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2008 DIGILAW 364 (PAT)

Jagat Singh v. State Of Bihar

2008-02-20

SHYAM KISHORE SHARMA

body2008
Judgment Shyam Kishore Sharma, J. 1. Since all the above-mentioned four appeals have arisen out of one common judgment, they have been heard together and are being disposed of by this judgment. 2. Appellants have preferred this appeal against the judgment of conviction and order of sentence dated 26.7.1993 and 28.7.1993 passed by the 1st Additional Sessions Judge, Nalanda, Biharsharif in Sessions Trial No. 127 of 1989 whereby the appellants have been found guilty for committing offence under Section 412 of the Indian Penaf Code and were sentenced to undergo R.I. for 10 years. 3. Self-statement of Krishan Kumar Sharma Sub-Inspector of Police, Bihar Police Station is the basis of prosecution case. According to the prosecution, the informant Krishan Kumar Sharma (not examined) has recorded his self-statement on 3.12.1988 that he alongwith D.N; JethaSi, Dy.S.P. Mufassil (not examined), Sub-Inspector K.K. Singh, Officer In-Charge of Murarpur Police Station (not examined), Sub-Inspector Subodh Kumar (tendered), Sub-Inspector Sitaram Khan (PW 5), A.S.I. Binod Singh (not examined) A.S.I. A.K. Pandey (PW 1), A.S.I. Sudama Singh (PW 2) and A.S.I. M. Tetey apprehended Ashok Kumar, Binod Kahar, Naresh Kahar, Ganauri Mahto, Jagat Singh and Tunni Mahto. They in their confessional statement stated that they were involved in a number of cases in Patna and Biharsharif and on their identification a number of articles totally 192 in numbers were recovered. Accordingly, the police registered a case under Sections 411, 412 and 414 of the IPC. After investigation charge sheet was submitted. Cognizance was taken and the case was committed to the Court of Sessions. 4. Charges were explained to the accused persons that in the night of 2nd/3rd day of December 1988 at Mohalla Bari Pahari, P.S. Murarpur, Dist. Nalanda they dishonestly received or retained jointly the stolen property i.e. T.V. and 192 other articles which were the stolen articles of Murarpur P.S. Case No. 447-of 1988 under Section 395 IPC and Kankarbagh (Patna) P.S. Case No. 918 of 1988. 5. The defence of the accused persons was of false implication and also that the seized articles were not the stolen articles rather the defence of one of the appellants Tunni Mahto was that the seized articles were taken away by the Officer In-Charge from his shop. The defence of other accused persons was of false implication and also that there was no seizure on the basis of their confession. 6. The defence of other accused persons was of false implication and also that there was no seizure on the basis of their confession. 6. In order to prove the case the prosecution has examined altogether 8 witnesses. They are PW 1 Alakh Kumar Pandey Sub-inspector, PW 2 Sudama Singh A.S.I., PW 3 Ram Bilash Prasad, PW 4 Jalim Jamadar, PW 5 Sitara Khan, PW 6 Subodh Kumar Srivastava A.S.I., PW 7 Surendra Prasad Singh A.S.I., PW 8 M. Tetey A.S.I. 7. PWs 3 and 4 were the seizure list witnesses and they have not supported any part of the occurrence and seizure and they were declared hostile. PWs 6 and 7 were tendered by the prosecution. 8. PW 1 in his evidence has stated that on 2nd December, 1988 at about 10 PM ne had been in connection with investigation of Murarpur P.S. Case No. 447 of 1988, at that time a raiding party was constituted. The Dy.S.P. Dina Nath Jethely, K.K. Singh, Sub-Inspector, Sudama Singh, Sitara Khan, Subodh Kumar Srivastava and Surendra Singh were in the raiding party. While they were passing then in the way the Senior Officer received confidential information that some criminals have assembled for committing crime. Raiding party went and six persons were apprehended. They disclosed themselves as Ashok Sonar, Ganauri Mahto, Tunni Mahto, Jagat Singh, Naresh Kahar and Binod Kahar. They were caught and on their disclosure a number of articles were recovered. In cross- examination this witness has identified wrong person, in place of Naresh Kahar he has identified Ganauri Kahar. This witness has not stated that as to whether the accused persons have disclosed that the seized articles were the articles which were the stolen property or were retained by them knowing to be the stolen property. 9. PW 2 has stated that the raiding party received confidential information while it was in the way that the criminals have assembled to commit crime. The accused persons were apprehended and seizure list was prepared. The seizure list has been exhibited in the case. According to him the accused persons were apprehended at 10 P.M. It has aiso not stated that as to whether the accused persons have stated that the seized articles were retained by them knowing it to be a stolen property. PW 3 is the seizure list witness, he has not supported any part of the seizure. According to him the accused persons were apprehended at 10 P.M. It has aiso not stated that as to whether the accused persons have stated that the seized articles were retained by them knowing it to be a stolen property. PW 3 is the seizure list witness, he has not supported any part of the seizure. In cross-examination he stated that he was forced to sign at 8 PM on 3.12.1988 and thereafter he signed it. PW 4 has also not supported any part of the occurrence. PW 5 has stated that there was seizure of number of articies on the confession of the accused persons. 10. Learned counsel for the appellants submitted that altogether 12 persons were named as witness in the charge-sheet but only 8 have been examined and out of 8 four witnesses have not supported any part of the occurrence. The defence case of the prosecution is that there were three witnesses of the seizure list and third witness was not examined. The seizure list witnesses have denied that any seizure was made in their presence so it has been submitted that this was not a case in which seizure was made rather articles were taken away from the shop of one of the appellants Tunni Mahto and the appellants were falsely implicated. Further submission is that the informant who was the instrumental in organizing raid, nabbing accused and allegedly seized the aritcles have not been examined. Non-examination of I.O. has caused great prejudice to the appellants. Because a number of contradictions have been appeared and the same could not be clarified. In absence of I.O. examination of seizure list witnesses has to be accepted and it goes to show that there was no seizure. Some witnesses have stated that house were broken whereas other witnesses have stated that lock was opened. So it has also been submitted that here also the prosecution case has become doubtful. Another submission is that it has also not been proved beyond all reasonable doubt that the seized articles were the stolen property. 11. Learned APP submitted that some of the seized articles were returned to the persons who claimed it. So it can be said that those articles were stolen property and those were retained by the appellants despite knowing the fact that those were the stolen property. 11. Learned APP submitted that some of the seized articles were returned to the persons who claimed it. So it can be said that those articles were stolen property and those were retained by the appellants despite knowing the fact that those were the stolen property. There was no effort on behalf of the appellants to claim the seized articles and at no point of time they have given any petition that the seized articles from them should be returned. 12. Section 410 of the IPC describes stolen property. The stolen property, the possession whereof has been possessed by theft, or by extortion or by robbery. The property which under the Iaw can be designated as stolen property has been catalogued in Section 410 IPC. 13. For proving charge under Section 412 IPC, it must be proved that the property was received dishonestly knowing that the property was stolen in commission of dacoity. Once there is charge that the property was received in course of dacoity, then onus was upon the prosecution to prove that this property was the subject matter of dacoity, the properties should have been brought in question was stolen property, the possession of such property was transferred by commission of dacoity and which the accused retained or received such property. Non-examination of I.O. has not given opportunity to the appellants to cross-examine him with regard to the contradictions in the evidences of seizure witnesses as well as the contradictions in the evidences of other witnesses. Non-examination of the I.O. has not proved that the seized articles were the subject matter of dacoity because that factum has not been brought on the record. Once it is not proved that the seized articles were the subject matter of the dacoity then no conviction under Section 412 IPC could be passed. The Court below has not considered this aspect and found the appellants guilty for committing offence under Section 412 IPC despite the fact that there was no evidence to show that the seized articles were the subject matter of dacoity which was allegedly seized on the basis of confession of the appellants. 14. In that view of the matter, I am of the view that the prosecution has not been able to prove its case beyond all reasonable doubts. Accordingly, the impugned judgment of conviction and order of sentence is set aside and these appeals are allowed. 14. In that view of the matter, I am of the view that the prosecution has not been able to prove its case beyond all reasonable doubts. Accordingly, the impugned judgment of conviction and order of sentence is set aside and these appeals are allowed. The appellants are discharged from the liabilities of their bail bonds.