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2006 DIGILAW 692 (JHR)

Shambhu Raut v. State Of Bihar (Now Jharkhand)

2006-06-13

RAKESH RANJAN PRASAD

body2006
ORDER R.R. Prasad, J. 1. The appellant, Shambhu Raut was put on trial along with Pagla Mushar and Ashok Sah for the charges under Sections 395 and 412, IPC. The trial Court while acquitting Pagla Mushar and Ashok Sah, found the appellant alone guilty under Section 412, IPC and sentenced him to undergo R.I. for seven years and also to pay a fine of Rs. 2,000/- and in default of fine the convict was ordered to undergo R.I. for a further period of three months. 2. The case of the prosecution is that on 31.7.1990 at about 8 p.m. when the informant, Rajkumar Singhania (PW 4) returned home and knocked the door of his house, two unknown persons having covered their faces opened the door and attempted to pull the informant inside the house, but the informant succeeded in fleeing away from there and the dacoits, took out Rs. 12,000/- kept in a bag from the scooter. After sometime, the dacoits came out of the house with the articles looted from the house. The informant as well as his son, Dhananjay Singhaniya (PW 6) chased the dacoits but did not succeed in apprehending them. When the informant returned to his house he found his wife, Pushpa Devi Singhania (PW 13) injured as she was having stabbed injuries in her abdomen inflicted by the dacoits. The dacoits took away a sum of Rs. 1,12,000/- kept in a bag from the almirah and also snatched away jewelleries of the female folk. 3. Thereafter the informant (PW 4) gave his fardbeyan on 31.7.1990 at about 8.30 a.m. Upon which the case was instituted. In course of investigation, the police apprehended the appellant and were put on T.I. Parade wherein the informant (PW 4) and his son, Dhananjay Singhaniya (PW 6) identified him in T.I. Parade conducted by Awani Ranjan (PW 7), who prepared T.I. Chart, which has been marked as Ext. 4. During investigation, the Investigating Officer, Ram Sharan Yadav (PW 14) also recovered looted articles from the house of the appellant at the instance of the appellant, for which seizure list was prepared. Those articles were also put on T.I. Parade, which was conducted by Uday Shankar Gupta (PW 12) and the looted articles were identified by PWs 16, 17 and the informant (PW 4). 4. Those articles were also put on T.I. Parade, which was conducted by Uday Shankar Gupta (PW 12) and the looted articles were identified by PWs 16, 17 and the informant (PW 4). 4. After completion of the investigation, the police submitted charge-sheet and when the case was committed to the Court of Sessions, the charges were framed, to which accused pleaded not guilty and claimed to be tried. 5. In course of the trial as many as 17 witnesses were examined and after taking into consideration the materials brought on the record, the learned trial Court while acquitting all the accused, including the appellant for the charge under Section 395, IPC, convicted the appellant alone under Section 412, IPC on finding him guilty for the said charge. 6. Mr. Mahavir Pd. Sinha, learned Counsel who was appointed as amicus curiae did submit that the articles which are said to have been recovered from the house of the appellant, are not the same which according to the informant (PW 4) was allegedly looted away in course of the dacoity from his house. In this regard it was submitted that according to PW 4 looted articles were Rs. 1,12,000/-, golden chain, golden as well as silver ring, cash of Rs. 5-6,000/, 4 golden bangles and ear ring whereas cash of Rs. 2,974/-, 2 silver coins, silver ring with munga, silver chain, a piece of silver and ladies wrist watch are said to have been recovered from the house of the appellant, which the witnesses have claimed to have identified, but evidently some of the incriminating articles such as silver chain, a piece of silver, ladies writ watch and silver coins have not been claimed by the witnesses to have been looted away in the dacoity and some articles such as silver ring, ear ring, bangle etc. are the common articles which can be found in any ones house and that silver ring which was found in the house of the appellant was embedded with munga whereas according to the prosecution case only silver ring has been stolen away and thus the appellant cannot be said to have been found in possession of the stolen articles and therefore conviction and consequence sentence imposed upon him is quite bad. 7. Heard learned Counsel for the State. 7. Heard learned Counsel for the State. Having heard counsel for the parties and on perusal of the record, I do find that it is true that the informant (PW 4), in his fardbeyan, has given description of the looted articles which appears. to be the same as has been stated on behalf of the appellant, but while giving description he made statement that for other articles he will give description, later on. Further I do find that son of the informant (PW 6), in his evidence, has deposed that the dacoits took ,away 1,12,000/- as well as jewelleries which the female folk had been putting on and also the silver chain and a piece of silver. PW 13, Pushpa Singhania wife of the informant. PW 15, Babita Singhania, PW 16, Binita Singhania as well as PW 17, Manisha Singhania have deposed that the dacoits took away golden chain, silver ring, cash etc. They have also said that they took away some ornaments which had been kept in almirah and due to this reason that some of the ornaments kept in almirah was looted away the informant, in his fardbeyan, might not have given the description of all those articles. However, the articles looted away in course of dacoity was recovered from the house of the appellant at the instance of appellant which had been kept concealed under the earth and was dug out by the appellant, which is evident from the evidence of I.O. (PW 14) and those articles when were put on T.I. Parade were identified by PWs 4, 16 and 17. According to PW 6, Dhananjay Singhaniya son of informant, RKS and figure 5000 was written on one of the notes of the bundle which is under handwriting of his father and therefore there would have been no difficulty to the witnesses in identifying the bundle of the cash and the other articles. Therefore the prosecution has been able to prove that the incriminating articles recovered from the house of the appellant were the some articles which had been looted away in course of the dacoity. Even if, this fact is proved still the prosecution is to prove that accused knew or had reason to believe that the possession thereof which he received or retained was transferred by commission of dacoity and he did so dishonestly for proving the charge under Section 412, IPC. Even if, this fact is proved still the prosecution is to prove that accused knew or had reason to believe that the possession thereof which he received or retained was transferred by commission of dacoity and he did so dishonestly for proving the charge under Section 412, IPC. In this case the prosecution can be said to have certainly proved that fact. It is the evidence of PW 14 that the appellant took out. a plastic bag by digging earth in which the incriminating articles as have been mentioned above had been kept and the same was seized and the seizure list was prepared over which the appellant made his signature. This conduct of the appellant of keeping the articles under the ground amply indicates that he was in possession of the articles which was known to him that it was the articles which had been looted in commission of the dacoity as normally one does not find a person keeping these articles under the ground. Therefore, the trial Court rightly convicted the appellant under Section 412, IPC. 8. So far question of sentence is concerned the appellant has been sentenced to undergo RI. For seven years, but keeping in view the fact that there has been no criminal antecedent and that the appellant at the time of conviction was aged 35 years and the fact that the appellant faced the rigors of the trial since 1990. Sentence imposed for seven years appears to be somewhat too harsh. 9. Under the facts and circumstances, ends of justice would be met if the appellant is sentenced to undergo R.I. for three years and to pay a fine of Rs. 2,000/-. Accordingly, he is sentenced. In default of the fine the convict shall have to undergo RI for a further period of three months. It goes without saying that the period already undergone in course of inquiry investigation and trial shall be set off. 10. With this modification in sentence, the appeal stands dismissed.