Shyam Lal & Ors. vs The State Of M.P.
2021 Latest Caselaw 8577 MP

                             1

HIGH COURT OF MADHYA PRADESH AT JABALPUR

           Criminal Appeal No. 914/1998
         Shyamlal and others vs. State of M.P.

           Criminal Appeal No. 1153/1998
              Shyamlal vs. State of M.P.

           Criminal Appeal No. 1372/1998
               Laxman vs. State of M.P.


Date of Judgment     10.12.2021

Bench Constituted    Single Bench

Order delivered by   Hon'ble Shri Justice Sanjay Dwivedi

Whether approved No
for reporting

Name of counsel for For appellants: Shri Anil Khare, Senior
parties.            Advocate assisted by Ms. Tanvi Khare,
                    Advocate.
                    Shri Piyush Bhatnagar, Amicus Curiae
                    For    Resp.-State:   Shri   Devendra
                    Gangrade, Panel Lawyer.
Reserved on : 28.10.2021
Delivered on: 10.12.2021

                     JUDGMENT

Since all the three appeals are connected and

arising out of the same judgment, therefore, they are

being decided by this common judgment.

2. This appeal under Section 374(2) of the Code of

Criminal Procedure has been filed by the appellants

being aggrieved by the judgment dated 24.03.1998

passed by the Additional Sessions Judge, Khurai,

District Sagar in ST No. 49/1996 convicting them under

Section 412 of the Indian Penal Code and sentencing

them to under go rigorous imprisonment for a period of

four years each.

3. As per the case of the prosecution, one

Rambai/complainant lodged a report on 24.09.1995 at

Police Station, Bina at about 3.30 in the night stating

that when she was sleeping in her house alongwith her

husband and her mother-in-law was sleeping in other

room of the house, upon hearing some noise, she woke

up and saw four persons in the house, who were trying

to open the iron box. After seeing them, she made some

noise, upon which one of the accused caught hold of her

mouth and when her husband tried to intervene, other

three accused persons assaulted him and when mother-

in-law of the complainant tried to save them, she was

also assaulted. The accused persons took away one gold

ring worth Rs. 1000/-, one pair of Payal worth

Rs.1000/- and one red frock, two white and one green

frock worth Rs.200/-. As per the complainant, after

hearing the noise, Mohan Kushwaha and Sunil came to

the spot and then the accused persons ran away. She

informed the police that when she was coming to lodge

the report alongwith her husband and mother-in-law,

she met one Shanker on the way, who disclosed that

some persons have taken a box from his house also. On

the report of complainant, offence was registered vide

Crime No.402/1997 under Sections 399, 402 read with

Section 149 of IPC and also under Sections 25 and 27 of

the Arms Act.

4. The police started investigation and on completion

of the same, offences were altered into under Section

395, 397 of the Indian Penal Code and Sections 25 and

27 of the Arms Act. The charge sheet was filed against

seven persons and charges were framed under Sections

395 and 397 of IPC before the Court of Judicial

Magistrate First Class, Bina. Thereafter, the case was

committed to the Court of Sessions, Sagar.

5. The trial court, after recording the evidence of the

witnesses, passed the judgment on 24.03.1998 holding

that the prosecution failed to prove the case of unlawful

assembly against the appellants and also failed to prove

the charge of committing dacoity in the house of

complainant and exonerated all the appellants from the

charges under Sections 395 and 397 of IPC, but,

convicted them under Section 412 of IPC for dishonestly

retaining the stolen property.

6. Learned counsel for the appellants solely

contended that when charge of dacoity is not proved,

the conviction under Section 412 of IPC is also not made

out against the appellants. He submits that Section 412

of IPC relates to the property dishonestly received stolen

in commission of dacoity. If the offence of dacoity is not

proved, the appellants cannot be convicted under

Section 412 of IPC, because offence under Section 412

is not an independent offence and it relates to the

offence of dacoity. If the dacoity is not proved then there

is no question to hold the appellants guilty of offence

under Section 412 of the Indian Penal Code.

7. Learned counsel for the appellant submits that it is

not required to convict the accused under Section 412

of the Indian Penal Code when conviction for the offence

of dacoity is not made out. A person can be convicted for

the offence of dacoity under Section 395 of IPC

alongwith Section 412 of IPC, but, if offence of dacoity is

not proved, the question of conviction under Section

412 of IPC does not arise.

8. Learned counsel for the appellants further submits

that the statements of the appellants under Section 313

of Cr.P.C. were recorded without putting the existing

facts and circumstances of the case before them,

therefore, the said statements cannot be used against

them. In this regard, learned counsel for the appellants

has placed reliance on the judgments of Supreme Court

in the cases of K.Venkateshwara Rao Vs. State

reported in (2002) 6 SCC 247 and Maheshwar Tigga

vs. State of Jharkhand reported in (2020) 10 SCC

108.

9. On the other hand, learned counsel for the

respondent-State has opposed the submission made by

the learned counsel for the appellants and submitted

that since appellants failed to give any explanation as to

how they got possession of the seized articles, which

were said to be stolen during dacoity, and in absence of

any specific explanation in that regard, the trial court

has rightly convicted them under Section 412 of IPC. He

has submitted that the investigating officer in his

statement has very perfectly proved that the seized

articles were in possession of the accused persons as

the same were recovered at their instance. The recovery

proceeding was done according to law and after

following procedure prescribed under the law. He has

submitted that the Supreme Court in the case of Amar

Singh and others vs. State of Madhya Pradesh

reported in (1982) 3 SCC 214 has found conviction

under Section 412 of IPC proper when seized articles are

recovered soon after commission of dacoity. He has

submitted that in the present case also the recovery has

been made soon after the dacoity and, therefore, the

judgment and the findings given therein do not call for

any interference. He has further relied upon a decision

rendered by the Supreme Court in the case of Tahir

Mohammad vs. State of M.P. reported in 1993 Supp.

(2) SCC 697 in which the Court has found the

conviction under Section 412 of IPC justified because

the same was given in pursuance to confessional

statement made by other co-accused persons and the

looted articles recovered on the basis of such

confessional statement and as such, the conviction of

the present appellant is proper. He has also submitted

that although the seizure witnesses have been declared

hostile, but, the investigating officer has very clearly

proved the seizure and stated in his statement that the

stolen articles were seized from the possession of the

accused, therefore, there is no error in the finding given

by the trial court convicting appellants under Section

412 of IPC.

10. From perusal of the impugned judgment, it is clear

that in respect of the question whether accused persons

participated in the dacoity and committed the said

offence or not, the trial court has given its finding and

observed that although the charge of dacoity levelled

under Sections 395 and 397 of IPC is not found proved

against the appellants, but even then they can be held

guilty of the offence under Section 412 of IPC, as the

looted articles were found in their possession and as

such held them guilty of the offence under Section 412

of IPC.

11. Considering the respective provisions and the

ingredients for forming the offence under Section 412 of

IPC, it is apt to mention the same, which reads as

under:

"412. Dishonestly receiving property stolen in the commission of a dacoity.--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 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

However, from perusal of the findings given by the

trial court in the impugned judgment, I find that

nowhere it is mentioned that the appellants were aware

of the fact that the property, which was found in their

possession, was the properties stolen in commission of

dacoity. While recording the statement under Section

313 of Cr.P.C., the appellants were never made aware of

the fact that the seized property was the stolen property

in commission of dacoity, therefore, the explanation

given by them under Section 313 or even if they kept

silent, cannot be used against them in view of the

judgment relied upon by the learned counsel for the

appellants in the case of Maheshwar Tigga (supra).

The Supreme Court in the said case has dealt with the

importance of Section 313 and observed as to in what

manner the statement given under Section 313 of

Cr.P.C. has to be taken note of and as to when it can be

used against the accused. The respective observation

made by the Supreme Court in respect of Section 313 of

Cr.P.C. is as under:

"7. A bare perusal of the examination of the accused under Section 313 Cr.P.C. reveals it to be extremely casual and perfunctory in nature. Three capsuled questions only were asked to the appellant as follows which he denied:

"Question1. There is a witness against you that when the informant V. Anshumala Tigga was going to school you were hiding near Tomra canal and after finding the informant in isolation you forced her to strip naked on knife point and raped her.

Question 2. After the rape when the informant ran to her home crying to inform her parents about the incident and when the parents of the informant came to you to inquire about the incident, you told them that "if I have committed rape then I will keep her as my wife".

Question3. On your instruction, the informant's parents performed the "Lota Paani" ceremony of the informant, in which the informant as well as your parents were present, also in the said ceremony your parents had gifted the informant a Saree and a blouse and the informant's parents had also gifted you some clothes"

8. It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt.

9. This Court, time and again, has emphasised

the importance of putting all relevant questions to an accused under Section 313 Cr.P.C. In Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was held to an essential part of a fair trial observing as follows :

"5.The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence.""

12. Considering the observation made by the Supreme

Court and from the statements of appellants recorded

under Section 313 Cr.P.C., it is clear that the fact in

respect of the dacoity was never put before them and

they were never asked whether the articles seized from

them were the stolen property of dacoity and as to how

they came in possession of the same, but, at the same

time, the examination under Section 313 of Cr.P.C. done

by the court indicates that it was purely casual and

perfunctory in nature. Therefore, I find substance in the

submission made by the learned counsel for the

appellant that when the offence of dacoity is not found

proved by the court then the conviction under Section

412 of IPC cannot be upheld, although he has

submitted that it could be at the most under Section

411 of IPC. The Supreme Court in the case of

K.Venkateshwara Rao (supra) has also observed that

when the court has held that the appellant was not

guilty of an offence of dacoity, it should be presumed

that he had no knowledge of the dacoity during which

the documents seized from him were allegedly stolen.

The Supreme Court has observed as under:-

4. To appreciate the contentions of the rival parties, it is necessary to note the fact that while the Sessions Court found the appellant and the others guilty of offence under Sections 302, 396 and 412 IPC, the High Court on reappreciation of the evidence came to the conclusion that the prosecution has failed to establish the charge under Section 396 against the appellant and the others. While doing so the High Court held:

"By the above discussion it is evident that the prosecution want to rely upon the

circumstantial evidence which, according to our opinion, is not properly collected. ... We acquit A-3 to A-6 and A-9 of the charge punishable under Sections 302 and 396 IPC."

Thus, it is seen that the High Court did not accept the prosecution case in regard to dacoity or the involvement of the appellant in the said dacoity. 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. For the purpose of proving that the appellant had knowledge of the dacoity, the learned counsel for the respondent relies upon an alleged statement given by the appellant to the police at the time of seizure of Exts. P-36 to P-

40. That statement, in our opinion, can be used by the prosecution for establishing that these documents were recovered on an information given by the appellant which would be admissible under Section 27 of the Evidence Act. Beyond that, anything stated which has no direct bearing on the recovery itself cannot be admissible in evidence to bind the appellant. At this stage, it should be stated that the learned counsel for the appellant has rightly pointed out to us that the case of the prosecution that the appellant has made any confession as to the dacoity cannot be believed in view of the evidence of PW 24 who in his evidence before the Sessions Court had stated:

"The CI questioned about the whereabouts of the lorry AHJ 748. Venkati stated that one Satyanarayana and Goldman took away the lorry to Kakinada and stationed at RTO Office, Kakinada. Except the above words he did not disclose anything to the CI of Police."

5. The above extract of the evidence of PW 24 clearly shows that the appellant had in that statement of his, not made any admission that the documents which were taken from his possession belonged to the lorry in question or that he had the knowledge that the said lorry was involved in any dacoity and that he had taken the said documents knowing that the documents involved pertained to a vehicle which was involved in a dacoity. Therefore, 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.

13. As has been observed hereinabove that at the time

of asking explanation about the seized articles, no

specific question was put to the appellants/accused

making them understand that the seized articles were

stolen in commission of dacoity. There is nothing

available on record to indicate that the appellants even

after knowing the fact about commission of dacoity had

given explanation and, therefore, when prosecution

itself failed to discharge its onus by placing proper

material on record, the sentence awarded to appellants

under Section 412 of IPC cannot be upheld. Although,

in support of his submission, learned counsel for the

respondent-State has relied upon the judgments of

Supreme Court, but, in none of the judgments, a similar

situation has arisen, as in this case. In the cases on

which the learned counsel for the respondent-State has

placed reliance, Supreme Court has set aside the

conviction of the accused for the committing the offence

of dacoity under Section 395 of IPC, however, held the

accused guilty of offence under Section 412 of IPC. But,

the case at hand is altogether different, because in the

present case although the accused persons were not

found involved in commission of dacoity, but even then

the trial court convicted them under Section 412 of IPC,

which is not permissible under the law and also not

proper in view of the discussion made hereinabove as

well as in view of the enunciation of law as has been laid

down by the Supreme Court.

14. In view of the foregoing discussion made

hereinabove, these appeals are allowed. The conviction

and sentence as awarded to the appellants under

Section 412 of IPC are not sustainable, therefore, the

judgment dated 24.03.1998 passed by the trial court in

ST No. 49/1996 is hereby set aside. The appellants are

acquitted from the charge under Section 412 of IPC.

They are on bail. Their bail bonds and surety bonds

stand discharged.

(SANJAY DWIVEDI) JUDGE

Raghvendra

Digitally signed by RAGHVENDRA SHARAN

RAGHVE SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH,

NDRA ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002,

SHARAN st=Madhya Pradesh, 2.5.4.20=0b4ca33e82678112 c8b8779ae1f77dd53c66b97 e56d85ed6193d6ff614e6a26

SHUKLA 8, cn=RAGHVENDRA SHARAN SHUKLA Date: 2021.12.13 17:10:09 +05'30'