Government Appeal No. 60 of 1993 (S.J.) **** The State of Bihar .. Appellant Versus Sanjai Kumar @ Sanjai Kumar Singh .. Respondent With Criminal Revision No. 874 of 1993 S.K. Verma & Anr. .. Petitioners Versus Dinesh Singh & Ors. .. Opposite Parties **** Against the judgment and order, dated 16th September, 1993, passed in G.R. Case No. 567 of 1990/Trial No. 160 of 1993 by Sri P.K. Moitra, Judicial Magistrate, 1st Class, Patna **** in Govt. Appeal No. 60 of 1993(S.J.) For the State .. Mr. Lala Kailash Bihari Prasad, Sr. Adv. For the respondent .. M/S Ganesh Sharma & Ramadhar Singh, Advs. in Criminal Revision No. 874 of 1993 For the petitioners .. Mr. S.K. Verma, Sr. Adv. For the State .. Mr. Jharkhandi Upadhaya, A.P.P. For opposite party no. 3 .. Mr. Kumar Rishikesh Chanchal, Adv. **** 2 P R E S E N T THE HON’BLE JUSTICE MRS. ANJANA PRAKASH Anjana Prakash, J. Government Appeal No. 60 of 1993 and Criminal Revision No. 874 of 1993 are being heard together for sake of convenience since in both the applications the grievance is acquittal of the parties by a judgment, dated 16.09.1993, passed by Judicial Magistrate, 1st Class, Patna, in G.R. Case No. 567 of 1990/Trial No. 160 of 1993. At the out set it may be clarified that during the pendency of this application against whom the initial charge was under Sections 380 and 461 of the Indian Penal Code have died and, therefore, the appeal abated with regard to them by orders 08.01.2003 and 11.12.2008. Now in effect the appeal and the revision is only against opposite party no. 3, who had been charged for the offence under Section 411 of the Indian Penal Code whereas the other accused had been charged under Sections 461 and 380 of the Indian Penal Code. 2. The case of the prosecution, according to the informant, is that on 07.02.1990 when S.K. Verma, revisionist, was going to the Court, he found there was a „thelawala‟ inside the premises loaded with furniture who informed that one „thela‟ of furniture had already been transported by him. The informant stated that the house, in fact, belonged to his brother and he had locked the same on 28.01.1990, but, some body else has put a sign board on it as Keser Hind Prem Shanker. Upon this the investigation was carried out and a charge sheet was submitted against three opposite parties and cognizance was taken and, thereafter, the case came for trial with charges as stated above. 3 3. To prove it‟s case the prosecution examined seven witnesses out of whom P.W. 1, Ramdhani Gope, and P.W. 2, Yogendra Prasad Singh, are seizure list witnesses. P.W. 3, Shivendra Kishore Verma, is the brother of the informant and whose house was stolen whereas P.W. 4 is Sachidanand Kishore Verma, the informant. P.W. 5, Shashikant Jha, is the investigating officer, whereas P.W. 6, Prem Shankar Chaurasia, is also a seizure list witness along with P.W. 7, Gopal Prasad, who is a formal in nature. 4. With the death of opposite parties 1 and 2 the case is required to be confined to only the question whether opposite party no. 3 was rightly acquitted of the charge under Section 411 of the Indian Penal Code. The appellant in Government Appeal has stated that since the recovery of the articles, vide Exhibit 7 had been made in the presence of the opposite party no. 3, he definitely had knowledge and the evidence is that opposite party no. 3 was arrested at the place where the recovery was made and, therefore, a connection has to be assumed by the Court between the removal of articles and the recovery of the same and it‟s consequent connection with opposite party no. 3. More over, he has submitted that there was material to suggest that the articles had been removed and, thereafter, recovered, therefore, the ingredients of Section 411 of the Indian Penal Code were satisfied also in view of Section 114 of the Evidence Act. Further, submission is that in the statement under Section 313 of the Criminal Procedure Code, opposite party no. 3 has not explained anything, but, has stated that he will give a writ application and there was a joint written statement of the written statement wherein the accused had claimed the house in question. In paragraph 14, it has been stated that since the house 4 did not belong to the informant or his brother, but, was in their possession so, therefore, the articles can not be said to be stolen and, thus, in a way the accused accepted the factum of recovery. The senior counsel on behalf of the appellants has also stated that the claim of the title should have been raised on some documents and, therefore, that not being done and the prosecution witnesses claiming the house to be in their possession should be accepted. In the end he has stated that if nothing else at least connivance of opposite party no. 3 in allowing the keeping of the articles in the shop where he was present must be presumed. The learned counsel for the revisionist has adopted the arguments of the appellant and has added that the line of defence of the accused persons is not correct and it was not a simple case of theft, but, the question of title of the house was being doubted and in the judgment certain references about the revisionist being a tenant has been made in the judgment of acquittal. He further added that he would have no grievance against accused persons had they only denied stealing of the articles, but, he is aggrieved by the fact that the accused persons in addition also laid a claim upon the house as their own. More over, in the opinion of the revisionist the accused have not become mild on account of such accusation, but, in fact, have aggressively attacked the prosecution evidence and it‟s short comings. 5. Keeping the aforesaid arguments in mind it will be proper to delineate the evidence that has been collected by the prosecution in proving it‟s case against opposite party no. 3. P.W. 1, Ramdhani Gope, has stated that in his presence a „thelawala‟ was intercepted and the articles seized by the police in his presence. The production list has been marked “X” for identification. This does not 5 pertain to opposite party no. 3. Similarly P.W. 2, Yogendra Prasad Singh, has also stated that a „thelawala‟ was intercepted in his presence and the articles loaded upon the same were seized by the police and he signed on the seizure list of the said articles, which is exhibit „1‟. This witness also, therefore, has not deposed anything against opposite party no. 3. P.W. 3, Shivendra Kishore Verma, the owner of the house in which the alleged theft had taken place has merely identified his signature on a written statement in which the names of the articles stolen from his house were listed, which has been marked exhibit „2‟. He has deposed upon the ownership of the house in question with which we are not concerned for the present. P.W. 4, Sachidanand Kishore Verma, has stated that on the date of occurrence he intercepted a „thelawala‟ and asked him as to why his articles were being taken and to whom. At this the „thelawala‟ disclosed his name as Dinesh Singh and said that the articles are being taken to his employer, Kesar Hind. At this a number of persons gathered and the police came and made an inventory of the articles and handed it over to him. He corroborated the factum of giving his report to the police and that the house had been locked by him. He stated that later on the articles were handed over by him at the instance of the police when his brother P.W. 4 came. Thus, it is apparent that even this witness has not stating anything against present opposite party no. 3. The next witness examined on behalf of prosecution is Shashikant Jha, the investigating officer, who stated that on the date of occurrence he, on the information given by the informant, P.W. 4, reached the place of occurrence and seized the articles from „thelawala‟, prepared the seized list, which is exhibit „5‟. He, further, stated that when he went to the house in question he found an old and dilapidated house with a lock on 6 one side of the gate. On his inspection he was of the opinion that condition in which the house was found it did not appear to be habitable and nobody was living in the same. He has stated that he took the „thelawala‟, Dinesh Singh, to carrier service at Dakbunglow Chowk and found out from the employer that part of the articles were at Exhibition Road which was, thereafter, seized. The seizure list was marked as Annexure 7. P.W. 5 has merely stated that he arrested opposite party no. 3 there. In paragraph 6 he has stated that first articles which were seized from „thelawala‟ were given on entrustment to the informant. In paragraph 7 he has stated that he had gone to Exhibition Road along with mobile police force. The informant had not accompanied him to Exhibition Road. The articles which had been seized there were taken to the Police Station. He Could not say to whom those articles had been released. Even in the diary there was no mention as to whom the articles had been released. Thus, from his evidence, it is clear that apart from a vague statement that certain seizures had been made at Exhibition Road, no details as to from and what exact location the articles had been recovered from has been given by this witness. There is no mention in his evidence that opposite party no. 3 was found to be in possession directly or indirectly with the said articles. P.W. 6, Prem Shanker Prasad Chaurasia, a seizure list witness of exhibit „7‟ has stated that almirah, sofa and table had been seized and seizure list had been prepared in his presence upon which he signed and proved the same as exhibit „7/1‟. In cross examination on specific question he had replied that he did not enter into the building from where the articles had been taken out. He has stated that he had met the investigating officer in his own shop. He, further, clarified that the articles had been kept in front of Uni Surgical and 7 he had been asked to sign on the seizure list after showing him the articles. He could not say as to whose articles the same were. P.W. 7, Gopal Prasad, is a formal witness and has proved exhibit „8‟ which are rent receipts having been deposited by the informant and his brother. 6. Since, the charge was under Section 411 of the Indian Penal Code, the prosecution had to prove the essential ingredients of Section 411 of the Indian Penal Code which says that any person who dishonestly receives or retains any stolen property knowing or having reason to believe the same to be stolen property shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. 7. For that reason the prosecution had adduced the evidence of P.Ws. 5 and 6. As discussed above, P.W. 5, the investigating officer, has merely stated about recovery of certain articles from Exhibition Road, but, not mentioned that the same had been either received or retained by opposite party no. 3 since neither the locations nor the factum of possession by opposite party no. 3 has been specifically averred. Similarly P.W. 6, a seizure list witness, who has not been declared hostile and, therefore, his evidence is binding upon the prosecution, has merely stated that certain articles had been seized, but, there is no mention that the articles had been retained or received by the present opposite party no. 3, which was an essential ingredient to prove Section 411. 8. So far the legal proposition is concerned, there can not be any doubt that exhibit „7‟ by itself is not substantive evidence and the content of the same could only be supportive of the evidence of P.Ws. 5 and 6. However, when they 8 themselves in their substantive evidence have failed to specify anything about the receipt or retention of the alleged stolen articles there is no point in further indulging in the same. This being the factual aspect of the case the arguments of the appellants so far as claim about ownership of the house being in dispute and that being a consideration for acquittal of the other accused persons has no relevance in the present appeal. Therefore, the decision cited in 1980 Cr.L.J., 1477 (Gedda Raminaidu & Ors. Vrs. State of Andhra Pradesh) about claim and counter claim about title has no relevance in the present case. Similarly the citation of A.I.R. 1993 S.C., 1199 (Union Territory of Goa Vrs. Boaventura D’Souza & Anr.) with regard of stolen articles and, therefore, prosecution under Section 114 of the Criminal Procedure Code also has no bearing upon this case because if the recovery and the retention from opposite party no. 3 itself has not been proved, there is no question of any presumption that could be drawn against him. The revisionist has cited a decision reported in A.I.R. 1971 S.C., 708 (The State of U.P. Vrs. Rajju & Ors.) on the point that since the Test Identification Parade of the articles had not been asked for, no adverse inference against the prosecution should be drawn. Here in this case when the recovery of the articles from opposite party no. 3 itself could not be proved there was no question of any adverse inference against the prosecution on failure to hold aTest Identification Parade and further implication, in this regard. Similarly the decision cited in A.I.R. (37) 1950 Patna, 564 (Ghuletan Dule & Ors. Vrs. Kamlapati Sukla) with regard to criminal trespass and the assertion that claim of right is also not relevant in this case where the lone surviving opposite party no. 3 is concerned, since he had not been charged for the offence under Section 461 or 380 of 9 the Indian Penal Code, but, only under Section 411 of the Indian Penal Code. 9. In the result, the Government Appeal and the Revision fail and the same are dismissed without costs. 10. However even vague reference with regard to claim and counter claim regarding title and ownership of the house in question in the present appeal as well as in the judgment of the Court below will have no bearing on any litigation between the parties. (Anjana Prakash, J.) The Patna High Court, The 06th day of November, 2009, N.A.F.R./S.A.