KASIM ALI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These three appeals arise out of a common judgment dated 30-4-1987 of the Additional Sessions Judge, Bharatpur in Sessions Case No. 14/1982 whereby these four appellants (Kasim Ali, Bakshi, Jumma, and Deputy) have been held guilty of the offence under Section 412, IPC for one and the same incident took place on 31-3-1981, and each of them has been sentenced to undergo four years R.I. with a fine of Rs. 500/- (in default, three months further RI). Hence these appeals are being disposed of by this one order.

(2.) The case of the prosecution is that on the night intervening between 30th and 31st March, 1981 a dacoity was said to have been committed by certain persons in village Noh and Vijai Nagar Bachamdi and in that incident the appellants were arrested and they were put to identification parade after about one and half months. After investigation, the police submitted a challan for the offence under Sections 395, 396, and 397, IPC against twenty persons including appellants. The learned Trial Court framed charges against all the accused persons including the appellants for the offence under Sections 395, 396, 397 and 412, IPC. After recording the evidence and hearing the parties the learned Trial Court came to this conclusion that ingredients of offences under Sections 395, 396 and 397, IPC are lacking and the appellants have been acquitted of the said offences but it convicted the appellants under Section 412, IPC holding that they were receiver of the stolen property. Both the learned counsel agreed that in case dacoity against any person is not proved then conviction under Section 412, IPC cannot be held to be bad because this point stands well settled by series of decisions of this Court as well as the Hon ble Supreme Court. The learned counsel for the appellants submitted that in the instant case the learned Trial Court erred in holding the appellants guilty for the offence under Section 412, WC because the prosecution utterly failed to prove the recovery against the appellants. The learned counsel submits that P.W. 12 (Satveer) and P.W. 13 (Sri Lal) were produced by the prosecution who were the Motbir witnesses of the recovery but they turned hostile and the learned Trial Court, on the basis of statement of the Investigation Officer who was also present at the time of recovery, found the appellants guilty for the offence under Section 412, IPC. The learned counsel submits that conviction on the statement of 1.0. on the point of recovery is not possible. In support of their submissions, the learned counsel referred to the cases reported in 1984 Crimes Page 3561 and 909.2 In these cases it has been observed that recovery cannot be held to be proved by the prosecution solely on the testimony of Investigation Officer and in these cases their Lordships of the Allahabad and Orissa High Courts respectively held that conviction under Section 412, I.P.C. is not possible solely on the testimony of the Investigation Officer who recovered the stolen property before the Motbir witnesses. Similar situation is in the instant appeals and I find no reason to disagree with the proposition of law laid down in the aforesaid cases decided by Allahabad and Orissa High Courts.

(3.) One more important point, pointed out by the learned counsel for the appellants is that the recovery is planted against the appellants and the Investigation Officer was very much interested in planting recovery against the appellants and for this purpose two of the Motbir witnesses (P.W.12 and P.W. 13) were taken by the Investigation Officer from Bharatpur when the recovery is made from different places of Uttar Pradesh. This shows that the Investigation Officer was very much interested in planting the recovery against the appellants and so two interested persons were taken from Bharatpur with him but unfortunately both the two witnesses turned hostile.