Surinder Singh, J.
1. The appellants have challenged their conviction and sentence passed by the learned trial Court in Sessions Trial No. 4 of 2006, under Section 450, 395 and 342 of the Indian Penal Code and appellant Parmod Kumar additionally under Section 25 and 27 of the Indian Arms Act. The sentence imposed on each of the appellant by the learned trial Court is as follows:
--------------------------------------------------------------------------------Sl. Sections PeriodNo.--------------------------------------------------------------------------------1. Under Section 395, I.P.C. Rigorous Imprisonment for five years and topay fine of Rs. 5000/- each and in default,to further undergo simple imprisonmentfor one year.--------------------------------------------------------------------------------2. Under Section 450, I.P.C. Rigorous imprisonment for three years andto pay fine of Rs. 2000/- each and indefault, to further undergo simpleImprisonment for six months.--------------------------------------------------------------------------------3. Under Section 342, I.P.C. Simple imprisonment for six months, each.--------------------------------------------------------------------------------4. Under Sections 25/27 of the Accused Parmod alias Prem Chand isIndian Arms Act further sentenced to undergo RigorousImprisonment for a period of one year,to pay fine of Rs. 1000/- and indefault to further undergo simpleimprisonment for six months.--------------------------------------------------------------------------------
2. Surinder Mehto appellant, filed two appeals one Crl. Appeal No. 475 of 2007 through Jail and another Cri. Appeal No. 445 of 2007 directly through his advocate on the similar grounds. Now, all appeals titled above have been taken up together for its decision to avoid any conflicting judgment.
3. The synoptical resume of the facts as alleged by the prosecution is that villages Baro and Det-Sungra are the remotest villages of Tehsil Nichar, District Kinnaur, in Himachal Pradesh, P.W. 14 Smt. Gulabi Devi is a resident of village Det Sungra and P.W. 1 Gita Devi is resident of village Barot. During the intervening night 13/14-9-2005, at about 2.00 a.m. Smt. Gulabi Devi informed telephonically Police Post Nichar falling under the jurisdiction of Police Station Bhawanagar that a theft had taken place in the house of P.W. 1 Gita Devi in village Baro. This information was recorded in the Dally Diary Exhibit P.W. 6/A and the wireless message was flashed at 2.05 a.m. on its W.T. sets. Report to this effect is Exhibit P.W. 6/B.
4. Head Constable Ashok Kumar was sent to the spot. P.W. 17 A.S.I. Ashok Kumar along with police party proceeded towards Check Post-Chaura for nakabandi, at about 6.30 a.m. they stopped Sungra Mandi HRTC Bus at the said check post/Barrier. There were about 10/12 passengers therein.
5. During the checking of the Bus, a revolver fell down from one of the persons and he tried to conceal it. The police got suspicious and nabbed him. He was de-boarded along with two of his companions for interrogation. That person revealed that they were five persons in all and two of them named Sham Kumar alias Satish and Kishnu Mehto had alighted from the bus at Nugalseri.
6. The Police constituted two parties. One was sent to Nugalseri and the other to old National-Highway. The party which went along National Highway enquired from the persons who met them if they had noticed any stranger. They followed the clues. Sham Kumar and Kishnu Mehto both were apprehended by them in the forest on the side of old National Highway and were brought to Chaura-Barrier.
7. P.W. 1 Gita Devi along with Lafan Sukh. reached Police Post in the morning and lodged FIR Exhibit P.W. 1/A to the effect that at 10.35 p.m. and stated that on 13-9-2005, she was alone in the house along with her children. Some body asked her, while passing through the path besides her house as to which place the said path was leading. She asked about the identity of the persons. On this, the said persons came to the house of her verandah, pushed the door which was having temporary 'kundi'. It got opened easily and four of them entered into the room and one of those persons had muffled his face and fifth remained standing outside, Out of the five persons, one person was having red check shirt. He had shown some pistol like object and another brandished knife (Chhura) and threatened her that she along with her children would be killed if she would not hand over the valuables to them. She took her children to the corner of the room in the bed and all the aforesaid persons started searching the suite-case and dressing table. From the dressing table, they took out gold Trimoni worth rupees 5000/-, one gold Chak valuing rupees 3000/-, gold ear rings worth rupees 4000/-, Yashika camera valuing rupees 800/-, two bundles of currency notes of 10,000/- each. Rs. 2900/-were separately kept and there were some currency notes of rupees 5/- totaling about rupees 200/-. Further, rupees 43,000/- kept in the suit-case were also taken out along with rupees 1200/- which were kept therein separately. While leaving the place along with the loot, also snatched the gold earrings from her ears and a gold nose-pin. All of them threatened her with dire consequences if the matter is reported to the Police. Thereafter, they broke open the room of her mother-in-law Smt. Dharamzin and went away. Around 1.00 a.m. during the night, Gulabi Devi also came from the house of her sister. When she returned to her house, she noticed that all the five persons had also committed robbery in her house and took away one pair of golden Trimoni valuing rupees 8000/- and currency notes of rupees 4000/- along with golden nose pin worth rupees 300/-. Thereafter, the appellants went to the house of Narkuma. They snatched her gold earrings from her ears and looted rupees 1000/- from her. The appellants were also alleged, to have committed robbery in the house of P.W. 7 Shila Devi from where silver ornaments worth rupees 8000/- were removed. Further, according to her. she could not identify any of them but, however, by appearance they looked like Biharis and one person out of them was like a local person. Further, according to her, she could identify them if Caught and shown to her.
8. The Police conducted the search of the appellants and recovered a pistol from Parmod Kumar appellant along with currency notes worth rupees 21,000/- along with gold ornaments such as Trimoni, Chak, nose pin, earrings and silver set in five pieces.
9. Rs. 44000/- were recovered from the person of appellant Kishnu Mehto along with one knife and a pair of gold ring.
10. On the search of appellant Dhaneshwar Mehto, watch, mobile, ring and tickets were recovered.
11. From appellant Shyam Kumar, one mobile set, one handkerchief (black coloured) and keys of the scooter were recovered. On conducting the personal search of appellant Surender Mehto, purse and tickets were recovered.
12. Lists of such recoveries were prepared in the presence of P.W. 2 Ganesh Negi and Pritam.
13. Currency notes and ornaments were identified by the complainant P.W. 1 Gita Devi on the spot of recovery at the barrier, which were taken into possession vide memo Exhibit P.W. 1/B. Thereafter all these articles were sealed.
14. During the interrogation of Parmod Kumar appellant, he made disclosure statement Exhibit P.W. 3/A under Section 27 of the Evidence Act to the effect that some ornaments were thrown out of the bus by him while de boarding and he could get them recovered from that place. Pursuant to that, he got recovered used gold ear-rings which were in three pieces belonging to Narkuma and were sealed on the spot and taken into possession vide memo Exhibit P.W. 10/A.
15. On 23-9-2005, appellant Shyam Kumar made the disclosure statement that he had thrown the torch taken from the house of P.W. 1 which was used in the dacoity near the tower in the bushes which could be got recovered by him. Pursuant to this statement, the Police got recovered the torch which was identified and taken into possession vide memo Exhibit P.W. 12/A.
16. According to the prosecution story, there was a total theft of ornaments and currency of rupees 1,03,700/- and the Police could only recover currency notes and ornaments of rupees 98,459/- and one pair of gold ring of the value of rupees 4000/-, nose pin of the value of rupees 300/- and currency notes of rupees 941/- and 5241/-could not be recovered. The Police had prepared the site plan of the place of the alleged incident and the recoveries.
17. The Police Interrogation revealed that the appellant had cooked up a plan at Rampur Bushahar before committing the robbery. They stayed for the night at Bhawanagar in a hotel and finding an opportunity during the night, in connivance with Shyam Kumar appellant who was residing there with his maternal uncle selected the houses where ladies were residing alone and their modus-operandi was that while committing the robbery from these houses, they used to bolt the door from outside, thereafter entered into the house of another lady and committed the robbery in seriatim in the vicinity.
18. The accused were identified and the theft articles were recovered from them and got identified. During investigation, the Police recorded the statements of the witnesses, on completion of the investigation, prepared the challan under Sections 342, 450 and 395 of the Indian Penal Code read with Sections 25 and 27 of the Indian Arms Act. Appropriate sanction for their prosecution under the Arms Act was obtained from the District Magistrate concerned. The case was presented in the Court for the trial of the appellants under the aforesaid Sections.
19. The learned trial Court found a prima facie case against appellants for the offences aforesaid, accordingly they were charge-sheeted. They pleaded not guilty and claimed trial.
20. To prove its case, the prosecution examined its witnesses and the appellants were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found attendant upon them and their case was denial simpliciter. None of them claimed any of the theft articles or the currency notes as their own.
21. The appellants were also called upon to enter their defense but they did not lead any evidence in defense. At the end of the trial, each of the appellants were convicted and sentenced as aforesaid which has been assailed in this appeal.
22. Shri Virender Thakur, learned Counsel for the appellant has vehemently argued that the appellants were not identified by any of. the witnesses. The evidence of the prosecution is contradictory and there was no iota of evidence to connect them with the offences charged against each of them. The learned Counsel led me through the evidence on record and prayed for their acquittal.
23. Shri J. S. Guleria, learned law officer has supported the impugned judgment of conviction and sentence passed against the appellants and further submitted that the appellants had committed the offence in the dead hours of the night when the ladies were alone in their respective houses. Shyam Kumar appellant was conversant with the topography and the location of the houses which they ransacked and looted. Recovery of the stolen articles was affected from them. To commit the offence, they used the deadly weapons, i.e. the knife and pistol and each of the appellants were identified by the prosecution witnesses. They could not explain the possession of the ornaments and the currency notes which were recovered from them and were also identified to be the property of the complainant and her close relatives.
24. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. The brief resume of the evidence led by the prosecution against the appellant is as follows:
P.W. 1 Gita Devi stated that her husband had gone with the apple crop to Chandigarh. In the month of September 2005, her mother-in-law Dharamzin had gone to village Sungra. On 13-9-2005 at about 19-30 p.m. five persons came near her house and asked about the passage. Then they came to the verandah of her house, pushed the door and entered into her room and four persons got inside the room whereas one person remained outside near the door. Out of all the five persons, one had muffled his face. She further stated that Parmod Kumar appellant was having a pistol in his hand. Kishnu appellant was brandishing knife. Both were identified by her in the Court. Further, according to her, the appellants had asked her to hand over the valuable articles to them lest she would be killed. Light of the room was on and the appellant started searching her room. They took out gold ornaments viz. Trimoni golden, Gold Chak golden, nose pin golden from her dressing table which were valuing about rupees 12000/-. Thereafter they also took out currency notes of Rs. 20,000/-. Rs. 2900/- and Rs. 200/- from her dressing table and further took out Rs. 43000/- from suite-case along with Rs. 1200/- which were lying separately. A camera and a torch were also taken by them. She was wearing the gold ear-rings and a nose pin. Those were also snatched. Thereafter, they entered into the room of her mother-in-law Dharamzin which was adjoining her room. From there, they took gold Trimoni worth Rs. 8000/-, cash of Rs. 4000/-golden nose ring valuing Rs. 300/- and while leaving the place, the bolted the door from out side. Next morning, she came to know that the appellants had also committed the theft in the house of Narkuma and Sheela Devi and they also snatched the earrings of Narkuma and took away silver jewellery from the house of Sheela Devi. During the night at about 1.00 a.m., she had proceeded to Sungra and reached at about 1.45 a.m. in the house of her sister-in-law. From there, she made a telephonic call to Police Station. Bhawangar and informed them about the dacoity. Thereafter, she went to Police Station Bhawanagar and reached there at about 8.00 a.m. and lodged the report Exhibit PW1/A, She further stated that Shyam Lal alias Satish appellant had muffled his face with the handkerchief. He used to stay with his maternal uncle in her village. When she informed Bhawanagar Police, they informed that the appellants were apprehended at Check-Post Chaura. She visited the said check post and found that the appellant Surinder Mehto, Dhaneshwar Mehto and Parmod Kumar were present there. The Police had also taken into possession one pistol and currency notes of rupees 22000/-on the search of Parmod Kumar and two sets of gold Trimoni golden. Chak golden, silver ornaments, nose pin golden, tickets of bus along with one camera. The police had also taken into possession one kara, one purse and two tickets from appellant Surinder Mehto along with few money and from appellant Dhaneshwar Mehto, mobile set, one ring and some papers were recovered. Further, she stated that on the information of Parmod Kumar, appellants Shyam Kumar and Kishnu Mehto were also arrested and the police recovered currency notes of rupees 44000/- from Kishnu Mehto along with one knife and from appellant Shyam Kumar, one mobile set, keys of the scooter and one handkerchief was recovered. During the trial of the case, she identified the pistol Exhibit P1 and one cartridge Exhibit P2 allegedly recovered from Parmod Kumar. She further stated that Parmod Kumar was having pistol Exhibit P1 at the time of committing the crime. She also identified Trimoni golden Exhibit P3 alleged to have been recovered at the instance of Parmod Kumar which was belonging to her mother-in-law. Chak golden Ext. P4. Camera Exhibit P5, nose pin golden Exhibit P6. silver ornaments Ext. P7 belonging to Smt. Sheela, and currency notes of rupees 22000/- from him. She also stated that Police had also recovered currency notes of rupees 67,359/- (Exhibit P-8) from the appellants. Police also recovered one pair of gold ring from Kishnu Mehto. She further identified knife Exhibit P10 having been recovered from Kishnu Mehto which he was having at the time of committing the theft in her house. She further identified Exhibit P12 handkerchief with which Shyam Lal alias Satish Kumar appellant had muffled his face while committing the theft in her house. She also identified the torch Exhibit P13 having been taken by appellant Shyam Kumar from her house at the time of the occurrence. She further identified the ear rings Exhibit P14 belonging to Narkuma recovered at the instance of appellant Parmod Kumar. According to her, the Police had arrested the accused persons at 6.30 a.m. and all the articles were taken from their possession. Since she had also identified these articles, therefore, she appended her signatures on Exhibit PW1/B. At that time, Pritam Chand and Ganesh Negi were also present and they also appended their signatures thereon.
25. In cross-examination, she has admitted that Rasal Singh, uncle of appellant Shyam Kumar runs a shop in their village and Shyam Kumar used to look after the aforesaid shop. She testified that she knew Shyam Kumar appellant for the last about 7/8 years. She was fully acquainted with him and even could recognize him by his voice and gait. However, she could not identify him at the time of occurrence as he did not utter a single word at that time but from appearance, she thought that he was a local person because of his appearance. In her cross examination a fatal suggestion was put to her which was denied that the appellants remained outside her room in the verandah, which means that the appellant admits their presence at the relevant time. She also stated that appellants Surinder, Parmod and Dhaneshar were present in the Check-Post when she reached there and other to appellants were brought there around 9.00 or 10.00 a.m. According to her, she had stated to the Police that one of the person had muffled his face with black cloth Exhibit PW1/A but when confronted with her statement, only the word 'black' was not mentioned therein. She further stated that torch Exhibit P13 was recovered from the Jungle. She also stated that the houses of Narkuma and Sheela were situated near to her house. She did not raise any hue and cry nor heard any cries from the houses of other ladies. Further, according to her, the appellants had removed the hinges from the wooden almirah of her mother-in-law which was shown to the Police. She also stated that no telephones were available in the vicinity of her house. According to her, the Police got accused Shyam Kumar identified in Police Station Bhawanagar on the next day. He was interrogated and beaten up by the Police but no statement was recorded in her presence. She testified that she had identified accused Shyam Kumar from his clothes and handkerchief Exhibit P12 which was recovered from his possession and at the time of committing the crime, he was bearing red check shirt and this fact was stated by her to the Police while describing the clothes. However, this fact did not find mentioned in her statement Exhibit PW1/A. She further stated that the recovered articles were sealed at Police Station Bhawanagar which were carried through Ganesh Negi. When the appellants went away from her house, she came out side by removing roof ceiling of her house. She also stated that no money was recovered from Shyam Kumar but she denied that he was falsely implicated in the case. She further stated that she is a matriculate and she gave the size of her room and of her mother-in-law. She stated that Ganesh Negi and Inder Sain are ward members from their Panchayat. The house of Ganesh Negi is at a distance of one km. from her house. He was having a telephone connection. She denied that she had seen the three of the appellants for the first time at Chaura Check-Post. She admitted that before her arrival at Bhawanagar, Station House Officer (SHO) along with four policemen had already arrived at Check Post Chaura but denied that before her arrival, the articles from their possession were already recovered. Another suggestion was given to her that she had identified the appellants from the ornaments recovered from each of them to which she denied which means that the appellants are also admitting the recoveries from their possession.
26. PW2, Ganesh Negi Ward Member though turned hostile to the prosecution but stated that on 13-9-2005 at about 12.30 a.m. Pritam Chand came to his house and informed about the theft committed in the house of Pyare Lal, i.e. the husband of PW1. Thereafter, they went to Police Station Bhawanagar and then they went to Check-Post Chaura where the Police had checked the bus coming from Kinnaur side. The Police apprehended appellants Kishnu Mehto. Surinder and Dhaneshwar to whom he identified in the Court and according to him, the Police recovered Exhibits P1 to P21 from them. He also identified pistol Exhibit P1 having been recovered from appellant; Kishnu Mehto admitted that the recovery memo Exhibit PW1/B was prepared 6n the spot which bears his signatures. Further-according to him, aforesaid three appellants had disclosed that two other co-accused were also with them. The Police made a search for them. He along with Pritam accompanied the Police to the Jungle and Police arrested appellants Shyam Kumar and Parmod. In the cross-examination by the learned Public Prosecutor, after he was declared hostile, he admitted that the Police had apprehended the accused persons Parmod Mehto, Surinder Mehto and Dhaneshwar Mehto at the Chaura Check Post and further admitted the recovery of Exhibit P1 to P7 and currency notes from the possession of Parmod Mehto which were identified by PW1 Geeta Devi and also admitted the recovery of one kara and tickets of the bus from Surinder Mehto. He further admitted the recovery of mobile set Ext. P15. one silver ring and purse from appellant Dhaneshwar Mehto and recovery of mobile set Exhibit P16. key of scooter Exhibit P20, handkerchief Ext. P12 from Shyam Kumar. He also admitted recovery of rupees 44000/-, one knife Exhibit P10 and earrings Exhibit P14 from appellant Kishan Mehto which were identified by Geeta Devi.
27. In cross-examination, he has stated that after making the recoveries from three of the appellants, the recovered articles were kept at Police Post Chaura. After about half an hour, they left in search of two other accused towards the Jungle. He did not know Shyam Kumar earlier. Out of the passengers, there was no one belonging to Bihar. Three appellants were occupying different seats. He did not know whether one of the accused had tried to throw out the articles from the bus. He denied that handkerchief Exhibit P12 was not recovered from appellant Shyma Kumar. He further stated that Gegta Devi had disclosed that appellant Shyam Kumar had muffled his face with a cloth which was hanging outside her house-He further stated that Geeta Devi had disclosed that she recognized appellants from their dresses. However, according to him, no stolen article was recovered from the possession of appellant Shyam Kumar. He reached the Police Station on 14-9-2005 at 4.30 a.m. He did not specifically remember which article was recovered from which of the accused.
28. PW3 Yoginder Singh Constable in Home Guard has proved the recovery of the aforesaid articles at the instance of appellant Parmod Kumar which were alleged to have been thrown out of the bus. He proved the disclosure statement Exhibit PW3/A. Although he admitted in the cross-examination that the Police had beaten the said accused before writing down his statement. PW4 Pyare Lal had given the information to the Police that he had seen two strangers who were identified by him as accused Shyam Kumar and Kishnu Mehto.
29. PW5 Diku Sharma was running Dhaba at Bhawanagar. He identified the appellants as they had visited his Dhaba on 13-9-2005 at about 8.00 p.m. Later, he saw them in the Police Post next day and identified them.
30. PW6 Narinder Singh Head Constable had lodged the FIR Exhibit PW1/A at the instance of Geeta Devi PW and he also proved the Report No. 20 Exhibit PW6/A and Rapat No. 21 Exhibit PW6/B. Further according to him, he being the M. H. C. at Police Station, Bhawanagar, A.S.I. had deposited with him total nine parcels in this case and on 23-9-2005 S.H.O. Dhan Singh deposited one sealed parcel. All these entries were found mentioned in the Malkhana Register.
31. PW7 Sheela Devi stated that five persons had entered into her house at 10.30 p.m. Appellant Parmod Kumar was having pistol in his hand and Kishnu had a knife. They demanded money and ornaments. The appellants committed the theft of silver ornaments which were kept in a drum in her house and thereafter, they decamped with the currency notes of rupees 450/- and bolted the room from out side. Next day, the Police brought the appellants in Police Station. PW Geeta Devi was also with the Police. She identified the silver ornaments Exhibit PW22 to be her own. According to her, the maternal aunt of Shyam Kumar is from their village and her husband runs a shop there. She had seen the appellant Shyam Kumar in the shop and knew him for the last about four years. When the accused had entered her house, electric lights were on. She denied that she could not recognize the appellant Shyam Kumar. She further stated that when he entered his house, she did not raise any hue and cry. However she heard the cries of her mother-in-law House of Geeta Devi is stated to be at a distance of 100 meters from her house. She further stated that her house was bolted by the appellants after committing the theft and she came out after breaking open the roof. On 14-9-2005, she identified all the appellants in Police Station Bhawnagar who were recognized by her from their dresses which they were wearing at the time of alleged incident. Further, according to her, she went on foot to the Police Station to report the matter and it took about half an hour to reach there. It was dark when she reached the Police Station but the day was dawn. Gita Devi was not there. She had also lodged the report. According to her, Parmod Kumar appellant was wearing green sweater on the date of incident. Accused Kishnu was having a knife. She also identified the appellant Kishnu and Parmodh from the photographs, during the trial in the Court.
32. PW8 Smt. Narkuma has also stated that five persons entered in her house. They snatched her ear-rings of gold and committed theft of rupees 1000/- from the almirah. Next day, she visited the Police Station and identified the appellants. The appellants were arrested and she identified her ear-ring Exhibit P14 and the currency notes. She also identified the pistol Exhibit P1 and knife Exhibit P10 which were in the possession of the appellants. She stated in the cross-examination that when the appellants entered her house, she had switched on the light-She recognized appellant Shyam Kumar as having known to her prior to the incident. When ear-rings were snatched from her ears, she sustained injuries but did not under-go any medical examination. While running from her house, the appellants had bolted the house from outside. The door was opened by Sheela Devi around mid-night. She further stated that she had identified the appellants in the Police stay the next day. She clarified that four persons had entered into the room and one was standing outside.
33. PW9 Pyare Lal, the husband of PW1 Geeta Devi has stated that when he returned from Chandigarh, he came to know about the theft in his house. He identified the gold ornaments, torch and currency notes to be his own.
34. PW10 Constable Vikaram Chand was associated in the investigation of the case when ear rings were recovered from Parmod Kumar appellant vide memo Exhibit PW10/A.
35. PW11 Constable Hem Chand is a witness of recovery of torch and PW12 Hukam Chand is a witness to the effect that Shyam Lal alias Satish Kumar along with another man had met them on the way along with the Police Party and the torch Exhibit P13 was recovered in his presence.
36. PW14 Gulab Devi stated that during the mid night, her sister in law Geeta Devi had knocked at her door. When she came in, she looked like frightened. On inquiry, she informed that five dark complexioned persons at the point of pistol and knife had committed the theft of her ornaments and cash. Thereafter, she informed her son about the incident and also informed the Police Station at Bhawanagar on telephone about the incident. At about 7.00 a.m., she visited Police Station along with Geeta Devi and lodged the report. She did not go to village Chaura. Sheela Devi had also disclosed to her about the complexion of the accused persons and nothing else.
37. PW16 Goverdhan Dass has proved the sanction Exhibit PW16/A accorded by the District Magistrate Shri Aman Deep Garg against Parmod Kumar Mehto appellant.
38. PW17 A.S.I. Ashok Kumar had nabbed the three persons in the bus and affected recoveries from them as aforesaid. He stated that he did not conduct the identification parade of the appellants as complainant herself identified them at the Police Post. He further stated in his cross-ex-amination that when they were searching the Bus at Chaura Check Post, a pistol fell down from one of the accused. They got suspicious as it was a country made pistol. He also stated that gold rings were recovered from the side of National Highway near the earth and the grass but no identification qua them was conducted.
39. PW18 Sushil Kumar conductor of HRTC Bus has proved the fact that the appellants had boarded the bus, out of the five appellants, two purchased bus tickets for Nigulsari and three for Rampur. He further stated that one country made pistol was being thrown in the Bus by one of the three accused persons. The Police got suspicion and all the three persons de boarded from the Bus. They were dark complexioned and appears to be residents of Bihar. According to him, there were about ten passengers in the Bus at that time. He further stated that the Police had immediately started the search of the three persons and in his presence, only one gold Chak was recovered from one of the accused.
40. PW19 Sub-Inspector Dharam Singh, stated that on 23-9-2005, he recorded the disclosure statement Exhibit PW11/A of Shyam Kumar regarding throwing of the torch near the buses at village Baro which was recovered by him. He prepared the site plan of the torch from where it was recovered at the instance of Sham Kumar.
41. On culling the evidence aforesaid and on analyzing the statements of the accused recorded under Section 313 of the Code of Criminal Procedure, I find that immediately after the alleged occurrence, the Police was informed by Gulabi Devi and PW1 Geeta Devi. The Police visited the place of the occurrence and also put a naka on the Chaura Check post. Three of the appellants were found traveling in the bus, pistol Exhibit P1 was recovered from one of the accused and a knife was also recovered, as aforesaid and the recoveries of the stolen articles were affected from them. They did not claim either the currency notes or the gold ornaments to be their own either in the cross-examination or in the statement under Section 313 of the Code of Criminal Procedure. It is proved from the statement of bus conductor that two of the appellants had deboarded at Nigulsari and they were arrested by the Police from the Jungle near by National Highway. In the morning, PW1 Geeta Devi lodged the F.I.R. in Police Station Bhawanagar and on coming to know that the appellants were apprehended at Chaura Check-Barrier, she proceeded to that place and in her presence, recoveries of the stolen articles were affected. She identified the stolen articles to be her own along with the currency notes. The appellants failed to give any explanation for possession of those valuables and possession of huge money with them. It is worth mentioning that immediately after the occurrence, the appellants were found in possession of the stolen articles as stated above and they failed to explain its possession in any way. So the presumption goes against them that either they are thief or are the receiver of the stolen property but if this recovery is seen vis-a-vis the statement of PW1 and other witnesses discussed above in whose presence and the houses the decoity was committed by the appellants, there remains hardly any scope to entertain any doubt about their involvement. Otherwise also, appellant Shyam Kumar was known to the complainant and other witnesses as he was looking after the shop of his maternal uncle in the village who was locally married there and PW1 Geeta Devi has stated that handkerchief Exhibit P12 which was outside her house was taken by Shyam Kumar appellant to hide his face which was used to hide his identity as he was known to her. Ext. P12 was later recovered from his pocket as stated by the witnesses and was also identified by PW1 Geeta Devi which connects the appellant Shyam Kumar directly with the offences charged.
42. The main plank of the arguments advanced by the learned Counsel for the appellant was that the test identification parade of the appellants was not conducted which according to him is fatal to the case of the prosecution. But it is not so as the test identification parade is not a substantive evidence. In the instant case when the incident had taken place during the intervening night of 13 and 14th September, 2005 and the appellants were apprehended within few hours in the morning with the stolen articles/property as aforesaid, the appellants stood fully connected with the alleged offence. Thus non-conducting of the identification parade is not fatal to the prosecution.
43. The appellants have deliberately made the ladies as their prey knowing the Police station was at a far off place from their houses. Appellants knew fully well that they were alone and Shyam Kumar knew about this fact and the other appellants with his connivance ransacked and looted their valuables from their houses. None of the prosecution witnesses nourished any grudge or ill-will against any of the appellants. The recoveries at the instance of the appellants with respect to theft of the property further clearly linked them with the offences alleged against them.
44. On the reappraisal of the evidence aforesaid, I do not find that there is any scope for interference with the judgment of conviction and sentence passed by learned trial Court. The evidence led by the prosecution is cogent, reliable and convincing which proves the case of the prosecution beyond a shadow of reasonable doubt. There is no substance in the appeals filed by the appellant which are merit less thus accordingly dismissed.
45. Since the sentence of the appellants has been suspended, they are now directed to surrender before the learned trial Court on 27-11-2008 to serve out the sentence; failing which the learned trial Court will take appropriate steps to procure their presence and commit them to prison, to serve out the sentence passed.
46. All the miscellaneous applications do not survive, thus disposed of.
47. Send down the records.