Madhya Pradesh High Court
Shyam Lal & Ors. vs The State Of M.P. on 10 December, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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, 2 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 3 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 4 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 5 412 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 6 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 7 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:
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"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 9 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 10 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 11 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 12 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:
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"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 14 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 15 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'