Criminal Appeal (SJ) No.62 of 2007 With Criminal Appeal (SJ) No.189 of 2007 Against the judgment of conviction dated 15.12.2006 and order of sentence dated 18.12. 2006 passed by 1st Additional District and Sessions Judge, Darbhanga, in Sessions Trial No.64 of 2002 arising out of Town P.S.Case No.120 of 2001, G.R.Case No.1522 of 2001. Cr.Appeal No.62 of 2007 Binit Kumar Yadav, Son of Sri Deo Narayan Yadav, resident of village Tardih,P.S. Sakatpur, District- Darbhanga …. Appellant. Versus State of Bihar --------- Respondent. With Cr.Appeal No.189 of 2007. Birendra Kumar Mukhiya@ Birendra Kr. Sahani, Son of Sri Brahamdeo Mukhiya, resident of Village-Wajeet pur Chipaliya, P.S.Bahadurpur, District- Darbhanga ……Appellant. Versus State Of Bihar .... .... Respondent. For the Appellants Sri Ajay Kumar Thakur, Advocate (in Cr.Appeal No.62 of 2007) Sri Girish Chandra Jha, Advocate. (in Cr.Appeal No.189 of 2007) For the Respondent : Sri Ajay Mishra, A.P.P. ------------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The two appeals arise out of Judgment dated 15th of December,2006 passed by the Ist Additional Sessions Judge, Darbhanga in Sessions Trial No.64 of 2002 while acquitting three of the appellants put on trial in the above case.The learned Judge held appellants, Binit Kumar Yadav and Birendra Kumar Sahni @ Birendra Mukhiya, guilty of committing offence under sections 392 and 411 of 2 Indian Penald Code and directed each of the two appellants to suffer rigorous imprisonment of 5 years and 3 years respectively on the above two counts. The sentences were directed to run concurrently. 2. Sushil Kumar Bairoliya who appears to be the Proprietor of a gasoline station, was going to Darbhanga, branch of Bank of Baroda, near Darbhanga Tower to deposit a sum of Rs.2,80,000/- keeping the bundles of cash in a briefcase. He was traveling by a car which was driven by acquitted accused Pradip Yadav. When the informant had reached near Harrow English School, his vehicle was intercepted by two criminals who arrived by a motorcycle. One of the criminals came near the driver, snatched the key of the car from the key hole and at the point of revolver took of the briefcase containing Rs.2,80,000/-. Both the accused decamped with the booty by the same motor cycle.The briefcase, besides containing the cash was also containing pay-in-slip with full details of denominations of currency notes for depositing in the account of the informant. 3. The informant rushed to L.N.Mithila University Police Station and informed about the incident, the police officer, an A.S.I, who was present there. The informant along with the A.S.I., came again to the place of occurrence. The A.S.I. informed the Darbhanga Town Police Station. Officers-in-Charge of that Police Stations rushed to the scene of the occurrence where the statement of the informant was also recorded on the basis of which the case was registered and investigation was taken up by P.W.10. 4. During course of investigation, the investigating 3 officer came to learn that these appellants had been arrested in different offences, appellant Binit Kumar Yadav having been arrested by Bahadurpur Police much before the appellant Binit Kumar Yadav was remanded in connection with the present case. He also learnt from the Officer-in-Charge of Patore O.P.that he had been arrested in a case of that O.P.in which he gave some information about his participation in the commission of the present crime and also about distribution of booty, besides keeping some part of it which had fallen in his share in his rented house. It appears that the land lady was examined by the police but she was not examined by the trial court. The said house was searched by the police from where an amount of Rs.25,000/- was recovered along with the pay-in- slip dated 24.9.2001. It further appears that the appellant Binit Kumar Yadav stated that he had given Rs.5000/- to one Ashok Kumar Paswan (P.W.7) a chanda for celebrating Durga Pooja, while other amount of Rs.1000/- was given to accused appellant Birendra Kumar Mukhiya @ Birendra Sahni. 5. Appellant Birendra Kumar Mukhiya was arrested and on search of his person a sum of Rs.1000/- each note of Rs.100/- denomination was recovered from his pocket. This was the reason that Birendra Mukhiya was arrested and remanded in this case. 6. There is no doubt that the incident of robbery had taken place near Harrow English School in which the informant of this case was relieved of his briefcase containing Rs.2,80,000/- which was intending to be deposited in his account. It has only been supported by the driver of the Bus, namely, Mahendra Yadav, of Harrow English School who was examined as P.W.6. However, it was contended by the 4 learned counsel for the appellants that mere recovery of Rs.1000/- from the pocket of Birendra Mukhiya @ Sahni who was admittedly running a betel shop in the township and also gave an explanation of intending to purchase some materials in that connection appears of no consequence. Moreover, the currency notes were not found bearing signature of the informant which were found in each bundle of notes which was recovered from Binit Kumar Yadav. Thus, in absence of any identification mark on the ten currency notes of Rs.100/- denomination each was not proved to be looted and there may be the possibility that the said amount belonged to Birendra Kumar Mukhiya. 7. As regards appellant Binit Kumar Yadav, it was contended that admittedly, as may appear from evidence of P.W.10 in paragraph nos.28 and 29, this appellant never appeared in custody in connection with the present case, i.e., Darbhanga Town P.S. Case No.120 of 2001. He was remanded in the present case on 24.9.2001. The appellant Binit Kumar Yadav was remanded on 10.11.2001, i.e., after about 16 days of the occurrence and in connection with Bahadurpur P.S. Case No.149 of 2001. The sine qua non for applying section 27 of the Evidence Act was that he had given information to the police, which leads the police to discover a fact and that on the date of confession, he must have in this case. However the appellant Binit Kumar Yadav was in custody in connection with Bahadurpur P.S. Case No.149/01 and not in this case. Moreover, P.W.10 has admitted that the confession of the appellant Binit Kumar Yadav, which was the basis for dropping information leading to the recovery was not recorded by P.W.10 rather it was recorded by the Officeer-in-Charge of Patore Out 5 Post, namely, Ajay Kumar, but he was not examined. It was contended that the whole information leading to the recovery of the booty from the place of the storage of booty in the house of the land lady, namely, Hira Devi appears to be inadmissible. Likewise, in absence of the requisite evidence, a presumption under section 114(a) of the Evidence Act could not be drawn that it was part of the stolen cash. 8. On consideration of the argument, this Court had no option but to accept the submission of Sri Thakur that the appellant Binit Kumar Yadav was remanded in the present case after 10.10.2001 when he had given his confessional statement before Shri Ajay Kumar who was the Officer-in-Charge of Patore O.P. He was not accused in the present case on 10.10.2001. Besides, the said Ajay Kumar has not been examined to state that the appellant had given his confessional statement to him nor any document was produced on the basis of which the court was drawing inference of receipt of information by the Officer-in-Charge about involvement of the appellant either in commission of the offence or in retention of the property. On this ground the appeal of appellant Binit Kumar Yadav has to succeed. 9. As regards the appeal of appellant, Birendra Mukhiya I have already pointed out that the confessional statement of Birendra Mukhiya has not been brought on the record by Officer-in- Charge of the police Station. Moreover, it was a mere recovery of Rs.1000/- in the form of ten currency notes each of Rs.100/- denomination. The evidence of the informant ( P.W.5) indicates that on the confessional statement of appellant Binit Kumar Yadav certain amount of the stolen sum along with the pay-in-slip filled up by the 6 informant were recovered by the police. There is no dispute of the fact that any of the notes consisting the amount of Rs.1000/- was bearing signature of the informant. As such the prosecution appears to have failed in proving the charge against him also and, thus, the conviction of the appellant, Birendra Mukhiya also appears not sustainable in law. 10. In the result, the two appeals succeed and the two appellants are acquitted of the charge. Appellant Binit Kumar Yadav is in custody. He shall be released forthwith if not wanted in any other case. Appellant Birendra Mukhiya is on bail. He shall be discharged from the liability of his bond. Patna High Court, The 16th of August,2011, AnilKrSinha/N.A.F.R. (Dharnidhar Jha,J.)