Anil Kumar Sinha, J.
1. Criminal Appeals Nos. 13, 15, 16, 18 and 26 of 1993(R) were heard together as they arise out of the common judgment passed in ST. No. 53 of 1989. This common judgment will govern the aforesaid appeals.
2. The aforesaid appeals have been directed against the judgment and order of conviction and sentence passed by Vlth Additional Sessions Judge, Dhanbad, in S.T. No. 53 of 1989, whereby and whereunder he convicted the appellants Md. Jalal, Binod Prasad Raut and Bablu Pal under Sections 395/ 412 of the Indian Penal Code and sentenced them to undergo R.I. for a period of six years and to pay a fine of Rs. 5,000/- (Five thousand) each or, in default thereof to undergo R.I. for one year. The appellants Murarilal Agarwal, Rajendra Sao, Mahendra Sao, Kalanand Soni and Gopal @ Gopal Krishna Jhunjhunwala were convicted under Section 412 of the Indian Penal Code and were sentenced to undergo R.I. for a period of six years each and to pay a fine of Rs. 10,000/- (Ten thousand) each or in default thereof to undergo R.I. for one year.
3. According to the fardbeyan (Ext. 5) of Chotan Agarwal (P.W. 6) recorded at 4.15 a.m. on 11-9-1987 at the residence of the informant, the case of the prosecution is that in the night of 10th/11th of September, 1987 the informant and his brothers were going to sleep, whereas other family members of ther informant were sleeping, Madhu Sudan Agarwal (P.W. 5) heard some whispering sound on the roof of his house, so, he came out in. the courtyard and noticing nothing, he again went to sleep. At about 2 a.m. there was a commotion and six persons entered into the bed room of the informant, out of them one was armed with revolver and 3 were armed with Bhujali. At that time, the electric tube light was burning in the room and the decoits demanded keys of the almirahs as also a sum of Rs. 3,00,000/-(Three lakh) after giving threats to the informant. Thereafter, the dacoits broke the almirahs and the boxes and took away the cash and ornaments which they kept in their pockets and bag which they were having. The dacoits entered into the room of the informant’s grandmother and there also they looted away the ornaments and caused injuries to the informant and grandmother with Bhujali. It is said that about 5 to 6 dacoits were standing in the courtyard armed with Bhujali and torch and_at intervals, going outside the house and were talking with some body standing in the Galli (lane). All the members of the house were confined into one room by the dacoits. The informant and his father Jiwan Ram Agarwal raised hulla on which some persons came and in the meantime, the patrolling police party arrived there and.chased the dacoits. It has also been alleged that the dacoits had looted away the articles from the room in which informant’s mother and sister were sleeping. The list of some of the articles looted away by the dacoits belonging to different family members were given in the fardbeyan. The informant also give the details about the cash looted by the dacoits and it has been stated that a sum of Rs. 2,000/- belonging to Sarika Torhi and Rs. 3,000/- belonging to the informant’s mother were also looted away from the almirahs and they had also taken away four tola burther with lari with read mina with engraving of Sheo Kumar on those buttons. It is stated that the dacoits had disconnected the telephone connections of the house and it was asserted that they climbed up to the roof of the house with the help of bathroom pipe and when they entered into the house, they opened the main door through which other dacoits entered into the house. The informant, his grandmother, mother, sister, brothers and father had claimed to have identified the dacoits after seeing them.
4. In course of investigation.’the accused-persons facing trial were arrested byt the police from their houses and shops while other accused-persons wens arrested from their hotel and from the possession of all the accused-persons except Md. Alam, the Investigating Officer recovered the stolen articles viz ornaments, currency notes, an silver coins. Three accused, namely, Md. Jalal, Binod Prasad’Raut and Bablu Pal were placed at the T.I. parade and were identified by P.W. 1 Chandrakant Agarwal. Besides above-named three dacoits,” accused Murarilal Agarwal is alleged to have participated in the alleged dacoity and there is allegation against accused Pradip Kumar Agarwal that he had abetted the commission of dacoity. According to the prosecution Md. Jalal and some other dacoits had sold and transferred certain articles to accused Rajendra Sao, Mahendra Sao, Kalanand Soni and accused Kalanand Soni is alleged to have sold certain ornaments to Gopal Krishna Jhunjhunwalla of Bhagalpur. Certain articles were recovered from the possession of accused Md. Jalal and Murarilal Agarwal from the rooms of Yogmaya Lodge at Asansol, where they were staying after commission of the dacoity.
5. The police submitted charge-sheet in the case under Sections 395/412 of the Indian Penal Code against the accused appellants on the basis of which cognizance was taken and the case was committed to the Court of Sessions, The learned Additional Sessions Judge, who conducted the trial, framed charges under Sections 395/412 of the Indian Penal Code against accused Murarilal Agarwal, Md. Jalal, Binod Prasad Rautand Bablu Pal, whereas accused Rajendra Sao, Mahendra Sao, Kalanand Soni and Gopal Krishna Jhunjhunwala were charged under Section 412 of the Indian Penal Code. Accused Pradip Kumar Agarwal and Md. Alam @ Chhotu have been charged under Section 395 of the Indian Penal Code. All the accused persons pleaded not guilty to the respective charges framed against them and the defence is that they have been falsely implicated in the case.
6. So far as accused Gopal @ Gopal Krishna Jhunjhunwala, Rajendra Sao, Mahendra Sao and Kalanand Sao are concerned, their defence is that the articles, including ornaments recovered from their possession belong to them and the same was not the subject-matter of the dacoity.
7. The learned trial Court convicted the appellants in the manner stated above. Being aggrieved with and dissatisfied by the judgment and order of conviction and Sentence passed by the learned trial Court, the present appeals have been filed on the grounds that the learned trial Court has convicted the appellants without properly appreciating the’evidence, facts and circumstances of the case and the impugned “judgment and order of conviction and sentence recorded by the learned trial Court is based on conjectures and surmises and is bad in law which deserves to 6e set aside.
8. It appears from the records that the appellant namely, Md. Jalal of Cri. Appeal No. 15 of 1993(R) has remained in Jail for 5 years 3 months. Appellants “Rajendra Sao, Mahendra Sao, and Kalanand Soni, of Criminal Appeal No. 16 of 1993(R) have remained in jail for a period of 5 years 4 1/2 months. The appellants Binod Prasad Raut and Bablu Pal of Cri. Appeal No. 26 of 1993(R) have remained in jail for about 5 years 5 months and the appellant Murarilal Agarwal of Criminal Appeal No. 18 of 1993(R) has remained in jail for about 4 years and 6 months.
9. The learned Counsel appearing on behalf of the appellants confined his submissions on the point of sentence only in respect of the aforesaid appellants and it was submitted by the respective Counsel of the aforesaid appellants that they have already served the major part of the sentence by remaining in jail for the periods mentioned above, hence, their sentence may be reduced to the period undergone by them in jail custody for the ends of justice. The submissions look quite reasonable and I also feel it expedient in the ends of justice that the substantive sentence awarded to the aforesaid appellants should be reduced to the period already undergone by them in the jail custody. Accordingly, the sentence of six years’ R.I. awarded to the appellants, namely, Md. Jalal, Rajendra Sao, Mahendra Sao, Kalanand Soni, Binod Pd. Raut, Bablu Pal and Murarilal Agarwal except Gopal Krishna Jhunjhunwala is reduced to the period already undergone by them in the jail custody.
10. It appears that the aforesaid appellants were also sentenced to pay a fine of Rs. 5,000/- (Five thousand) and Rs. 10,000/-(Ten thousand) each or in default to undergo R.I. for a period of one year. The appellants deposited fine amount partly, as such, the sentence of fine imposed on them is also reduced to the extent of amount which they have deposited and, accordingly, the sentence of fine stands modified.
11. So far as the appellant Gopal Krishna Jhunjhunwala is concerned, he has been charged under Section 12 of the Indian Penal Code. It appears that altogether 16 items were recovered from the shop of accused Gopal Krishna Jhunjhunwalla situated at Chandi Patti, Bhagalpur and seizure list (Ext. 8/6) was prepared in presence of the witnesses, namely, Babulal Sao and Suryanath Pathak. It is the specific case of the appellant Gopal Krishna Jhunjhunwalla that the ornaments seized from his shop were not the stolen properties of any dacoity case and those ornaments belonged to him as also to the customers. It is admitted position that the ornaments were seized from the shop of appellant Gopal Krishna Jhunjhunwalla on 22-9-1987, whereas the alleged dacoity had taken place on 10/11-9-1987. As such, it would appear that the search and seizure from the shop of Gopal Krishna Jhunjhunwalla was made after 11 days of the commission of the alleged dacoity.
12. Out of the seizure list witnesses, P.W. 17 Babulal Sao has been examined but another seizure list Witness, namely, Suryanath Pathak has not been examined by the prosecution. P.W. 17 has deposed that the shop of Gopal Krishna Jhunjhunwalla was searched in his presence and ornaments were seized from his shop and seizure list was prepared on which he along with Suryanath Pathak had signed as witnesses. He has proved his signature (Ext. .1/11) on the seizure list. He has also deposed that the material Exts. marked as XL, XVII to XVII/IV, XIX and XIX/1 were seized from the shop of accused Gopal Krishna Jhunjhunwalla, but he could not remember as to whether material Exts. XXXIII, XLVI, XLVIII and XLI were recovered from the shop of accused Gopal Krishna Jhunjhunwalla or not. In cross-examination P.W. 17 has clearly admitted that he reached the shop of Jhunjhunwalla when the seizure list had already been prepared by-the police and he was simply asked to sign on it. He has further stated that 3 to 4 items were recovered from the shop of accused, which were kept in the shop before he arrived and accused Jhunjhunwaila was claiming his innocence and was saying that the articles were not of any dacoity case. It is, therefore, manifest from the evidence of seizure list witness Babulal Sao that he is not an actual witness to the searched and seizure and as a matter of fact search and seizure was affected in his absence and the I.O. had obtained his signature on the seizure list, which was prepared from before. It is also manifest from the statement made by P.W. 17 that accused Jhunjhunwalla had emphatically denied before the I.O. that the articles seized from his shop were concerned with any dacoity case, and accordingly, he was pleading his innocence.
13. It is the evidence of the I.O. that on the basis of the confessional statement made by accused Kalanand Soni he went to the shop of Gopal Krishna Jhunjhunwalla situated at Bhagalpur, where the looted articles were sold and on the identification made by accused Kalanand Soni he recovered and seized 16 items, for which seizure list (Ext. 8/6) was prepared in presence of the witnesses and a copy of the seizure list was given to the accused Gopal Krishna Jhunjhunwalla. P.W. 21 (I.O.) has deposed that the articles recovered from the shop of Jhunjhunwalla are material Exts. LVI, XIX to XIX/1, XLVIII, XU, XL, XXXIII, XLVI, XVII to XVII/IV. Besides that there were other items also, which were not identified. In cross-examination, the I.O. has admitted that the owner of Jewellery shop also purchased old ornaments and the customers also used to give their ornaments to the owner of the shop for repair. He also stated that accused Gopal Krishna Jhunjhunwalla had told him that he is innocent. He further admitted that he had not put any mark of identification on the ornaments, which were seized from the shop of Gopal Krishna Jhunjhunwala. As regards silver coins seized from the shop of Jhunjhunwalla, the I.O. has stated that he had not mentioned in the diary regarding embossing of the king or queen of England on those coins and he also admitted that the shop owner keeps silver coins for the purpose of weighing ornaments. He also admitted that he had not mentioned the individual weight of the piece of coins seized from the shop of G.K. Jhunjhunwalla by him and he further admitted that he had not arranged similar type of piece of silver coins for the purpose of holding the T.I. parade. He further admitted that there is reference of gold nuth in the fardbeyan but there is no mention of its weight. There is also no mention of weight of gold-tops and nathuniin the fardbeyan and there is mention in the fardbeyan regarding 4 gold Kangan, weighing 4 Tolas but there is no reference in the fardbeyan of that one pair of Kangan weighing 14.4 grams. The I.O. has stated that he kept all the recovered ornaments in a packet which was sealed in presence of the witnesses but he gave vague reply regarding the monogram of the seal. But there is nothing in the T.I.P. charge prepared by P.W. 22 Alok Kumar Sinha, who is the T.I.P. Magistrate, which may show that the ornaments were kept in a sealed packet which were opened before him after breaking the seal. P.W. 22 has also not stated in his examination-in-chief that the ornaments were kept in any sealed packet which was opened before him at the time of holding the T.I.P. and after conducting the T.I.P: he had sealed those ornaments in the packet. The prosecution has all not produced the packet in which the ornaments recovered from the shop of accused Jhunjhunwalla had been sealed.
14. The witnesses, who took part in the T.I.P. on articles, are P.W. 1 Chandrakant Agarwal, P.W. 3 Anandi Devi, P.W. 4 Mewa Devi and P.W. 6 Chetan Kumar Agarwal. It appears from the judgment of the lower Court itself that out of 16 items recovered from the shop of accused Jhunjhunwalla, the witnesses could not identify item Nos 26,28,30,31,32,35,37,38 and 39 of the T.I.P. chart, meaning thereby that 9 items could not be identified by the witnesses, who could identify 7 items only and those items are serial Nos. 24,25,27,29,33,34 and 36 of the T.I.P. chart,The learned trial Court has found that out of 7 items identified by P.Ws.”1, 3, 4 and 6 only 4 items were mentioned as stolen articles in the fardbeyan Ext. 5 and those 4 items are serial Nos. (cutpiece of silver coins of 1 Rupee), serial No. 2 (one pair of gold Kangan), serial No. 6 (1 gold top and one gold Nathia) and serial No. 10 (Two piece of silver rod).
15. So far as the identification of the cutpiece of silver coins of 1 rupee is concerned, it is a thing,twhich is openly available in the market and there being no mark of identification on the cutpiece of silver coins, the identification made by the witnesses of the one piece of silver coins does not inspire confidence to believe that those pieces were the stolen properties. Similarly a pair of Kangan weighing 14 1/2 Gram which the witnesses claimed to identify in the T.I.P. also does not inspire confidence to believe, inasmuch, as there is nothing in the fardbeyan (Ext. 5) to show that a pair of kangan weight 14 1/2 gram, had been taken away by the dacoits. in fact, there is a reference of 4 Kangan weighing about 4 which the dacoits looted away, which normally suggests they each Kangan must be weighing about 1 Tola an a pair of Kangan would weigh about 2 Tolas but the pair of Kangan at serial No. 25 of the T.I.P. chart (Ext. 4/2) goes to show that the weight of pair of Kangan was 14 1/2 grams only. There is nothing in the evidence of witnesses to show that there was any special mark of identification over the pair of Kangan which the identified. So, in the absence of any special mark of identification and in the circumstances as stated above, it cannot be said beyond doubt that the Kangan identified by the witnesses at the T.I.P. were actually the stolen properties. Similarly, there is nothing in the fardbeyan to show that the Nuth weighing .750 M.G. or any top weighing 1.700 gram or piece of Bangles were taken away by the dacoits. It would, therefore, appear that 7 items identified by the witnesses, namely, P.Ws 1, 3, 4 and 6 do not tally with the list of articles as given in the fardbeyan which the dacoits are alleged to have looted away.
16. At the very outset, it appears from the evidence of P.W. 22 Alok’Kumar Sinha, who conducted the T.I.P. of the articles, that he had mixed each suspected items with 10 similar items before conducting the T.I.P. and, thereafter, the witnesses were called to identify. According to him, the I.O. had arranged similar items. The statement made by P.W. 22 looks apparently false and does not inspire confidence to believe for the simple reason that it was physically not possible’for the I.O. to arrange similar items in respect of 36 items, which were put at the T.I.P. on 19-9-1997 and another 39 items which were put at the T.I.P. on 1-10-1987, in view of the description of the suspected articles given in the T.I.P. chart and the seizure list. Moreover, there is no evidence to the effect that from where the I.O. brought similar items for the purpose of mixing the same with the suspected articles. It may be pointed out that there were altogether 69 items of different shape, size and weight, which were required to be mixed with 690 similar items of the same shape, size and weight and it would look really fantastic to find out that the I.O. brought those 690 items of similar shape, size and weight within 2 hours times but from where he brought those items remained a myth. P.W. 22 has deposed that he had mentioned the shape, size and design of all the suspected articles in his T.I.P. chart, but his statement is not correct so far as appellant Gopal Krishna Jhunjhunwalla is concerned, inasmuch, as there is no mention of shape, size or design of the suspected articles vide items No. 25 to 29 of the seizure list. P.W. 22 has admitted that he did not put any mark of identification on any suspected articles and has stated that on inquiry from the I.O. he learnt that he had not given any mark of identification on the suspected articles which were put on T.I.P. In such view of the matter, the entire exercise of the T.I.P. of articles becomes futile when there is nothing to show that any mark of identification was put on the suspected articles which were placed at the T.I.P. for identification. How can’ it be said that the articles identified by the witnesses were actually the suspected stolen properties when neither the I.O. nor theT.I.P. Magistrate put any mark of identification on it. As such, I find that a material irregularly had been adopted in conducting the T.l.P. which affects the validity of the T.I.P. conducted by P .W. 22. P .W. 22 has clearly admitted that he cannot say that how many ornaments were brought from outside for mixing with the suspected articles on both the dates when he conducted the T.l.P. He also did not prepare any list of articles, which were brought from outside for mixing with the suspected articles. P.W. 21 (1.0.) has admitted in paragraph 123 of his cross-examination that he had made arrangement of similar type of ornaments for mixing with the suspected articles and each suspected articles was mixed with 10 similar articles but he could not say that from whom he had arranged the similar type of ornaments nor he prepared any list of owners of those ornaments and frankly admitted that there is nothing in the diary to show the weight of ornaments, which were brought by him from the outside. He also could not say that whether he had granted any receipt to the owners of those ornaments or had obtained any receipt from them at the time of returning those ornaments to them. He also admitted that he has not mentioned this fact in the diary that what was the number of different type of ornaments which he brought from outside and what was the weight thereof. He has also not mentioned in the diary that whether those articles were of gold or of silver, but the I.O. has stated in paragraph 158 of his cross-examination that he kept all the ornaments, seized from the shop of accused Gopal Krishna Jhunjhunwalla in a packet on which accused and the witnesses had signed and he had sealed that packet but the prosecution has not produced that sealed packet in which the ornaments, seized from the shop of appellant Gopal Krishna Jhunjhunwalla, was kept P.W. 22 has admitted in his cross-examination that he had not mentioned about the identification made by the witnesses itemwise nor he mentioned itemwise regarding the items, which were not identified by the witnesses at the T.I. parade, rather, he wrote the result of the identification made by the witnesses in the charts (Exts. 4/1 to 4/2). This procedure adopted by P.W. 22 was also not correct or fair, inasmuch, as he should have mentioned the result of the identification made by the witnesses itemwise. Similarly, he should have mentioned the result in respect of those articles, which were not identified by the witnesses itemwise.
17. It would, therefore, appear from my above analysis of evidence that no reliance can be placed on the T.I. chart (Ext. 4/2), insofar as the appellant Gopal Krishna Jhunjhunwalla is concerned, nor the alleged identification said to have been made by the witnesses in the T.I. parade inspire confidence to believe for the reasons stated above. Apart from that, I find that the learned trial Court did not put any specific question to the appellant-accused Gopal Krishna Jhunjhunwalla in course of his statement under Section 313 of the Code of Criminal Procedure regarding the alleged identification of 7 articles by the witnesses, and, in fact, no specific question has been put by the learned trial Judge to him.
18. The learned Counsel appearing for the appellant Gopal Krishna Jhunjhunwalla strongly argued before me that in the absence of any specific question being put to the accused regarding the alleged identification of 7 items, made by the witnesses at the TIP. in course of the statement under Section 313 of the Cr. P.C. the evidence of the alleged identification cannot be used against the accused and, if it is discarded, then there is no evidence against him to fasten with any liability. In support of his contention, the learned Counsel has relied upon a decision of our own High Court in the case of Ashok Poddar and Ors. v. State of Bihar (1995)2 BLJR 774. In that case, the letter (Ext. 2) was used against the accused as a piece of evidence but in course accused regarding that letter, so, it was held that the letter (Exf. 2) cannot be read as a piece of evidence against the accused. In the instant case also, I find that the only evidence, which has been relied upon by the trial Court for con convicting the appellant Gopal Krishna Jhunjhunwalla is the result of the T.I. parade of articles conducted by P. W. 22, in which 7 items suspected to be the stolen articles of the case, were identified by the witnesses i.e. P.Ws. 1,3,4 and 6 but the trial Court has not put any question, whatsoever to accused Jhunjhunwalla while recording his statement under Section 313 of the Code of Criminal Procedure in respect of the identification of ornaments at the T. I.P. recovered from his shop. I am, therefore, of the view that the result of the T.I. parade cannot be used as evidence against the appellant Jhunjhunwalla and on this score alone the appellant Gopal Krishna Jhunjhunwalla deserves to be acquitted.
19. Apart from that, it is to be noticed that appellant Gopal Krishna Jhunjhunwalla was having a gold-smith shop at Bhagalpur, from where the I.O. seized as many as 16 items on the identification made by another accused Kalanand Soni and at the time, of seizure itself accused Jhunjhunwalla claimed that those articles belonged to him and his customers. The I.O. has also admitted this fact that people sell their own ornaments at the gold-smith shops and also give their own ornaments for repairing. The admitted posittion is that out of 16 items recovered from the shop of accused Jhunjhunwalla, 9 items were not the stolen properties, which means that those 9 items belonged to the accused and the seizure thereof as suspected stolen properties was certainly wrong. So far as the remaining 7 items are concerned, the trial Court has found in its judgment that only 4 items were mentioned in the fardbeyan, which suggests that 3 items, which were identified by the witnesses at the T.I. parade, were not mentioned as looted properties in the fardbeyan. So, identification of 3 items, which do not find mention in the fardbeyan looks doubtful.
20. In order to bring home the charge under Section 412 of the Indian Penal Code, it is necessary that the accused must be shown to have reason to believe that the properties were stolen, but I find that there is no evidence to the effect that the accused had reason to believe that 4 items recovered from his shop, which were identified at the T. I. parade, were the stolen properties. Reference may be made to the decision in the case of Mohan Lal v. State of Maharashtra , wherein it has been held that the accused must be shown to have reason to believe that the property was stolen in order to prove the charge under Section 411 of the Indian Penal Code.
21. Regard being had to the discussion made above, and considering the evidence, facts and circumstances of the case, I am of the view that the prosecution has not proved the charge under Section 412 of the Indian Penal Code against accused Gopal Krishna Jhunjhunwalla beyond all reasonable doubts and his conviction under Section 412 of the Indian Penal Code cannot be sustained. Accordingly, the conviction of Gopal Krishna Jhunjhunwalla is hereby set aside.
22. In the result, therefore, Criminal Appeal No. 13 /93(R) is allowed and appellant Gopal Krishna Jhunjhunwalla is held not guilty and acquitted of the charge and he is also discharged from the liability of his bail-bond. He is also discharged from his liability of the bond, if an executed by him for the release of the ornaments to which were seized during the investigation. The Criminal Appeal Nos. 15/93(R), 16/93(R), 18/93(R) and 26/93(R) are dismissed subject to the modification in the sentence awarded to the appellants of the aforesaid appeals in the manner indicated above. Accordingly, the appellants, namely, Md. Jalal, Rajendra Sao, Mahendra Sao, Kalanand Soni, Murarilal Agarwalla, Binod Prasad Raut and Bablu Pal are ordered to be released from the jail custody forthwith, it not already released.