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2012 DIGILAW 878 (GAU)

Bhola Satnami v. State of Assam

2012-07-25

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 05.8.2004, passed, in Criminal Appeal No. 1(2)of 2003, by the learned Sessions Judge, Cachar, Silchar, the learned Sessions Judge, while upholding the conviction of the accused-petitioner, Bhola Satnami, under Section 412 IPC, by the judgment and order, dated 31.03.2003, passed, in Sessions Case No. 40 of 2001, by the learned Asstt. Sessions Judge No. 2, Cachar, Silchar, has reduced the sentence of the accused-appellant inasmuch as the accused-petitioner had been sentenced by the learned trial Court to suffer rigorous imprisonment for a period of 4 (four) years with fine of Rs.1,000/- and, in default of payment of fine, suffer R.I. for a further period of 3 months, but the same has been modified by the learned appellate Court by sentencing the accused-petitioner to suffer rigorous imprisonment for a period of 2 (two) years with fine of Rs.1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 3 (three) months. Aggrieved by his conviction, as recorded by the learned trial Court and upheld by the learned appellate Court, and also by the sentence, which has been, eventually, passed against him by the learned Sessions Judge, in the appeal, the accused-petitioner has challenged his conviction and the sentence passed against him by way of this revision. 2. I have heard Mr. J. C. Barman, learned counsel for the accused-petitioner, and Mr. K. Munir, learned Addl. Public Prosecutor, Assam. 3. Before coming to the merit of this revision, it is appropriate that the case of the prosecution be taken note of. 4. The prosecution's case, as unfolded at the trial, may, in brief, be described thus: On 03.08.1997, at about 1 a.m., a group of about 15/20 persons, covering their faces by means of pieces of black coloured clothes and armed with guns in their hands, forcibly entered into the house of PW1, assaulted his brother, Gautam Raj gar, took key from Smt. Sabitri Rajhar and took away, apart from household articles, a T.V. set, gold ornaments and cash. When the neighbour, Puspak Raj gar, attempted to reach the place of occurrence, the miscreants opened fire and, out of fear, none came to the place of occurrence. Following the occurrence, PW1 lodged a written Ejhar at Lakhipur Police Station. When the neighbour, Puspak Raj gar, attempted to reach the place of occurrence, the miscreants opened fire and, out of fear, none came to the place of occurrence. Following the occurrence, PW1 lodged a written Ejhar at Lakhipur Police Station. Treating the said Ejhar as First Information Report, a case, under Section 395/ 397 IPC, was registered against unknown persons. During the course of investigation, police recorded statements of witnesses including statements of two persons, namely, Bhola Satnami (i.e. the accused-petitioner) and one Narad Satnami and, based on their statements and also led by them, the police recovered the stolen T.V. set, seized the same and, on completion of the investigation, submitted a charge-sheet, under Sections 395/ 397/412 IPC, against both, Bhola Satnami and Narad Satnami, as accused. 5. During trial, charges against the two accused aforementioned were framed under Sections 395, 397 and 412 IPC. To the charges, so framed, both the accused aforementioned pleaded not guilty. 6. In support of their case, prosecution examined 11 witnesses including the Investigating Officer. Thereafter, both the accused aforementioned were examined under Section 313 Cr.P.C. and, in their examinations aforementioned, both the accused denied that they had committed the offences, which were alleged to have committed by them, the case of the defence being that of total denial. No evidence was adduced by the defence. 7. Having, however, found both the accused aforementioned not guilty of the offences under Sections 395 and 394 IPC, the learned trial Court acquitted them accordingly, but held them guilty of the offence under Section 412 IPC and convicted them accordingly and also passed sentence against them as mentioned above. Though their conviction, in the appeal, has been affirmed by the learned Sessions Judge, their sentence has been modified as already pointed out above. 8. Aggrieved by his conviction and also the sentence, eventually, passed against him by the learned appellate Court, accused Bhola Satnami is, now, before this Court challenging, with the help of this revision, the sustainability of his conviction under Section 412 IPC and also the sentence passed against him. 9. 8. Aggrieved by his conviction and also the sentence, eventually, passed against him by the learned appellate Court, accused Bhola Satnami is, now, before this Court challenging, with the help of this revision, the sustainability of his conviction under Section 412 IPC and also the sentence passed against him. 9. While considering the present revision, it needs to be noted that the occurrence of dacoity, at me house of PW1, on 03.08.1997, is not in dispute in this revision nor is it in dispute that the recovered T.V. set was a property, which had been taken away by the dacoits from the house of PW1. 10. The question, which arises for determination, in the present revision, is: Whether in the face of the evidence on record and the law relevant thereto, the accused-petitioner could have been convicted under Section 412 IPC? 11. While considering the question, posed above, it needs to be noted that though Ext. 8 has been treated to have been proved as a statement, made by the accused-petitioner, Bhola Satnami, to the Investigating Officer and recorded during the course of investigation of the case, leading to the recovery of the said T.V. set, a careful reading of the contents of Ext.8 reveals that Ext.8 is not a statement, which was recorded preceding the alleged recovery of the T. V set. Far from this, Ext.8 shows that the said statement of the accused-petitioner was recorded after the alleged recovery had already been made. 12. By no means, therefore, the contents of Ext. 8 could have been used or treated as a statement, covered by Section 27 of the Evidence Act, leading to the discovery of fact. This apart, as pointed out by Mr. Barman, learned counsel for the accused-petitioner, the statement (Ext.8) shows that the present accused-petitioner had stated before the police that he had been informed by Narad Satnami (i.e., the co-accused) that he (accused Narad Satnami) had kept the T.V. set buried in his paddy field. 13. Considering the fact that the statement (Ext.8) had not preceded recovery of the T.V. set nor had the said statement reflected that it was the accused-petitioner, who had buried the said T.V' set, the accused-petitioner could not have been held to have been the recipient of the stolen property, possession whereof had been obtained by commission of dacoity. 13. Considering the fact that the statement (Ext.8) had not preceded recovery of the T.V. set nor had the said statement reflected that it was the accused-petitioner, who had buried the said T.V' set, the accused-petitioner could not have been held to have been the recipient of the stolen property, possession whereof had been obtained by commission of dacoity. Consequently, the ingredients of the offence, under Section 412 IPC, had not been proved by the prosecution as against the present accused-petitioner. 14. In fact, there was not even an iota of evidence on record fastening the present accused-petitioner with the recovery of the T.V set. This aspect of the case appears to have escaped complete attention of learned trial Court and has also been overlooked by the learned appellate Court. 15. Situated thus, it becomes evident that the conviction of the accused-petitioner, under Section 412 IPC, was not supported by the evidence on record and the law relevant thereto. 16. Because of what have been discussed and pointed out above, this revision succeeds. 17. The impugned judgment and order are hereby set aside. The accused-petitioner is held not guilty of the offence, which had been alleged to have been committed by him under Section 412 IPC, and he is accordingly acquitted of the same. 18. With the above observations and directions, this revision stands disposed of. Send back the LCR.