Whether Charge Of Retaining Stolen Articles Of Dacoity is tenable If Prosecution Fails To Prove Offence Of Dacoity?

  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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