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2016 DIGILAW 727 (GAU)

Jiban Gogoi S/o Sri Nalia Gogoi v. State of Assam

2016-08-04

PARAN KUMAR PHUKAN

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JUDGMENT & ORDER (CAV) Under assailment in this revision is the judgment and order dated 30.8.2006 passed by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia in Criminal Appeal No. 60(4)/2005 affirming the order dated 30.01.2006 passed by the learned Chief Judicial Magistrate, Tinsukia in GR Case No. 157/1998 convicting the accused petitioner u/s 411 of the Indian Penal Code and sentencing him to rigorous imprisonment for 2 (two) years and to pay fine of Rs. 3,000/-, in default, to simple imprisonment for 6 (six) months. 2. Heard Mr. G.P. Bhowmik, learned counsel appearing for the accused petitioner and Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam. 3. Mr. Bhowmik, learned counsel appearing on behalf of the revision petitioner submits that the learned courts below committed grave illegality by convicting the accused petitioner u/s 411 IPC solely on the testimony of P.W. 10, Sri Krishna Sahu one of the Investigating Officer of the case, without substantial corroboration from any other witness. 4. It is next contended that no motorcycle was recovered from the possession of the accused and no disclosure statement of the accused has been recorded and proved as contemplated under Section 27 of the Evidence Act. 5. Mr. Dutta, learned Additional Public Prosecutor, on the other hand, submitted that there has been concurrent finding of fact arrived at by the learned courts below and it is not open to the High Court to interfere with the concurrent finding. It is also submitted that the stolen motorcycle was recovered from the possession of the accused petitioner on search by police and recovery of the motorcycle itself is sufficient proof that he was the receiver of the stolen motorcycle and he retained the same knowing the same to be a stolen one. 6. It is a settled proposition that ordinarily it is not open to the High Court to interfere with the concurrent finding of facts of the courts below especially by reappreciating the evidence in its revisional jurisdiction unless it is found that on coming to the conclusion the courts omitted to consider any material evidence or that evidence was misread. 6. It is a settled proposition that ordinarily it is not open to the High Court to interfere with the concurrent finding of facts of the courts below especially by reappreciating the evidence in its revisional jurisdiction unless it is found that on coming to the conclusion the courts omitted to consider any material evidence or that evidence was misread. But it is also equally well settled that if the courts arrive at a finding without properly considering the evidence on record and without applying the principles of law correctly, it can never be called a concurrent finding of fact and such finding is not binding on the revisional court. 7. Applying the settled proposition to the facts of the present case, what I have found is that the learned courts below, while coming to the conclusion, regarding guilt of the accused, relied on the testimony of P.W. 10, who was one of the Investigating Officers of the case. I have felt it necessary to go through the entire evidence on record to ascertain whether the accused petitioner was in fact involved in the commission of the crime alleged to have been committed. 8. There is no dispute regarding the theft of the motorcycle from the verandah of the shop of one Kader Box of Makum. According to the informant, P.W. 1, Uttam Phukan, on 17.1.1998, his elder brother, Uday Phukan left the motorcycle in the campus of one Kader Box of Makum and left for Guwahati and he was asked by his brother to take back the motorcycle to his house and accordingly, when he came to the shop of Kader Box, he was informed that the motorcycle was stolen on the same night. The owner of the motorcycle, who is the elder brother of the informant, having come to know about the theft of his motorcycle immediately came to his house and both he and his brother started searching for the motorcycle. After about 20 days they came to know that the stolen motorcycle was sold at Rs. 7,000/- (Rupees Seven Thousand) to an unknown person of Kakopathar and accordingly they proceeded to Kakopathar and informed the In-Charge of Kakopathar Outpost about the occurrence. After about 20 days they came to know that the stolen motorcycle was sold at Rs. 7,000/- (Rupees Seven Thousand) to an unknown person of Kakopathar and accordingly they proceeded to Kakopathar and informed the In-Charge of Kakopathar Outpost about the occurrence. Police visited the house of one Nandeswar Moran who was suspected to have sold the motorcycle and he was brought to the police station and he disclosed before the police that it was given to some body at Philobari. According to P.W. 10, Krishna Shahu who was posted at the relevant time in the Kakopathar Outpost, one Swarup Gohain was brought to the police station by Sub-Inspector of Police, Sri B.K. Gogoi and on interrogation, he disclosed that he had committed theft of a motorcycle from Makum and sold to a person at Philobari. P.W. 10 was entrusted by Sub-Inspector B.K. Gogoi to recover the motorcycle and accordingly he proceeded towards Philobari with Swarup Gohain and visited the house of Babua Gogoi @ Kamal Gogoi and conducted search but no motorcycle was found. On interrogation, Babua Gogoi disclosed that the motorcycle was in the house of the accused petitioner Jiban Gogoi at village Madhupur. P.W. 10 accompanied by Swarup Gohain and Babuwa @ Kamal Gogoi visited the house of Jiban Gogoi and on search, recovered the stolen motorcycle and it was found that the registration number was altered to AR-11-793 and the last digit of the Chassis No. was also tempered. The motorcycle was seized vide seizure, Ext. 3 and brought to the police station along with the accused persons. The documents of the motorcycle were seized by P.W. 10 vide seizure, Ext. 4 being produced by the owner of the motorcycle, Sri Uday Phukan who identified the motorcycle and it was given in his zimma. Although P.W. 10 claims to have seized the motorcycle in presence of P.W. 6, Bhuban Gogoi and P.W. 7, Nabin Phukan but both those witnesses denied that the motorcycle was recovered and seized in their presence. According to P.W. 6 the signature in Ext. 3 was taken in the police station and as per the version of P.W. 7, police called him to the house of the accused petitioner and took his signature in a paper, Ext. 3 but he had not seen any motorcycle and no recovery was made in his presence. 9. According to P.W. 6 the signature in Ext. 3 was taken in the police station and as per the version of P.W. 7, police called him to the house of the accused petitioner and took his signature in a paper, Ext. 3 but he had not seen any motorcycle and no recovery was made in his presence. 9. In the instant case, the prosecution has mainly relied on the evidence of P.W. 10 regarding recovery of the motorcycle at the instance of the co-accused of the case from the house of the accused petitioner. 10. Recovery of incriminating material on the basis of information received from the accused is dealt with by Section 27 of the Evidence Act which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 11. In the instant case, the accused petitioner was obviously not in the custody of police at the time of recovery and the alleged recovery was not made on the basis of any information provided by him. It is found from the evidence of P. W. 10 that it was the co-accused who led the police to the house of the accused petitioner. The Investigating Officer, P.W. 10 claims to have recovered the motorcycle from the house of the accused petitioner on the basis of the disclosure statements made by the co-accused of the case. The essential ingredients of the Section is that the information given by the accused must lead to the recovery of the fact which is direct outcome of such information and at the time of giving information he must be in the custody of the police. In the present case, it is admitted by P.W. 10 that recovery was made on the basis of the statements given by the co-accused of the case. Before recovery no accusation was made against the accused petitioner and he was not even arrested and his statement was not recorded. Recovery of the motorcycle at the instance of the co-accused is not admissible against the accused petitioner as the Section speaks of the information given by the accused only before the Investigating Officer. 12. Before recovery no accusation was made against the accused petitioner and he was not even arrested and his statement was not recorded. Recovery of the motorcycle at the instance of the co-accused is not admissible against the accused petitioner as the Section speaks of the information given by the accused only before the Investigating Officer. 12. Now it is to be ascertained whether the discovery of the motorcycle, sans the disclosure statements, made by the co-accused, the accused petitioner may be held liable for commission of the offence. Apart from P.W. 10, the Investigating Officer, who allegedly recovered the motorcycle from the house of the accused petitioner and also took part in the investigation, there is no other evidence on record that recovery was made from the house of the accused. The P.W. 10 being the Investigating Officer, it would be too hazardous and unsafe to place implicit reliance in his evidence to come to the conclusion that the motorcycle was recovered from the house of the accused appellant. P.W. 6 and P.W. 7, who are independent witnesses denied having seen the motorcycle and according to them their signatures were taken in Ext. 3 without showing them any motorcycle and they even could not say the reason for taking their signatures in Ext. 3. 13. The FIR in this case was lodged on 11.2.98 although the alleged occurrence took place on the night of 17.1.98. According to P.W. 1, the informant of the case, he visited the police station for filing FIR soon after the occurrence but police refused to accept the same but later on he admitted that he filed the FIR after recovery of the motorcycle. The enormous delay in filing the FIR has not been explained and this aspect of the matter has not been considered by the learned courts below. Charge sheet has been submitted against as many as 7 accused persons and charge u/s 411/34 was framed against all of them. Charge u/s 380/411 IPC was framed against the accused Hemanta Gogoi. From the evidence on record it is difficult to find out which of the accused in fact committed theft of the motorcycle and who retained the motorcycle knowing the same to be a stolen one. Charge u/s 380/411 IPC was framed against the accused Hemanta Gogoi. From the evidence on record it is difficult to find out which of the accused in fact committed theft of the motorcycle and who retained the motorcycle knowing the same to be a stolen one. That apart, although P.W. 10 claims that the number of the motorcycle was changed as well as the Chassis number but it appears from the evidence that no investigation regarding the actual registration number of the motorcycle was conducted by the Investigating Officer and on the basis of the evidence on record it is difficult to come to a definite finding in this regard. 14. Moreover, even if it is presumed that motorcycle was recovered from the house of the accused appellant, that would not prove that he dishonestly received the same. There is no evidence that he kept the motorcycle in his house knowing the same to be stolen. Dishonest intention is the main ingredient of Section 411 IPC, but in the instant case, from the evidence on record, it can not be presumed that the accused appellant had any dishonest intention. 15. Having considered the submissions advanced by the learned counsels for the parties and from all my discussions above, I am of the considered view that the learned Sessions Judge was not justified in convicting the petitioner u/s 411 IPC on the basis of the evidence on record and as such, the judgment dated 30.8.2006 passed by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia in Criminal Appeal No. 60(4)/2005 is liable to be set aside, which I accordingly do. 16. Resultantly, the appeal is allowed. The accused petitioner is acquitted and set at liberty forthwith. Bail bonds stand discharged. 17. Send back the LCR along with a copy of this judgment for information and necessary action.