CRIMINAL APPEAL No. 737 OF 2004
WITH
CRIMINAL APPEAL NO. 806 OF 2004
WITH
CRIMINAL APPEAL NO. 807 OF 2004
*******
(In the matter of appeals under Section
374 (2) read with Section 389 (1) of the
Code of Criminal Procedure against the
judgment of conviction dated 13th
October, 2004 and order of sentence dated
14th October, 2004 passed by Shri
Himanshu Shekhar Pandey, Additional
Sessions Judge, Fast Track Court No. II,
Begusarai in Sessions Trial No. 439 of
1999 arising out of Bhagwanpur Police
Station Case N0o. 113 of 1998)
******
KAILASH SAH, SON OF LATE SHREE NARAYAN SAH, RESIDENT OF TEGHRA
BAZAR, POLICE STATION TEGHRA, DISTRICT BEGUSARAI
.........................................................APPELLANT ( in Cr. App. No. 737/2004)
WITH
SURENDRA SAHANI @ GOPAL SAHANI, SON OF RAM KHELAWAN SAHNI,
RESIDENT OF VILLAGE HARICHAK, POLICE STATION BHAGWANPUR,
DISTRICT BEGUSARAI .....................APPELLANT ( in Cr. App. No. 806/2004)
WITH
SAKHICHAND SAHNI, SON OF LATE PALTAN SAHNI, RESIDENT OF VILLAGE
BAGRASH, POLICE STATION BHAGWANPUR, DISTRICT BEGUSARAI
......................................................APPELLANT (in Cr. App. No. 807/2004)
VERSUS
THE STATE OF BIHAR ....................RESPONDENT (IN ALL APPEALS)
*********
FOR THE APPELLANT :- MR. ZEYAUL HODA, ADVOCATE
(in Cr. App. No. 737/2004) MR. RANBIR SINGH, AMICUS CURAIE
FOR THE APPELLANT :- MR. ARBIND KUMAR SINGH, ADVOCATE
(in Cr. App. No. 806/2004) MR. RANBIR SINGH, AMICUS CURAIE
FOR THE APPELLANT :- MR. SHUBHESH PANDEY, ADVOCATE
(in Cr. App. No. 807/2004) MR. RANBIR SINGH, AMICUS CURAIE
FOR THE STATE (in all appeals) :- MR. S. N. PRASAD, A.P.P.
**************
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PRESENT
THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN
ORDER
Sheema Ali Khan, J. These three appeals arising out of the
same judgment are being heard together and are being
disposed of by this common order.
The appellants have challgned the
judgment dated 13th October, 2004 passed in Sessions
Trial No. 439 of 1999 by the Additional Sessions
Judge, Fast Track Court No. II, Begusarai. Criminal
Appeal No. 806 of 2004 has been filed by the appellant
Surendra Sahani @ Gopal Sahani who has been
convicted under Sections 395 & 412 of the Indian
Penal Code to undergo rigorous imprisonment for ten
years for each of the offences. Both the sentences are
to run concurrently. Surendra Sahani is in custody
since 13.10.2004. Criminal Appeal No. 807 of 2004
has been filed on behalf of the appellant Sakhichand
Sahni who has been convicted under Section 412 of
the Indian Penal Code to undergo rigorous
imprisonment for ten years. Sakhichand Sahni has
remained in custody for one and a half years. Criminal
Appeal No. 737 of 2004 has been filed on behalf of the
3
appellant Kailash Sah who has been convicted under
Section 412 of the Indian Penal Code to undergo
rigorous imprisonment for ten years. Kailash Sah has
remained in custody for about two and half years.
The occurrence is said to have taken
place on 20.08.1998 at about 12 PM. The informant of
this case is Tribhuwan Jha. He was sleeping outside
his house after organizing the SHRADH ceremony of
his grand-mother, when at about 12 in the night, 20
to 25 dacoits entered in his house. He claims to have
identified Surendra Sahni, Dilip Paswan and Shankar
Paswan. It is also disclosed in the First Information
Report that his brothers identified apart from the
aforesaid persons, Ranbir Paswan and a few others
who are not appellant before this Court. With respect
to the appellant Sakhichand Sahni, it is stated in the
First Information Report that after the dacoits had
looted the house of the informant, they had stated
that “SAKHICHAND BOSS CHALO KAM HO GAYA”. It
has also been alleged that these dacoits had looted
away golden ornaments, silver ornaments and other
articles from the house as well as cash of Rs. 27,500/-
On the basis of the aforesaid
information, the investigation commenced. During the
investigation, Surendra Sahni was apprehended and
4
he is said to have made a confessional statement
before the Police wherein he has admitted his guilt
and also spoken about the participation of other
persons in the said dacoity. Surendra Sahni also
reveals that he had sold the ornaments to one Kailash
Sah who is a Goldsmith and had a shop at Teghra
Bazar. On the basis of the confessional statement,
recovery has been shown from the shop of the Kailash
Sah and also from the house of Surendra Sahni.
Prosecution has examined altogether 13
witnesses in support of its case. Out of 13 witnesses,
PWs 1, 2, 3 and 4 have been declared hostile whereas
PWs 12 and 13 are the Advocate Clerks who have
proved Exhibit-10 series which is the test
identification parade of the articles recovered. The
main witnesses in this case are PWs 5 to 11.
Before dealing with the evidence, it
would be proper to state that the occurrence is said to
have taken place in a house which has several rooms
which are occupied by the brothers of the informant.
CRIMINAL APPEAL NO. 806 OF 2004
SURENDRA SAHANI @ GOPAL SAHANI
PW 5 Pawan Kumar is the brother of
the informant and he had identified Shankar Paswan
and Ranbir Paswan. Surprisingly, Pawan Kumar does
5
not disclose the names of other dacoits identified by
his brothers or by the informant which is strange in
view of the fact that all the brothers lived in a common
house occupying different portions of the house.
PW 6 Anil Jha is also the brother of the
informant. He claims to have identified Surendra
Sahni. At paragraph 12, this witness has stated that
he had no connection or association with Surendra
Sahni and further stated that it was a dark night and
he was able to identified the dacoits in the torch light.
He claims that the torch by which he had identified
the dacoits had not been shown to the Investigating
Officer nor had the Investigating Officer seized the
said torch which was the source of identification.
Therefore, from the evidence of PW 6, it appears that
although he claims to identify the appellants Surendra
Sahni, his evidence becomes doubtful because of the
fact that he had not stated how he knew Surendra
Sahni although he belongs to a different village and
this witness accepts that he had no connection or
association with Surendra Sahni.
PW 7 Rajeev Kumar Jha claims to have
identified Surendra Sahni along with two other
dacoits. According to him, the dacoits took away one
golden chain, nose pin, ear ring, one silver set of
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beetle nut dish, 20-25 sarees and some other clothes
from his room. This witness has stated that he had
seen Surendra Sahni only once two months prior to
the dacoity. Later on, at paragraphs 11 and 12, the
entire evidence with respect to the identification of the
appellant Surendra Sahani by PW 7 is washed away
by his statement where he admits that “Daroga Jee”
had pointed out Surendra Sahni to him at the Police
Station, in the words of this witness “HUMKO
PAHCHANWA DIYA”. Therefore, obviously no reliance
can be placed with respect to the identification by PW
7.
PW 8 Madhu Parag is the wife of Pawan
Kumar Jha and PW 9 Jaymanti Devi is the wife of the
informant. Both of them have not been able to identify
any of the dacoits. They did not even disclose that
they were informed by their husbands the names of
the persons who committed the dacoity in their house.
PW 10 Ram Kishore Jha is the
neighbour of the informant and he has reached the
place of occurrence after the dacoits have left and as
such he did not have an opportunity to identify any
one of them.
The most important witness is
Tribhuwan Jha, PW 11, the informant himself. PW 11
7
claims to have identified Surendra Sahni, Shankar
and Rajeev. This witness has also stated that he does
not know Sakhichand Sahni but he knows others
because they were from the same village. There is also
a suggestion on behalf of Sakhichand that there is
enmity with Sakhichand as he has a Jalkar near the
house of this informant and that the informant is also
in the business of rearing fishes.
The salient features about the evidence
of PW 11 is that this witness has not been able to
state whether he knew Surendra Sahni prior to the
occurrence. He has given graphic details with respect
to the manner in which the occurrence had taken
place, but as far as the aspect of identification was
concerned, he is silent. The appellants do not
challenge that an occurrence took place rather they
challenge their involvement in the alleged occurrence.
The Trial Court has convicted Surendra
Sahni on the ground that he is identified by three
witnesses and on the basis of the confessional
statement. Recovery has been made from his
possession on the basis of the alleged confession. The
articles recovered from the possession of Surendra
Sahni are Rs. 8,920/- in cash, 15 new blouse pieces,
one red saree, one read & blue saree, one pant piece
8
and one shirt piece. The case of the prosecution is
that cash and clothes have been identified by PWs 8
and 9. On going through the evidence of PWs 8 and 9,
it appears that PW 8 was able to identify two cream
coloured bed sheets, 15 blouse pieces, tea leaves, soap
and vim powder whereas PW 9 has identified two
golden coins marked with SITA RAM, two broken
golden coins, one pair of ear rings, one golden top,
sewing machine, bed sheets, tea leaves and soap. It
appears that PWs 8 and 9 have not identified any of
the articles recovered from the possession of Surendra
Sahni but these articles are not the articles which
were stolen as would be clear from their evidence.
Therefore, the confessional statement allegedly leading
to recovery can not be taken into account and this
Court can not hold that the stolen articles were
recovered from the possession of Surendra Sahni. I
may clarify with respect to blouse pieces which were
allegedly identified by PW 8 and were recovered from
the possession of Surendra Sahni, this item was not
mentioned among the list of stolen articles in the First
Information Report.
Upon consideration of the evidence, it
appears that although PWs 11, 6 and 7 have named
Surendra Sahni but from their cross-examination and
9
evidence, it would appear that they had no prior
association with Surendra Sahni to have been able to
identify him as one of the miscreants who had
committed dacoity in the night of 20.08.1998. The
Investigating Officer could have helped the
prosecution in supporting its case, has not been
examined and infact the seizure list witnesses have
also not been examined to prove the seizure of articles
from Surendra Sahni or for that matter from Kailash
Sah.
In the result, Criminal Appeal No. 806
of 2004 is allowed and Surendra Sahni @ Gopal Sahni
is acquitted of the charges leveled against him. He is
directed to be released forthwith if not required in any
other case.
CRIMINAL APPEAL NO. 807 OF 2004
SAKHICHAND SAHNI
The case of the appellant Sakhichand
Sahni rests on a very small issue. Sakhichand Sahni
has been named in the First Information Report by the
informant. Apart from the evidence that the inmates of
the informant family had heard one of the dacoits
saying “SAKHICHAND BOSS CHALO KAM HO GAYA”.
There is no evidence that any of the witnesses
identified him in participating in the alleged dacoity.
10
The witnesses claimed that they identified Sakhichand
Sahani by face, however, they had not identified him
at the time when the dacoity was being committed.
Apart from the aforesaid allegation, there is no
material against this appellant.
The Trial Court has merely convicted
him on the utterances made in the First Information
Report. I do not think that this would be sufficient
evidence to hold that Sakhichand Sahni participated
in the dacoity.
In the result, Criminal Appeal No. 807
of 2004 is allowed and the appellant Sakhichand
Sahni is acquitted of the charges leveled against him.
He is also discharged from the liabilities of the bail
bonds furnished earlier in this case before the Trial
Court.
CRIMINAL APPEAL NO. 737 OF 2004
KAILASH SAH
The appellant Kailash Sah has been
convicted for offences under Section 412 of the Indian
Penal Code. The material that has emerged during the
investigation in this case is that Surendra Sahni is
said to have made a confessional statement in which
he has stated that he had sold the ornaments to
Kailash Sah, a Goldsmith at Teghra Bazar. The
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Investigating Officer on the basis of the confessional
statement of Surendra Sahni searched the shop of
Kailash Sah and made certain recoveries which were
one ear-ring, about 3 and half BHAR of gold, a golden
chain, a pair of ear-ring, golden coins which were
broken, silver coins, one pair of silver payal, four
pieces of silver bichias, one pair of golden tops.
It has been submitted on behalf of
Kailash Sah that he owns a goldsmith shop and
ornaments of all types are likely to be kept in his
shop. Apart from that, it has been submitted that the
occurrence is said to have taken place in the night of
20.08.1998, the First Information Report was
instituted on 21.08.1998 and just two days later on
23rd October, 1998, the raid was conducted in the
shop of Kailash Sah. It has been submitted that it is
not possible that within a period of two days, the
stolen items would have been sold to the appellant. It
has also been pointed out that Surendra Sahani has
been arrested on the same day i.e. 23.08.1998 and it
is most improbable that the confessional statement is
recorded on 23.08.1998 and the raid was also
conducted on the same day. Therefore, this Court can
not have much faith in the alleged recovery from the
possession of Kailash Sah.
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Another aspect is that the ornaments
described in the First Information Report indicate that
there was one pair of JHUMKA, golden rings, golden
ear-ring and coins having mark of SITA RAM on them.
Although, the ornaments tallies as they are gold items
which are available in almost all the gold shops. The
recovery of coins do not tally as it has not been
mentioned in the seizure list that coins had any mark
of that SITA RAM. Apart from what has been
discussed aforesaid, learned Counsel further submits
that Section 412 of the Indian Penal Code envisages
that a person who is charged with this offence should
have dishonestly received or retained any stolen
property, the possession whereof he knows or has
reason to believe to have been transferred by the
commission of dacoity, or dishonestly receives from a
person, whom he knows or has reason to believe to
belong or to have belonged to a gang of dacoits,
property which he knows or has reason to believe to
have been stolen, shall be punished with rigorous
imprisonment for a term which may extend to ten
years , and shall also be liable to fine. It has been
argued that the prosecution has not been able to show
that Kailash Sah knew that the property was stolen or
that the person selling the property to him was known
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to be a dacoit or belongs to a gang of dacoits.
Considering the manner in which the
search was conducted, it is doubtful that the items
seized and items stolen were one and the same. Most
of all even if it is accepted that the allegations are
true, there is no evidence to establish that Kailash
Sah had knowledge that the items allegedly sold him
were stolen property. I find that the prosecution has
not been able to prove the charges leveled against this
appellant.
In the result, Criminal Appeal No. 737
of 2004 is allowed and the appellant Kailash Sah is
acquitted of the charges leveled against him. He is also
discharged from the liabilities of the bail bonds
furnished earlier in this case before the Trial Court.
The judgment of conviction is set aside.
All the three appeals are allowed.
( Sheema Ali Khan, J. )
Patna High Court,
April 23, 2009
N.A.F.R./Anand