S.W. Puranik, J.
1. The appellant stands convicted for the offence under section 411 of Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and six months by an order of the Additional Sessions Judge, Nagpur, in Sessions Case No. 63 of 1978 decided on 24-1-1979.
2. Originally the appellant along with three others were prosecuted for the offence under sections 392 and 397 of the Indian Penal Code for having committed a robbery and also having used deadly weapons at the time of commission of the said robbery. The victims of the robbery are Shri and Smt. Bhaskarmurti who are working at the National Environment Engineering Research Institute, at Wardha Road, Nagpur.
3. The prosecution case is placed before the learned Sessions Judge was that, on 1st February, 1978 the couple, Shri and Smt. Bhaskarmurti, were proceeding at about 9 P.M. in a cycle rickshaw from Dharampeth area towards their residence at Laxmi Nagar. The said rickshaw was surrounded by two person initially, followed by two more. All the persons were armed with knives while the appellant-original accused No. 1 was armed with pistol. It was alleged by the prosecution that appellant and his colleagues threatened the inmates as well as the rickshaw puller with dire consequences and snatched one wrist watch from Bhaskarmurti, one gold chain from the person of Smt. Bhaskarmurti and one wallet containing Rs. 19/- from Shri Bhaskarmurti and all the four persons immediately bolted away from the scene of offence. The couple then reached home at the Neert Colony and phoned Sitabuldi Police Station. A report was lodged vide Ex. 19 at the Police Station. The investigation continued from the next day. However, the accused persons could not be traced. The Sitabuldi Police Station secured information that the suspects have been arrested in some other case by Ambazari Police Station. Therefore, the Sitabuldi Police Station obtained there custody for the purpose of investigation in this case. It is alleged further that on 4-2-1978 accused No. 1 Ajaykumar the present appellant expressed his willingness to point out the wrist-watch which he had kept with his sister-in-law. A memorandum of discovery was recorded and the appellant led the police and the Panchas to his brother's house. His brother's wife Rajani was present and she produced the wrist-watch. The same was seized by the police. That in Article No. 6 before the trial Court. It is alleged that the same accused also agreed to discovery the pistol which he had used and accordingly another discovery memorandum was written and the appellant led the police and the Panchas to the place of his brother. However, the brother informed the Panchas that he had thrown the pistol in the Gandhi Sagar Tank. Finally the police with the help of the fishermen secured the pistol from the said tank. Panchanama in that respect was also drawn.
4. It is further the case of prosecution that this very accused appellant on 17-2-1978 agreed to discover the gold claim which he had snatched in the alleged incident. Another memorandum was recorded in the presence of Panchas and the accused led the police party and the Panchas to the house of one Govind. At that place the accused himself claimed a wooden stair case inside the house and took out a cloth bundle from the roof tiles and produced it before the police and the Panchas. The said bundle contained the gold chain pieces belonging to Mrs. Bhaskarmurti. Panchanama in that respect was also drawn.
5. On 14-2-1978 all the four accused were placed in an Identification Parade organised at the Police Station, Sitabuldi and the victims Shri and Smt. Bhaskarmurti were asked to identify the appellant accused. It is alleged by the prosecution that the two victims identified all the four accused.
6. After the investigation, the charge-sheet was put up under sections 392 and 397 of the Indian Penal Code which was denied by all the four accused. After recording the evidence and after examining the accused persons under section 313 Criminal Procedure Code, the learned Sessions Judge, came to the conclusion that the prosecution has proved that an incident of robbery had taken place; the prosecution has proved that Shri and Smt. Bhaskarmurti were the victims of the said robbery in which they lost a wrist-watch, a gold chain and wallet containing Rs. 19/-. The prosecution also proved that knives were used by the said robbers. However, the learned Sessions Judge held that the prosecution has not proved that a pistol was used at the time of the commission of the offence. He also held that the prosecution has not proved that the four accused were the authors of the said crime of robbery and dacoity. He, therefore, acquitted all the four accused for the offence under sections 392 and 397 of the Indian Penal Code.
7. The learned Sessions Judge, however, accepted the prosecution case in respect of the discovery memorandum of the present appellant with regard to the wrist-watch and the gold chain as well as the pistol. He, however, came to the conclusion that since the pistol was not used in the commission of the offence, the discovery regarding the said pistol is of no relevance for the prosecution case. As regards the discovery of the wrist-watch on 4-2-1978 by the present appellant and the discovery of gold chain on 17-2-1978 by the present appellant, the learned Sessions Judge came to the conclusion that even though the appellant cannot be held to be guilty for commission of the offence of robbery and dacoity, yet it can be safely inferred that the accused was in possession of the said stolen property immediately after the commission of the offence and hence guilty under section 411 of the Indian Penal Code for receiving of stolen property. He, therefore, sentenced him to suffer rigorous imprisonment for 11/2 years. It is this order which the appellant seeks to challenge by this appeal.
8. The State has not preferred any appeal against the order of the acquittal passed against the appellant and other co-accused for the offence under sections 392 and 397 of Indian Penal Code.
9. Shri P.V. Hardas and B.U. Wahane, Advocates appeared for the appellant and Shri V.V. Naik, Asstt. Govt. Pleader for the State.
10. Since there is no appeal preferred by the State as far as the charges under sections 392 and 397 of the Indian Penal Code against the appellant is concerned, we would not be required to go into details of the evidence regarding the actual offence of dacoity. We are also not concerned with the recovery of the pistol since the trial Court has already held that pistol was not used for the commission of the offence. The only question, therefore, that remains to be decided in this appeal would be, whether the discovery at the instance of the appellant accused No. 1 in respect of the wrist-watch and the gold chain is cogent, reliable and acceptable and if so, whether the trial Court was justified in drawing the inference that the appellant was with as receiver of stolen property with regard to the wrist-watch and the gold chain.
11. Without alluding to the rest of the evidence we would, therefore, restrict the appreciation of evidence of the witnesses examined by the prosecution in respect of the said two discoveries by the appellant. Dilip Deodhar (P.W. 6) is a Panch in respect of the discovery of the wrist-watch, on 4-2-1978. Khandale P.S.I. (P.W. 10) was the Investigation Officer. Dilip (P.W. 6) states that he resides at Modi Line No. 2 at Sitabuldi where his brother runs a restaurant by name Trupti. He says that on the said morning of 4-2-1978 he was called from his place to the Sitabuldi Police Station. The appellant was present there. Another Panch was also called to remain present. The appellant accused No. 1 made a statement that the wrist-watch has been given by him to his brother's wife Rajani. The said statement of discovery was recorded. The witness and another Panch signed the said memorandum which is at Ex. 31. This witness further states that thereafter, the appellant accused No. 1 led the Panchas and the police party to the place of his brother near the railway bridge. He stopped near the small house apparently belonging to his brother and called his sister-in-law Rajani. She came out and the appellant accused asked her to produce the wrist-watch which he had given to her. She thereafter handed over the wrist-watch Article 6 to the police which was seized under Ex. 32 and a Panchanama of this seizure and discovery was recorded at Ex. 33. This witness is also a witness in respect of the other discovery regarding the revolver. According to this witness, immediately after the seizure of the wrist-watch from the sister-in-law of the appellant, they returned to the Police Station and the appellant made another statement of discovery regarding the revolver which was recorded at Ex. 34 and in pursuance thereof the said revolver was seized vide Ex. 35 under a Panchanama Ex. 6. The learned Sessions Judge has accepted this version and held it as duly corroborated by the Investigating Officer (P.W. 10) P.S.I. Khandale. It is this evidence which is attacked by the Counsel for the appellant on the ground that it is most improbable and unnatural and, further, that even if the same is accepted, since the wrist watch was not recovered from the possession of the accused, but from the possession of his sister-in-law, at worst it can mean that the appellant had information about the stolen property, but cannot be said to be in possession of the stolen property.
12. On careful scrutiny of the various documents placed by the prosecution to support this discovery, we find that the discovery memorandum (Ex. 31) does not show the time at which the said discovery memorandum was recorded. Ex. 32 is the seizure memo in respect of the wrist watch in pursuance of Ex. 31. This seizure memo, however, shows that the wrist watch seized at 12 noon on 4-2-1978 and the Panchanama regarding the seizure states the time that the recording of the Panchanama commenced at 10 A.M. and concluded at 12 noon. Even giving benefit of some error or minor mistakes in recording of the time, we may say that initially the discovery memorandum (Ex. 31) must have been made and recorded at 10 A.M. and thereafter the police party was led by the accused to the residence where the wrist watch was actually produced and seized. However, immediately thereafter i.e. after 12 noon, it is the case of the prosecution witnesses that they returned to the Police Station and it is thereafter that the appellant made another statement regarding the discovery of the pistol used in the offence. That document, therefore, should have been recorded after 12 noon. The said discovery memorandum is at Ex. 34 and it says that this document was prepared at 10 A.M. This appears entirely contrary to the deposition of P.W. 6 Dilip Deodhar. Moreover what is more surprising is that the seizure of the pistol took place after the police party went to the house of the accused's brother who thereupon directed them to Gandhi Sagar Tank where the alleged pistol was thrown. Thus the said recovery of the pistol at the tank could not have been before 12 noon. What is more surprising, therefore, is that the seizure memo (Ex. 35) in respect of the said pistol shows the hour of seizure at 10 hours on 4-2-1978 and still interesting, the Panchanama with regard to the same which is at Ex. 36 which was according to the last recitals, commenced at 11 hours and concluded at 5 P.M. on that day. This, therefore, goes entirely contrary to the version of the prosecution witness and throws a doubt in the manner in which the said discoveries allegedly made by the accused and recoveries of stolen properties made in pursuance thereof. Even apart, it is not understood as to why the Sitabuldi Police had to call for a Panch from Modi Line No. 2 which is quite away from the Police Station itself. In the cross-examination, this witness attempted to stick to the timing given on the documents Exhibits 32, 33, 34 and 35. However, he specifically stated that from 10 A.M. to 12 noon, he was in the house of the appellant's sister-in-law and it is only thereafter that the next discovery regarding the revolver was recorded. He, therefore, tried to suggest that the timings recorded on the documents may be incorrect. He, however, could not satisfy regarding the timings of the next memorandum regarding pistol and its recovery. This evidence coupled with that of Investigating Officer Khandale (P.W. 10) throws out of gear the prosecution case that on a particular day of February in the presence of Panchas any such statement leading to discoveries of stolen properties were made by the appellant. At any rate, there is no clinching evidence in that regard on behalf of the prosecution and for which the appellant is justifiably entitled for benefit. This was regarding the discovery of the wrist watch. The same appears to be the case in respect of discovery of the pieces of gold chain (Article 7).
13. Prosecution case is that on 17-2-1978 this particular accused again agreed to make a statement pointing out the gold chain pieces. For this purpose, the prosecution has examined one Bholasingh (P.W. 5) who acted as a Panch in the said discovery and seizure Panchanama. This witness states that on 17-2-1978 he was called to the Police Station to act as a Panch. The appellant accused was present. He disclosed in the presence of this Panch and another, that he has kept the gold chain in the house of one Govind and he is willing to show the same. Memorandum in that respect was recorded which is at Ex. 28. Thereafter, the accused led the police and the Panchas to the house of the said Govinda in Telipura area of Sitabuldi. It is further the case of this witness that on reaching the said house, the appellant called out Govinda and on the door being opened, the accused entered the house and claimed the inner wooden stair case leading to the first floor and reaching his hands to the tiled roof, took out a small bundle of red cloth. The same was produced before the police and the Panchas and on opening it was found that it contains two pieces of gold which are collectively numbered as Article 7. Seizure and Panchanama in that respect is at Ex. 29. This evidence is sought to be corroborated through the Investigating Officer Shri Verma P.S.I. examined as P.W. 11. On careful scrutiny of this evidence, it is seen that this Panch Bholasingh is a tea shop vendor and has his shop just opposite the Sitabuldi Police Station. He is a regular supplier of tea to the said Police Station and he often goes to the Police Station whenever orders for tea to the Police Station are placed. In his cross-examination, he admits that he has acted as Panch 4 to 6 time prior to the one in question. He also admitted that on all the 4 to 6 occasions, he has acted as a Panch for Sitabuldi Police Station only. It is not understood as to why the Investigating Officer could not secure independent Panchas at the time of investigation. Further it is not understood as to how after the alleged incident of 2nd February, the discoveries were made about 15 days thereafter. However, be it as it may, the other infirmities in the said discovery and alleged recovery is the testimony of the person Govind from whose house the gold chain was recorded. He is examined as P.W. 8. He merely states that the police had come to his residence along with the appellant accused No. 1. They entered the house and the accused produced one red bundle of cloth which contained the gold chain. He does not refer to the presence of any Panch at the time the police entered his house. He also does not refer to any seizure Panchanama being drawn in his presence at his house. In his cross-examination in terms he admits that there were about 10 to 12 policemen when they had come to take the 'search'. All the policemen entered into my house. They all took the search of my house and accused No. 1 took out the bundle. This apart from the fact that there is no whisper about the presence of the Panchas at the alleged discovery and seizure and apart from the fact that he does not refer to any Panchanama being scribed at his house or seizure memo in respect of the gold chain, we find that he refers as if 10 to 12 policemen entered in his house along with the accused and 'searched' his house. This sort of deposition in any way cannot be termed as corroboration to the alleged discovery and seizure at the hands of the appellant accused. It is not known whether at the alleged search, the police personal had given their own search before entering his house. The theory of planting of the stolen articles cannot be ruled out. At any rate, again there is no claiming evidence as far as the discovery of gold chain is concerned and the benefit of doubt will have to be given to the accused.
14. This was the only slender evidence on the basis of which the trial Court has convicted the appellant on the ground that he was found in possession of stolen property. As analysed above, I do not think that this is sufficient material to hold that the appellant had in fact discovered the stolen articles-wrist watch and gold chain and further that none of the documents in that regard appear to be trustworthy. The question whether the appellant was found in possession of the stolen property cannot arise as the discovery itself is not reliably proved by the prosecution. The conviction of the appellant under section 411 of the Indian Penal Code, therefore, cannot be stained. In the result, therefore, criminal appeal will have to be allowed. Hence the following order.
15. Criminal Appeal No. 60 of 1979 is allowed. The appellant Ajaykumar is acquitted of the offence under section 411 of Indian Penal Code. His conviction and sentenced for the said offence is quashed and set aside. He be set a liberty forthwith. His bail bonds shall stand discharged.
16. As regards the order regarding disposal of property in the trial is concerned, the Counsel for the appellant fairly conceded that he does not claim the articles recovered during investigation and the order regarding its disposal directing that they be returned to the complainant Bhaskarmurti and Mrs. Bhaskarmurti is right and justified. The same is confirmed.