Criminal Appeal (SJ) No. 763 of 2007 With Criminal Appeal (SJ) No. 790 of 2007 ------- Against the judgment and order of conviction and sentence dated 26.6.2007 and 4.7.2007 passed by Shri Om Prakash Sinha, Additional Sessions Judge, FTC V, Gopalganj in S.T. No. 499 of 2006/262 of 2006. ---------- Cr. Appeal (SJ) No. 763 of 2007 Akhilesh Singh, son of Dharmnath Singh, resident of village – Teliabandh, Police Station – Manjhagarh, District – Gopalganj ………………. Appellant Cr. Appeal (SJ) No. 790 of 2007 Dhananjay Mishra alias Binay Kumar alias Baba, son of Sh. Lallan Mishra, resident of village – Tarwa, Police station – Majhagarh, P.O.- Udant Rai ke Bangra, District – Gopalganj …………………. Appellant Versus The State of Bihar ……………….. Respondent (in both the appeals) --------- For the Appellants : Sarvshri Om Prakash Pandey, Advocate Amicus Curiae, Naresh Dixit, Advocate For the State : Shir Ajay Mishra, A. P. P. ---------- P R E S E N T THE HON’BLE SHRI DHARNIDHAR JHA -------- Dharnidhar Jha, J. These two appeals arise out of the judgment of conviction dated 26th June, 2007 passed by the Presiding Officer of Fast Track Court V, Gopalganj in Sessions Trial No. 499 of 2006 / 262 of 2006 by which the two appellants were held guilty of committing offence under section 395 IPC and were directed to suffer RI for seven years each. In addition to the above, the appellant Dhananjay Mishra was also convicted of the offence under section 412 IPC and was sentenced to undergo RI for five years. The sentences imposed upon the appellant Dhananjay Mishra were to run concurrently. 2 2. There is a sugar mill named and styled as Sasamusa Sugar Works Limited, Gopalganj. It is stated that Md. Yaqoob(P.W. 2), Serajul Haque (P.W. 7), Ram Milan Maurya (P.W. 4), Shabbir Ahmad (P.W. 6) and Noor Hasan (P.W. 1) had gone to Gopalganj branch of Central Bank of India for bringing Rupees twenty lacs by a Bolero vehicle bearing registration number WB 02 R-2009 against cheque no. 006083. The money was meant for making payments to the cane growers. Md. Yaqoob (P.W.2) was a guard and he was having a rifle bearing number AB04 4373 vide licence no. 153/91 whereas other guard Serajul Haque (P.W. 7) was carrying the other rifle bearing number AB04 6278 vide licence no. 58/64, P.W. 1 Noor Hasan was driving the vehicle. The amount was withdrawn and was kept in a steel box and was secured by locking the box to a chain. The witnesses started from the Central Bank of India, Gopalganj to Sasamusa sugar factory at around 12.30 noon. When the vehicle reached near Madho Math, another vehicle came following the above Bolero vehicle and blocked the way. Many other armed men arrived there by motorcycles also and forcibly overpowered the staff and guards by breaking the window panes and the other panes of the vehicle. They took away cash and the arms of the guards. It appears that the matter was reported to P.W. 3 Jamaluddin, who was the Manager of the factory, who lodged a written report (Ext.1) and on that basis, a case was registered and investigation was carried on. 3. During the course of investigation, as may appear from the evidence of P.W. 6 Sirajul Haque, appellant Dhananjay Mishra was arrested from his house on 17.3.2006 on an information received by P.W. 6 at 10.10 A.M. During questioning, he pointed out that the looted arms and ammunitions could be recovered from his house and accordingly, his house was searched by P.W. 6 and others and recovery memo (Ext. 2/3) was prepared. Appellant Dhananjay Mishra was taken into custody and he was remanded into the case. So far as appellant Akhilesh Singh is concerned, it appears that a Bolero vehicle bearing registration number JH 11 C0273 was found in his possession and he was arrested with the 3 vehicles and subsequently, the vehicle was found carrying a fake registration number, which was reported by the concerned District Transport Officer to be allotted to a two-wheeler. Akhilesh Singh was also remanded in the case. 4. Admittedly, the two appellants were never put on Test Identification Parade. 5. The basic prosecution evidence is coming through as many as twelve witnesses out of whom P.Ws 11 and 12 are witnesses to the seizure memo (Ext.4/2) which was prepared after seizing the Bolero vehicle from the possession of appellant Akhilesh Singh. P.W. 7 Anil Kumar Mishra was a witness to seizure of the Bolero vehicle, which was recovered in an abandoned condition by the side of the canal and seizure memo (Ext.4/1) was prepared in that behalf. P.W. 8 Kumar Kriti is the I.O. of the case, who seized the rifle from the house of the appellant Dhananjay Mishra consequent upon the admission given by the accused. Besides, he also arrested the accused persons and seized different properties, like, his vehicle. P.W. 6 Sabbir Ahmad, one of the guards along with the other guard P.W. 4 Ram Milan Maurya while was inside the vehicle bearing registration number WB 02R 2009 stated that coming after withdrawing the cash of Rupees twenty lacs and when the two reached along with P.W. 2 Md. Yaqoob and the driver P.W. 1, the criminals intercepted the vehicles, broke the glass panes of the vehicle and looted away cash along with arms and ammunitions. P.W. 3 Jamaluddin was the informant of the case and he was not an eye witness to the occurrence. 6. The defence witness was also examined by the appellant. 7. On consideration of the evidence on record, the learned trial judge convicted the two appellants and passed sentences, as I have just indicated. 8. It was contended by the learned counsel appearing on behalf of appellant Dhananjay Mishra that his confession was running into seven hand written pages which was started to be recorded at 12.45 P.M. and the recovery of a solitary rifle as per recovery memo (Ext.2/3) was made at 1.05 P.M. It was 4 contended that in such matters confession is not material evidence and the evidence as regards Dhananjay Mishra, which led the police to recover the theft property appears not acceptable. It was further contended that the court below has rejected the evidence of P.Ws 4 and 7 who had identified the two appellants in dock during their evidence and has categorically held that their evidence on identification and that of other witnesses were not fit to be acted upon. As regards the appeal of Akhilesh Singh, it was contended by the learned Amicus Curiae that there was no evidence of any recovery than that of the vehicle as per seizure memo (Ext.2/2). The only evidence about the illegal possession of the vehicle was that there was a report from a particular District Transport Officer that the vehicle was carrying a forged and fabricated registration number. No witness was stating by making reference to the vehicle being shown to any of them during the course of trial or even during investigation that the same vehicle which was seized from the possession of the appellant Akhilesh Singh had been used by the criminals in commission of the offence. It was contended by learned amicus curiae that this court had issued notice on enhancement of sentence, which was passed upon the two appellants but the very evidence which were adduced during trial do not justify the conviction of the appellant. It was also contended that the court took cognizance of the fact that if at all this occurrence had taken place, then it was very serious but the investigation as also the prosecution story were deeply lopsided. 9. It is true that the evidence on identification of the two appellants by P.Ws 4 and 7 has been rejected by the trial court. I do not want to go into that detail in spite of having a different view. But, the number of accused persons, which appears huge as per the prosecution evidence which indicated as if the criminals had come to intercept the Bolero vehicle occupied by the employees of the sugar mill by a similar vehicle as also by many motorcycles. As such, when the number of participating accused or suspect was larger and the appellants were apprehended from different places then it was desirable that their identities could 5 have been established clearly by testing the claim of the witnesses that they could identify the real culprits. Not only that, what appears is that in spite of there being confessions at least from the two appellants on the distribution of booty, no effort appears made by the police officer (P.W. 8) to search the place where the part of booty was claimed to be concealed to recover the same. It was rightly submitted that there was no evidence further to indicate that the vehicle which was recovered from the possession of appellant Akhilesh Singh had indeed been used in commission of the offence. If the prosecution was expecting the court to believe its case, then it was desirable that the witnesses ought to have been shown the vehicle at any stage of investigation or during the evidence so that identification evidence may have been collected during that course and the same could have been produced during hearing of the case. Nothing appears done by the police nor any effort appears made by the Public Prosecutor, who was conducting the above noted sessions trial to bring on record some convincing and clinching evidence as regards the claim of the prosecution that the vehicle which was recovered from the possession of the appellant Akhilesh Singh, was indeed used in commission of the offence. It may be a fact that the vehicle was clandestinely possessed by the appellant because it was definitely carrying a clandestine number. But in absence of direct evidence linking the vehicle to the commission of offence, this court cannot do much since the evidence was deficient on the use of the vehicle for committing the crime. In that view of the matter, I find no evidence against the appellant Akhilesh Singh. 10. So far as evidence against Dhananjay Mishra is concerned, it is true that his confession could not be acted upon so as to accepting the evidence on discovery of the fact which could be admitted under section 27 of the Evidence Act, but that fact appears concluded by the evidence of witnesses both who were associated with the seizure of the weapon and the I.O. P.W. 8 that that particular rifle which was recovered vide seizure memo (Ext. 2/3), was recovered with the ammunitions from the house of the appellant Dhananjay Mishra. It was rightly 6 contended by the learned counsel for the appellant Dhananjay mishra that taking down the confession of Dhananjay Mishra which ran into seven hand written pages in a period of less than twenty minutes could not be humanly possible. As such, that document, i.e., the confession of Dhananjay Mishra appears created by the police and in that view, the evidence of discovery of the fact of recovery of the rifle from the house of Dhananjay Mishra can not be accepted. However, the evidence of recovery does conclude that the rifle along with six cartridges was recovered from the house of appellant Dhananjay Mishra. The recovery was made on 17.3.2006 i.e. within two months of the incident. 11. Section 114 (a) of the Evidence Act says that a man who is in possession of a stolen good soon after the theft is either the thief or the receiver of the goods knowing them to be stolen, unless he can account for his possession. Law is that theft of the property and its recovery should be very proximal. There should not be unexplained, unacceptable intervention of time in between the commission of crime and the recovery of theft property. But, one has always to keep in mind that when a crime has been committed by a group of criminals after properly planning it and executing it thoroughly, then recovery of theft article is very difficult to be made. This was the reason that while I was writing judgment in State of Bihar Vs. Shankar Kanu 2010(3) PLJR 427, I was pointing out that in an offence which has been committed by a committed gang of criminals, it could be very difficult for the police to trace out the articles of theft and the court has always to co-relate the recovery from the date of information about the concealment of the property at different places. If I consider the recovery from that angle, then what appears is that the I.O. (P.W. 8) claims in paragraph 6 of his evidence that he had the information on 17.3.2006 at 10.30 AM that the appellant Dhananjay Mishra was present at his house and accordingly, he proceeded to his house and after arresting him he questioned him and on getting information from him searched his house to recover the arms and ammunitions. Thus, the recovery from the time of receipt of information about the concealment of looted arms and 7 ammunitions were very quick and as such it has to be presumed that appellant Dhananjay Mishra was definitely a participant in the commission of the offence. 12. In light of deficient evidence, I acquit appellant Akhilesh Singh. 13. So far as the question of enhancement of sentence is concerned, I acquit appellant Akhilesh Singh. So far as the conviction of appellant Dhananjay Mishra is concerned, of course, there is recovery of rifle but the trial court rejected the evidence on identification which was coming from P.W. 4 and P.W. 7. I have upheld the conviction of appellant Dhananjay Mishra only on the statutory presumption arising out of facts of the case in the light of section 114 (a) of the Evidence Act and in that light, I do not propose to enhance the sentence imposed upon him. 14. In the result, Cr. Appeal (SJ) No. 763 of 2007 filed by appellant Akhilesh Singh is allowed. Appellant Akhilesh Singh is in jail. He is directed to be released from custody forthwith if not wanted in any other case. Cr. Appeal (SJ) No. 790 of 2007 filed by appellant Dhananjay Mishra alias Binay Kumar alias Baba is dismissed. He is directed to surrender to his bail bond in the court below and to serve out the remaining part of his sentence. 14. Shri Om Prakash Pandey, learned amicus curiae has assisted this court immensely and, as such, he deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee, for which purpose, let a copy of the first and the last pages of the judgment be made over to him. (Dharnidhar Jha, J.) Patna High Court, The 23rd September, 2011, NAFR/Anil/