T.P.Garg - (1.) THIS appeal by Ram Briksh, appellant, is directed against his conviction under Section 412, I.P.C. and sentence to undergo Rigorous Imprisonment for ten years passed by Shri S. N. Tewari, 1st Addl. Sessions Judge, Ghazipur vide his judgment dated 12.10.1979.
(2.) BRIEF facts giving rise to the present appeal are as under : "In three Sessions Trials bearing numbers 30, 31, and 44, all of 1978, Ram Briksh, appellant, along with six others, was tried for various offences. While others were charged under Section 396, I.P.C. for having committed dacoity with murder at about 1 a.m. on 16.8.1977 in village Samogar, P.S.Sadar, District Ghazipur in the house of Raj Kumar and Ram Janam, and committed the murder of Balram, Ram Briksh along with one other was charged under Section 412, I.P.C. for retaining the looted property during the course of aforesaid dacoity. On the night between 15th and 16th August, 1977, there was a dacoity committed by Budhi Ram and others along with 6-7 persons at the house of Raj Kumar. During the course of dacoity, Balram was murdered and valuables of Raj Kumar and Ram Janam, P.Ws. 1 and 2, were taken away by the accused of that case. It is alleged that the accused were armed with deadly weapons. A case was registered on the report made by Ram Kumar P.W. 1 vide F.I.R. Ex Ka-7. The investigation of the case was taken by Sub Inspector Ram Adhar Singh immediately after the report was lodged. During the course of investigation, it was revealed that some of the looted property was sold to Ram Briksh, accused/appellant. Consequently, Ram Briksh accused was arrested and a number of utensils were recovered at his instance. These utensils were taken in possession vide recovery memos Ex ka 6 and 7 and a site Plan Ex Ka 32 of the place of recovery was prepared. The recovery was made in the presence of Musafir Rai and Hira Lal,two independent witnesses.The utensils alleged to have been recovered at the instance of Ram Briksh accused are Batuli Kaskut, four lotas Kaskut, Gilas, Thali, two Parats Pital, one Kotora and one Tasla.The estimated value of the recovered articles was stated to be Rs. 265/-. Hence Ram Briksh accused was also challaned under Section 412, I.P.C. and he was put to trial accordingly. In the trial that followed, prosecution examined as many as 15 witnesses and relied upon a number of recovery memos. The statements of accused were recorded under Section 313, Cr. P.C wherein they denied the allegations and stated that it was a false case against them. Ram Briksh while denying the allegations stated that the village folks asked him to give them goods on credit and since he did not accept their request, they have falsely involved him in the present case. In their defence, the other accused examined two witnesses but their evidence does not relate to the appellant before this Court. The learned trial Judge held only Ram Briksh guilty under Section 412, I.P.C., convicted and awarded him aforesaid sentence while acquitting all other accused for the charge under Section 396, I.P.C. Sheonath accused was also charged under Section 412, I.P.C. and he was also acquitted. Hence the present appeal by Ram Briksh accused alone.
(3.) THE learned counsel for the parties have been heard and record of the case gone through. THE appeal deserves to be allowed. The evidence of Musafir Rai P.W. 6 and B. K. Singh, Station Officer, P.W. 14, has been relied upon to base the conviction of Ram Briksh accused. It is alleged that during interrogation of Sheonath alias Bengali, Subha Yadav and Faudi, it was revealed that the looted property was sold to Ram Briksh accused. Sri B. K.Singh, Station Officer, who came in witness box as P.W. 14, has stated so. He has further stated that the untensils were recovered on pointing out by Ram Briksh accused in presence of Gayadeen, which were taken into possession vide memo Ex Ka 6 attested by Sheo Prasad, Hira, Lal Ram, Musaflr Rai, Om Prakash Rai and Ram Briksh besides himself. On being cross examined on behalf of Ram Briksh accused, B. K.Singh P.W. 14 has stated that the search of Ram Briksh accused was made on 18.8.1977 at about 12.00 o'clock noon ; that prior to his search Sati Ram accused was arrested at about 10 a.m. and thereafter, he went to the house of Ram Briksh accused; that Ram Briksh accused was found present in his house and was arrested; that he tried to run away but he was arrested and in the process, he also received injuries ; that the statement of Ram Briksh was recorded in the presence of the witnesses, who were also present with him ; that he had not seen the shop of accused from where the recovery was made ; that old utensils were lying in the shop and there was no new utensil. He has denied that the alleged shop was open and his wife was sitting there. He denied knowledge if Ram Briksh accused lives there with his wife and sons. He could not give details of utensils allegedly recovered at the instance of the accused. He has denied the suggestion that the alleged recovery was made from a sugarcane field and the same was foisted upon the accused. He has also denied that utensils were shown to the witnesses before making them in a sealed parcel. He also denied the suggestion that Ram Briksh accused has been falsely implicated at the instance of B. K.Tewari, Station Officer, Saidpur.;