1. Heard Mr. Gaj Raj Singh Pal for the appellants Anil @ Bablu Srivastava and Mohd. Jama @ Salim and learned AGA for the State and perused the record.
2. These two appeals relate to the same incident, hence they are disposed of by this common order.
3. The appellants Anil @ Bablu Srivastava and Mohd. Jama @ Salim have preferred these appeals against the judgment and order dated 30.06.2006 rendered by Sri D. K. Srivastava, the then Additional Sessions Judge / Special Judge (Dacoity Affected Area), Court No. 3, Budaun in Special Sessions Trials No. 2 of 2003 and 118 of 2003, whereby the learned Special Judge has convicted and sentenced each of the appellants under section 412 I.P.C. to undergo rigorous imprisonment of ten years and to pay a fine of Rs. 50,000/- and in default of payment of fine to undergo additional imprisonment of three years.
4. The prosecution story leading to this appeal in nutshell is that on 19.04.2002 Mr. Pramod Kumar Agrawal, Assistant Administrative Officer, Life Insurance Corporation of India, branch Budaun, went to the Oriental Bank of Commerce, branch Indrachowk, Budaun on his car to deposit Rs. 3,69,073/- along with the Life Insurance Corporation of India's officials Saligram and Ram Prakash. The aforesaid amount had been kept in a locked iron box. He reached the bank at about 1.15 P.M. When he came out of the car, one miscreant shot at the aforesaid official Saligram and snatched away the entire cash amount of Rs. 3,69,073/-. The miscreant after snatching away the cash amount moved towards an already started motorcycle lying near the car under the control of another person who had been waiting for the miscreant who robbed the case box, and, thereafter, both of them fled away on that motorcycle towards Indrachowk. There were two other miscreants on a different motorcyle, who also fled away following the first motorcyclists. It further appears that all the miscreants had prior information regarding the aforesaid cash amount and had arrived in the bank in advance to commit the robbery. The Assistant Administrative Officer, Mr. Pramod Kumar Agrawal, lodged the F.I.R. Ext.Ka-1. on the same day at about 14.15 hrs. at the Police Station-Civil Lines, Budaun, on which basis the police registered the case vide crime no. 339 of 2002 under sections 394/397 I.P.C. and proceeded to hold the investigation. The appellants Anil @ Bablu Srivastava and Mohd. Jama @ Salim were arrested by the police of police station-Rajepur, District-Farrukhabad in another case and on their arrest, they informed the police of police station-Rajepur that they were involved in committing the aforesaid robbery.
5. On 24.07.2002, PW-7, Omveer Singh, the Investigating Officer received information regarding the arrests and the confessional statements of the appellants and then he went Farrukhabad and recorded their statements on 24.07.2002 . The Investigating Officer took the appellants on police remand on 13.08.2002 and recovered Rs. 14,000/- on their pointing and after concluding the investigation found a prima facie case against the appellants and accordingly filed a charge-sheet against them.
6. The co-accused persons, namely, Ahmad Raja and Fareedul have already been acquitted, therefore, it is not necessary to refer to the facts relating to the said co-accused persons.
7. The learned trial court framed the charges under sections 394, 397 and 412 I.P.C. against the appellants who denied the charges and claimed to be tried.
8. The prosecution examined as many as seven witnesses to prove the aforesaid charges. PW-1, Pramod Kumar Agrawal is the complainant, who has proved the F.I.R. Ext. Ka-1 and the story of the robbery. PW-2, Saligram and PW-3, Ram Prakash, who were Life Insurance Corporation of India's officials, have also supported the prosecution story of robbery. PW-4, Fateh Singh, Sub-inspector, and PW-7, Omveer Singh, the Investigating Officer, who made the recovery at the instance of the appellants, have proved the recovery of the cash amount of Rs. 14,000/-. PW-5 Jamil Ahmad has proved the chick report and other formal papers. PW-6 Yashveer Singh and PW-7, Omveer Singh had investigated the matter, who have proved the charge-sheet and other formal papers.
9. The learned trial court examined the appellants under section 313 I.P.C. They denied the charges and stated that they have been falsely implicated on account of a political rivalry.
10. The learned trial court has held that the charges under sections 394/397 were not proved beyond all reasonable doubts against the appellants and accordingly acquitted them of the charges under sections 394/397 I.P.C. The learned trial court, however, believed the story relating to the recovery of Rs. 14,000/- at the instance of both the appellants and found that they had the recovered money in their possession knowing well that the same was a robbed property, therefore, according to the learned trial court the charge under section 412 I.P.C. was proved beyond all reasonable doubts against the appellants. The learned trial court accordingly convicted and sentenced them as aforesaid.
11. Mr. Gaj Raj Singh Pal, learned counsel for the appellants submitted that he would not press the appeal on merit as he has nothing to contend against the finding of the learned trial court that the recovery of Rs. 14,000/- was made not only the basis of the informations furnished by the appellants to the police but also on their pointing and the same was the money which had been robbed in the manner alleged by the prosecution.
12. Mr. Gaj Raj Singh Pal further submitted that according to the allegations made in the F.I.R., it was an incident of robbery, therefore, the conviction of the appellants under section 412 I.P.C. was not proper. According to the learned counsel only the offence under section 411 I.P.C. was made out but the learned trial court ignored this material aspect of the matter and wrongly arrived at the conclusion that the offence under section 412 I.P.C. was made out.
13. In view of the fact that the learned counsel for the appellants did not dispute the factum of recovery at the instance of the appellants, the recovery, which has been fully proved by PW-4, Fateh Singh and PW-7, Omveer Singh, appears to be believable. PW-4, Fateh Singh, was posted as a Sub-Inspector at the Police Station-Civil Lines, District-Budaun at the time of recovery. PW-7, Omveer Singh, was the Station Officer, Police Station-Civil Lines, District-Budaun and had also investigated the matter. These two witnesses have categorically deposed that on 24.07.2002 they received an information regarding arrests of the appellants by the police of Police Station Rajepur, District-Farrukhabad and also regarding their confessional statements that they had been involved in committing the aforesaid robbery. On receiving this information, PW-7, Omveer Singh went to Farrukhabad jail on 24.07.2002 itself and recorded the confessional statements of the appellants and on the basis of their statements took both of them on remand to police custody and again interrogated them, who made the statements that they had kept the robbed box containing Rs. 14,000/- in the field of appellant Mohd. Jama @ Salim situating in village Khaspura, Police Station Kunwar Gaon. Thereafter, both the appellants took PW-4, Fateh Singh and PW-7, Omveer Singh to the field of the appellant Mohd. Jama @ Salim and got recovered a tin box containing cash amount of Rs. 14,000/- which had been embedded in the earth. There were 44 currency notes of the denomination of Rs. 100/-, 92 currency notes of the denomination of Rs. 50/- and four packets each of 100 currency notes of Rs. 10/- denomination. Each packets of the currency notes of Rs. 10/- denomination had seal of the Life Insurance Corporation. PW-4, Fateh Singh and PW-7, Omveer Singh sealed the recovered articles on the spot and prepared the recovery memo Ext. Ka-2 and obtained signatures of the appellants thereon. It may also mentioned that the prosecution produced the recovered currency notes and the tin box in the court during the trial, which were proved by the aforesaid witnesses and are on record as material Ext. 1 to 8. The learned counsel for the appellants have cross examined the witnesses PW-4, Fateh Singh and PW-7, Omveer Singh at length but nothing material could be brought on record to discredit their testimonies. In my opinion, the learned trial court has rightly believed the prosecution case that the robbed currency notes of Rs. 14,000/- were recovered on the basis of the disclosure made by the appellants to the police and also on their pointing, therefore, the prosecution has succeeded in proving that the appellants were found in possession of the currency notes of Rs. 14,000/- which had been robbed in the aforesaid incident. It is, thus, abundantly clear that the place of concealment of the tin box containing the aforesaid cash amount of Rs. 14,000/- was peculiarly within the knowledge of the appellants, therefore, they must be held to be in conscious and exclusive possession of the robbed amount of Rs. 14,000/- along with the tin box. Where the place of concealment of robbed or stolen property is peculiarly within the knowledge of the accused and that property is recovered as a result of the information given by the accused or on his producing the property from the place of concealment, the only conclusion that can be inferred from such circumstance is that the accused was in conscious and exclusive possession of the property. Another important aspect of the matter is that the packets of the currency notes of the denomination of Rs. 10/- recovered as aforesaid had seal of the Life Insurance Corporation, therefore, it can be also inferred that the appellants had knowledge or reason to believe that the currency notes were stolen properties. To this extent the finding of the learned trial court which is based on relevant materials and has also not been disputed by the learned counsel for the appellants, seems to be perfectly correct and is accordingly affirmed.
14. The contention of the learned counsel for the appellants that the offence under section 412 I.P.C. was not made out has sufficient merit. Section 412 I.P.C. provides for the punishment of dishonestly receiving any property stolen in the commission of a dacoity. Therefore, for constituting the offence under section 412 I.P.C. one of the essential elements to be proved by the prosecution is that the property recovered from the possession of the accused had been stolen in a dacoity. If no offence of dacoity has been committed with regard to the recovered property, the question of convicting the accused under section 412 I.P.C. does not arise. In order to establish the charge under section 412 I.P.C. the other element to be proved by the prosecution is the knowledge of the accused that the recovered property was stolen in a dacoity. In other words, if the accused while possessing a property being the subject matter of a dacoity, did not know, nor had any reason to believe, that the property was stolen in a dacoity, his conviction under section 412 I.P.C. cannot be upheld. On the other hand, section 411 I.P.C. provides for the punishment of dishonestly receiving or retaining stolen property. Section 410 I.P.C. defines "stolen property" according to which, the property whose possession is transferred by the robbery is also stolen property, therefore, if any robbery is committed in respect of any property and any person dishonestly receives or retains that property knowing or having reason to believe the same to be stolen, he will be guilty of the offence under section 411 I.P.C. and not under section 412 I.P.C.
15. The present case needs to be examined in the back drop of the aforesaid principle. Admittedly, the miscreants who had snatched away the box containing Rs. 3,69,073/- were only four in number and there is no allegations or evidence that the number of the accused persons were five or more. To constitute the offence of dacoity, the number of accused must be five or more. If the number of the accused is less than five, the offence will be robbery and not the dacoity. In other words, an offence of robbery becomes the offence of dacoity when it is committed by five or more persons conjointly. Since, in the present case, only four persons are alleged to have committed the robbery, therefore, it was not a case of the commission of the offence of dacoity. In this view of the matter, the learned trial court has committed material illegality in arriving at the conclusion that the offence under section 412 I.P.C. was made out. To this extent the finding of the learned court below, being perverse and illegal, cannot be upheld.
16. In my opinion, only the change under section 411 I.P.C. is proved beyond all reasonable doubts against the appellants, therefore, they are liable to be convicted and sentenced under section 411 I.P.C. in place of section 412 I.P.C.
17. The maximum sentence of imprisonment provided for the section 411 I.P.C. is of three years only, therefore, the sentence of ten years rigorous imprisonment and a fine of Rs. 50,000/- and in default of payment of fine additional rigorous imprisonment of three years passed against each of the appellants cannot be uphled. The learned counsel for the appellants informed that the appellants are in custody in the present matter from April, 2002, therefore, they are in prison since last more than seven years and five month against the maximum sentence of three years only due to the glaring error attributable on the part of the learned Special Judge. In this view of the matter, the further detention of the appellants in custody seems to be wholly unjust.
18. Both the appeals are therefore partly allowed. Each of the appellants Anil @ Babloo Srivastava and Mohd. Jama @ Salim is convicted and sentenced under section 411 I.P.C. in place of section 412 I.P.C. to undergo rigorous imprisonment of three years and also to pay a fine of rupees ten thousand and in default of payment of fine to undergo additional rigorous imprisonment of one year. The sentence passed by the learned trial court stands modified accordingly. If the appellants have already served out the sentence passed by this Court, they shall be set at liberty forthwith if not already in custody in some other case.
19. The period during which the appellants remained in custody as under trials shall be given due adjustment under section 428 of Code of Criminal Procedure while calculating the period of sentence.
20. Let a copy of this judgment along with the lower court record be transmitted forthwith to the learned trial court for immediate compliance.
Order Date :- 21.9.2011 Sharad