Criminal Appeal (SJ) No.299 of 1998 Against the judgment and order of conviction and sentence dated 27. 07. 1998, passed by Shri Amaresh Kumar Lal, 5th Additional Sessions Judge, Bhojpur, Ara, in Sessions Trial No. 293 of 1995. 1. Rajesh Kumar Rai @ Rajesh Rai, son of Sri Nagina Rai. Resident of Village Dora, Police Station- Buxar Mufassil in the district of Buxar. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. with Criminal Appeal (SJ) No. 324 of 1998 Against the judgment and order of conviction and sentence dated 27. 07. 1998, passed by Shri Amaresh Kumar Lal, 5th Additional Sessions Judge, Bhojpur, Ara, in Sessions Trial No. 293 of 1995. Ajit Chaudhary @ Ajit Kumar Chaudhary, son of Late Saryug Chaudhary, resident of Village- Chakia, Police Station Buxar Mufassil, in the district of Buxar. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. with Criminal Appeal (SJ) No. 314 of 1998 Against the judgment and order of conviction and sentence dated 27. 07. 1998, passed by Shri Amaresh Kumar Lal, 5th Additional Sessions Judge, Bhojpur, Ara, in Sessions Trial No. 293 of 1995. Ashok Yadav, son of Ram Dular Yadav, resident of Village- Chakrhansi, Police Station Buxar Mufassil, District-Buxar. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. (In CR. APP (SJ) No. 299 of 19998 (In CR. APP (SJ) No. 324 of 1998) For the Appellants. : Mr. Akhileshwar Pd Singh, Senior Advocate. For the Respondent State : Mrs. Rina Sinha, A.P.P. (In CR. APP (SJ) No. 314 of 1998) For the Appellant : Mr. Nil Kamal, Advocate. For the Respondent State : Mrs. Rina Sinha, A.P.P. 2 PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Three appeals i.e. Cr. Appeal No. 299 of 1998, Cr. Appeal No. 324 of 1998 and Cr. Appeal No. 314 of 1998 have heard together and being disposed of by the common order as three appeals are against the judgment and order dated 27th July, 1998, passed by Shri Amaresh Kumar Lal, 5th Additional Sessions Judge, Bhojpur, Ara, in Sessions Trial No. 293 of 1995. 2. The appellants have been convicted under Section 412 I.P.C. and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 1,000/- (one thousand) each and in default in payment of fine further sentenced to undergo rigorous imprisonment for a period of one month. 3. The prosecution case with regard to dacoity in Mahananda Express on 25. 12. 1994 and there is allegation that when the train left Danapur Railway station one person got up in the train and he opened the vacuum and thereafter several persons got up in the train and looted articles of the passengers. 4. However, after investigation, charge sheet submitted and cognizance taken and subsequently case 3 committed to the Court of Sessions and charge was framed under Sections 395 and 412 of Indian Penal Code. During trial seven witnesses were examined and after considering the oral and documentary evidence the trial court acquitted the appellants of charges under Section 395 I.P.C., but convicted under Section 412 I.P.C. 5. Learned counsel for the appellants however contends that there is no evidence to make out the case for offence under Section 412 I.P.C. 6. P.W. 1 is the witness who stated that recovery of a Jhola was recovered from his possession and the said Jhola was seized and seizure list was prepared which has been marked as Ext. 1. P.W. 2 has come to depose that a Titan wrist quartz watch was recovered from his possession and he disclosed that watch has been kept by him as mortgage property of Rajesh Kumar. Seizure list was also prepared with regard to recovery of watch from P.W.2. P.W. 3, 4 and 5 are seizure list witnesses who have proved the seizure articles. P.W. 6 is C.O. before whom T.I. P. has been conducted and proved the T.I. chart which mentioned Govind Brahmin identified the articles. P.W. 7 is formal witness who has proved the written report. 4 7. However, it is strange that in this case neither any person has come forward to say that his article was looted nor any seized articles has been proved as material Exhibit nor any witness has come to say that articles whatsoever seized or put on T.I.P. was his article looted from the said dacoity. Hence no ingredient of Section 412 I.P.C. at all has been proved. 8. It is pertinent to mention that in a case under Section 412 I.P.C. the prosecution is required to prove that articles were looted and it was recovered from the possession of the appellants and articles were identified by the person that this articles belong to loot. However, none of the ingredient has been proved or established. 8. Hence order of conviction and sentence recorded by the lower court is hereby set aside and all the three appeals are allowed. Patna High Court The 23rd August, 2011. NAFR/m.p. ( Gopal Prasad, J.)