Shibu Sahani vs State Of Bihar

The present appeal has been preferred against the judgment and conviction dated 15.12.2010 and 21.12.2010 respectively passed by learned

Sessions Judge, Muzaffarpur in Sessions Trial No. 630 of 2007, thereby the appellant has been convicted under Section 412 of the Indian Penal Code

and sentenced to undergo rigorous imprisonment of five years, though acquitted all three accused persons including the appellant from charges under

Sections 395 and 397 of the Indian Penal Code.

The prosecution case is based on the Fardbeyan of dated 17.06.2007 of Arbind Kumar, Informant (PW-4). The crime of dacoity was committed in

the house of the Informant in the mid night of 16.06.2007 while all the family members were sleeping. The informant woke up hearing sound of

sudden breaking of the door then dacoits entered inside. All were armed with pistol and assaulted the informant with the butt of the pistol and

committed dacoity in the house and took away money and jewelries and other items. He identified one of the dacoits and after committing dacoity all

escaped away. The identified accused persons are named in the FIR as Kailash Mandal, Bindeshwar Rai and a person of village Gaushnagar. The

informant also disclosed the description of looted articles.

The police after registering the FIR in the matter proceeded for investigation and on its completion submitted charge-sheet. During course of

investigation one of the looted jewelries was recovered from the house of the present appellant leading to his disclosure made in his confessional

statement and the same was also put on TIP and was identified by the Informant and other inmate of the house.

Learned counsel appearing on behalf of the Appellant submits that none of the witnesses has identified the Appellant participating in the dacoity

either in the TIP or in the Court during trial so all three accused put on trial were acquitted of the charges under Sections 395 and 397 of the Indian

Penal Code however the Appellant was convicted under Section 412 of the Indian Penal Code on identification of jewelry recovered from his house,

but in the TIP, similar types of ornaments were not placed along with the recovered one, so TIP was not held according to rules.

Whereas, learned counsel appearing on behalf of the State submits that during course of investigation, confessional statement was made by the

Appellant and one jewelry was recovered from his house and the same was put on TIP, seizure list of the jewelry is marked as Ext. 4 which stand

proved by the prosecution along with TIP chart (Ext.-5) and jewelry recovered from the house of Shibu Sahni, Appellant was identified by Arbind

Kumar (P.W. 4) and Ashok Mandal (P.W. 8) inmates of the house. So there is evidence on the record with regard to recovery of the looted jewelry

in dacoity from the house of Shibu Sahni, the Appellant.

Having considered the rival submission and on perusal of evidence on the record, the Court finds that there is cogent and reliable evidence available

on record that one of the looted jewelries from the house of Arbind Kumar, Informant (P.W. 4) was recovered from the house of Shibu Sahni,

Appellant. Recovery of jewelry from the Appellant’s house was made by Nagendra Kumar (P.W. 9), the Investigating Officer of the case and

the same was put for identification mixed with similar jewelries as evident from Ext. 5 (TIP chart) and same was identified by to witnesses Arbind

Kumar (P.W. 4) and Ashok Mandal (P.W. 8). Hence, on analysing the evidence on record it is held that the prosecution has been able to prove that

the Appellant has dishonestly received one of the jewelry stolen in the commission of the dacoity from the house of Arbind Kumar (P.W. 4), so the

trial court has rightly convicted Shibu Sahni, the Appellant under Section 412 of I.P.C. However, material on record shows that it is the first offence

committed by the Appellant and no other earlier crime was proved against him before the trial court and had remained in imprisonment in this case for

three and half years, so the sentence awarded to the Appellant is modified to the extent already he had undergone to the imprisonment of three and

half years.

With this modification in the sentence, the appeal stands dismissed.