JUDGEMENT : Pradeep Kumar Srivastava, J. 1. Heard Mr. A.K. Sahani, learned senior counsel for the appellant and learned Spl.P.P. for the State. 2. The present appeal is directed against the judgment and order of conviction and sentence dated 29.01.2003 and 04.02.2003 respectively passed by learned 1st Additional Sessions Judge, Bokaro in S.T. No.205 of 2001 whereby and whereunder, the appellant has been held guilty for the offences under Sections 395/412 of Indian Penal Code and sentenced to undergo R.I. of life for the offence under Section 412 of IPC and no separate sentence has been imposed upon the present appellant for the offence under section 395 of IPC. FACTUAL MATRIX 3. Factual matrix giving rise to this appeal is that on 20.12.2000 at about 2:30 am, the informant along with his family members were sleeping in their house, meanwhile, the informant’s daughter-in-law told him that four miscreants muffling their faces entered into her room through window situated on first floor of the house-cum-hotel and extended threat of life to keep mum and took away tape-recorder, walkman, wrist watch, T.V., cassettes and jewelry like two golden bangles, two gold rings fitted with diamond etc. It is further alleged that the informant, Naresh Prasad Lodha gave telephonic information to the police and the police arrived at 4:30 am and recorded his fardbayan. 4. On the basis of above fardbayan of the informant, Chas P.S. Case No.221 of 2000 dated 21.12.2000 was registered for the offence under section 392 of IPC. In course of investigation, one Tanbir Alam was arrested, who confessed his guilt and disclosed the name of his associates, namely, Shamim Seikh, Naushad @ Botela, Hussain Ansari, Garib Khan and Bhupesh Sonar to whom they have sold the looted gold ornaments for Rs.11,000/-. Accordingly, sections 395 and 412 of IPC were added. After completion of investigation, charge-sheet was submitted against the accused persons for the offence under sections 395/412 of IPC. The case was committed to the court of Sessions where S.T. No.205 of 2001 was registered. The appellant has denied the charges leveled against him and claimed to be tried. It is to be mentioned here that during pendency of the trial, two accused persons, namely Tanbir Alam and Nausad Ansari @ Botela were absconded and their case was spilt up vide order dated 30.07.2002 and 28.11.2002 respectively. 5. The appellant has denied the charges leveled against him and claimed to be tried. It is to be mentioned here that during pendency of the trial, two accused persons, namely Tanbir Alam and Nausad Ansari @ Botela were absconded and their case was spilt up vide order dated 30.07.2002 and 28.11.2002 respectively. 5. In course of trial, altogether 9 witnesses were examined by the prosecution namely:- P.W.1- Manoj Kr. Verma, P.W.2-Nawin Jaiswal P.W.3-Ram Ekbal Pd. Yadav(I.O.) P.W.4-Ritesh Lodha P.W.5-Ayush Lodha P.W.6-Naresh Pd. Lodha(informant) P.W.7- Mirza Kisku P.W.8-Usha Lodha P.W.9-Nandjee Ram(I.O.) 6. Apart from oral testimony of the witnesses, following documentary evidence has been adduced:- Ext.1. Signature of Manoj Kumar Barnwal on the seizure list Ext.1/1- Signature of Navin Jaiswal on the seizure list Ext.1/2 Signature on the T.I. Chart Ext.2-Formal FIR Ext.3 to 3/2-Seizure lists Ext.3/3-Search-cum-seizure list Ext.3/4-Search cum-seizure list Ext.3/5-Search-cum-seizure list Ext.4-Confessional statement of Tanbir Alam Ext.4/1-Confesional statement of Garib Khan Ext.4/2-confessional statement of Shamim Sheikh Ext.5- T.I. Chart Ext.6-Fardbayan Ext.7 to 7/8-photo positive copy. 7. On the other hand, the case of the defence is denial from the occurrence and false implication only on the basis of suspicion. However, no oral or documentary evidence has been adduced by the defence. 8. Learned trial court after scrutinizing the evidence available on record held the appellant guilty for the offence under sections 395/412 of IPC and sentenced him as stated above. Submission on behalf of the appellant 9. Assailing the impugned judgment, learned counsel for the appellant has submitted that the FIR was lodged against unknown miscreants, although, the daughter-in-law of the informant had claimed to identify the miscreants but in the T.I. Parade, the appellant was not identified. It is further submitted that even if the prosecution story as depicted in the FIR may be taken to be true on its face value, no offence under section 395 of IPC is attracted. The main witness of the occurrence is the daughter-in-law of the informant, namely, Usha Lodha (P.W.8) and she has categorically stated that four accused persons entered into her room and committed robbery and she has also disclosed the description of looted ornaments and other electronic gadgets. The involvement of the present appellant came into light only on the basis of confessional statement of one, Tanbir Alam, who disclosed the name of six miscreants including himself, out of them one is the ornament’s purchaser, Bhupesh Sonar. The involvement of the present appellant came into light only on the basis of confessional statement of one, Tanbir Alam, who disclosed the name of six miscreants including himself, out of them one is the ornament’s purchaser, Bhupesh Sonar. It is further submitted that the confessional statement of the accused person before the police has no evidentiary value at all and on that score, the testimony of eye-witnesses cannot be ignored or disbelieved. It is further submitted that as per mandate of section 395 of IPC, minimum five persons are required to be present and participating conjointly in commission of robbery. It is further submitted that one of the looted article is alleged to have been found from the possession of the present appellant as per seizure list (Ext.3/5) but the seizure list witnesses, P.W.1 and P.W.2 have categorically stated that in their presence, no stolen articles were seized from the possession of the present appellant rather they were asked to sign on blank paper by the police. Moreover, T.I. Parade was also not conducted in accordance with law and simply, the alleged recovered articles were presented before the witnesses to identify the same without mixing up with some other similar articles. It is further submitted that since the offence under section 395 of IPC itself is not proved by the prosecution and the recovery of stolen articles does not come within the purview of offence under section 412 of IPC rather it falls under section 411 of IPC. It is further submitted that Ext.3/5, which is seizure list of a portable black and white T.V. of Onida Company bearing Modal No.HR-2000/S.N. 610233, year 1995 has been alleged to be recovered from the rented quarter of the present appellant but in the FIR, there is no description of theft of the same rather it is mentioned that a color T.V. of B.P.L Company with remote was stolen in this case. In the above context, even the offence under section 411 of IPC is also not proved against the appellant. The appellant was never identified at the time of commission of offence of robbery in the house of the informant nor any incriminating articles looted in this case have been recovered from the possession of the appellant and his conviction and sentence is totally based on confessional statement of co-accused, Tanbir Alam. The appellant was never identified at the time of commission of offence of robbery in the house of the informant nor any incriminating articles looted in this case have been recovered from the possession of the appellant and his conviction and sentence is totally based on confessional statement of co-accused, Tanbir Alam. Therefore, conviction and sentence of the appellant is beyond the weight of evidence and suffers from serious error of law, which is fit to be set aside and this appeal may be allowed. The appellant deserves acquittal from the charge leveled against him. 10. In the alternative, it is argued that at best on the basis of the facts proved by the prosecution, the commission of offence by the appellant falls under section 411 of IPC not under section 412 of IPC. In the course of trial and post-conviction, during pendency of this appeal, the appellant has remained in custody for about 1 ½ years. The recovery of only one black and white portable Onida T.V., 5 years old has allegedly been recovered from the house of the appellant, therefore, he has been sufficiently punished for his guilt. The conviction and sentence of the appellant is fit to be altered from the offence under section 412 of IPC to section 411 of IPC and the sentence of imprisonment already undergone may be awarded to him. Submission on behalf of the State 11. On the other hand, learned Special Public Prosecutor appearing for the State vehemently opposed the aforesaid contentions raised on behalf of the appellant and submitted that learned trial court has very wisely and aptly apprised and appreciated the prosecution evidence and arrived at right conclusion about the guilt of the appellant for the offence under section 412 of IPC and sentenced him adequately. There is no reasonable ground to interfere with the impugned judgment and order. This appeal has no merits and is fit to be dismissed. 12. The sole point for determination in this appeal is “as to whether the impugned judgment of conviction and sentence of the appellant suffers from any error of law and based beyond the weight of evidence available on record, which requires any interference in this appeal?” Analysis, Reasons and Decision:- 13. We have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf both side. 14. We have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf both side. 14. Before imparting over verdict on the above points, it is necessary to take brief resume of oral as well as documentary evidence lead by the prosecution to substantiate the charges leveled against the appellant. P.W. 1- Manoj Kumar Verma is the witness of seizure list and proved his signature as Ext.1 but he states that on instruction of the police, he has signed only on a blank paper and nothing was recovered in his presence from any of the accused persons. P.W.2-Naveen Jaiswal has also proved his signature on seizure list as Ext.1/1 but specifically stats that nothing was recovered in his presence rather he has put his signature on a blank paper on instruction of the police. P.W.3-Ram Ekbal Prasad Yadav is the Investigating Officer of this case. He has proved formal FIR as Ext.2. He recorded the statement of the informant, Naresh Prasad Lodha and other witnesses, Usha Lodha, Ritesh Lodha, Nirja Kisku etc., and inspected the place of occurrence, which is Naresh Hotel situated at bypass road, Chas. On first floor, there is a room opening towards west side and containing one window of wooden frame towards east without iron grill. In this room, window and door were opened, one almirah was also found opened from which golden ornaments, deck, Walkman, cassettes, camera, alarm were taken away and it was also pointed out that on a small table, B.P.L. color T.V. with remote and stabilizer have also been taken by the miscreants. Three attaches were found opened and some articles were scattered. It was also informed that the miscreants entered into the room from the side of window and Onida portable T.V. kept in varanda was also stolen. In the course of investigation, this witness raided the house of some suspects on the basis of information given by spy, it was revealed that one Tanbir Alam @ Munna is involved in this case and looted television may be found from his house. In the course of investigation, this witness raided the house of some suspects on the basis of information given by spy, it was revealed that one Tanbir Alam @ Munna is involved in this case and looted television may be found from his house. Thereafter, a raid was conducted in presence of witnesses in the house of the said Tanbir Alam and from his house, B.P.L. color T.V. with remote, one silver chain, mangtika, golden rings etc., were recovered and seizure list was prepared and one copy was given to the accused, Tanbir Alam, which is marked Ext.3. He has further deposed that the confessional statement of Tanbir Alam was recorded by him, who has disclosed the name of his associates, namely, Shamim, Naushad @ Botla, Hussain Ansari and Garib Khan and he also admitted the fact that the looted articles have been divided among all the miscreants and the confessional statement of Tanbir Alam is marked as Ext.4. This witness arrested the accused, Tanbir Alam and raided the house of Md. Naushad, Md. Garib Khan, Md. Shamim (appellant), Hussain Ansri and also raided the shop of Bhupesh Sonar and recovered other stolen articles and seizure list was prepared. He has further proved the seizure list Ext.3/5, wherein a portable black and white Onida T.V. was recovered from the house of Shamim Sheikh (appellant). The recovered articles were put for T.I. Parade in presence of gazetted officer, Sri. Jagjit Singh (Block Development Officer), Chas, which was identified by the witnesses. Thereafter, this witness was transferred and further charge of investigation was handed over to A.S.I., Nand Ji Ram, who has submitted the charge- sheet against the accused persons for the offence under sections 395 and 412 of IPC. P.W.4- Ritesh Lodha is the brother of the informant. According to his evidence on 20/21.12.2000 in the night at about 2:00 am to 3:00 am, he was sleeping in his room in Naresh Hotel. Meanwhile, his brother, Naresh Lohda woke up him and informed that four miscreants have entered into the room of Usha Lodha and committed dacoity. The accused persons have taken away color T.V., black and white T.V., camera, gold and silver ornaments. Meanwhile, his brother, Naresh Lohda woke up him and informed that four miscreants have entered into the room of Usha Lodha and committed dacoity. The accused persons have taken away color T.V., black and white T.V., camera, gold and silver ornaments. He has further deposed that some of the looted articles were recovered from the miscreants and T.I. Parade was conducted in respect of recovery of articles, where he along with his brother, Narehs Lodha were present as witnesses, which was conducted by Block Development Officer, Chas, wherein he has identified B.P.L. color TV with remote, one T.V. of Onida Company, stabilizer and other jewelries. The signature on T.I.P. chart was marked as Ext.1/2. In his cross-examination, he admits that no seizure list was prepared in his presence nor any looted articles were recovered. He also admits that there were 12 to 13 staffs and one night-guard apart from other family members were present at the time of occurrence but none of the staffs or night-guard informed about the occurrence. P.W.5-Ayush Lodha is the son of the informant. According to his evidence, on the date of occurrence, he was sleeping along with aunt, Usha Lohda, then he heard noise of opening almirah and woke up. He noticed that four miscreants were taking articles from almirah and one miscreant has pointed out pistol on the head of his aunt and other miscreants snatched her golden bangles and rings. There is nothing in his evidence. P.W.6-Naresh Prasad Lodha is the informant of this case and is the owner of Naresh Hotel situated at bypass road, Chas. According to this witness, on 20th December, 2000 at about 2:30 am and 3:00 am, while he was sleeping, he was woken up by the wife of his younger brother namely, Usha Lodha, who told that some miscreants have entered into her room through window and committed robbery on point of pistol. She also disclosed about the looted articles and jewelries. He informed about the occurrence to the police and he has proved his fardbayan as Ext.6. He also stated that some looted articles were recovered from some miscreants, which were put under T.I. Parade in his presence and identified some articles and further proved his signature on T.I.P chart as Ext.1/2. In his cross-examination, he admits that no stolen articles were recovered in his presence rather he was informed about the recovery of the articles. He also stated that some looted articles were recovered from some miscreants, which were put under T.I. Parade in his presence and identified some articles and further proved his signature on T.I.P chart as Ext.1/2. In his cross-examination, he admits that no stolen articles were recovered in his presence rather he was informed about the recovery of the articles. He has not claimed to identify any of the miscreants. P.W.7- Nirja Kisku is a hearsay witness, although he was posted as security guard on main gate of the hotel but expressed no knowledge about the occurrence rather he came to know from the informant, Naresh Lodha. P.W.8-Usha Lodha is a star witness of this case. According to her evidence on 20.12.2000 at about 2:30 am, she was sleeping along with her nephew, Ayush Lodha, she heard some noise in the room then she woke up and saw that four persons have entered into the room from the window and she raised alarm then one of the miscreants pointed a revolver close to her ear and threatened to keep quiet and disclosed about the articles, otherwise, she will be killed. Due to fear, she opened the godrej almirah and the miscreants took out camera, Walkman, one in two deck, wrist watch, cassettes and also took away color T.V. of B.P.L. Company along with remote, stabilizer and they also snatched her wearing ornaments like two bangles, one chain of gold, two golden rings fitted with diamond, two earrings, necklace of gold and other articles kept for puja. She further admits that all four miscreants were muffling their face and were in between the age about 20 to 25 years. After commission of theft, she went towards the room of her elder brother-in-law and told about the occurrence. She has further deposed about the stolen articles, which were recovered by the police and her silver jewelry were melted by a jewelry shop owner, who was also arrested in this case. This witness has failed to identify any of the miscreants although present behind the dock. P.W.9-Nand Ji Ram is the second Investigating Officer of this case. This witness has simply submitted charge-sheet in this case after completion of the investigation against the accused persons. He also admits that the charge-sheet has been submitted on the basis of earlier investigation concluded by the previous Investigating Officer. 15. P.W.9-Nand Ji Ram is the second Investigating Officer of this case. This witness has simply submitted charge-sheet in this case after completion of the investigation against the accused persons. He also admits that the charge-sheet has been submitted on the basis of earlier investigation concluded by the previous Investigating Officer. 15. We have gone through the impugned judgment, which goes to show that learned trial court has recorded the findings of the conviction of the appellant on the basis of confessional statements of accused persons (Ext.4 series), seizure list of stolen articles (Ext.3 series) and in the light of evidence of ocular testimony of the witnesses. The confessional statement of absconding accused, Tanbir Alam has been considered to be relevant under section 30 of Evidence Act. Learned trial court has recorded no findings as to on what basis, he came to conclusion that five or more miscreants have committed robbery in the house of the informant, although this point was raised at the time of argument by the defence counsel. Obviously on the basis of confessional statement recorded by the police, the presence of five miscreants in commission of the offence has been assumed. Although, there is clear cut evidence of P.W.8-Usha Lodha, who is sole eye-witness of the occurrence and the victim of the crime that only four miscreants entered into her room and looted her on the point of revolver and made retreat along with stolen articles. The appellant’s presence and participation in commission of robbery has not been proved conclusively but his involvement has been proved by the prosecution on the basis of recovery of one black and white portable Onida T.V from his possession. Therefore, he has been sentenced only for the offence under section 412 of IPC. 16. In our thoughtful consideration, it is apparent that admittedly the presence of four miscreants at the time of occurrence has been proved by the prosecution and the name of other co- accused persons are appearing through confessional statement, which cannot be considered as evidence. Therefore, the necessary ingredients of offence under Section 395 of IPC is not proved by the prosecution because the robbery has been admittedly committed by less than five persons, hence, the FIR was also registered under section 392 of IPC. Therefore, the necessary ingredients of offence under Section 395 of IPC is not proved by the prosecution because the robbery has been admittedly committed by less than five persons, hence, the FIR was also registered under section 392 of IPC. Therefore, any recovery effected from the appellant would attract the offence under section 411 of IPC for knowingly receiving or retaining stolen property, which runs as under:- “411. Dishonestly receiving stolen property.— Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 17. In view of the above discussion and reason, the conviction and sentence of the appellant for the offence under section 412 of IPC is set aside and altered to the offence under section 411 of IPC and the sentence passed against the appellant by the learned trial court is also reduced and modified to the extent of sentence of imprisonment already undergone by him. Accordingly, this appeal is dismissed on merits with modification in conviction and sentence as stated above. 18. Pending I.A(s), if any, is also disposed of accordingly. 19. The appellant is on bail. He is discharged from liability of his bail bond and sureties are also discharged. 20. Let a copy of this judgment along with Trial Court Records be sent back to the trial court for information and needful.