Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.70 OF 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION DATED 03RD FEBRUARY, 2000 AND THE ORDER OF SENTENCE DATED 04TH FEBRUARY, 2000 PASSED BY SHRI SARWESHWAR NATH, 2ND ADDITIONAL SESSIONS JUDGE, KATIHAR IN SESSIONS TRIAL NO. 121 OF 1999 ARISING OUT OF RAUTARA POLICE STATION CASE NO. 65 OF 1999 =========================================================== 1. MD. RAZAK @ ABDUL RAZZAK, SON OF LATE MUMTAZ ALI, RESIDENT OF VILLAGE BINODPUR (POKHAR TOLA), POLICE STATION ROUTARA, DISTRICT KATIHAR 2. SIRAJUDDIN @ BHUTWA, SON OF LATE ABDUL HAI, RESIDENT OF VILLAGE SONAPUR, POLICE STATION KORHA, DISTRICT KATIHAR .... .... APPELLANT/S VERSUS THE STATE OF BIHAR .... .... RESPONDENT/S =========================================================== APPEARANCE : FOR THE APPELLANT/S : MR. ARUN KUMAR TRIPATHY, AMICUS CURIAE FOR THE RESPONDENT/S : MS. ABHA SINGH, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 26-07-2012 Sheema Ali Khan, J. Nobody appears on behalf of the appellants. Accordingly, Mr. Arun Kumar Tripathi is appointed as Amicus Curiae to assist this Court on behalf of the appellants. 2. This appeal arises out of the judgment of conviction dated 03rd February, 2000 and the order of sentenced dated 04th February, 2000 passed by the 2nd Additional Sessions Judge, Katihar in Sessions Trial No. 121 of 1999 whereby the Trial Court has found and held the appellants guilty for the offences punishable under Section Patna High Court CR. APP (SJ) No.70 of 2000 dt.26-07-2012 2 / 4 2 412 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years. 3. Initially, Md. Hamid along with these two appellants faced the trial, but the Trial Court acquitted the accused Md. Hamid for the charges under [STATUTE] . 4. The prosecution case is that several dacoits entered the house of the informant (PW 8) and committed dacoity and took away a trunk full of cloths, suitcases and household articles, all worth Rs. 30,000/-. The informant claims that his nephew identified one of the dacoits by the sound of his voice. It has been explained that his nephew had the occasion to interact with Md. Hamid as both of them were in the same profession of keeping watch over mango and lichis orchards. During the investigation, Serajuddin was apprehended and on the basis of his confessional statement, recovery was made from his house as well as from the house of Md. Razak. 5. Altogether, 11 witnesses have been examined in this case on behalf of the prosecution. PW 1 Jitendra Kumar Mishra, PW 3 Devendra Kumar Mishra and PW 4Ravi Kumar Jha have been declared hostile. 6. PW 2 Ful Kumar Chouhan has stated that he got up when he heard the alarm. When he went to the place of occurrence, he found that the informant had received Patna High Court CR. APP (SJ) No.70 of 2000 dt.26-07-2012 3 / 4 3 injuries on his body. He does not claim to have identified any of the appellants. 7. PW 5 Bhitta Devi, PW 6 Rukmini Devi and PW 7 Saroj Devi are the ladies of the house and were inside the house when the dacoity had taken place. They admit that an occurrence had taken place, however, they claim that they have not identified any of the dacoits. 8. PW 8 Sushil Kumar Mishra is the informant of this case. He describes the occurrence but he denies to have identified any of the dacoits. 9. PW 9 Vikash Kumar Mishra also had not identified any of the persons involved in the occurrence. 10. It would appear from the statements of the witnesses that the family members of the informant have come to Court and stated that they have not identified any persons during the commission of dacoity. It may be noted here that PW 7 Saroj Devi and PW 8 Sushil Kumar Mishra had participated in the Test Identification Parade of the articles. However, they had not stated in their examination-in-chief that they had participated in the said Test Identification Parade or that they had identified articles that were put on Test Identification Parade which, in the opinion of this Court, becomes a vital point as the conviction cannot be upheld merely on the basis of Exhibit-5, the Test Identification Parade Chart of articles, until the witnesses Patna High Court CR. APP (SJ) No.70 of 2000 dt.26-07-2012 4 / 4 4 corroborate that they had participated in the said Test Identification Parade. 11. PW 10 Umesh Kant Jha is the Investigating Officer of this case. He has supported the fact that Test Identification Parade was conducted and that PWs 7 and 8 had participated in the Test Identification Parade and identified the articles displayed in the Test Identification Parade. 12. PW 11 proves the signature of the Circle Officer who had conducted the said Test Identification Parade of articles. 13. Taking into account the evidence of the witnesses and especially on the evidence of PWs 7 and 8, the two witnesses who supposedly participated in the Test Identification Parade, this Court comes to the conclusion that the prosecution has not been able to prove the charge under [STATUTE] and as such, the appellants are acquitted of the charges levelled against them. They are also discharged from the liabilities of the bail bonds furnished earlier in this case. 14. In the result, this appeal is allowed. Prabhakar Anand/- (Sheema Ali Khan, J)

Applicable IPC Section: 412

Statute Text:
Section 412 of the Indian Penal Code. Dishonestly receiving stolen property, knowing that it was obtained by Dacoity. Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.