. A presumption of guilt cannot be raised under Section 114 of the Evidence Act if the possession of stolen property is not recent.
Headnote:
CRIMINAL APPEAL - IDENTIFICATION PARADE - RELIABILITY - OMISSION OF NAME IN FIR - RECOVERY OF STOLEN PROPERTY - PRESUMPTION UNDER SECTION 114 EVIDENCE ACT - RECEIVING STOLEN PROPERTY - SECTION 411 IPC.
Fact of the Case:
The appellant was convicted of dacoity and sentenced to life imprisonment. He appealed, challenging the identification parade and the recovery of stolen property from his possession.
Finding of the Court:
The court found that the identification parade was not reliable because the witnesses knew the appellant beforehand and had disclosed his name to the magistrate conducting the parade. The court also found that the recovery of stolen property from the appellant's possession was not sufficient to connect him with the dacoity, as there was a gap of three months between the commission of the dacoity and the recovery.
Issues: 1. Whether the identification parade was reliable. 2. Whether the recovery of stolen property from the appellant's possession was sufficient to connect him with the dacoity.
Ratio Decidendi: 1. The court held that the identification parade was not reliable because the witnesses knew the appellant beforehand and had disclosed his name to the magistrate conducting the parade. The court relied on the fact that the appellant was from a village that was only a mile away from the village where the dacoity took place, and that the witnesses had not mentioned any distinguishing features of the appellant in their statements to the police or to the magistrate. 2. The court held that the recovery of stolen property from the appellant's possession was not sufficient to connect him with the dacoity, as there was a gap of three months between the commission of the dacoity and the recovery. The court held that the presumption under Section 114 of the Evidence Act could not be raised because the appellant's possession of the stolen property was not recent.
Final Decision: The court allowed the appeal in part, setting aside the appellant's conviction and sentence for dacoity and acquitting him of those offenses. The court convicted the appellant of receiving stolen property under Section 411 of the Indian Penal Code and sentenced him to three years' rigorous imprisonment, which he had already served.
JUDGMENT
1. By his judgment dated February 26, 1986, the learned Additional Sessions Judge, Deeg convicted accused Bashir under Sections 395 and 397 Indian Penal Code and sentenced him to imprisonment for life with a fine of Rs 100/-, in default of payment of fine, to further undergo one month's rigorous imprisonment on each count. The accused has come up in appeal and challenges his conviction.
2. Stated in short, the prosecution case is that the dacoity took place in the houses of Pyare and Pooran Kumar in village Dabra, Police Station Pahadi, district-Bharatpur in the early hours on 2810-1984. It is alleged that the members of the family were sleeping in the different Kothas in that night. At about 3 or 3.30 a.m 10 or 12 miscreants intruded into the house armed with Guns, Pistols and Lathis. They had also torches with them PW 9 Pyare woke up, raised cries and called his brother Phusi for help. His brother Phusi came from the other Kotha and tried to face the miscreants. One of the miscreants fired his gun at Phusi, which hit him on the back of chest and abdomen on both sides. Phusi fell down and passed away instantaneously on the spot. His mother Angoori also came out of the Kotha and she was also shot dead by one of the miscreants. The miscreants thereafter ransacked the silver and gold ornaments lying in the house From the house of Pyare, they went to the house of PW 2 Pooran. They also ransacked his house and collected gold and silver ornaments along with clothes and cash. The miscreants also caused injuries to many of the inmates of the house. They thereafter decamped with the looted property. PW 1 Chander went to the Police Station, Pahadi and presented a written report Ex. P 1 of the occurrence at about 800 a.m. on that very day. The police registered a case and proceeded with the investigation. The Station House Officer, PW 13 Om Prakash arrived on the spot, inspected the site and prepared site-plan, Ex P 10. The post-mortem examination of the dead bodies of Smt. Angoori and Shri Phusi was conducted by PW 4 Dr. Laxman Singh, the then Medical Officer-in-charge, Government Dispensary, Pahadi. He was of the opinion that the death of these two victims was on account of gun shot injuries. He also examined the injuries of the other injured persons and issued injury report Ex.P 3 to Ex. P 7. The SHO found the empty cartridge-case lying on the spot, which was seized and sealed by him. The investigation continued but nothing concrete could come out.
3. It so happened that on 18-1-1985, an encounter took place between the police and two miscreants a few Kilometers away from Police Station, Pahadi. One of them was shot dead by the police in that encounter and accused Bashir, who is appellant before us, was caught on the spot. Ha was arrested vide arrest memo Ex. P 25 on 18-1-1985 itself. When he was arrested he was found having 12 bore SBBL gun and 4 live cartridges were found in his possession. They were seized and sealed. The accused was lodged in judicial custody on 19 1-1985. His test identification parade was conducted on 20 1-1985 by PW 12 Suresh Chand Gupta, the then Munsif and Judicial Magistrate, Deeg in sub-jail. PW 1 Chander PW 2 Roshan, PW 9 Pyare, PW 10 Omwati and PW 11 Munshi who had seen the commission of dacoity or were victims of it, participated in the test identification parade and except Chander remaining 4 correctly identified appellant Bashir as one of the miscreants who had committed dacoity in their houses. In consequence of the information furnished by the accused on 31st January 1985 while under police custody, two ornaments, viz , gold Dholna (Article-1) and silver Hansali (Article-2) were recovered from his house at his instance. The information recorded is Ex. P/28 and the recovery memo of the ornaments is Ex. P/12. Both these articles were correctly identified in the test identification parade conducted on 21-3-1985 by the same Judicial Magistrate Shri Suresh Chand. The identification memo is Ex. P/1
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