Jharkhand High Court
Vidya Shankar Rajwar vs The State Of Bihar(Now Jharkhand) on 28 April, 2025
2025:JHHC:12656
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No.293 of 1999(R)
Vidya Shankar Rajwar, S/o Ram Shankar Rajwar, resident of Parsatand
Basti, P.S. Jharia, District Dhanbad ...... Appellant
Versus
The State of Bihar(now Jharkhand) ......Respondent
with
Criminal Appeal (S.J.) No. 310 of 1999(R)
Subhash Dutta, son of late Habu Dutta, resident of Mohalla Amlapara,
P.S. Jharia, District, Dhanbad ...... Appellant
Versus
The State of Bihar(now Jharkhand) ...Respondent
With
Criminal Appeal (S.J.) No. 315 of 1999(R)
Bishundeo Sao son of Kishun Sao resident of Sao Patti Ghanuadih, P.S.
Tishra, Dist. Dhanbad ...... Appellant
Versus
The State of Bihar(now Jharkhand) ......Respondent
With
Criminal Appeal (S.J.) No. 333 of 1999(R)
Shoshi Lall Ram S/o late Suraj Ram of village: Ghanwadih, P.S.
Ghanuadih, Dist. Dhanbad ...... Appellant
Versus
The State of Bihar(now Jharkhand) ......Respondent
With
Criminal Appeal (S.J.) No. 361 of 1999(R)
Sheoram Gupta @ Dhodhai, Son of late Matadih Gupta, resident of
Jharia No.4, P.S. Jharia, District-Dhanbad ...... Appellant
Versus
The State of Bihar(now Jharkhand) ......Respondent
With
Criminal Appeal (S.J.) No. 367 of 1999(R)
Munna Rawani son of late Rajendra Rawani, resident of Kukur Topa,
Police Station-Jharia, District-Dhanbad ...... Appellant
Versus
The State of Bihar(now Jharkhand) ......Respondent
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1
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For the Appellants : Mr. Kumar Vaibhav, Amicus Curiae
Mr. S.K. Laik, Advocate
For the Respondent : Mr. Abhay Kr. Tiwari, Advocate
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PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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JUDGMENT
C.A.V. On 03.01.2025 Pronounced On: 28.04.2025
1. All the aforesaid appeals arise out of order of conviction dated
15.09.1999 & order of sentence dated 20.09.1999, passed in S.T. No.
262 of 1997 by learned Additional Sessions Judge, Dhanbad wherein
and whereunder the present appellants have been convicted for
committing offence U/s 412 I.P.C. and have been sentenced to undergo
R.I. for five years.
2. In the present case, FIR being Jharia P.S. Case No. 69 of 1997 is
based upon the fardbeyan of informant Manoj Kumar Burnwal who
stated therein that his house is at Nayee Duniya, P.S. Jharia, District
Dhanbad and in the room situated at outer side of the house, while he
was making gossip with his family members and one girl Guriya of his
neighborhood, then at about 8.15 P.M. in the night there was power cut
and he started portable generator. It is also alleged that he had taken
connection from commercial generator in the house from outside but
when the current did not come from commercial generator then
informant asked the said girl Guriya to see the outside why the
commercial generator has yet not started and the moment Guriya opened
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the door of his house about 7-8 unknown miscreants entered into his
house, two of them were armed with pistol and one was having bomb
and others were having Chhura and Bhujali, etc. Informant claimed that
he has identified two of them namely, Kallu Rawani and Birju Bhuiyan
and it is stated that Kallu Rawani was standing on the main road having
bomb in his hand, whereas Birju Bhuiyan was armed with pistol. The
electricity connection was disconnected and miscreants started taking
ornament from his mother, bhabhi and sister. Informant was asked by
Birju Bhuiyan to open the almirah, then out of fear his sister Madhu
Kumari opened both the almirah kept in inner and outer room and they
searched said almirahs. The miscreants committed dacoity for about ten
minutes in the house of informant and it is alleged that dacoits took away
one gold chain, two gold ring, one gold kanbali from his mother and one
gold chain with mina, one mangal sutra, two gold rings, golden kanbali
from his bhabhi Kavita Devi and from his sister Madhu Kumari they
took gold chain, two gold rings, gold Kanbali. Gold chain from the neck
of his younger brother, Ranjit was also taken and they also looted Rs.
20,000/- and one Yashika 3D Camera, one silver key ring, six old wrist
watches, out of which one was lady Titan of golden dial with golden
chain, 2 allwyn of plain dial and steel chain and two were citizen, one of
black dial and other of the plain dial with steel chain and one H.M.T,
with plain dial with leather belt and two nose gold besar. Thereafter, they
fled away by extending threat. It is further alleged that dacoits hurled
two bombs which caused injury to Bijoy Kumar Singh generator labour
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and police patrolling party also reached there and chased the culprits but
they fled away by taking advantage of darkness of night. Informant has
given physical description of miscreants also and claimed to identify the
miscreants, if shown to him.
3. From record, it appears that initially Munna Rawani was
apprehended and on his confession other co-accused persons got arrested
one by one and allegedly looted articles got recovered from their
respective possession. After due investigation chargesheet has been
submitted against appellants and other co-accused persons. Cognizance
for offence was taken by learned Magistrate, thereafter matter was
committed to court of session. Charge has been framed on 05.12.1997
under Section 397 of I.P.C. and Section 412 of I.P.C. out of these
appellants, two other persons have been framed under Section 397 I.P.C.
only. The substance of acquisition was read over and explained to the
accused persons to which they pleaded not guilty and claimed to be trial.
4. To prove its case, prosecution has examined as many as 12
prosecution witness. During trial learned court below has exonerated all
the appellants from the charge under Sections 395, 397 of IPC on the
premise that all the inmates of the house of the informant including the
informant have not identified the accused persons in the court during
trial. It is required to be noted that two of the accused persons have been
identified by the informant during TIP but later on during course of trial
informant could not identify even those two accused persons.
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5. However learned trial court found guilty all the appellants under
Section 412 of IPC. Therefore, this Court would confine its scrutiny qua
the material brought on record by prosecution qua Section 412 of IPC
against the appellants. I.O. has got examined in the present case as
P.W-12, who has stated in his testimony that on 18.04.1997 he
apprehended accused Kallu Rawani and some recovery was effected
from his person. It is further deposed by I.O. that on confession of Kallu
Rawani, Soshi Lall Ram and Vidya Shankar Rajwar got apprehended
from the house of Soshi Lall Ram and from his house one pair of ear
tops golden type and Rs. 300/- and from accused, Vidhya Shankar
Rajwar one Yashika Camera and one casio wrist watch with white dial
and Rs. 500/- was recovered. Seizure list has been prepared to this effect,
vide Exhibit 5/1. Further, Subhash Dutta got apprehended and from his
house gold chain with mina measuring about 1¼ bhar got recovered and
seizure list got prepared, vide Exhibit 5/3. Further Sheo Ram Gupta @
Dhadhua and accused Dharmendra Sao got apprehended while Sheo
Ram Gupta was doing negotiation to sale of gold chain, and from the
neck of accused Dhadhua a gold chain of 12 annas bhar and from the
pocket of his pant one golden type ring about 5 annas bhar was got
recovered and seizure list was prepared, vide Exhibit 5/4.
Further Munna Rawani also apprehended near Bakra Hatta More
and on search, one pair of ear tops weighing about 12 annas bhar was
recovered, and seizure list was also prepared vide Exhibit 5/5. For quick
and better appreciation of alleged recovery from appellants and other co-
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accused persons and mark of Exhibits in tabular form is taken from the
impugned Judgment of trial court and reproduced herein.
Name of accused Alleged recovered No. of Exhibit
article(s)
Kallu Rawani Golden chain, one Ext.5
wrist watch, 3
pieces of saree,
cash rs. 800
Sheo Ram Gupta @ One golden chain Ext. 5/4
Dhodhai and one golden ring
Bishundeo Sao One mangal sutra Ext.5/2
of white moti and
17 red and cash Rs.
Vidya Shankar One yashika Ext. 5/1
Rajwar Camera and one
wrist watch with
plain dial casio no.
MQ 310 Japan
Shoshilall Ram One pair of Kanbali Ext. 5/1
tops-golden type
Tempo Bouri @ Two pieces of Ext. 5/6
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Shankar Chhetrapal golden ring
Munna Rawani One pair ear tops of Ext. 5/5
golden type
Dharmendra Sao One golden chain No seizure list in
respect of this
accused
Subhash Kumar One golden chain Ext 5/3
with Mina of the
Dutta ear
6. It appears that I.O. has got TIP of recovered articles done by the then
C.O. and TIP chart has got exhibited in the present case as Exhibit 6.
P.W. 13 got conducted test identification parade of recovered articles
while he was circle officer, Jharia and he categorically stated in his
testimony that he got conducted TIP of recovered articles in respect of
Jharia P.S. Case No. 69 of 1997 by observing all the formalities and has
proved the TI Parade chart as Ext.6.
7. Learned counsel for appellants submitted that as none of seizure
witnesses have supported the case of prosecution and only they
identified their respective signature on the seizure list, as such, no
credibility ought to given to the said seizure list therefore entire recovery
(alleged) is doubtful. Further submission has been made, that all the
witnesses who was inmates of the house where dacoity was committed
categorically stated in their respective testimony that prior to TIP of
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articles at police station, articles were shown to them and it is also
admitted case of prosecution that no similar items were mixed with the
alleged recovered articles at the time of TIP, so it is not a proper TIP in
consonance with law and therefore, having no value in the eyes of law.
8. Lastly, it has been pointed that no ingredient of Section 412 is
available on record, because these accused persons were charged under
Section 395 of I.P.C., also apart from Section 412 of I.P.C. and they
have been exonerated from the charge of Section 395 of I.P.C.,
thereafter, it is duty of the prosecution to bring on record the ingredient
of Section 412 of IPC which is not at all available on record.
9. Learned APP for the State submitted that recovery has been effected
from the accused appellants and it has been duly identified during course
of TIP conducted by Circle Officer, so there is no need for this Court to
interfere in the impugned Judgment.
10. Heard the rival submissions of the parties and perused the trial
court record.
11. It is opposite for this Court to appreciate Section 412 of I.P.C.
before discussion the factual matrix of this case under Section 412 of
I.P.C. reads as under:-
" Section 412 speaks that:- Whoever dishonestly receives or retains 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 imprisonment
for life, or with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine."
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From the bare perusal of the above stated section, it is apparent
that to constitute an offence under Section 412 of I.P.C. the
prosecution has to prove
(a) that the property in dispute was stolen property
(b) the accused didn't receive and retain it
(c) It received from the person who belonged to or had belonged
to a gangs of dacoits
(d) So received with the intention of causing wrongful gain to one
or wrongful loss to another person
(e) that he knew or had reason to believe that person from whom
he had received the stolen property belonged to a gang of
dacoits and he knew or had reason to believe that it was a
stolen property.
12. Coming to the facts of this present case, this Court finds that all the
seizure witnesses examined in the present case i.e. P.W-1, P.W-2, P.W-
3, P.W-9, P.W-10, P.W-11 got hostile and they have not
corroborated/supported the factum of recovery. As such, there is only
one version of P.W-12 is available on record which speaks about the
respective recovery as shown in the preceding paragraph of this
Judgment.
13. P.W-1, Ganesh Ram has identify his signature in the seizure list
and has categorically stated that nothing has been recovered in his
presence and his signature was taken in police station at the behest of
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Chota Babu and at the time of putting his signature no articles were
before him and even nothing has been shown to him.
14. P.W-2, Hiraman Sao has identified his signature in the seizure list
and also deposed in similar way to that of P.W-1 and has stated that
nothing has been recovered from the house of Soshi Lall Ram, Kallu
Rawani and Bishundeo Sao and he put his signature in three seizure list
at the behest of Chotababu and while putting signature nothing was
before him.
15. P.W-3, Manoj Kumar Rawani has identified his signature in the
seizure list and has also stated that no search of Munna Rawani was
made in his presence and he put his signature at police station on plain
paper and no article has been shown to him.
16. P.W-9, Awadhesh Rawani has identified his signature in the
seizure list and stated that his statement was not recorded before police
and he put his signature on white paper and before getting signature
Daroga ji has not told him that for which incident signature was being
taken and he put signature at Jharia T.O.P.
17. P.W-10, Hardhan Das has identified his signature in the seizure
list and has also statement that his statement was not recorded and he put
his signature in police station on the paper and nothing was read over to
him about the contents of that paper.
18. P.W-11, Rajesh Agarwal has identified his signature in the seizure
list and has categorically stated that no recovery has been effected before
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him and police has not recorded his statement and he put his signature at
police station and he did not read the content of that paper and even it
was not read over to him.
19. All the aforesaid seizure witnesses have not corroborated the
factum of recovery and has only conceded to the fact regarding his
signature on the seizure list.
20. As far as TIP of articles are concerned, P.W-4 informant, P.W.-7
informant's sister, P.W.-5 informant's mother, P.W.-6 informant's
bhabhi have stated in their respective testimony that before TIP of article
at police station, the same has been shown to them at their house.
21. Admittedly, all the appellants have been exonerated from charge
of dacoity in the present case. However, they have been found guilty
under Section 412 of I.P.C. Meticulous reading of all the prosecution
witness do not suggest that any iota of material is available on record
which could remotely attract the ingredient of Section 412 of I.P.C. as
prosecution has miserably failed to bring on record.
22. Hon'ble Supreme Court in the case of Venkateshwara Rao @
Venkatal @ I. Rao versus State represented by Inspector of Police
reported in (2002) 6 SCC 247 at has held that when the court held that in
absence of guilt for the offence of dacoity, there exists a presumption
that the person exonerated from the change of dacoity has no knowledge
during which offence, the documents seized from him were allegedly
stolen. Relevant para of the judgment is quoted here under:-
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4........ Therefore, it becomes obligatory on the part of the prosecution to
establish that the property in question was involved in a dacoity and that the
appellant was in possession of the same knowing that the said property was
the subject-matter of a dacoity or at least had reasonable ground for
believing that the said property had been involved in a dacoity. When the
Court held that the appellant was not guilty of the offence of dacoity, it
should be presumed that the appellant had no knowledge of the dacoity
during which offence the documents seized from him were allegedly stolen.
In the instant case what the prosecution has established is that the appellant
was in possession of Exts. P-36 to P-40 which the prosecution alleges,
belongs to a lorry involved in a dacoity but that part of the knowledge of
dacoity cannot be presumed by the mere possession of these documents
unless the prosecution adduced some evidence to show that the appellant
had knowledge of such dacoity.....
5.......... we are of the opinion that the prosecution in this case having failed
to establish the charge of dacoity against the appellant and assuming that
the documents Exts. P-36 to P-40 were recovered lawfully from the
appellant, still has not established the fact that the appellant had received
these documents knowing that the same or having believed that these
documents were involved in a dacoity. Since the onus of proving this
knowledge lay on the prosecution and the prosecution having failed to
discharge this onus on the material on record, we are not satisfied that the
appellant could be held guilty of the offence under Section 412 IPC, more so
when he has specifically denied the recovery.
23. Considering the aforesaid facts and legal proposition, this Court is
of considered view that prosecution has failed to bring on record the
ingredient of Section 412 of IPC apart from that as the seizure witnesses
have not supported the case of prosecution recovery is also doubtful,
therefore, this Court is not satisfied that appellants could be held guilty
of the offence under Section 412 I.P.C.
24. In the view of above discussion, this Court is of considered view
that appellants are entitle for benefit of doubt, as such the impugned
judgment of conviction dated 15.09.1999 and order of sentence dated
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20.09.1999 passed by learned Additional Sessions Judge, Dhanbad in
S.T. No. 262 of 1997 is set aside.
25. Resultantly, these appeals are hereby allowed.
26. Since, the appellants are on bail, they are discharged from the
liability of their respective bail bonds.
27. Let trial court record be sent back to the court concerned.
(Arun Kumar Rai, J.)
Jharkhand High Court, Ranchi
Rajnish /Abhishek- A.F.R.
