CRIMINAL APPEAL No. 737 OF 2004 WITH CRIMINAL APPEAL NO. 806 OF 2004 WITH CRIMINAL APPEAL NO. 807 OF 2004 ******* (In the matter of appeals under Section 374 (2) read with Section 389 (1) of the Code of Criminal Procedure against the judgment of conviction dated 13th October, 2004 and order of sentence dated 14th October, 2004 passed by Shri Himanshu Shekhar Pandey, Additional Sessions Judge, Fast Track Court No. II, Begusarai in Sessions Trial No. 439 of 1999 arising out of Bhagwanpur Police Station Case N0o. 113 of 1998) ****** KAILASH SAH, SON OF LATE SHREE NARAYAN SAH, RESIDENT OF TEGHRA BAZAR, POLICE STATION TEGHRA, DISTRICT BEGUSARAI …………………………………………………APPELLANT ( in Cr. App. No. 737/2004) WITH SURENDRA SAHANI @ GOPAL SAHANI, SON OF RAM KHELAWAN SAHNI, RESIDENT OF VILLAGE HARICHAK, POLICE STATION BHAGWANPUR, DISTRICT BEGUSARAI …………………APPELLANT ( in Cr. App. No. 806/2004) WITH SAKHICHAND SAHNI, SON OF LATE PALTAN SAHNI, RESIDENT OF VILLAGE BAGRASH, POLICE STATION BHAGWANPUR, DISTRICT BEGUSARAI ………………………………………………APPELLANT (in Cr. App. No. 807/2004) VERSUS THE STATE OF BIHAR ………………..RESPONDENT (IN ALL APPEALS) ********* FOR THE APPELLANT :- MR. ZEYAUL HODA, ADVOCATE (in Cr. App. No. 737/2004) MR. RANBIR SINGH, AMICUS CURAIE FOR THE APPELLANT :- MR. ARBIND KUMAR SINGH, ADVOCATE (in Cr. App. No. 806/2004) MR. RANBIR SINGH, AMICUS CURAIE FOR THE APPELLANT :- MR. SHUBHESH PANDEY, ADVOCATE (in Cr. App. No. 807/2004) MR. RANBIR SINGH, AMICUS CURAIE FOR THE STATE (in all appeals) :- MR. S. N. PRASAD, A.P.P. ************** 2 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. These three appeals arising out of the same judgment are being heard together and are being disposed of by this common order. The appellants have challgned the judgment dated 13th October, 2004 passed in Sessions Trial No. 439 of 1999 by the Additional Sessions Judge, Fast Track Court No. II, Begusarai. Criminal Appeal No. 806 of 2004 has been filed by the appellant Surendra Sahani @ Gopal Sahani who has been convicted under Sections 395 & 412 of the Indian Penal Code to undergo rigorous imprisonment for ten years for each of the offences. Both the sentences are to run concurrently. Surendra Sahani is in custody since 13.10.2004. Criminal Appeal No. 807 of 2004 has been filed on behalf of the appellant Sakhichand Sahni who has been convicted under Section 412 of the Indian Penal Code to undergo rigorous imprisonment for ten years. Sakhichand Sahni has remained in custody for one and a half years. Criminal Appeal No. 737 of 2004 has been filed on behalf of the 3 appellant Kailash Sah who has been convicted under Section 412 of the Indian Penal Code to undergo rigorous imprisonment for ten years. Kailash Sah has remained in custody for about two and half years. The occurrence is said to have taken place on 20.08.1998 at about 12 PM. The informant of this case is Tribhuwan Jha. He was sleeping outside his house after organizing the SHRADH ceremony of his grand-mother, when at about 12 in the night, 20 to 25 dacoits entered in his house. He claims to have identified Surendra Sahni, Dilip Paswan and Shankar Paswan. It is also disclosed in the First Information Report that his brothers identified apart from the aforesaid persons, Ranbir Paswan and a few others who are not appellant before this Court. With respect to the appellant Sakhichand Sahni, it is stated in the First Information Report that after the dacoits had looted the house of the informant, they had stated that “SAKHICHAND BOSS CHALO KAM HO GAYA”. It has also been alleged that these dacoits had looted away golden ornaments, silver ornaments and other articles from the house as well as cash of Rs. 27,500/- On the basis of the aforesaid information, the investigation commenced. During the investigation, Surendra Sahni was apprehended and 4 he is said to have made a confessional statement before the Police wherein he has admitted his guilt and also spoken about the participation of other persons in the said dacoity. Surendra Sahni also reveals that he had sold the ornaments to one Kailash Sah who is a Goldsmith and had a shop at Teghra Bazar. On the basis of the confessional statement, recovery has been shown from the shop of the Kailash Sah and also from the house of Surendra Sahni. Prosecution has examined altogether 13 witnesses in support of its case. Out of 13 witnesses, PWs 1, 2, 3 and 4 have been declared hostile whereas PWs 12 and 13 are the Advocate Clerks who have proved Exhibit-10 series which is the test identification parade of the articles recovered. The main witnesses in this case are PWs 5 to 11. Before dealing with the evidence, it would be proper to state that the occurrence is said to have taken place in a house which has several rooms which are occupied by the brothers of the informant. CRIMINAL APPEAL NO. 806 OF 2004 SURENDRA SAHANI @ GOPAL SAHANI PW 5 Pawan Kumar is the brother of the informant and he had identified Shankar Paswan and Ranbir Paswan. Surprisingly, Pawan Kumar does 5 not disclose the names of other dacoits identified by his brothers or by the informant which is strange in view of the fact that all the brothers lived in a common house occupying different portions of the house. PW 6 Anil Jha is also the brother of the informant. He claims to have identified Surendra Sahni. At paragraph 12, this witness has stated that he had no connection or association with Surendra Sahni and further stated that it was a dark night and he was able to identified the dacoits in the torch light. He claims that the torch by which he had identified the dacoits had not been shown to the Investigating Officer nor had the Investigating Officer seized the said torch which was the source of identification. Therefore, from the evidence of PW 6, it appears that although he claims to identify the appellants Surendra Sahni, his evidence becomes doubtful because of the fact that he had not stated how he knew Surendra Sahni although he belongs to a different village and this witness accepts that he had no connection or association with Surendra Sahni. PW 7 Rajeev Kumar Jha claims to have identified Surendra Sahni along with two other dacoits. According to him, the dacoits took away one golden chain, nose pin, ear ring, one silver set of 6 beetle nut dish, 20-25 sarees and some other clothes from his room. This witness has stated that he had seen Surendra Sahni only once two months prior to the dacoity. Later on, at paragraphs 11 and 12, the entire evidence with respect to the identification of the appellant Surendra Sahani by PW 7 is washed away by his statement where he admits that “Daroga Jee” had pointed out Surendra Sahni to him at the Police Station, in the words of this witness “HUMKO PAHCHANWA DIYA”. Therefore, obviously no reliance can be placed with respect to the identification by PW 7. PW 8 Madhu Parag is the wife of Pawan Kumar Jha and PW 9 Jaymanti Devi is the wife of the informant. Both of them have not been able to identify any of the dacoits. They did not even disclose that they were informed by their husbands the names of the persons who committed the dacoity in their house. PW 10 Ram Kishore Jha is the neighbour of the informant and he has reached the place of occurrence after the dacoits have left and as such he did not have an opportunity to identify any one of them. The most important witness is Tribhuwan Jha, PW 11, the informant himself. PW 11 7 claims to have identified Surendra Sahni, Shankar and Rajeev. This witness has also stated that he does not know Sakhichand Sahni but he knows others because they were from the same village. There is also a suggestion on behalf of Sakhichand that there is enmity with Sakhichand as he has a Jalkar near the house of this informant and that the informant is also in the business of rearing fishes. The salient features about the evidence of PW 11 is that this witness has not been able to state whether he knew Surendra Sahni prior to the occurrence. He has given graphic details with respect to the manner in which the occurrence had taken place, but as far as the aspect of identification was concerned, he is silent. The appellants do not challenge that an occurrence took place rather they challenge their involvement in the alleged occurrence. The Trial Court has convicted Surendra Sahni on the ground that he is identified by three witnesses and on the basis of the confessional statement. Recovery has been made from his possession on the basis of the alleged confession. The articles recovered from the possession of Surendra Sahni are Rs. 8,920/- in cash, 15 new blouse pieces, one red saree, one read & blue saree, one pant piece 8 and one shirt piece. The case of the prosecution is that cash and clothes have been identified by PWs 8 and 9. On going through the evidence of PWs 8 and 9, it appears that PW 8 was able to identify two cream coloured bed sheets, 15 blouse pieces, tea leaves, soap and vim powder whereas PW 9 has identified two golden coins marked with SITA RAM, two broken golden coins, one pair of ear rings, one golden top, sewing machine, bed sheets, tea leaves and soap. It appears that PWs 8 and 9 have not identified any of the articles recovered from the possession of Surendra Sahni but these articles are not the articles which were stolen as would be clear from their evidence. Therefore, the confessional statement allegedly leading to recovery can not be taken into account and this Court can not hold that the stolen articles were recovered from the possession of Surendra Sahni. I may clarify with respect to blouse pieces which were allegedly identified by PW 8 and were recovered from the possession of Surendra Sahni, this item was not mentioned among the list of stolen articles in the First Information Report. Upon consideration of the evidence, it appears that although PWs 11, 6 and 7 have named Surendra Sahni but from their cross-examination and 9 evidence, it would appear that they had no prior association with Surendra Sahni to have been able to identify him as one of the miscreants who had committed dacoity in the night of 20.08.1998. The Investigating Officer could have helped the prosecution in supporting its case, has not been examined and infact the seizure list witnesses have also not been examined to prove the seizure of articles from Surendra Sahni or for that matter from Kailash Sah. In the result, Criminal Appeal No. 806 of 2004 is allowed and Surendra Sahni @ Gopal Sahni is acquitted of the charges leveled against him. He is directed to be released forthwith if not required in any other case. CRIMINAL APPEAL NO. 807 OF 2004 SAKHICHAND SAHNI The case of the appellant Sakhichand Sahni rests on a very small issue. Sakhichand Sahni has been named in the First Information Report by the informant. Apart from the evidence that the inmates of the informant family had heard one of the dacoits saying “SAKHICHAND BOSS CHALO KAM HO GAYA”. There is no evidence that any of the witnesses identified him in participating in the alleged dacoity. 10 The witnesses claimed that they identified Sakhichand Sahani by face, however, they had not identified him at the time when the dacoity was being committed. Apart from the aforesaid allegation, there is no material against this appellant. The Trial Court has merely convicted him on the utterances made in the First Information Report. I do not think that this would be sufficient evidence to hold that Sakhichand Sahni participated in the dacoity. In the result, Criminal Appeal No. 807 of 2004 is allowed and the appellant Sakhichand Sahni is acquitted of the charges leveled against him. He is also discharged from the liabilities of the bail bonds furnished earlier in this case before the Trial Court. CRIMINAL APPEAL NO. 737 OF 2004 KAILASH SAH The appellant Kailash Sah has been convicted for offences under Section 412 of the Indian Penal Code. The material that has emerged during the investigation in this case is that Surendra Sahni is said to have made a confessional statement in which he has stated that he had sold the ornaments to Kailash Sah, a Goldsmith at Teghra Bazar. The 11 Investigating Officer on the basis of the confessional statement of Surendra Sahni searched the shop of Kailash Sah and made certain recoveries which were one ear-ring, about 3 and half BHAR of gold, a golden chain, a pair of ear-ring, golden coins which were broken, silver coins, one pair of silver payal, four pieces of silver bichias, one pair of golden tops. It has been submitted on behalf of Kailash Sah that he owns a goldsmith shop and ornaments of all types are likely to be kept in his shop. Apart from that, it has been submitted that the occurrence is said to have taken place in the night of 20.08.1998, the First Information Report was instituted on 21.08.1998 and just two days later on 23rd October, 1998, the raid was conducted in the shop of Kailash Sah. It has been submitted that it is not possible that within a period of two days, the stolen items would have been sold to the appellant. It has also been pointed out that Surendra Sahani has been arrested on the same day i.e. 23.08.1998 and it is most improbable that the confessional statement is recorded on 23.08.1998 and the raid was also conducted on the same day. Therefore, this Court can not have much faith in the alleged recovery from the possession of Kailash Sah. 12 Another aspect is that the ornaments described in the First Information Report indicate that there was one pair of JHUMKA, golden rings, golden ear-ring and coins having mark of SITA RAM on them. Although, the ornaments tallies as they are gold items which are available in almost all the gold shops. The recovery of coins do not tally as it has not been mentioned in the seizure list that coins had any mark of that SITA RAM. Apart from what has been discussed aforesaid, learned Counsel further submits that Section 412 of the Indian Penal Code envisages that a person who is charged with this offence should have dishonestly received or retained 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 rigorous imprisonment for a term which may extend to ten years , and shall also be liable to fine. It has been argued that the prosecution has not been able to show that Kailash Sah knew that the property was stolen or that the person selling the property to him was known 13 to be a dacoit or belongs to a gang of dacoits. Considering the manner in which the search was conducted, it is doubtful that the items seized and items stolen were one and the same. Most of all even if it is accepted that the allegations are true, there is no evidence to establish that Kailash Sah had knowledge that the items allegedly sold him were stolen property. I find that the prosecution has not been able to prove the charges leveled against this appellant. In the result, Criminal Appeal No. 737 of 2004 is allowed and the appellant Kailash Sah is acquitted of the charges leveled against him. He is also discharged from the liabilities of the bail bonds furnished earlier in this case before the Trial Court. The judgment of conviction is set aside. All the three appeals are allowed. ( Sheema Ali Khan, J. ) Patna High Court, April 23, 2009 N.A.F.R./Anand