Patna High Court
Nand Kishore Ram vs The State Of Bihar on 11 July, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.667 of 2015
Arising Out of PS.Case No. -49 Year- 2012 Thana -BIHTA District- PATNA
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NAND KISHORE RAM SON OF LATE BUDHAN RAM RESIDENT OF
VILLAGE - BADKA GAUV PONDIL, P.S. KURTHA, DISTRICT - ARWAL
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR
.... .... RESPONDENT/S
WITH
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Criminal Appeal (SJ) No. 678 of 2015
Arising Out of PS.Case No. -49 Year- 2012 Thana -BIHTA District- PATNA
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AJAY PASWAN @ BADAL SON OF RAM PRAVESH PASWAN RESIDENT
OF VILLAGE- DARVESHPUR ,P.S MANER, DISTRICT PATNA.
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR
.... .... RESPONDENT/S
WITH
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Criminal Appeal (SJ) No. 680 of 2015
Arising Out of PS.Case No. -49 Year- 2012 Thana -BIHTA District- PATNA
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ASHOK MAHTO @ ASHOK KUMAR SON OF LATE SURYA NARAYAN
SINGH RESIDENT OF VILLAGE MAHABALIPUR PS. SULHIN BAZAR,
DISTRICT PATNA.
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR
.... .... RESPONDENT/S
WITH
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Criminal Appeal (SJ) No. 713 of 2015
Arising Out of PS.Case No. -49 Year- 2012 Thana -BIHTA District- PATNA
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VIJAY KUMAR SINGH @ VIJAY PRASAD SON OF RADHEY SINGH,
RESIDENT OF VILLAGE- CHERAITI DIH, P.S. KHIZAR SARAI, DISTRICT-
GAYA
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR
.... .... RESPONDENT/S
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Appearance:
(In CR. APP (SJ) No.667 of 2015)
For the Appellant/s : Mr. Vikramdeo Singh, Adv.
Mr. Paras Nath, Adv.
For the State : Smt. Abha Singh, APP
Mr. Bipin Kumar, APP
Sujeet Kr. Singh, APP
Patna High Court CR. APP (SJ) No.667 of 2015 dt.11-07-2017 2
(In CR. APP (SJ) No.678 of 2015)
For the Appellant/s : Mr. Vikramdeo Singh, Adv.
Mr. Paras Nath, Adv.
For the State : Smt. Abha Singh, APP
Mr. Bipin Kumar, APP
Sujeet Kr. Singh, APP
(In CR. APP (SJ) No.680 of 2015)
For the Appellant/s : Mr. Vikramdeo Singh, Adv.
Mr. Paras Nath, Adv.
For the State : Smt. Abha Singh, APP
Mr. Bipin Kumar, APP
Sujeet Kr. Singh, APP
(In CR. APP (SJ) No.713 of 2015)
For the Appellant/s : Mr. Rabindra Kumar, Adv.
For the State : Smt. Abha Singh, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 11-07-2017
1. Criminal Appeal (SJ) No.667 of 2015 wherein Nand
Kishore Ram is the appellant, Criminal Appeal (SJ) No. 678 of 2015
wherein Ajay Paswan @ Badal is the appellant. Criminal Appeal (SJ)
No. 680 of 2015 wherein Ashok Mahto @ Ashok Kumar is the
appellant and Criminal Appeal (SJ) No. 713 of 2015 wherein Vijay
Kumar Singh @ Vijay Prasad is the appellant commonly originate
against the judgment of conviction and sentence dated 09.09.2015
passed by Additional Sessions Judge, IInd, Danapur, Patna in Sessions
Trial No.1443/2012 whereby and whereunder all the appellants have
been found guilty for an offence punishable under Section 395/34 of
the IPC and each one has been directed to undergo R.I. for ten years as
well as to pay fine appertaining to Rs.5000/- in default thereof,
undergo S.I. for six months.
2. Before coming to descant the appeal on its merit, from
the judgment impugned, it is evident that the learned lower court did
Patna High Court CR. APP (SJ) No.667 of 2015 dt.11-07-2017 3
not consider the ingredients of the Section 395 IPC and that happens
to be reason behind having a conclusion at the end of the learned
lower court identifying the appellants to be guilty under Section
395/34 of the IPC. 34 is not applicable relating to offence punishable
under Section 395 IPC because of the fact that definition of dacoity
itself divulges presence of more than five persons. That being so, the
learned Presiding Officer, henceforth will try to keep the basic feature,
ingredients and the requirement of law while adjudicating upon the lis.
3. Prosecution case, as is evident from the fardbeyan of
Ranjan Kumar Chaudhary, PW.1, Branch Manager, Canara Bank,
Pareb Branch, recorded on 27.02.2012 at about 03:30 PM is to the
effect that on the same day at about 02:40 PM during course of recess
hour while the bank officials were taking lunch, the arm burglar
appeared who overpowered them on the pretext of firearm and then,
thereafter, decamped with the cash appertaining to Rs.17,96,450/-
whereupon, Bihta P.S. Case No.49/2012 was registered against
unknown. It is also evident that during course of investigation so
many persons including appellants were apprehended along with
firearms, alleged booty and that being so, charge sheet was submitted
under Section 395, 412/34 of the IPC which ultimately led passage to
trial meeting with ultimate result, the subject matter of instant appeal.
4. Defence case, as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the
Cr.P.C. is of complete denial. In likewise manner, all the appellants
Patna High Court CR. APP (SJ) No.667 of 2015 dt.11-07-2017 4
have claimed the cash which has been alleged to have recovered from
their possession and for that, they have also examined DWs as well as
exhibited the documents including passbook.
5. In order to substantiate its case, prosecution had
examined altogether fifteen PWs out of whom PW.1 is Ranjan Kumar
Chaudhary, PW.2 is Mahesh Kumar, PW.3 is Dinesh Prasad, PW.4 is
Md. Anjum Asgar, PW.5 is Sheo Dayal Rai, PW.6 is Raju Kumar,
PW.7 is Rajesh Kumar, PW.8 is Nirmal Kumar, PW.9 is Uday Kumar,
PW.10 is Pankaj Kumar, PW.11 is Lal Babu Rai @ Lal Babu Yadav,
PW.12 is Manohar Sao, PW.13 is Rajesh Kumar Sharma, PW.14 is
Binay Krishna, PW.15 is Iswardeo Ram. Side by side also exhibited
relevant document as Ext.1-Signature of Ranjan Kumar Chaudhary
over Fardbeyan, Ext.2,3,4 and 5-Signature of Sheo Dayal Ram over
seizure list, Ext.6-Signature of witness Nirmal Kumar over seizure list
(photocopy).
6. Defence had also examined Rameshwar Prasad (DW.1)
on behalf of Ashok Kumar who had also exhibited Ext.1 Series,
DW.2-Santosh Kumar on behalf of appellant Nand Kishore Ram as
well also proved Ext.B while on behalf of Ajay Paswan @ Badal one
witness Mangal Sao has been examined.
7. From the record, it is evident that no charge under
Section 412 of the IPC has been framed against any of the accused. It
is further evident that during course of investigation having been
conducted by PW.14 Binay Krishna, he got information through spy
Patna High Court CR. APP (SJ) No.667 of 2015 dt.11-07-2017 5
regarding involvement of Ajay Paswan group who was apprehended
and from his possession, it has been alleged that firearm, cash
appertaining to Rs.10,000/- bearing monogram of Canara bank were
seized who, during course of inculpatory extra judicial confessional
statement divulged that remaining amount has been spent over
purchase of thresher, engine which were also seized. On his
inculpatory confessional statement raid was conducted at the house of
Kishori Ram wherefrom other appellants were arrested along with
arms, cash. Even during course of investigation none of the appellants
were put on T.I. Parade and the same status continued even during
trial also, as none of the bank officials claimed identification of these
appellants in court and so, the prosecution lacks the evidence
regarding connectivity of these appellants being dacoit who actively
participated during course of an occurrence having committed on
27.02.2012.
8. During course of argument, learned counsel for the appellant has been requested to assist the court to arrive at a just conclusion over fate of the appellants relating to an offence punishable under Section 412 of the IPC in absence of charge having against them for the aforesaid offence in the background of section 221 of the IPC read with Section 464 of the Cr.P.C. and further the principle decided by the Constitution Bench of the Hon'ble Apex Court in Willie (William) Slaney vs. State of Madhya Pradesh reported in AIR 1956 SC 116 giving a seal of permissibility on that very score in the Patna High Court CR. APP (SJ) No.667 of 2015 dt.11-07-2017 6 background of recovery of cash in huge quantity from respective possession of the appellants. During course thereof, the ambit and scope of the Section 27 of the Evidence Act has also been taken into consideration and further deficiency on the part of the appellant while claiming, explaining presence of such huge quantity of cash whereupon the learned counsel for the appellant has submitted that appellants would not be liable to be convicted under instant prosecution because of the fact that (a) there happens to be proper explanation at the end of the appellant, (b) Even negativating the same, it was incumbent upon the prosecution to have led sufficient evidence in order to prove connectivity, (c) the cash so recovered from the possession of the appellant would not be held to be stolen property in terms of deficiency having prescribed under Section 410 of the IPC.
And that being so, the court could not exercise its avenue towards Section 221 of the Cr.P.C. read with Section 464 of the Cr.P.C. in order to hold the appellant guilty for an offence punishable under Section 412 of the IPC.
9. Learned Additional Public Prosecutor fairly concedes that as the recovered cash has not been put on T.I. Parade, no description has been given by the bank officials either during investigation stage nor during course of trial and in likewise manner, having not claimed the material exhibit, in absence thereof, the amount would not be stamped as stolen property in terms of Section 410 of the IPC.
Patna High Court CR. APP (SJ) No.667 of 2015 dt.11-07-2017 7
10. The learned Additional Public Prosecutor is right in submitting that on account of paucity of evidence at the end of prosecution in having failed to identify the property to be looted one and to connect the property to be the booty on account thereof, appellant could not be held guilty for an offence punishable under Section 412 of the IPC.
11. That being so, the judgment of conviction and sentence would not survive accordingly set aside. Appeal is allowed. All the appellants are under custody hence are directed to be released forthwith, if not wanted in any other case.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 14.07.2017
Transmission 14.07.2017
Date