Singh Vs. State of M.P  INSC 171 (31 March 1993)
K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)
1994 SCC Supl. (1) 62
These appeals are filed under Section 379 of the Code of Criminal Procedure.
These five appellants along with two others were tried for offenses punishable
under Sections 395, 396, 397 and 449 of the Indian Penal Code. Two of them were
tried under Section 25 read with Section 27 of the Arms Act. Mithlesh was tried
for offenses punishable under Sections 216 and 412 IPC. The trial court
acquitted all of them. The State preferred an appeal. During the pendency of
the appeal the two accused Devi Singh and Kishore Singh died and the appeal
against them stood abated.
High Court, however, relying on the evidence of the eyewitnesses who
participated in the identification parade and the recovery effected allowed the
appeal and set aside the acquittal and convicted Mansingh, Rati Ram, Narayan
Singh and Shiv Ratan under Sections 395/397, 396 and 449 IPC and sentenced each
of them to undergo rigorous imprisonment for ten years under each count. Rati
Ram was further convicted under Section 25 read with Section 27 of the Arms Act
and sentenced to undergo three years' rigorous imprisonment. Mithlesh was
convicted under Section 412 IPC and sentenced to undergo five years' rigorous
acquittal under Section 216 was affirmed. Sentences were directed to run
Aggrieved by the said judgment of the High Court the convicted accused have
preferred these two appeals. The prosecution case is as follows.
the night of November
11, 1978 at about 11 p.m. there was a dacoity with murder in the house of Premchand
(PW 22) in village Hardi, within the 64 limits of Gadhakota police station,
District Sagar. It is alleged that the dacoits removed gold and silver
ornaments and cash of Rs 500, total valued at Rs 22,465 by breaking open the
box and the safe. On the ground floor, Nathuram and Jagrani parents of the complainant,
were sleeping and they were first assaulted. On the first floor, complainant's
sister-in-law Rajrani was killed with a Katarna. The complainant saw the
incident from the second floor. Dacoits were unknown to the witnesses. After
committing the looting the dacoits left the place.
went and lodged a report (Ex. P-42) in the police station. The injured Nathuram
and Jagrani were admitted in the hospital. Rajrani also received injuries and
postmortem examination it was found that she died because of the incised wound
cutting maxilla bone. Nathuram had 13 injuries including fracture of right
forearm. The prosecution examined PWs 17 and 18 who received pellet- injuries
and Jagrani who received one lathi injury. On receipt of the information PW 23,
PSI reached the scene of the occurrence and prepared a Panchnama and effected
some recoveries. He took into custody Mansingh in village Sewda and the other
accused were also arrested on different dates after the expiry of three months
and some more recoveries were effected. A Panchnama was drawn in respect of the
recoveries and the recovered articles were identified as those belonging to the
identification parade was held on two dates namely March 16, 1979 and March
30, 1979. The accused
were said to have been identified by the eyewitnesses. On April 4, 1979 another identification parade was
held in respect of the articles recovered and they were said to have been
identified by PWs 2, 17 and 22. The trial court acquitted the accused holding
that identification of the persons as well as of the articles was doubtful.
the appeal the High Court examined the proceedings of the identification
parades and accepted the same. The High Court also accepted the prosecution case
regarding the recovery of the stolen articles and accordingly convicted the
accused as stated above.
these appeals Shri Ranjit Kumar, learned counsel for the appellants submits
that the dacoity took place during night-time and the assailants were totally
strangers to the victims and they were arrested after a lapse of three months
and identification was held again 22 days thereafter.
the identification of the accused by the eyewitnesses cannot be relied upon. In
this regard he also submits that the reasons given by the trial court while
rejecting the evidence regarding the identification of the eyewitnesses as well
as the recovered articles are quite sound and the High Court erred in reversing
the same. We have examined the proceedings and also the evidence given by the
respective eyewitnesses. The dacoity is not in dispute.
Mithlesh belonged to the same village but none of the eyewitnesses stated that
he was present during the dacoity.
he was not put up for identification parade. The dacoits were strangers to the
eyewitnesses. Then the question arose whether there was sufficient opportunity
for these witnesses to recognise the accused. It is noted that none of their
features (sic was) even suggestively mentioned in the FIR not even in the
case-diary as noted by the High Court. It is also to be noted that none of the
eyewitnesses said that they recognised the dacoits while they were inside the
house and on the other hand it becomes highly doubtful whether they could not
have identified the strangers in the moonlight. Taking all these aspects into
consideration the trial court was not 65 prepared to accept the evidence
regarding the identification parade of the persons. We think this is a
reasonable view in the matter. Therefore, the participation of the appellants
in the actual dacoity becomes doubtful.
However, the recoveries are duly effected and the Sub- Inspector as well as the
witnesses spoke about the same.
because certain stolen articles were recovered from the accused they cannot be
held to be dacoits by invoking the presumption unless there is a recent
possession. In this case admittedly, there is a lapse of nearly three or four
months. In these circumstances, we think it would be safe particularly when
they were acquitted by the trial court to convict them only for the offence of
being in possession of the stolen property.
serious dacoity took place and must be known to all the people in the village
as well as in the surrounding places. The accused who were found to be in
possession of the stolen property which is the subject-matter of the dacoity
would be held liable under Section 412 IPC. In the result the convictions of Narayan
Singh and Shiv Ratan in Crl. A. No. 573 of 1983 under Sections 395/397, 396,
449 IPC, and the sentence of ten years' rigorous imprisonment under each count
are set aside. Instead they are convicted under Section 412 IPC and each of
them is sentenced to three years' rigorous imprisonment. With regard to the
appellants Mansingh and Rati Ram in Criminal Appeal No. 623 of 1984 their
convictions under Sections 395/397, 396 and 449 IPC and the sentence of ten
years' rigorous imprisonment awarded under each count are set aside. Instead
they are convicted under Section 412 IPC and each of them is sentenced to three
years' rigorous imprisonment. The conviction of Rati Ram under Section 25 read
with Section 27 of the Arms Act and the sentence awarded thereunder are
confirmed. The conviction of Mithlesh one of the appellants in Crl. A. No. 573
of 1993 under Section 412 IPC is confirmed and the sentence is reduced to three
years' rigorous imprisonment.
acquittal under Section 216 IPC is confirmed. Sentences are directed to run
Appeals are disposed of accordingly.