Shafique Ansari vs The State of Jharkhand

Prashant Kumar, J.—This appeal is directed against the judgment of conviction and order of sentence 16.11.2002 and 18.11.2002 respectively passed by 5th Additional Sessions Judge, F.T.C.-II, Godda in S.C. No. 08 of 2002 whereby and whereunder appellant was convicted u/s 412 of the IPC and sentenced to undergo R.I. for four years and also directed to pay fine of Rs. 5000/-.

The case of prosecution in short is on 13.5.1988, the informant (Officer-in-Charge of Godda Town Police Station) and other police personnel were on the night duty. It is further stated that after conducting raid while they were sitting in front of Krishna Hotel, they saw that three persons were going on road. Informant asked them to disclose their identity, but they did not do so. Thereafter informant directed other police personnel to catch hold them. Then aforesaid three persons fled away and could not be apprehended even on chase. It is alleged that at the time of retreat one of the person threw his bag on the road. It is alleged that the said bag was opened by the informant and from the said bag two saries, other cloths, instrument box, one sketch pen, one playing card, two torch recovered. It is alleged that in one torch appellant''s name was written. Accordingly, the aforesaid articles seized in presence of two seizure list witness, namely, Arjun Thakur and Naresh Prasad Gupta.

It appears that on the basis of aforesaid statement, Godda (T) P.S. Case No. 109 of 1988 u/s 414 of the IPC instituted and police took up investigation. After completing the investigation, police submitted charge sheet against the appellant u/s 412 of the IPC. It then appears that after cognizance case was committed to the court of sessions. Thereafter prosecution examined altogether nine witnesses in support of its case. After the close of prosecution case, the statement of accused recorded u/s 313 Cr.P.C. in which his defence is of total denial. It further appears that the learned court below after considering the evidence available on record, convicted and sentenced the appellant as aforesaid, against that present appeal filed.

While assailing the impugned judgment, it is submitted by learned Counsel for the appellant that there is absolutely no evidence to show that any article seized from the possession of appellant. It is submitted that, the conviction of appellant u/s 412 of the IPC is illegal. Thus, the impugned judgment of court below cannot be sustained in this appeal.

Learned Additional P.P. opposed the submission of learned Counsel for the appellant and submits that the bag which was recovered from the place of occurrence contains a torch on which the name of appellant was written. Thus there is ample evidence to show that the present appellant had committed the crime. Accordingly, it is submitted that the impugned judgment does not require any interference by this Court.

Having heard the submission I have gone through the record of the case and scrutinized the evidence available on record. P.W. 1 Naresh Prasad Gupta is one of the seizure list witness, he has categorically stated that in his presence nothing has been seized. Prosecution declared him hostile as he had not supported its case. P.W. 2 (Kailash Yadav) is one of the constable who accompanied the informant at the time of occurrence. He deposed that after conducting raid while they were sitting along with Officer-in-Charge at the Chowk, they saw that three persons were going from south to north. He then deposed that on the direction of Officer-in-Charge, they chased the aforesaid persons but they fled away. He further deposed that while fleeing on persons threw his bag on the road. He stated that from the said bag Sari and torch recovered. He further deposed that he could not identify the persons who fled away. Thus, his evidence is also of no use for convicting the appellant. P.W. 3 Jagdish Raut is also member of police raiding party. He also states that while they were on petrolling, they found three persons. He further deposed that they fled away after throwing a bag. He states that he could not identify them. This witness was declared hostile. Thus, his evidence is also of no help to the prosecution.

P.W. 4. Moti Lal Mishra is the informant of the present case. This witness supported his statement made in the FIR and proved the written report and seizure list. He also proved FIR. Thus from perusal of evidence of P.W. 4, I find that he had not stated that the said bag recovered from conscious possession of appellant. P.W. 5 Chote Lal Sah is also a constable and member of petrolling party. He stated that after conducting raid, while they were sitting in front of Krishna Hotel, three persons were going towards Godda Bust Stand. He further stated that on query they fled away after throwing a bag. He after looking the appellant in the dock, said that he is not the person who threw his bag. Thus, P.W. 5 completely ruled out the involvement of the present appellant in the instant crime. P.W. 6 has been examined to show that some theft was committed in his house. However, this witness has not been produced for cross examination. Therefore, his evidence is excluded from the arena of consideration. P.W. 7,8 and 9 stated that in the year 1988 a dacoity committed in their house. They further deposed that they identified one Sari, Instrument box, playing card in presence of a Magistrate. But there is nothing on record to show that articles, which were identified by these witnesses are the same articles which were seized in the present case. Thus, their evidences are of no help to the prosecution.

From the perusal of entire record, I find that there is no evidence on record to show that any stolen article recovered from the conscious possession of appellant. It is well settled that for convicting an accused u/s 412 of the IPC, the prosecution must prove that the accused dishonestly received stolen property knowing or having reason to believe that its possession has been transferred by the commission of dacoity. In the instant case, there is no evidence in this regard. Thus the offence u/s 412 of the IPC is not made out. Accordingly, I am of the view that the conviction of the appellant u/s 412 of the IPC is illegal, therefore, cannot be sustained in this appeal.

In this result, the appeal is allowed. The judgment of conviction and order of sentence are set aside. The appellant is acquitted from the charge levelled against him. It appears that the appellant is on bail, he is discharged from the liabilities of his bail bond.