…. Md. Noor Ansari @ Noor @ Noor Mohammad, Son of Sadik Mian, resident v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J) No. 1060 of 2007 …. Md. Noor Ansari @ Noor @ Noor Mohammad, Son of Sadik Mian, resident of village-Isri Bazar, P.O. & P.S. Nimiaghar, District-Giridih …… Appellant Versus The State of Jharkhand …… Respondent with Cr. Appeal (S.J) No. 1106 of 2007 ……. Gulam Mustafa, son of Manjoor Hussain, resident of Village- Garriya, PO-Kapilo (Saraiya), P.S-Saraiya, District-Giridih. Versus …… Appellant The State of Jharkhand …… Respondent PRESENT CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD For the Appellants : Mr. R.P. Gupta, Advocate (Cr.A.1060/07) ----- For the State : Mr. A.K. Sahani, Advocate (Cr.A.1106/07) : Mr. Bishambhar Shastri, A. P. P. (Cr.A.1060/07) : Mrs. Nehala Sharmin, A.P.P (Cr.A.1106/07) …… JUDGMENT CAV on:06.02.2023 Pronounced on: 24.04.2023 Both these criminal appeals being Cr. Appeal (SJ) No.1060 of 2007 and Cr. Appeal (SJ) No.1106 of 2007 have been heard together and are being disposed of together, since, both have arisen out of common judgment dated 02.08.2007 passed in S.T. No.74 of 2005 and S.T. No.432 of 2005. 2. Cr. Appeal (SJ) No.1060 of 2007 has been filed on behalf of the appellant-Md. Noor Ansari @ Noor @ Noor Mohammad and Cr. Appeal (SJ) No.1106 of 2007 has been filed on behalf of the appellant-Gulam Mustafa challenging the judgment and sentence dated 02.08.2007 passed in S.T. No.74 of 2005 by which Sri Jai Prakash Narayan Pandey, Additional District and Sessions 2 Judge, F.T.C-I, Giridih who has convicted both the appellants for the offence under section 414 I.P.C and sentenced them to undergo Rigorous Imprisonment for a period of two (02) years. However learned court below has acquitted both the appellants namely Md. Noor Ansari @ Noor @ Noor Mohammad and Gulam Mustafa for the offence under section 413 of the I.P.C. 3. The prosecution case, in brief, is that on 13.09.2004 at around 2.00 to 3.00 p.m. while the informant, A.S.I-Ram Pratap along with police personnel namely, Awadhesh Kumar Singh, Shyam Narayan Prasad, Digambar Singh, Dinanath Choubey, Nathun Khan had arrived at G.T Road during course of investigation of Case No.165 of 2004 then he received an information that one Gulam Mustafa had gone to village Pochari with one Tata Sumo vehicle bearing Registration No.HR-26H- 9873 and is in search of Customer for selling the vehicle and he had sold several other stolen vehicles and if he is apprehended then a big group will be discovered and hence he left for village Pochari. While moving around one kilometer, he saw one white colour Sumo car arriving there and as such he gave signal for stopping the vehicle. However, seeing the police party, the driver stopped the car and tried to flee away but he was apprehended by the police force and in presence of two independent witness namely, Md. Suhail Ansari and Yunus Ansari the apprehended persons disclosed his name Gulam Mustafa i.e. the appellant in Cr. Appeal (SJ) No.1106/2007 and failed to produce any paper of the vehicle and admitted that vehicle is stolen one and he was trying to sell the same. On the basis of disclosure of the appellant, Gulam Mustafa (Cr. Appeal (SJ) No.1106/2007) that he used to sell the stolen vehicle after changing the number plate and preparing 3 forged papers which was being prepared by Md. Anwar in connivance with Asghar, Kapoor Vendor, Dhanbad and other accomplice. He is also said to him that he sold one Sumo vehicle about 1 ½ to 2 years ago bearing Registration No.HR 26L-2239 by preparing a forged paper and changing the number plate in connivance with one Md. Noor Mistry i.e. the appellant of Cr. Appeal (SJ) No.1060/2007 of Calcutta Garage, G.T. Road, Dhanbad in around Rs.1,50,000/-(Rs.One lakh Fifty Thousand). He has also admitted to have sold one Marshal Vehicle bearing Registration No.HR52-3578 to one K.D. Singh in Rs.1,00,000/ (Rs.One lakh) by changing its number plate. He also admitted to have sold one Qualis vehicle bearing Registration No.HR-55-1170 around two months ago to one Buttu Jain and he also sold one stolen Bolero vehicle to one Rajesh Chourasia bearing Registration No.HR-38Q-2683. Lastly he was trying to sell the apprehended vehicle i.e. Registration No.HR-26H-9873 which was seized in presence of two independent witnesses as mentioned above and the appellant, Gulam Mustafa was trying to sell out the said vehicle in connivance with Md. Noor @ Noor @ Noor Mohammad another appellant of (Cr. Appeal (SJ) No.1060/2007). 4. The police, after making investigation, submitted charge sheet under sections 413/414/34 of the I.P.C on 10.12.2004 against Gulam Mustafa, the appellant (Cr. Appeal (SJ) No.1106/2007) and Md. Noor @ Noor @ Noor Mohammad, the another appellant of (Cr. Appeal (SJ) No.1060/2007). The learned C.J.M took cognizance against both the appellants under sections 413/414/34 of the I.P.C on 10.12.2004. 5. After supplying the police papers to the appellants the case was committed to the Court of Sessions. 6. The charges against the appellant, Gulam Mustafa was 4 framed under sections 413/34 and 414/34 of the I.P.C on
Legal Reasoning
27.06.2005 by Sri D. K. Singh, learned A.D.J, F.T.C-II, Giridih, who has filed Cr. Appeal (SJ) No.1106 of 2007 and to which he pleaded not guilty and claimed to be tried. The charges against the appellant, Md. Noor @ Noor @ Noor Mohammad was filed on 27.06.2005 under sections 413/34 and 414/34 of the I.P.C by Sri D.K. Singh, learned A.D.J, F.T.C-II, Giridih, who has filed Cr. Appeal (SJ) No.1060/2007 and to which he pleaded not guilty and claimed to be tried. The charges were also framed against one Aman Ansari on 18.02.2006 under sections 413/34 and 414/34 of the I.P.C by Sri D.K. Singh, learned A.D.J, F.T.C-II, Giridih and to which he pleaded not guilty and claimed to be tried. 7. During trial the prosecution has got examined eleven (11) witnesses, who are as follows:- (i) P.W.1 is Chunnu Mistry, (ii) P.W.2 is Pradeep Kumar, (iii) P.W.3 is Md. Suhail Ansari, (iv) P.W.4 is Yunus Ansari, (v) P.W.5 is Hawaldar Awadhesh Kumar Singh, (vi) P.W.6 is Digambar Singh, (vii) P.W.7 is Hawaldar Nathu Khan, (viii) P.W.8 is Dinanath Choubey, (ix) P.W.9 is Ashok Kumar Giri, (x) P.W.10 is A.S.I. Ram Pratap and (xi) P.W.11 is Jagjivan Ram. 8. The prosecution in support of its case got marked the following exhibits, which are as follows:- (i) Exhibits-1 and 1/A are signature of P.W-3 and P.W-4 on the seizure list dated 13.09.2004, 5 (ii) Exhibit-2 and 2/A are signature of P.W-1 and P.W-2 on the seizure list dated 13.09.2004, (iii) Exhibit 2/B is the seizure list dated 13.09.2004, (iv) Exhibit-3 and 3/A are the written report and the forwarding report, (v) Exhibit-4 is the formal F.I.R., (vi) Exhibit-5 is the confessional statement of Gulam Mustafa, (vii) Exhibit-6 is the letter no.1090 dated 20.09.2004 of D.T.O Dhanbad and (viii) Exhibit-7 is the verification report of Chasis no.22917468. 9. Apart from this Rajeshwar Prasad, Liaison Officer at Classic Automobile of Dhanbad has been examined as Court Witness no.1. 10. Thereafter the appellants were examined under section 313 Cr.P.C on 27.06.2007 by the learned court below and they denied the circumstances put forth to them. 11. Neither any defence witness was examined on behalf of the appellants nor any document was exhibited on behalf of both the appellants. 12. Thereafter the learned court below after appreciating the evidence, has convicted both the appellants namely Noor Mohammad and Gulam Mustafa for the offence under section 414 I.P.C and sentenced them to undergo rigoruous imprisonment for a period of two (02) years. However, the learned court below has acquitted both the appellants namely Noor Mohammad and Gulam Mustafa for the offence under section 413 of the I.P.C. The learned court below has also acquitted another 6 person-Anwar Ansari for the charges under sections 413 and 414 of the I.P.C who was in jail custody. Hence the present Criminal Appeals have been filed. 13. Heard Mr. R.P. Gupta, learned counsel for the appellant in Cr. Appeal (SJ) No.1060/2007 and Mr. A.K. Sahani, learned counsel for the appellant in Cr. Appeal No.1106 of 2007 and Mr. Bishambhar Shastri and Mrs. Nehala Sharmin, learned A.P.P for the State. 14. Mr. R.P. Gupta, learned counsel appearing for the appellant, Noor Mohammad (Cr. Appeal (SJ) No.1060/2007) has submitted that the impugned judgment and sentence passed by the learned trial court is illegal and not sustainable in the eye of law. It is submitted that the seized vehicle from the possession of the appellant, has been recovered from an open place on the road. It is submitted that all the seizure list witness i.e. P.W-1 (Chunnu Mistry), P.W-2 (Pradeep Kumar), P.W-3 (Md. Suhail Ansari) and P.W-4 (Yunus Ansari) have merely stated to have signed on the blank paper and have been declared hostile. It is submitted that P.W-5 has merely stated that the appellant, Gulam Mustafa has been arrested but he has stated that he had no hand in selling the stolen vehicle. It is submitted that P.W-6 had identified the another appellant, Md. Noor Ansari but he had not identified the appellant, Gulam Mustafa. It is submitted that although P.W-7 has stated during his evidence that the appellant, Gulam Mustafa was arrested by the police, however, during his cross-examination he has stated that he could not identify the appellant, Gulam Mustafa. It is submitted that similar statement has been given by P.W-8 namely Dinanath Choubey, who has earlier stated that he could not identify the appellant, Gulam Mustafa because of long period. 7 It is submitted that P.W-11 is the Informant of this case and has supported the prosecution case during his evidence by stating that he had arrested the appellant and had recorded the confessional statement of Gulam Mustafa and has seized the stolen vehicle from him. However, during cross-examination he has stated that there was no pending case against the appellant, Gulam Mustafa in his police station and he had not taken the search of the seized vehicle and he does not remember as to who has mentioned the case number in the seizure list and he failed to remember the work done by him at the time of lodging the F.I.R and hence the evidence of P.W-11 is not reliable. It is submitted that P.W-9 namely Ashok Kumar Giri is the I.O of this case and he has stated that the vehicle was seized from Calcutta Garaze Owner, which was owned by another accused, Md. Noor Ansari i.e. appellant in Cr. Appeal (SJ) No.1060 of 2007 and hence the vehicle was not seized from the appellant, Gulam Mustafa. It is submitted that he has admitted during cross- examination at paragraph 27 that the vehicle was sold to one Noor Ansari and nothing was recovered from the possession of the appellant. It is submitted that P.W-10 is another A.S.I who has made allegation against the appellant at the instance of the informant. However, during cross-examination he failed to name the constables who had arrested the appellant after chase and thus P.W-10 is a set up witness of the informant-P.W-11 i.e. Jagjivan Ram. It is further submitted that the appellant had remained in custody for around 2 and ½ months and hence in view of the above it is submitted that the appellant may be acquitted and hence the judgment passed by the court below may be set aside. 15. Mr. A.K. Sahani, learned counsel appearing for the 8 appellant, Gulam Mustafa has submitted that the judgment passed by the learned court below is illegal and not sustainable in the eye of law. It is submitted that the Informant has not arrested the appellant with the seized vehicle and the appellant has been falsely implicated. It is submitted that the appellant has got no role in committing theft of the vehicle seized from the appellant, Gulam Mustafa (Cr.Appeal (SJ) No.1106/2007). It is submitted that P.W-1 (Chunnu Mistry), P.W-2 (Pradeep Kumar), P.W-3 (Md. Suhail Ansari) and P.W-4 (Yunush Ansari) have not supported the prosecution case. It is submitted that P.W-1 has been declared hostile witness and P.W-2, P.W-3 and P.W-4 have said nothing about the seizure made from the appellant. It is submitted that P.W-5 is a police constable who could not identify the appellant during his cross-examination and he has stated that the documents were prepared at the police station and he has denied to have put his signature on any paper. It is submitted that P.W-6 namely, Digambar Singh has also failed to identify the appellant, Noor Mohammad and has also stated during his cross-examination that his statement was not recorded by the I.O. It is submitted that P.W-7 namely, Hawaldar Nathu Khan has stated that the vehicle was standing by the side of the road and he also failed to identify any accused persons including the appellant. It is submitted that P.W-8 during his cross-examination has failed to identify the appellant and also admitted that no paper was prepared in his presence. It is submitted that P.W-11 is the informant and his evidence reveals that there was no previous case instituted against the appellant, Noor Mohammad. It is submitted that P.W-10 has been set up by the informant, P.W-11 and his evidence is not reliable. It is submitted 9 that P.W-9 is the I.O of this case who has merely proved the signature of the informant on formal F.I.R but he has stated that Sumo Car was found in damaged condition. Even during cross- examination he has admitted that he had no idea of registration number of the seized vehicle and he had not tried to verify the registration number of the vehicle by going to Haryana State. He has also admitted that there is no theft report of the seized Sumo vehicle in question and hence the appellant i.e. Gulam Mustafa may be acquitted. The appellant has remained in custody for around one months and six days and hence the judgment passed by the court below may be set aside. 16. On the other hand, Mr. Bishambhar Shastri, learned A.P.P for the State in Cr. Revision No. 1060 of 2007 has submitted that there is no error in the judgment and order of sentence passed by the learned Additional District and Sessions Judge, F.T.C-I, Giridih and therefore, requires no interference. It has been submitted that the P.W-1 namely Chunnu Mistry), P.W-2 namely Pradeep Kumar, P.W-3 namely Md. Suhail Ansari and P.W-4 namely Yunus Ansari have admitted their signature on the seizure list and thus the seizure of the vehicle from the possession of the appellant, Noor Mohammad (Cr. Revision No. 1060 of 2007) on the basis of disclosure made by the appellant-Gulam Mustafa (Cr. Revision No. 1106 of 2007) is proved. It is submitted that the signature of P.W1 and P.W-2 on the seizure list have been marked as Exhibit-1 and 1/A respectively whereas signature of P.Ws-3 and 4 have been marked as Exhibits-2 and 2/A respectively. It is submitted that P.W-11 is the Informant of this case who has fully supported the allegation made in the F.I.R and has supported the prosecution case and has stated that the appellant, 10 Gulam Mustafa was apprehended by the police personnel after chase. It is submitted that the appellant was earlier doing business of stolen vehicle. It is submitted that P.W-11 has stood the test of cross-examination and has fully proved the prosecution case regarding recovery of stolen Sumo Car from the possession of the appellant. It is submitted that P.W-5 namely Hawaldar Awadhesh Kumar Singh, P.W-6 namely Digambar Singh, P.W-7 namely Hawaldar Nathu Khan and P.W-8 namely Dinanath Choubey are also the police personnel and they have also supported the prosecution case and regarding arrest of the appellants by the police force. It is submitted that P.W-9 is the I.O of the case who has also supported and corroborated the evidence of the Informant and has stated that confessional statement of the appellant was recorded by P.W-11 which has been marked as Exhibit-5. It is submitted that P.W-9 has proved the Exhibit-3 and 3/1 i.e. the written report and signature of the informant on the written report. It is submitted that P.W-9 has further proved formal F.I.R marked as Exhibit-4 and has also proved the seizure list marked as Exhibit-2/B. It is submitted that P.W-9 has stated that he had conducted raid at the Calcutta Garaze of the appellant, Noor Mohammad and had recovered one damaged Tata Sumo having Registration No.HR-26L-2239 and upon which the said number plate was affixed. But as a matter of fact, after enquiry it was found that Sumo was having Engine No.22753692 and Chasis No.22917468. It is submitted that report of D.T.O., Dhanbad has been marked for identification in which it is stated that Sumo vehicle No.HR-26L-2239 is registered in the name of Noor Ansari and although information was sent to Haryana, Gurgaon but no 11 information or NOC was received from Haryana though the said vehicle was registered in Dhanbad on the basis of NOC No.3547 dated 09.08.2002. It is submitted that document X/1 reveals that there is no existence of Tata Sumo Vehicle bearing No.HR-26L- 2239 which was verified from Classic Automobile Authorized Dealer of Tata Company. It is submitted that I.O, P.W-9 has submitted charge sheet against the appellants under sections 413/414/34 of the I.P.C. and thus the prosecution has been able to fully proved the case against the appellant beyond all reasonable doubt. 17. Therefore, in view of the above, the appreciation of the evidence of the prosecution witnesses will be necessary. 18. P.W-1 is Chunnu Mistry, who has proved his signature on the seizure list dated 13.09.2004 prepared at 7.15 p.m. marked as Exhibit-1. However, he has stated that one Sumo Vehicle, allegedly, seized on 13.09.2004 at 7.15 p.m. was not recovered from Calcutta Garage of Noor Mistry, the appellant of Cr. Appeal (SJ) No.1060 of 2007. This witness has been declared hostile by the prosecution. Even during cross-examination he has stated that he has signed in the seizure list in the police station at the instance of the police and his garage is situated at a distance of one kilometer from Calcutta Garage. He has also stated that nothing was seized during his presence. Thus, from the evidence of P.W-1, it is evident that he has been declared hostile by the prosecution and he has flatly stated that nothing was seized during his presence. The appellant, Gulam Mustafa has declined to cross-examine P.W-1. Thus, P.W-1 is not reliable. 19. P.W-2 is Pradeep Kumar, who has proved his signature on 12 seizure list marked as Exhibit-2/A. The appellant, Gulam Mustafa has declined to cross examine him. However, during cross-examination made on behalf of the appellant, Noor Mohammad he has stated that police has taken his signature on the blank paper and his shop is situated at a distance of one kilometer from the garaze of Noor Mistry. Thus, it is evident that P.W-2 has also not supported the prosecution case as he has stated that he has signed on the blank paper. 20. P.W-3 is Md. Suhail Ansari who has also proved his signature on the seizure list dated 13.09.2004 prepared at 4.30 p.m. The cross-examination of the witness was declined on behalf of the appellant Noor Mohammad. During cross-examination on behalf of the appellant, Gulam Mustafa, he has stated that officer in-charge had come to his house and took his signature and he is not aware about the contents of the seizure list. Thus, it is evident that P.W-3 has also not supported the prosecution case and the recovery of vehicle from the possession of the Appellant Gulam Mustafa. 21. P.W-4 is Yunus Ansari, who has proved his signature on the seizure list dated 13.09.2004 prepared at 4.30 p.m marked as Exhibit-1/A. During cross-examination made on behalf of the appellant-Gulam Mustafa, he has stated that police came to his village and took his signature on a paper and he had put his signature on the instruction of the police. The cross-examination of this witness has been declined by the appellant, Md. Noor Ansari. 13 Thus, it is evident that P.W-4 has also not supported the prosecution case on the point of recovery of vehicle from the possession of appellant-Gulam Mustafa. 22. P.W-5 is Hawaldar Awadhesh Kumar Singh and during his examination in-chief he has stated that the officer in-charge, on receiving secret information, had apprehended one driver of Tata Sumo Vehicle, who disclosed his name as Gulam Mustafa and also disclosed that the Vehicle was stolen one. However, he has stated that he does not identify any accused person. During cross-examination he has stated that paper was prepared at the police station and he had not put his signature on any paper. Thus from scrutinizing the evidence of P.W-5, it would appear that though he has supported the contents of the F.I.R on the point of arrest of the appellant, Gulam Mustafa but he failed to identify him during his examination in-chief and has stated during cross-examination that paper was prepared at the police station. It is further evident that P.W-5 has not stated anything against the appellant, Noor @ Noor Mohammad. Thus, the evidence of P.W-5 is not relevant and not reliable. 23. P.W-6 is another Hawaldar Digambar Singh. During examination-in-chief he has supported the prosecution case that the driver of one Tata Sumo Vehicle was apprehended and who had disclosed that the Vehicle was stolen from Haryana. However, he failed to identify the appellant, Gulam Mustafa and he had identified the another appellant, Noor Mohammad in place of Gulam Mustafa during identification in the court. Thus, from the evidence of P.W-6 it would appear that he has tried to support the prosecution case on the point of recovery of 14 vehicle but he failed to identify both the appellants and his evidence is contrary to the evidence of the Informant P.W-11 and other prosecution witnesses. 24. P.W-7 is Hawaldar Nathu Khan. During examination-in- chief he has supported the prosecution case on the point of apprehension of driver of Tata Sumo vehicle. However, he failed to identify any accused person i.e. the Appellants before the court and he failed to disclose the name of the apprehended accused before the court below. The cross examination of the witness was declined by all the accused persons. Thus, it is evident that even the P.W-7 has not supported the prosecution case not only against the appellant, Gulam Mustafa but he has not stated anything on the point of recovery against the appellant, Noor Mohammad. 25. P.W-8 is Hawaldar Dinanath Choubey. During examination-in-chief he has tried to support the prosecution case by stating that the police had apprehended the driver of Sumo vehicle who disclosed his name as Mustafa and has also stated that he used to sell the vehicle and the vehicle is from Haryana. However, he failed to identify the accused persons i.e. the Appellants before the court below. During cross examination he has stated that he has not signed on any paper and no paper was prepared in his presence. Thus, P.W-8 has not supported the prosecution case against the appellant, Noor Mohammad and he had failed to identify both the appellants Gulam Mustafa and Noor Mohammad before the learned court below during the trial and thus the evidence of P.W-8 is not reliable. 26. P.W-9-Ashok Kumar Giri is the Investigating Officer (i.e. 15 the I.O) of this case. During his examination-in-chief he has stated that he had received the self-written application of A.S.I, Jagjivan Ram at 5.30 p.m. on 13.09.2004 while he was posted as an Officer-in-charge of Bagodar Police Station and a seizure list and the seized Tata Sumo vehicle bearing Registration No.HR-26H- 9873, Engine No. HYZ 718620, Chasis No. 4180916312 were also seized and he had arrested the accused Gulam Mustafa and his confessional statement was also produced before him. Thereafter on the basis of self-written statement of informant, he had drawn the formal F.I.R being Bagador P.S. Case No.227 of 2004 for the offence under sections 413/34 and 414/34 of the I.P.C and he took investigation of this case himself. He has proved the self-written application of Jagjivan Ram, Sub-Inspector (P.W-11) which is marked as Exhibit-3 and he proved his endorsement, signature of writing on the said written report, marked as Exhibit-3/1. He has further proved the formal F.I.R written in the writing of literate constable Brajkishore Singh, which was marked as Exhibit-4. He has further proved the confessional statement of the accused, Gulam Mustafa which was written by Jagjivan Ram i.e. P.W-11 and marked as Exhibit-5. He has further proved the seizure list as Exhibit-2/B in the writing and signature of Ram Pratap i.e. P.W-10 and Jagjivan Ram i.e. P.W-11. Thereafter he had recorded the written statement of the informant and on the basis of confessional statement of the accused, Gulam Mustafa he along with informant, P.W-10 (Ram Pratap) and other Armed Forces had inspected the place of occurrence and the place of occurrence has been described in paragraph 9 of the evidence which is situated at village Aura Road. Thereafter he recorded the statement of A.S.I, Ram Pratap- P.W-10, Awadhesh Singh-P.W-5 and seizure list witness, Suhail Ansari-P.W-3 and Yunus Ansari- P.W-4. Thereafter on the basis of 16 the disclosure of appellant, Gulam Mustafa he conducted raid at Calcutta Garage, Isri Bazar and recovered one Tata Sumo vehicle bearing Registration No.HR-26L-2239 in very damaged condition and all the parts of the vehicle were separated and the entire parts had been opened. However, he had seized the number plate of Tata Sumo Vehicle which was “HR-26L-2239” in presence of seizure list local witnesses Chunnu Mistry-P.W-1 and Pradeep Kumar- P.W-2 who voluntarily put their signature and a seizure list of the seized Tata Sumo vehicle bearing Engine No.22753692 and Chasis No.22917468 a seizure list was prepared on his instruction by ASI, Ram Pratap and he also put his signature on the same and the said seizure list was marked as Exhibit-1/B. He further stated that accused appellant Noor Mistry has admitted the allegations levelled against him and has stated that he had purchased above Tata Sumo bearing Registration No.HR-26L-2239 from Gulam Mustafa in Rs.1,50,000/- and some months earlier this vehicle meets with an accident. He also stated that Gulam Mustafa used to sell stolen vehicle at low cost by preparing forged papers and thereafter he arrested the appellant, Noor Mistry. Thereafter on 14.09.2005 he conducted raid in the house of one co-accused Buttu Jain of Ishri Bazar who was found absconding and on making an enquiry about Qualis vehicle HR- 55-1170, it was learnt to him from his sources that the said vehicle was purchased two months ago by Buttu Jain which is being used by changing number plate as WB-60 but other number is not disclosed to him. Thereafter he recorded the statement of constable witness namely Shyam Narayan Prasad, Digambar Singh (P.W-6), Dinanath Choubey (P.W-8) and Nathu Khan (P.W-7). Thereafter he enquired from the office of District Transport Office, Dhanbad regarding seized vehicle bearing Registration No.HR-26H-9873 17 and HR-36L-2239, HR-26Q-1283, HR-52-3578 and HR-55-1170. However, he received only one communication with regard to only Tata Sumo vehicle bearing Registration No.HR-26L-2239 and it was disclosed on the basis of Register maintained in the District Transport Office, Dhanbad and the owner of the said vehicle is Mohammad Noor Ansari, son of Sadik Ansari, the appellant of Cr. Appeal No.1060 of 2007. It was also mentioned in the report that for verifying the NOC a letter was sent to Gurgaon but till date reply to said letter has not been received. The report of Tata Sumo received from the office of DTO has been marked for identification as „X‟. He further stated that he also verified Chasis No.22917468 of the said Tata Sumo bearing Registration No.HR- 26L-2239 which was verified from Classic Automobile, Dhanbad which is an authorized Show Room of Tata Company and they vide letter no.C.A/T/04-05-339 dated 09.11.2004 had intimated that said chasis number is not in existence and the said report is marked for identification as „X/1‟. Thereafter he has submitted charge sheet against the appellant, Gulam Mustafa and appellant Noor Mohammad under sections 414/413/34 and kept the investigation pending against other accused persons. Thereafter he was transferred on 16.12.2004 and he had handed over investigation of this case to one S.I., Arun Kumar Dubey. He i.e. P.W-9 further stated that the witness Chunnu Mistry-P.W-1, Pradeep Kumar-PW.-2, Md. Sohail Ansari-P.W-3 and Yunus Ansari-P.W-4 had put their signatures voluntarily on the seizure list and had admitted regarding seizure of the vehicle from the garage of Noor Mistry. During cross-examination made on behalf of the appellant, Gulam Mustafa he had stated that no confessional statement of any accused was recorded before him. He further 18 stated that the P.S. Case number was written on the seizure list by the Informant after returning to police station for practical purposes on his own. He could not answer the case number in Giridih District relating to theft of vehicles. However, he had admitted at paragraph 27 of the investigation that during course of investigation the appellant, Gulam Mustafa had informed the DTO, Dhanbad that he had sold vehicle to accused Noor Mistry and this fact has been verified and found true by the DTO, Dhanbad in his report, i.e., document marked for identification as „X‟. Even DTO, Dhanbad has written in his report on the basis of the register maintained in the office. He had denied the suggestion that no vehicle was seized form the appellant, Gulam Mustafa. 27. On being cross examined on behalf of the appellant, Noor Ansari he has stated that he is not aware that HR-26L-2239 belonged to the State of Haryana. He has further stated that he had not gone to Haryana during course of investigation. He further stated that he had not contacted Transport Officer of Haryana even by telephone and he had not received any theft report regarding this vehicle. He further stated that he had not instituted any case against the appellant, Noor Mistry for committing theft of vehicle and for selling stolen vehicle. He further stated that the garage of appellant, Noor Mistry is mainly for repairing of vehicle and all the parts were sealed and small parts were sealed by Lah and Clothes and a Mohar was affixed. He further stated that the seized vehicle has not been brought before the Court. Thus, from scrutinizing the evidence of P.W-9 i.e. the I.O of this case, it is evident that after instituting the F.I.R by P.W-11, Jagjivan Ram he conducted raid in the garage of Noor Ansari and recovered one Vehicle bearing no.HR 26-L-2239 but after 19 communication with DTO, it was found that said vehicle was registered in the name of Noor Mistry. Thus, it is evident that the appellant-Noor Ansari was not keeping any stolen vehicle nor had sold any stolen vehicle. 28. Even the informant has not stated about alleged seized vehicle form the appellant, Gulam Mustafa. The informant has merely stated that he had written to DTO, Dhanbad regarding five vehicles as mentioned earlier, but he received only one communication and no communication was received regarding other vehicle yet he submitted charge sheet against both the appellants 29. P.W-10 is Ram Pratap and during evidence he has supported the prosecution case by stating that he along with the informant, P.W-11 and other police constable had seized one Tata Sumo Vehicle and driver was apprehended by the police constables who had disclosed his name Gulam Mustafa i.e. the appellant in Cr. Appeal No.1106 of 2007 and failed to produce any paper. Thereafter he has recorded the statement of the appellant Gulam Mustafa who had disclosed that this Tata Sumo vehicle is stolen one and earlier he sold stolen Tata Sumo Vehicle to one Noor Mistry and had also sold one Qualis vehicle to one K.D. Singh. However, he has stated that A.S.I, Jagjivan Ram i.e. P.W-11 had recorded the confessional statement of the accused and a copy of which was handed over to the appellant, Gulam Mustafa. Thereafter, a seizure list of seized Tata Sumo vehicle was prepared in presence of two independent witnesses and they returned with the accused and the seized vehicle at the police station. Thereafter ASI, Jagjivan Ram had handed over his self-written application to officer in-charge and on the basis of which above police case was instituted. 20 Thereafter, Ashok Kumar Giri, officer in-charge had started investigation on the basis of confessional statement of the appellant and making raid in Ishri Bazar at Calcutta Garage, they had seized one Tata Vehicle from one Noor Mistry in an open condition and Noor Mistry was arrested who had disclosed that he had purchased the said vehicle from Gulam Mustafa and identified both the appellants in the court below. In cross-examination he has stated that the seizure list was prepared near village Aura and all the witnesses were local but he could not disclose the name of police constable who had apprehended the appellant, Gulam Mustafa after hot chase. He had denied the suggestion for not chasing any car from the accused, Gulam Mustafa. He was confronted on the question of improvement made in evidence from the statement given under section 161 Cr. P. C before the police that the appellant, Noor Mohammad (Cr. Appeal No.1060/2007) had not disclosed before him that he had purchased the said vehicle from the appellant, Gulam Mustafa. He could not say the number of vehicles in the Garage of Noor Mistry at the time of search in the Garage. 30. Thus, from scrutinizing the evidence of P.W.10, it is evident that he had even contradicting the informant on the point of recording the confessional statement of Gulam Mustafa (Exhibit-5) and also on the point of submitting the written report (Exhibit-3) because P.W-11 had stated that confessional statement i.e. Exhibit-5 was prepared by P.W-10, Ram Pratap but P.W-10, Ram Pratap had stated during his evidence at paragraph-4 that A.S.I, Jaggivan Ram had recorded the confessional statement of the appellant, Gulam Mustafa. Apart from this P.W-11 had stated that written report was prepared in the writing of Ram Pratap, A.S.I on his instruction and 21 P.W-11 had put his signature whereas P.W-10 has stated in paragraph-6 that A.S.I, Jagjivan Ram i.e. P.W-11 had submitted “self-written statement” to the officer in-charge. 31. Thus, even the recording of confessional statement and submission of written report is contradictory from the evidence of P.W-10 and P.W-11 namely Ram Pratap and Jagjivan Ram respectively. 32. P.W-11 is Jagjivan Ram, who is informant of this case and during his examination-in-chief he has stated that he along with other police personnel namely Ram Pratap, Awadhesh Kumar and some other constables, names of which are not remembered to him, arrived at Chowk after doing patrolling in G.T. Road then he received a secret information that one Gulam Mustafa is trying to sell one stolen Tata Sumo car near village Pochari and on this information he went to village Pochare after crossing G.T Road for one kilometer and saw that one Tata Sumo Vehicle is coming there. On seeing the police party the driver tried to flee away but he was apprehended with the help of police personnel and disclosed his name as Gulam Mustafa i.e. the appellant of Cr. Appeal No.1106/2007 and on enquiry about vehicle he could not show any paper and stated that the vehicle is stolen one. He disclosed that he was trying to sell the vehicle and also disclosed that he has earlier sold several stolen vehicles at Isri Bazar and Bagodar Bazar. Thereafter a seizure list was prepared in presence of two witnesses in respect of Tata Sumo Vehicle and the accused also confessed his guilt and a seizure list was prepared on his instruction by ASI, Ram Pratap and signed by witnesses, Md. Shohail Ansari (P.W-3) and Younus Ansari (P.W-4) and the seizure list were marked as Exhibit-2/B. He has further proved the confessional statement of the appellant, Gulam Mustafa recorded 22 by A.S.I, Ram Pratap (P.W-10). Thereafter they returned to Bagodar Police Station and submitted written application to the officer-in-charge which was written by ASI, Ram Pratap i.e. P.W- 10 on the instruction of P.W-11 i.e. Jaggivan Ram. The P.W-9 i.e. Ashok Kumar Giri had also put his signature on the written report which has been proved as Exhibit-3. Thereafter the Officer-in-charge instituted police case and they along with accused and this Officer-in-charge and one ASI, Ram Pratap and other constables had gone to Isri Bazar and as per the disclosure made by Gulam Mustafa, they seized one white colour Tata Sumo Vehicle to the police station and his statement was again recorded. During cross-examination made on behalf of the accused/appellant, Gulam Mustafa he has stated and admitted that no case of theft of Tata Sumo vehicle was instituted in the police station of the informant. He has further stated that there is no case earlier instituted or pending against the appellant, Gulam Mustafa for keeping any stolen article or anything stolen which has been mentioned by him in the F.I.R. He further stated that the seized vehicle was not searched and he had not seen Kharkhari village. He further stated that after preparing the seizure list, case was instituted but neither him nor his colleague had written anything in the police station and he does not remember as who had mentioned the P.S. Case number in the seizure list. This controverts the evidence of P.W-9 i.e. I.O who had stated that the Informant had given the case number at the time of institution of the F.I.R. Although he has denied the suggestion that as per disclosure of appellant, Gulam Mustafa he had prepared the F.I.R., however, going through the F.I.R, it is evident that he has 23 mentioned several other facts that the accused had sold different other vehicles to different persons and thus the informant is contradicting its own F.I.R. He could not say as to when the proceeding was done with regard to the case. 33. Thus, from scrutinizing the evident of P.W-11, Jagjivan Ram (informant), it is evident that he has contradicted his own F.I.R which was written on his instruction by P.W-10, Ram Pratap. Because in the F.I.R he has given instances that the appellant, Gulam Mustafa had sold the various vehicles in connivance with Satar Mian and one Asghar by changing their number plates and preparing forged papers. It has been alleged that the appellants in connivance with Asghar, Anwar and Kapoor Vendor and several other persons sold several stolen vehicles by preparing forged paper and changing the number plates in low price and had alleged in F.I.R that one white colour Tata Sumo Vehicle bearing No.HR- 26L-2239 was sold by preparing forged papers and changing number plate to one Md. Noor Mistry of Clacutta Bazar, G.T. Road, Ishri Bazar in Rs.1,50,000/-. Thereafter the appellant had allegedly sold several vehicles like, Marshal Vehicle bearing Registration No.HR-52-3578 in Rs.1,00,000/- and the appellant had further allegedly sold one Qualis vehicle bearing Registration No.HR-55-1170 to one Buttu Jain and also allegedly sold one stolen Bolero vide Registration No.HR-38Q-2683 and had also allegedly sold stolen Sumo vehicle no.HR-26H-7873. Thus, the Informant has denied his own statement in the F.I.R and the seizure list witnesses i.e. P.W-3 and P.W -4 namely Sohail Ansari and Yunus Ansari have not supported the case of the informant as P.W.3 has stated that the informant had taken his signature at his house and he was not aware as to what was written in the seizure list. He has also stated that village Kharkhari/Pocheri 24 is at a distance of ten kilometers from G.T. Road. Similarly, Yunus Ansari, P.W-4 had also stated that he was not aware what was written in the seizure list and he had put his signature on the instruction of the Daroga. Thus, the evidence of P.W-11 i.e. the informant is not reliable and even during course of his deposition the seized Tata Sumo Vehicle bearing No.HR-26H-9873 was not even marked as a Material Exhibit during course of trial and only seizure list has been proved and it has not been mentioned during course of evidence of P.W-11 as to where the seized Sumo car i.e. Registration No.HR-26H-9873 had been kept. Apart from this on the one hand the informant has allegedly stolen vehicle HR-9873 which is said to have been seized from the appellant, Gulam Mustafa, on 13.09.2004 in the first page of the written report and in the second page-third sheet, he has mentioned the Tata Sumo vehicle no.HR-26H-7873. Even during course of his evidence P.W-11 has failed to furnish the number of Tata Sumo vehicle which was seized at the time of institution of the F.I.R. 34. From perusal of seizure list marked as Exhibit-2/B it appears that one white colour Tata Sumo vehicle bearing Registration No.26H-9873, Engine No. HYZ 718620, Chasis No. 4180916312 has been mentioned. However, it is not clear that even at the time of submitting charge sheet the I.O had not verified as to whether the said Car number was stolen one or not. Hence the evidence of P.W-11 is not reliable. 35. Exhibit-2/B is the seizure list dated 13.09.2004 prepared at 4.30 p.m. by the informant Jagjivan Ram which reveals that one white colour Tata Sumo vehicle bearing Registration No.HR-26H- 9873, Engine No. HYZ 718620, Chasis No. 418011HYZhas been seized from G.T. Road between village Aura to Pochare having the 25 signature of the appellants. 36. Exhibit-1/B another seizure list dated 13.09.2004 prepared at 7.15 p.m. by Ashok Kumar Giri i.e. P.W-9 showing the recovery of one white colour Tata Sumo vehicle bearing Registration No.HR-26L-2239, Engine No.22753692 and Chasis No.22917468. 37. Exhibit-5 is the confessional statement of appellant Gulam Mustafa prepared by the informant, Jagjivan Ram i.e. P.W-11. Exhibit-5 is also not admissible as it has been obtained under coercion. 38. Exhibit-6 is the letter no.1090 dated 20.09.2004 which is sent by the District Transport Officer, Dhanbad to Officer-in- charge, Bagador Police Station regarding the report of Vehicle No.HR-26L-2239 and has informed that its earlier Owner was one Sri Pawan Singh of village Khandwa, Gurgaon and thereafter it was transferred to one Md. Noor Ansari i.e. the appellant of Cr. Appeal No.1060 of 2007. It has also been stated that it was registered on the basis of NOC letter no.3547 dated 09.02.2002 but report form Haryana has not been received. Therefore, Exhibit-6 reveals that the seized vehicle as per Exhibit-1/B was registered in the name of Noor Mohammad i.e. the appellant of Cr. Appeal No.1060 of 2007. 39. However, Exhibit-6 is not reliable as it has been marked on 12.06.2007 by the learned court below in the petition filed under section 294 Cr.P.C by the APP and the letter dated 20.09.2004 is not a public document. Even DTO, Dhanbad has not been examined by the prosecution to prove the said letter no.1090 dated 20.09.2004. 40. Exhibit-7 is the letter (undated) sent to Officer-in-charge pursuant to his letter dated 09.11.2004 that Chasis No.22917468 of Tata Sumo is incorrect and not in existence. 26 Thus Exhibit- 7 has been proved by the Court Witness namely Rajeshwar Thakur. Although there is seal of Tata Classic Automobile, Dhanbad but it bears the initial which is not legible and it does not discloses the date. Thus, Exhibit-7 which is issued by a Private Vehicle Dealer is contradictory to the Exhibit -6 which is issued by the District Transport Officer, Dhanbad on 20.09.2004 and thus Exhibit-7 is not reliable. 41. It further transpires that the Vehicle seized from Gulam Mustafa was not verified neither by the Informant nor by the I.O as there is no verification report of Vehicle No.HR-26H-9873 or HR-26H-7873 and thus seized Vehicles were not marked as Material Exhibits during course of trial. 42. C.W-1, Rajeshwar Thakur is Liaison Officer of Classic Automobile, Dhanbad. During evidence he has stated that he had sent report pursuant to letter sent by the officer in-charge, Bagodar P.S which is marked as Exhibit-7 and the said letter was signed by Ajay Kumar Singh and typed by the typist, Ravi Shekhar Singh but he is not aware as where both of them are living but he identified the signature of both the persons. During cross examination he has admitted that it has not been mentioned in the said letter i.e. Exhibit-7 as to on which date chasis number of vehicle was verified. He has also admitted that it is not disclosed in the said letter as to who had verified the said chasis number. Thus, from the evidence of P.W-7 it is evident that he is a hearsay witness and he is not the author of Exhibit-7 which has been proved by P.W-7. Thus, Exhibit-7 is not a reliable document. 43. It transpires from the evidence of P.W-1-Jagjivan Ram (informant) that one Tata Sumo was recovered from the Garage of 27 Norr Mistry on the basis of disclosure made by Gulam Mustafa. However, it has come during the evidence of P.W-9 i.e. the I.O that the said Tata Sumo has been registered in the name of the appellant Noor Mistry in the light of report sent by the office of District Transport Officer, Dhanbad vide Letter No.1090 dated 20.09.2004. 44. Even, the confessional statement of the appellant Gulam Mustafa has been obtained under coercion by the informant. Even in the confessional statement it has been stated by the P.W-10-Ram Pratap that it was written by P.W-11-Jaggivan Ram i.e. the informant, whereas the informant P.W-11 has stated that it was written by P.W-10-Ram Pratap under his instruction. Thus, the maker of the confessional statement is not proved and it is not clear as to who had written the confessional statement of the appellant-Gulam Mustafa though it is signed by P.W-11. 45. It further transpires from the evidence of P.W-11 that a Tata Sumo vehicle was seized from the possession of the appellant-Gulam Mustafa and he failed to produce any paper. However, the said vehicle was not produced during trial as a Material Exhibit. Even P.W-10-Ram Pratap has stated that a seizure list was prepared regarding the seized Tata Sumo vehicle in presence of two independent witnesses and the seized vehicle were kept at the police station. However, P.W-10, who is the I.O of the case, has not stated anything about the vehicle seized from the possession of the appellant-Gulam Mustafa although he was not only the I.O of this case but also the officer-in-charge of the concerned Bagodar Police Station where the Vehicle was brought. Thus, the seizure of the Vehicle bearing Registration No.HR-26H-9873 has not been validly proved as P.W-9 i.e. the I.O Ashok Kumar Giri is completely silent on this aspect and there is 28 no theft report of said Vehicle bearing Registration No.HR-26H- 9873. 46. It further transpires that prosecution has failed to show any pending cases against both the appellants i.e. Md. Noor @ Noor @ Noor Mohammad of Cr. Appeal (SJ) No.1060/2007) and the appellant-Gulam Mustafa of Cr. Appeal (SJ) No.1106 of 2007, rather it has come in the evidence of P.W-11 i.e. the informant and P.W-9 i.e. I.O that no case is/are pending against the appellants i.e. Md. Noor @ Noor @ Noor Mohammad of Cr. Appeal (SJ) No.1060/2007) and the appellant-Gulam Mustafa of Cr. Appeal (SJ) No.1106 of 2007. Thus, the charges under section 413 of the I.P.C is not proved against both the appellants. 47. In view of the discussion made above it is abundantly clear that the prosecution has failed to prove the charge under section 414 of the I.P.C against the accused persons/appellants beyond all shadow of reasonable doubt. Thus, the appellant namely Md. Noor @ Noor @ Noor Mohammad of Cr. Appeal (SJ) No.1060/2007) and the appellant- Gulam Mustafa of Cr. Appeal (SJ) No.1106 of 2007 are acquitted from the charges under section 414 and they are discharged of their liability of their respective bail bonds. 48. Thus, both the criminal appeals are allowed. Let the L.C.R be sent back to the learned court below at once. Saket/ A.F.R. (Sanjay Prasad, J.)