Rathu Singh @ Ranjit Singh … … v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 1142 of 2012 Rathu Singh @ Ranjit Singh … …. Appellant Versus The State of Jharkhand … …. Respondent With Cr. Appeal (S.J.) No. 1143 of 2012 Pappu Kumar Jha @ Pappu Jha … …. Appellant Versus The State of Jharkhand … …. Respondent With Cr. Appeal (S.J.) No. 1146 of 2012 Rakesh Tiwary @ Pintu … …. Appellant Versus The State of Jharkhand … …. Respondent With Cr. Appeal (S.J.) No. 1148 of 2012 Charkhu Baraik … …. Appellant Versus The State of Jharkhand … …. Respondent
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Appellants For the State ----- : M/s B.M. Tripathy, Sr. Advocate H.K. Shikarwar and N.K. Jaiswal, Advocates : M/s P.K. Chatterjee, P.D. Agrawal, Vishwanath Roy, SPP & Naveen Kr. Gaunjhu, APP ----- Oral Order 03 / Dated : 07.02.2024 1. All these appeals arise out the judgment of conviction dated 10.12.2012 and order of sentence dated 12.12.2012 passed in S.T. No. 310 of 2007 in which the appellants have been convicted and awarded sentence under Section 412 of Indian Penal Code to undergo rigorous imprisonment of five years and fine of Rs.10,000/- each with a further sentence of six months in the event of default of payment of fine. 2. Dacoity was committed in the house of one Ramdeo Singh, who is the informant of the case, in which the cash and valuables were looted away and thereafter he and his family members were locked inside the house and the persons involved, decamped with booty on the Santro Car of the informant. 3. Bokaro BS City P.S. Case No. 98 of 2007 was registered under Sections 395 and 2 397 of Indian Penal Code against 10 to 12 unknown persons and later on vide order dated 30.03.2007 Sections 412 of Indian Penal Code was added after recovery of stolen articles. 4. On the basis of the disclosure statement, recovery was of looted article was made which have been adduced into evidence and marked as Ext. 14 to 18. Recovered looted articles were identified by the informant in the TIP. Police on investigation submitted charge sheet and the appellants were put on trial under Section 395, 397 and 412 of Indian Penal Code. 5. During trial, altogether eight witnesses were examined and different document including TIP Chart of persons and TIP chart of materials, seized, were adduced into evidence and were marked as Exhibits. 6. The appellants were acquitted of the charges under Sections 395 and 397 of Indian Penal Code, but were convicted under Section 412 of Indian Penal Code on the basis of the recovery of stolen articles and their identification in TIP. 7. The judgment of conviction and order of sentence is assailed on the ground that the description as given in the FIR was vague and evasive without sufficient details. The articles were not produced in court and they have not been marked as material exhibits. Chain of custody is also not established. 8. Specific argument advanced on behalf of appellant- Pappu Kumar Jha @ Pappu Jha is that as per the seizure list, which is Ext. 5, one Yashika Camera bearing no. 80902324 and a tea pot was seized from the house of appellant- Pappu Kumar Jha @ Pappu Jha. These articles were put on TIP and is claimed to have been identified. There is vital contradiction in the description of camera as stated in the FIR, Ext.1/1 wherein it refers to only four cameras, two of Canon Company and one of Sony Company, there is no mention of any camera of Yashika Company which was seized from this appellant. Furthermore, it is not stated in the TIP chart (Ext.2/1) that it was put on TIP before the informant. What has been mentioned there generally in Column No. 6 is that the articles which were seized from the house of appellant- Pappu Kumar Jha @ Pappu Jha was also put on TIP and identified. 9. It is further argued that the description of music system as it appears in the FIR, is that the music system of Sony Company with speaker. However, as per Ext. 8, which is the seizure list with respect to articles seized from the house of appellant- Rakesh Tiwary @ Pintu, one Sony company sound box was seized which did not tally with the description of articles as given in the FIR. Description of article is not stated in the TIP Chart (Ext.2). 3 10. It is argued on behalf of appellant- Charkhu Baraik that one DVD, VCD, MP-3 Player and perfume is alleged to be seized from appellant- Charkhu Baraik whereas in the description given in the FIR, there is no description of robbery of such DVD player. 11. Learned counsel for the State have defended the judgment of conviction and order of sentence. It is argued that the theft of VCR and VCD is specifically referred to in Sl. Nos. 6 and 7 of the fardbeyan. With respect to seizure of Philips Company VCD as per the seizure list of articles seized from the house of appellant- Rathu Singh @ Ranjit Singh (Ext.6). Learned counsel has further submitted that VCD player has been specifically referred to in the FIR and the same was recovered from the house of the appellant- Rathu Singh @ Ranjit Singh duly identified by the informant. 12. The settled proposition of law on appreciation of evidence is that the evidence is to be looked in its totality and not viewed in isolation. The trial should be a search for truth and not bout over technicalities as famously remarked by the Hon’ble Apex court in Zahira Habibullah H.Seikh case (2004) 4 SCC 158. In any adjudication in a criminal case involves basically two parts. First part is whether the crime was at all committed or not, and second part is to fix the identity of the author of crime. 13. In the present case, house robbery as per the FIR took place on 22.03.2007 at night from 1:15 am to 4:15 am and without any delay FIR was lodged, with the description of property which was looted away in the incidence. 14. On a plain reading of the testimony of the witnesses and the suggestion given, the statements of the accused persons were recorded under Section 313 of Cr.P.C. The incidence of dacoity is not in a shadow of doubt and there is no reason to differ with the findings regarding it of the trial court. 15. With regard to complicity of the appellants in the said incidence the informant identified the accused persons both in TIP as well as in the Court. The trial court gave them a benefit of doubt for the offence under Sections 395 & 397 of Indian Penal Code, as before identifying the accused persons on TIP, the informant admitted that he had been given opportunity to identify the accused persons. 16. Further clinching evidence regarding the complicity of the accused persons in the offence came up during investigation on the basis of the disclosure statement of appellant- Rakesh Tiwary @ Pintu (Ext.18), on whose disclosure statement, raid was conducted and stolen articles were seized from the house of co-accused persons. The statements of the accused persons u/s 313 Cr.P.C have been recorded at length. 4 17. In order to prove the charge under Section 412 of Indian Penal Code, it has to be proved that he was found in possession of the stolen property with knowledge and reason to believe of it to have been transferred by commission of dacoity. Possession with knowledge of the stolen artticle is the essence of offence under Section 412 of Indian Penal Code . It has been held in from Amar Singh v. State of M.P., (1982) 3 SCC 214 that where stolen property is recovered soon after the commission of dacoity conviction under Section 412 will be appropriate. 18. It has been rightly argued on behalf of the appellant- Pappu Kumar Jha @ Pappu Jha that there was vital contradiction in the description of the articles as stated to have been looted from the house of the informant and the one which was seized from this appellant. As per the seizure list, Yashika Camera was seized from this appellant, whereas specific description of cameras which were looted away from the house of the informant as stated in the FIR, was of Canon and Sony Company. Therefore, it cannot be said that the looted article was seized from the house of the appellant Pappu Kumar Jha. 19. The other stolen articles seized from the appellants, broadly matched with the description as given in the FIR with the seizure list. FIR is not an encyclopedia of all facts, as it is recorded immediately after the incidence and in normal common course of human conduct, it cannot be expected that victim who has faced the trauma of incidence will reproduce the minutest details of the stolen articles. It is understandable that victim of offence, will not be in a position to give complete details with the manufacturing number of each and every items. To ask for such description will amount putting an unconscionable and unrealistic burden on the prosecution to prove its case. 20. Non-examination of sezure list witness is not fatal as under Section 100(5) of Cr.P.C. there is no specific mandate that a seizure list witness needs to be examined. Even if the sezure list witness turns hostile, this by itself cannot be a ground for acquittal. In 1999 (3) SCC 337 Akmal Ahmad VS State of Delhi testimony of search and seizure, where not corroborated by any independent witness, held, would not stand vitiated solely for that reason. 21. Argument of procedure of search having been not followed is also not sustainable, as no specific ground has been taken as to how it was violated. On proof of the Test Identification Chart, Section 291 (A) of Cr.P.C. dispenses with formal proof of the TIP chart by the executive magistrate. In the present case, 5 however, TIP Chart has been proved by the Executive Magistrate who was the Block Development Officer. The dacoity took place in the intervening night of 22.03.2007 and the seizure has been made without any inordinate delay of six days after the said incidence, during course of investigation on the basis of disclosure statements made putting all the testimony together. There can be no doubt over the commission of dacoity, seizure and its identification by the informant. 22. This Court is of the view that the prosecution has proved its charge under Section 412 of Indian Penal Code against the appellants namely, Rathu Singh @ Ranjit Singh, Rakesh Tiwary @ Pintu and Charkhu Baraik. As far as appellant-Pappu Kumar Jha @ Pappu Jha is concerned, the articles, which were recovered, did not, at all, match with the articles which were seized from his house. Therefore, he is entitled to benefit of doubt. The judgment of conviction and order of sentence passed against appellant - Pappu Kumar Jha @ Pappu Jha is accordingly, set aside. Since appellant- Pappu Kumar Jha @ Pappu Jha is on bail and his conviction has been set aside, he is discharged from the liability of his bail bonds. So far as the appellants namely, Rathu Singh @ Ranjit Singh, Rakesh Tiwary @ Pintu and Charkhu Baraik are concerned, their appeal is dismissed and their bail bonds are cancelled. They are directed to surrender before the court below within two weeks to serve the remaining part of sentence. AKT/Satayendra Uploaded (Gautam Kumar Choudhary, J.)