Mr. Ayan Bhattacharya, learned lawyer appearing for the
appellant as Amicus Curiae vehemently argues that while the
charges under Sections 395/397, IPC have not been proved, the
appellant/accused could not be held guilty under Section 412, IPC
which forms an integral part of the charges under Sections
395/397, IPC. In support of his argument learned counsel has
cited a decision in the case of K. Venkateshwar Rao alias
Venkatal alias I. Rao-Vs- State Represented by Inspector of
Police, A.P. reported in (2002) 6 SCC 247. In the decision as
cited supra the Hon’ble Apex Court has held that while the charge of dacoity has not been proved by the prosecution, the charge under Section 412, IPC of retaining the stolen articles of dacoity fails automatically. In such context it will be apposite to refer to Section 412, IPC. Section 412, IPC provides 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. The language employed in the Section clearly shows that the articles an accused retains shall be related to those articles captured or received during the commission of dacoity. While the charge of dacoity fails, the charge under Section 412, IPC automatically fails in the light of the decision as cited supra.
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
C.R.A. 21 of 1991
Ramabatar Rajbar @ Ramawatar Nimtar Rajwar Vs The State of West Bengal
PRESENT :
JUSTICE RABINDRANATH SAMANTA
Judgment On: 18.05.2022
1. This appeal has been preferred by the appellant against the
judgment and the order of conviction and sentence passed by
learned Sessions Judge, VIII Bench, City Sessions Court, Calcutta
in S.T No. 1 of May, 1989 arising out of S.C. No. 6 of 1989 whereby
the appellant Ramabatar Rajbar @ Ramawatar Nimtar Rajwar was
convicted for commission of the offence punishable under Section
412 of the Indian Penal Code (in short IPC) and sentenced to suffer
rigorous imprisonment for a period of three years and to pay a fine
of Rs.500/-, failing which he would suffer rigorous imprisonment
(R.I) for a further period of one year.
2. To put briefly, the prosecution case may be stated as under:-
On 16.06.1988 in the early morning at 4:50/4:55 A.M. the
informant Ashoke Koley of 211, Rabindra Sarani, Calcutta- 700007
was going to his shop from his house. While he was crossing
Rabindra Sarani at the junction of Burtalla street, four persons
armed with bhojali (a sharp cutting weapon) and bombs
obstructed him and snatched away a cloth bag of him containing
cash of Rs. 1200/- and assaulted him on his left hand with a
bhojali. He was medically treated at a local hospital. On way to
local police station he met one Bhagawan Das Bindawala who also
got bhojali injuries on his head on the same day by the same gang
at Madho Kristo Seth Lane at about 4:45 A.M. Mr. Bindawala
stated to him that on 16.06.1988 at about 4:45 A.M. while he along
with his sister Lakshmi Debi Himat Singhka and brother-in-law
Bharat Kumar Himat Singhka were passing along Madho Kristo
Seth Lane infront of 2/1, Madho Kristo Seth Lane, then four
persons of the aforesaid description armed with bhojali and bombs
attacked them and snatched away a cash of Rs.2,000/-, two citizen
wrist watches, two gold necklaces, two gold finger rings and two
pieces of gold churi (bangle) and fled away towards Burtalla. He
also stated that he was medically treated at MRS Hospital and was
discharged therefrom.
On the basis of the FIR lodged by the informant at the local
police station a Section D ( Burrabazar ) PS Case No. 397 dated
16.06.1988 under Sections 394/397, IPC was registered for
investigation. During the course of investigation the Investigating
Officer arrested the five accused persons namely Dilip Das @ Gopal
Das, Giasuddin Sk. @ Bapi, Uttam Das @ Nata, Prakash Thapa @
Nepali and the appellant Ramabatar Rajwar @ Ramawatar Nimtar
Rajwar and they were remanded to judicial custody. On prayer of
the Investigating Officer the learned Magistrate allowed him to take
appropriate steps for holding Test Identification Parade of the
suspects in jail, now Correctional Home by a Magistrate and
accordingly a T.I. Parade was held. During investigation the
Investigating Officer examined the available witnesses and recorded
their statements under Section 161 Cr.P.C. After completion of the
investigation the Investigating Officer submitted charge-sheet
against the accused persons under Sections 392/307/34, IPC
against the accused persons excepting the appellant Ramabatar
Rajwar @ Ramawatar Nimtar Rajwar. However, the Investigating
Officer submitted charge-sheet under Section 411 of IPC against
the appellant.
3. After the case was committed to the Court of learned Sessions
Judge, Calcutta, charge under Sections 395/397, IPC was framed
against the accused persons namely Dilip Das @ Gopal Das,
Giasuddin Sk. @ Bapi, Uttam Das @ Nata, Prakash Thapa @ Nepali
and Ramabatar Rajwar @ Ramawatar Nimtar Rajwar and charge
under Section 412, IPC was framed against the four accused
persons namely Dilip Das @ Gopal Das, Giasuddin Sk. @ Bapi,
Prakash Thapa @ Nepali and Ramabatar Rajwar @ Ramawatar
Nimtar Rajwar. All the accused persons pleaded not guilty to the
charges framed against them and they claimed to be tried. Hence,
the trial commenced.
4. In order to bring home the charges the prosecution examined as
many as twenty four witnesses. Besides, some documents namely
FIR, seizure list etc., have been marked as Exhibited documents
and some materials have been marked as MAT Exhibits.
5. On consideration of the ocular and documentary evidence and after
hearing the learned Advocates appearing for the parties the learned
Trial Judge convicted the appellant and imposed sentence upon
him in the manner as indicated above.
6. The appellant assails the impugned judgment on the ground that
while the learned Trial Judge has held that the prosecution has
failed to prove the charges under Sections 395/397, IPC, the
charge under Section 412 of IPC is not tenable against the
appellant.
7. Since the instant appeal is the first appeal before this Court, I
scrutinised both oral and documentary evidence as adduced by the
prosecution.
8. Amongst the prosecution witnesses the witnesses who are vital to
prove the prosecution case are P.W. 1 Bharat Kumar Himat
Singhka, P.W. 15 the informant Ashoke Kumar Koley, P.W. 17 Smt.
Lakshmi Debi Himat Singhka and P.W. 19 Bhagawan Das
Bindawala. On assessment of the evidence of the aforesaid four
witnesses it appears that none of the witnesses has been able to
identify any of the accused persons in Court. The learned Trial
Judge in the judgment as impugned has observed that the
aforesaid four witnesses who were named in the FIR and who
witnessed the incident failed to identify any of the accused persons
in Court though they identified all the accused persons in jail at
the time of holding the Test Identification Parade. In this regard,
the learned Trial Judge has made an illustrated finding that while
the incident took place at dawn at about 4:45 A.M, it was quite
probable that it was difficult for the aforesaid four witnesses to
identify the accused persons, more so when the place of occurrence
was surrounded by 2/3 storeyed buildings on both sides. Learned
Trial Judge has lent no credence to the identification of the
accused persons during T.I. Parade on the ground that the incident
took place in the middle of June, 1988 and the Test Identification
Parade was held in the month of September, 1988. It has been
inferred by the learned Trial Judge that this fact cannot be
brushed aside that before producing the witnesses in T.I. Parade,
the investigating agency might have disclosed the identity of the
accused persons to the witnesses. On such findings the learned
Trial Judge has held that the accused persons including the
appellant are not guilty of the commission of the offence
punishable under Sections 395/397, IPC. As against such findings
no appeal or cross appeal has been preferred by the state.
Therefore, the inference arrived at by the learned Trial Judge on
acquitting the accused persons of the charges as above has
attained finality.
9. Now, the question comes up for consideration whether the
conviction recorded against the appellant for commission of the
offence punishable under Section 412, IPC by the learned Trial
Judge is sustainable while the main charges of committing dacoity
under Sections 395/397, IPC have not been proved.
10. Mr. Pratik Bose, learned lawyer appearing for the state submits
that there is no fetter on the part of a Court to record conviction
separately for offence punishable under Section 412, IPC if the
Court finds that the evidence as produced by the prosecution is
credible and overwhelming. Learned lawyer taking this Court to the
oral and documentary evidence adduced by the prosecution points
out that the evidence on record unequivocally demonstrate that the
appellant possessed the stolen articles derived from the dacoity.
11. Mr. Ayan Bhattacharya, learned lawyer appearing for the
appellant as Amicus Curiae vehemently argues that while the
charges under Sections 395/397, IPC have not been proved, the
appellant/accused could not be held guilty under Section 412, IPC
which forms an integral part of the charges under Sections
395/397, IPC. In support of his argument learned counsel has
cited a decision in the case of K. Venkateshwar Rao alias
Venkatal alias I. Rao-Vs- State Represented by Inspector of
Police, A.P. reported in (2002) 6 SCC 247. In the decision as
cited supra the Hon’ble Apex Court has held that while the charge
of dacoity has not been proved by the prosecution, the charge
under Section 412, IPC of retaining the stolen articles of dacoity
fails automatically. In such context it will be apposite to refer to
Section 412, IPC. Section 412, IPC provides 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. The
language employed in the Section clearly shows that the articles an
accused retains shall be related to those articles captured or
received during the commission of dacoity. While the charge of
dacoity fails, the charge under Section 412, IPC automatically fails
in the light of the decision as cited supra.
12. Therefore, I hold that the prosecution has failed to bring home
the charge under Section 412, IPC.
13. Therefore, the judgment and the order of conviction and
sentence passed by the learned Trial Judge warrants interference
by this Court.
14. In the result, the appeal merits success and accordingly the
appeal is allowed on contest.
15. The judgment and the order of conviction and sentence passed
by the learned Sessions Judge, VIII Bench, City Sessions Court,
Calcutta in S.T. No. 1 of May, 1989 arising out of S.C No. 6 of 1989
is hereby set aside.
16. The appellant is acquitted of the charge under Section 412, IPC
and he be set at liberty at once, if not wanted in connection with
any other case.
17. The appellant be discharged from the bail bonds.
18. No order as to costs.
19. Urgent certified website copies of this judgment, if applied for,
be given to the parties upon compliance with all requisite
formalities.
( Rabindranath Samanta,J.)
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