1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.224 of 2009 - - - - Against judgment of conviction and order of sentence dated 18.2.2009 and 21.2.2009, respectively, passed by Additional Sessions Judge, Fast Track Court-V, Siwan, in Sessions Trial No. 90 of 2008/36 of 2008. ===================================================== Rajesh Manjhi, son of Chandeshwar Ram(Manjhi), resident of Village Bidurli Hata, P.S.Siwan Mufassil, District Siwan .... .... Appellant Versus The State Of Bihar .... .... Respondent with Criminal Appeal (SJ) No. 278 of 2009 1. Nitin Raj Srivastava @ Munshi Srivastava, son of late Ajay Kumar Srivastava, resident of Mohalla Shukla Toli, Siwan, P.S.Siwan Town, District Siwan 2. Ekhlaque Ahmad, son of Jamil Ahmad, resident of Mohalla Shukla Toli,Siwan, P.S. Siwan Town, District Siwan .... .... Appellants Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : (In CR. APP (SJ) No. 224 of 2009) For the Appellant : Shri Ajay Thakur, Advocate, assisted by Babita Kumari, Advocate. For the Respondent/ : Shri Ajay Mishra, A.P.P.. (In CR. APP (SJ) No. 278 of 2009) For the Appellants : Shri Ashok Kumar Mishra. For the Respondent : Shri Ajay Mishra, A.P.P.. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The two appeals arise out of judgment dated 18.2.2009 passed by the learned Presiding Officer of Fast Track Court-V,Siwan, in Sessions Trial No. 90 of 2008/36 of 2008 by which the three appellants were held guilty of committing offences under Sections 395/412 of the Indian Penal Code while the 4th accused who was also put on trial in the same Sessions Trial, 2 namely, Rabindra Choudhary, was acquitted of the two offences. The appellants were heard on sentence on 21.2.2009 and it appears that the learned trial court did not sentence them for committing the offence under Section 395 of the Indian Penal Code and directed each of the appellants to suffer rigorous imprisonment for seven years as also to pay a fine of Rs. 5,000/-, else, to suffer rigorous imprisonment for a further period of one year under Section 412 of the Indian Penal Code. 2. The prosecution case is based on a written report(Ext.2) of M. Farhan Hafiz(P.W. 12) in which he stated that on 29.10.2007 at about 1.20 P.M. he accompanied by one Rana Kumar Singh, both employees of P.A.C.L. India Ltd., Lal Place Complex, Station Road , Siwan , was carrying Rs. 13,68,000/- and was going to State Bank of India, Main Branch, Siwan for depositing the same. The informant(P.W. 12) and his companion Rana Kumar Singh were travelling in the Alto Car bearing registration no.BR-IZ 5900. All on a sudden, the two criminals who were in the age group of thirty five to forty years and were armed with pistols came and at the gun point relieved the informant of the bag containing the above amount and sped away by a motorcycle bearing registration no. BR- 5451. The motorcycle was Suzuki. 3. It appears that on the basis of the report( Ext.2) the F.I.R. of the case was drawn up and the investigation was taken up by P.W. 18, S.I.Rajesh Kumar Rai who on the above date was the Officer-in-charge of Town Police Station, Siwan. He stated that after having registered the case he went to inspect the place of occurrence which was the road situated at a particular place which has been described as „Shantibat briksha‟. The occurrence had taken place on the eastern flank of the road and the Maruti Car by which the informant along with his companion Rana Kumar Singh( 3 not examined) was travelling, was still lying there. The Investigating Officer( P.W. 18) also appears inspecting the office of P.A.C.L. India Ltd and thereafter appears recording further statement of the informant and statements of other witnesses. The Investigating Officer started suspecting hands in the commission of offences of the appellants Nitin Raj Srivastava and Ekhlaque Ahmad and, accordingly, started a hunt for the two accused persons. The houses of the appellants were raided by the police and the Officer-in-charge of Siwan Muffasil Police Station, i.e., P.W. 17 Brijendra Kumar Shahi passed on an information to him that appellant Rajesh Manjhi had been seen at Kutchery Railway Station, Siwan, and the information was, as such, reduced into station diary entry no. 130 dated 5.11.2007 and thereafter P.W. 18 came to the railway station, Siwan, and arrested appellant Rajesh Manjhi who was also questioned by the police and during that course, as may appear from the evidence of P.W. 18 in paragraph 7, this appellant confessed to his guilt and, accordingly, confessional statement of appellant Rajesh Manjhi was reduced into writing by P.W. 17, S.I. B.K.Shahi of Muffasil Police Station, Siwan. The confessional statement of appellant Rajesh Manjhi has been marked Ext. 4/1. while confessing his guilt, appellant Rajesh Manjhi appears pointing out that rupees two lacs which was the part of the looted money was lying in an Almirah in his house and, accordingly, the police officers, i.e., P.Ws. 16, 17 and 18 came to the house of appellant Rajesh Manjhi situated in Bidurli Hata, Siwan, and on pointing out by him the police party appears entering the room which was facing south and in the drawer of the Steel Almirah found rupees two lacs kept there, the bundles of which were still bearing the seals of S.B.I. and PACL over them. The bundles of money were seized and, accordingly, the seizure memo was 4 prepared in presence of P.W. 2 Manoj Kumar and P.W. 11 Ajay Kumar Baitha. The seizure memo has been marked Ext.3. The copy of the seizure memo(Ext.3) was handed over to appellant Rajesh Manjhi and he signed it in token thereof. 4. The Police party, thereafter, left the house of appellant Rajesh Manjhi as they had some information while they were coming back that the two appellants Ekhlaque Ahmad and Nitin Raj Srivastava who was also described as Munshi Srivastava were at a place near the house of appellant Ekhlaque Ahmad and, accordingly, the police party came there and found the two appellants who on seeing the police party started running away. But, they were chased and arrested. The two appellants were also separately questioned and their statements were recorded, as may appear from the evidence of P.W.18 as also from the record of confession of appellants Nitik Raj Srivastava which was recorded by P.W. 16 Polendra Singh and was marked Ext. 4. Likewise, the confessional statement of appellant Ekhlaque Ahmad was recorded by S.I. Brijendra Kumar Shahi( P.W. 17) and that has been marked Ext. 4/2. While confessing to their guilt, the two appellants, namely, Nitin Raj Srivastava and Ekhlaque Ahmad also pointed out that they had in their respective possessions some part of booty. As per the confessional statement of appellant Ekhlaque Ahmad the part of the booty which was handed over to him was shared by him with Bashsir Mian alias S.P. Mian and that was kept in his house and could be found there. Accordingly, the Investigating officer went to the house of Bashir Mian alias S.P. Mian located at Shukla Toli, P.S. Siwan Town and on the pointing out of appellant Ekhlaque Ahmad a search of iron trunk which was kept by the side of southern wall of the house was made and he found rupees fifty six thousand which was 5 kept wrapped into a cloth piece. Those notes of money were carrying the seals of State Bank of India and PACL. The seizure memo was prepared after seizing the above fifty six thousand rupees and that seizure memo has been marked Ext. 3/1. 5. Appellant Nitin Raj Srivastava alias Munshi Srivastava, during his confession pointed out that he had kept the part of booty in the trunk located in his house and, accordingly, police stepped into his house which was the tenanted house owned and possessed by one Upendra Paswan situated in same locality of Siwan and on pointing out by appellant Nitin Raj Srivastava alias Munshi Srivastava the trunk was opened which was kept by the side of the wall of the house and rupees two lac was recovered from the stack of clothes and, accordingl,y seizure memo(Ext. 3/2) was prepared in presence of the witnesses, i.e., P.W. Suman Kumar and P.W. Bibhas Ranjan and the notes of money recovered were bearing the seals of State Bank of India and PACL. 6. During the course of investigation, the police also came to know that the motorcycle which was used in commission of the offence was lying in the house of one Suresh Pandey and, accordingly, the police went there and found that a Suzuki motorcycle was standing in the verandah of the hose of Suresh Pandey and accordingly the motorcycle was seized by preparing Ext. 3/4 7. P.W 17 S.I. Brijendra Kumar Shahi informed the Investigating Officer of the case P.W. 18 that one Rabindra Chaudhary was available who had been found with rupees one lac and accordingly he was arrested and seized the bundle of the above notes by preparing seizure report which has been marked Ext. 3/2. 8. It appears further from the evidence of P.W.18 that the police 6 obtained the three appellants on police remand through judicial orders and during the course of questioning them, it came to light that some part of looted properties were in the house of one S.P. Mian and the police party went there and from the particular room recovered rupees ninety two thousand and accordingly Ext. 3/5 was prepared in presence of the witnesses. 9. The statements of the witnesses were recorded and finding materials sufficient against the appellants the appellants were sent for their trial which ultimately ended in their conviction by the impugned judgment. 10. Shri Ajay Kumar Thakur, learned counsel for the appellant Rajesh Manjhi was submitting by making reference to paragraphs 19.20 and 40 to44 of the evidence of P.W. 17 that the mother of appellant Rajesh Manjhi had filed Cr. Misc. petition before the Chief Judicial Magistrate, Siwan( Ext. C) on account of the father of appellant Rajesh Manjhi being illegally arrested and confined bythe Investigating Officer. It was submitted that the Chief Judicial Magistrate, Siwan had passed orders on that petition directing P.W. 17 to produce the father of appellant Rajesh Manjhi, which may appear from Ext.A and A/1, but the father of the appellant Rajesh Manjhi was not produced resulting into filing of Criminal Writ Jurisdiction Case No. 2002 of 2005 and because P.W. 17 was not appearing before this Court as per its direction to file affidavit, the Superintendent of Police, Siwan put him under suspension and that was the reason that the he had falsely implicated the appellant Rajesh Manjhi. 11. I was taken through the above paragraphs of the evidence of P.W. 17 in the above connection. It was contended that there was no material 7 indicating as to how P.W. 17 came to know that appellant Rajesh Manjhi was at Kutchery Railway Station, Siwan and further, after arresting the appellant no information was given to the G.R.P.S. regarding that fact at that particular station. It was contended that if the whole story is like that as regards appellant Rajesh Manjhi, then his participation in the commission of crime and subsequent recovery of the part of the looted money appears a hoax. 12. So far as remaining two appellants Ekhlaque Ahmad and Nitin Raj Srivastava alias Munshi Srivastava are concerned, Shri Ashok Kumar Mishra, learned counsel appearing on their behalf was virtually questioning the very identification of the recovered properties. It was submitted that if at all the properties were bearing the seals of PACL then it was highly desirable that they ought to have been put on Test Identification Parade and the evidence of organizing that parade by the Officer/ authority and the chart thereof ought to have been obtained and produced in court. 13. There is specific rule framed by the Bihar Police Manual, 1978 by Rule 236 for identification of suspected goods or suspected theft property. If one could consider Rule 236(b) of the Bihar Police Manual one could find that if the articles which are subject matter of theft or if they appear having some specific identifying marks then in that case there could not be any necessitity of organizing the Test Identification Parade and putting the articles for identification by the witnesses. A similar point was raised before a Division Bench of this Court in State of Bihar Vs. Shankar Kanu and ors reported in 2010(3) P.L.J.R. 427 and the Division Bench was replying to the above submission in paragraph 59 of the judgment. The judgment was being written by me as part of the Division Bench and I 8 was pointing out the same rule as regards the need of holding the T.I. Parade if the properties were already bearing some specific identifying marks. 14. Coming to the facts of the present case it was never disputed during the whole trial that the properties which were recovered were not bearing the seals of the State Bank of India as also that of PACL. The currency notes with which P.W. 12 accompanied by another employee Rana Kumar Singh was proceeding to the State Bank of India for depositing the same, were produced, as may appear from the lower court records, in court and they were marked material Exhts I to IV on different dates as may appear from the sheets of material exhibits which are at pages 155 to 156 of the lower court records. It appears further from the evidence of the witnesses as may appear from the trial court‟s records, specially the orders passed on 18.6.2008 and 27.6.2008 that after marking all notes as material exhibits, the court was again handing over those properties to the witness, i.e., S.I. Polendra Singh( P.W. 16) who had produced the currency notes before the court for tendering them in evidence. It was not suggested even to P.W. 17 or any of the witnesses who could have testified to the above fact that the currency notes were not belonging to the PACL and on account of thatfact they were not the subject matter of theft and, further, that they had been handed over to him to create evidence. In absence of that particular evidence on that, I do not see any reason to reject the prosecution evidence on which I am coming a bit later. 15. Shri Thakur, learned counsel for appellant Rajesh Manjhi was placing the admitted fact brought on record through the evidence of P.W. 17, as may appear in paragraphs 19,20, 40 and 44 about the filing of the 9 complaint Ext. C before the Chief Judicial magistrate, Siwan informing him about the illegal arrest of the father of appellant Rajesh Manjhi which was numbered as Cr. Misc. No. 202 of 2006 and orders were passed on several dates, as may appear from Exts. A and A/1. However, P.W. 17 has specifically stated that the father of appellant Rajesh Manjhi had some past activities in respect of certain theft or robbery, as such, he was remanded to custody. The documents may not have been available but I could very well understand as to why this Court could not have passed orders on the Criminal Writ Jurisdiction Case No. 2002 of 2005 when the arrest was in connection with the substantive offence which had already been registered and was being investigated into. This Court could never have intervened on treating the case of arrest and detention as a matter of legal detention and could not have passed orders on account of which P.W. 17 was to be put under suspension by the higher Officers and on that account he was bearing an ire against appellant Rajeshd Manjhi. The submission of Shri Thakur that on account of the above ground he had been suspended could not be accepted. 16. It was contended that there was no whisper as to how the police came to know that appellant Rajesh Manjhi was available at Kutchery railway station, Siwan. I have discussed the evidence of P.W. 18, the Investigating Officer of the case. He has stated that he was suspecting from the very inception of the case the hands of Ekhlaque Ahmad and Rajesh Manjhi in the commission of the offence and that was the reason that raids had been conducted in their respective houses also. The police, it could be understood, was on a look out for the appellants and they must have alerted their agency which could be secret agency also, to inform them about the movement of the appellants. P.W. 18 has stated the above 10 fact in paragraph 4 and further in paragraph 7 of his evidence that he was informed by the Officer-in-charge of Siwan Mufassil Police Station, i.e., P.W. 17, that Rajesh Manjhi was present at the platform of Kutchery railway Station, Siwan. Accordingly, P.Ws. 16,17 and 18 reached there and found Rajesh Manjhi and arrested him. There is no denial that Rajesh Manjhi was arrested and there is also no denial that appellant Rajesh Manjhi was questioned and further that he confessed to his guilt. There might also be nothing coming from the confessional statement (Ext.4/1) of appellant Rajesh Manjhi as regards the commission of the offence, but so far as the information which was dropped by appellant Rajesh Manjhi regarding concealment of rupees three lacs which was part of the looted property is concerned, the information was quite admissible under Section 27 of the Evidence Act. Thus, the police party, as may appear from the above information, were quite aware of the movement of the appellants, especially, appellant Rajesh Manjhi and accordingly he was arrested. 17. It might be a fact that the appellant Rajesh Manjhi was within the jurisdiction of G.R.P.S., Siwan, but he was arrested in a case for commission of the offence which was already registered by the Town Police Station, Siwan, on the basis of Ext. 2 the written report of P.W. 12 and, as such, there was no need of informing the Officer-in-charge of the G.R.P.S. or taking help from him in affecting his arrest. Moreover, appellant Rajesh Manjhi was not residing in the jurisdiction of G.R.P.S. It was a chance presence of appellant Rajesh Manjhi that he was there at the platform of Siwan Kutchery railway station and that may not be making it mandatory that G.R.P.S., Siwan ought to have been informed. 18. The evidence of leading the police to enter into the houses of the appellants and further fact as regards the place where the part of looted 11 properties were concealed appear coming out of the respective confessions of the three appellants. Rajesh Manjhi was pointing out something on account of which he could be implicated by the police. So far the other two appellants, i.e., Ekhlaque Ahmad and Nitin Raj Srivastava are concerned, the defence is too specific to carry any reason to have the police so much enthusiastic or adamant to arrest innocent persons like them or to implicate them in such offence and on that basis their participation in the offence and recovery of the looted properties retained by them could not be ruled out. 19. The factum of the offence has been proved by examining the witnesses, like, P.Ws. 6, 12 and 15. P.Ws. 6 and 12 though have been declared hostile, but from some part of their evidence in cross- examination, as regards snatching of the bag by the criminals, appears established. The identification was not there. In fact, there was no evidence on identification during the trial. It was only the evidence of confession of the appellants leading to recovery of money. The seizure list witnesses might have turned hostile but they had put their signatures on the seizure report. While they were signing the paper they were perfectly knowing the details. This Court could not appreciate as to how they could know that the paper on which the very S.I. of Police was asking them to put their signature was to be utilized as seizure memo unless they were party to the entire exercise. This Court has the above inkling from the evidence of P.Ws. 2 and 9, the seizure list witnesses who were examined during the course of trial. 20. I have considered the evidence and on such consideration of the evidence, what I find is that there were only two criminals who had arrived at the scene of the occurrence and at the gun point relieved the 12 informant of the bag containing Rs. 13,68,000/- from his possession. There is no evidence further that there were more number of accused and the finding recorded by the learned trial Judge and the conviction of the three appellants for committing the offence under Section 395 of the Indian Penal Code could not be sustained. In my considered view, the offence could be under Section 392 of the Indian penal Code which could be said to have been committed by the two appellants and not under Section 395 of the Indian Penal Code. As such, I give benefit of doubt to all the three appellants and acquit them of the offence under Section 395 of the Indian penal Code, in absence of evidence of identification. 21. However, Section 114(a) of the Evidence Act, says that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. It is in the above context that in order to apply Section 114(a) of the Evidence Act it is necessary for the prosecution to show that there was quite some proximity between the offence and the recovery of the property. It was contended that the recovery was made on 5.11.2007 while the occurrence had taken place at about 1.20 P.M. on 29.10.2007, about a week earlier. Similar point was raised in the case of Shanker Kanu(Supra) in which the Division Bench. was considering the term “ soon after the theft”. In that case recoveries of theft properties were made after thirteen days of the occurrence under some circumstances on confessional statements of the persons who were caught by the police on picking up a telephonic call on the mobile which was belonging to the deceased. The Court was pointing out that after considering the facts, in spite of there being time lag of twelve to thirteen days of commission of the offence, the recovery, considering the nature of the offence, could be 13 just after the incident on the special facts of that particular case. Coming to the present case, there was some suspicion from the very inception of the case against appellant Rajesh Manjhi and Ekhlaque Ahmad that they might have participated in commission of the offence, but as regards the recovery which could be made was within six or seven days of the commission of the offence from the rooms of the respective houses of the appellants and others raising the probability that some one could have transferred for concealment of the properties after its possession. As regards the transferred possession of the same, it was only when the room of one of the appellants was searched along with other appellants that the another part of the booty was found concealed and they could lay hands on them only on their pointing. The facts of the present case make the situation akin to that of the case of Shanker Kanu( Supra) and considering the recovery it could not be said to be distinct. I have acquitted the appellants of the commission of the offence under Section 395 of the Indian Penal Code. But, as regards the retention part of the theft property obtained by commission of the offence of robbery which might or might not have been committed by the appellants brings the case within the ambit of Section 412