Partha Sakha Datta, J.@mdashThe appellant was convicted by the learned Additional Sessions Judge, Fast Track 3rd Court, City Sessions Court, Bichar Bhavan at Calcutta u/s 392 of IPC in Sessions Case No. 88 of 2005 corresponding to Sessions Trial No. 1(12) of 2005 and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for one month.
2. Balaram Mahanti, the de facto complainant of the case who was a supplier of iron rod and fittings and a resident of premises No. 3 Bowbazar Orphange Lane, Kolkata-700012 was returning home at about 4 p.m. on 14th April, 2005 along the footpath of C.R. Avenue when 3/4 unknown miscreants surrounded him and asked him at the point of threat to part with his movables and being frightened he made over to them his one gold finger rings embossed ''B'', one gold necklace with locket embossed ''ONG'' weighing about one ''bhori,'' one Titan wrist watch with sticker ''B'' pasted on the back side of the watch, black coloured purse containing a cash of Rs. 5,250/- and some documents. Then they departed by a red colour Maruti van parked on the opposite side of the footpath with all the booty. He raised hue and cry but in vain. He could be able to identify all the miscreants if he could see them again. Physical features of the miscreants with their age were also mentioned.
3. This was the FIR lodged with Bowbazar Police Station which registered Bowbazar PS Case No. 160 dated 14th April, 2005 at 20.20 hrs. u/s 392/397 of IPC and u/s 25(1b)(a) of the Arms Act. Upon completion of investigation chargesheet was submitted against the appellant alone u/s 395/397/412 of IPC being Bowbazar PS chargesheet No. 169 of 2005 dated 22nd August, 2005. The learned Trial Court framed charges against the appellant u/s 395/397 IPC and upon examination of prosecution witnesses recorded conviction of the appellant u/s 392 of the Indian Penal Code and passed sentence as above.
4. On many a grounds appeal has been preferred but the main thrust of the appellant''s case is that the learned Trial Court did not appreciate the evidence in proper perspective and missed many a points which if the same would have been considered would have resulted in acquittal of the appellant.
5. Before traversing the grounds of appeal a brief summary of ten prosecution witnesses is necessary.
6. The place of occurrence is in front of the city office of the Indian Airlines at C.R. Avenue, Kolkata, which is at a distance of 1/4 of a kilometer from the Bowbazar Police Station. The complainant is a resident of the locality of Bowbazar and is said to be a supplier of iron rod and materials. The hour of occurrence is about 4 p.m. on 14th April, 2005. It was a busy road at the material point of time when unquestionably, as the evidence discloses, innumerable pedestrians passed on along both sides of the road and the vehicular traffic was incessantly moving on in both the directions. At that point of time Balaram Mohanti, who is P.W.6 in the case was passing along the footpath in front of the office of the Indian Airlines when 3/4 persons intercepted him and demanded of him to part with his valuables which he had to part with at the point of threat. In FIR which was lodged at 8.20 p.m., he claimed to be able to identify the miscreants, if he could see them again. Importantly, in the FIR as also in the evidence of P.W.6, Balaram Mahanti, the number of miscreants were confined to 3/4. This is the evidence of Balaram Mohanti in cross-examination that on the day of his giving evidence, which was 13th April, 2006, he could not see in the Court room any of the miscreants who took away his belongings. Nor could he say about the physical features of the miscreants. The story of recovery is a different aspect to which we shall come in the sequel. P.W.1, Ganesh Ch. Garain is SI of Police who prepared a rough sketch map of the place of occurrence which is Exbt. 1 and also a blue print of the place of occurrence which is Exbt. 3. Evidence of this witness is not worth considering as the defense does not deny or dispute the place of occurrence which according to P.W.1 is a very busy road with dense traffic. P.W.2 is an important witness in this case because he identified the appellant in the Court on 7th February, 2006, to be a person who was seen accosting the appellant along with others and made P.W.6 to part with his belongings. He claimed to be a hawker on the footpath at C.R. Avenue of readymade garments and at the material moment he was talking with his friend Swarup Ghosh, (P.W.4). When he heard a noise emanating from a place which was in front of roadside gate- of the office of Indian Airlines, he found four persons surrounding a man and one of them hit the man with the butt of a revolver and the man handed over his gold ring, gold chain, and purse to the person assaulting. One miscreant also threatened him at the point of revolver when he was proceeding towards the victim. He repeatedly said in his evidence that out of the four persons the appellant one of them and he identified the appellant at the jail during the T.I. Parade. He added that the appellant threatened the complainant with revolver. P.W.3, Debashis Das, a resident of 3 Malonga Lane, Kolkata - 700012 and a ''khalasi'' of a matador van was standing at 4.10 p.m. on 14th April, 2005 when he heard a noise coming from the side of the office of Indian Airlines and found four persons coming towards him. At that time a red Maruti van was parked at his left-hand side and a boy who was standing near the Maruti van fled away. This witness identified the appellant, as the person who had hit the victim with the butt of revolver and snatched away his gold chain and gold ring. P.W.4 Swarup Ghosh, a friend of P.W. 1 gave the same story as P.W.2 and it is needless to reproduce the same evidence once again. P.W. 5 Naren Das is a broker of real estates. He was seated in front of the main gate of the office of Indian Airlines and he found four persons surrounding a man and one of the four persons was demanding of the de facto complainant gold ring and gold chain at the point of revolver. The victim parted with his valuables. The person with revolver also threatened this witness, and then the miscreants crossed the road and by a red colour maruti van left the place. This witness identified the appellant in Court and claimed that he identified him also in jail. P.W.7 Mr. Sarojit Mazumder, is the Metropolitan Magistrate who held T.I. Parade of P.W.2, P.W.3, P.W.4 and P.W.5. P.W.8 is a witness on the point of recovery. He resides at 1/A, Fakir Dey Lane, Kolkata -700012. He is a contractor by profession and also deals in sanitary fittings. According to his evidence on 16th April, 2005 his ''mistri'' one Chintamoni Das brought before him one person, namely, Gopal Tiwari. Chintamoni told him that Gopal needed some money. Gopal gave him (P.W.8) one gold ring and a gold chain against which he lent Gopal Rs. 4,000/- though Gopal wanted Rs. 5,000/-. Gopal told that after two months he would repay the money and redeem the pledge. Gopal executed a money receipt. On 2nd July, 2005 police came with Gopal and Gopal wanted back bis gold chain with locket and gold ring and he handed over the gold chain with locket and the gold ring to Gopal. Police seized the articles and kept it in a sealed packet and also made a seizure list wherein he signed (Exbt.9). Money receipt was also seized by the police (Mat. Exbt.2). P.W. 9 Munna Singh is a witness to the recovery of gold ring and gold chain from the possession of P.W.8, Kailash Pr. Srivastava. P.W. 10, Kalipada Kundu is the IO and P.W. 11 Bodhayan Roy also claims to be the IO. To appreciate the evidence of the prosecution witnesses and their trustworthiness reproduction of evidence of P.W. 10 and P.W. 11 is little bit necessary because the question has arisen as to who is the real IO of the case and the question has assumed much importance because both of them claimed to be IO, both of them claimed to be the seizing official, both of them claimed to have examined the witnesses, although, according to the evidence of P.W. 10 the investigation of the case was transferred to Anti Rowdy Section, Detective Department, Lal Bazar on 18th April, 2005. This witness, P.W. 10 at the material point of time or more precisely from 14th April, 2005 to 18th April, 2005 was attached to Bowbazar Police Station as SI of Police and not at Lal Bazar, Anti Rowdy Section. This witness says that he recorded the FIR, recorded GDE, being No. 1460 dated 14th April, 2005, reached the place of occurrence on 14th April, 2005 itself and examined Ila Kaizar, Kanailal Das, Md. Hafiz and Sujata Das, who could not say anything about the incident. He then returned back to the Bowbazar Police Station and made a general diary entry being No. 1476 dated 14lh April, 2005. This witness does not say at what hour of 14th April, 2005 he went to the place of occurrence which is in front of the office of Indian Airlines at CR Avenue. On 15lh April, 2005 at 11.55 hrs. he resumed investigation and on that day he got a photograph of the place of occurrence, and on that day he recorded the statement of P.W.2, P.W.3, P.W.4 and P.W.5 but does not say at what hour he recorded the statement of these four witnesses. On 16th April, 2005 he got no clue though he engaged his source. On 17th April, 2005 he chanced to find the owner of a Maruti van, namely, Goutam Singh as he himself came to the police station and stated that his maruti van has been stolen but regarding theft of Maruti van Tangra Police Station registered a case being Tangra PS Case No. 348 dated 25th December, 2004 u/s 379 of IPC and the vehicle has not been tagged with this case. As stated above on 18th April, 2005 he got a message from Assistant Commissioner of Police of the Anti Rowdy Squad, Detective Department asking him to send all documents and papers for investigation. So far so good, but his cross-examination revealed some important aspects of investigation which could not be reconciled with the evidence of the next 10, P.W.11. In cross-examination P.W.10 says that he recorded the statements of Kailash Pr. Srivastava, P.W.8 and Munna Ojha, P.W.9, a witness to the seizure. If the Anti Rowdy Squad of the Detective Department of Kolkata Police took up the investigation on 18th April, 2005 he could not explain how in the month of July, 2005, he having been posted at Bowbazar P.W.3 could have authority to examine P.W.8 and P.W.9 in the matter of recovery of two gold ornaments. Again, he says on 25th April, 2005 he made entry in the case diary of the case. If on 18th April, 2005 the case diary was shifted to Detective Department from Bowbazar Police Station it could not be explained by the prosecution how and in what capacity P.W.10 could be in possession of the case diary on 25th April, 2005. It appears from his evidence in cross-examination that he continued to make entries in the case diary during the period from 25th April, 2005 to 25th June, 2005. Yet he admits that in May and June, 2005 he was not attached to the Anti Rowdy Squad, Detective Department, Lal Bazar, Kolkata. Amusingly, on 2nd July, 2005 he says that he made entries in the case diary on 12.30 p.m. at the spot. He claims to be the officer who effected seizure which according to his evidence was held from 4.30 p.m. to 5.20 p.m. when the appellant was in lock up at the Central Lock up, Lal Bazar during the day. It appears from his evidence that the accused was brought from Hyderabad in connection with a case u/s 307/34 and u/s 25/27 Arms Act and when he was in judicial custody in connection with that cases, he was shown arrested in connection with this case and with leave of the learned C.M.M. Kolkata he was got remanded to the police custody in connection with the case. This witness claims to have recorded the statement of the accused appellant and the statement is to the effect that he pledged gold ornaments with P.W.8. As against this evidence of P.W.10, P.W.11 who was at the material point of time in the Detective Department, Lal Bazar, Kolkata says that he took up the investigation of the case on 25th April, 2005 and got possession of the case diary. According to his evidence, on 24th June, 2005 he got an information that the appellant was involved in the case and that he was at the material time in judicial custody in connection with Posta PS Case No. 41 dated 30th March, 2005 u/s 307/34 read with Section 120B of IPC and u/s 25/27 Arms Act. He made a prayer before the learned CMM for taking the appellant in custody in connection with the present case and on 28th June, 2005 he was remanded to police custody till 6th July, 2005 and pursuant to statement u/s 27 of Evidence Act recorded by this witness recovery was made by him by taking the appellant to the house of P.W.8. Thus, both P.W.10 and P.W.11 claim to have recorded statements of the appellant.
7. In this state of affairs as above, it is argued by the learned Advocate for the appellant, Mr. Sudipto Moitra, that the prosecution case cannot be said to have been proved for unimpeachable reasons. Before adverting to the points of law it has to be analyzed as to how far the evidence of P.W.2, P.W.3, P.W.4 and P.W.5 is acceptable in the matter of proof of guilt of the appellant. It is seen that P.W.2 is a hawker of garments on footpath at C.R. Avenue. P.W. 3 is a ''khalasi'' of matador van, P.W.4 works in a CD. shop at 23 C.R. Avenue and P.W.5 is a broker of houses and lands. Thus at the material time P.W.2 was talking with P.W.4 on C.R. Avenue, P.W.3 had his matador van parked near the crossing of C.R. Avenue and Jadunath Dey Lane, which is opposite side of the footpath where occurrence took place and P.W.5 was seated in front of the main gate of the office of Indian Airlines. These four witnesses claimed to have seen the appellant to be a member of four-men group who robbed P.W.6 of his gold chain, gold ring, purse and other articles. P.W. 11 does not claim that he examined these four witnesses, P.W. 10 as per his evidence got some four persons near the place of occurrence on 14th April, 2005 but they could not say anything. P.W.10 claimed that he examined P.W.2, P.W. 3, P.W.4 and P.W.5 on 15th April, 2005, sitting in front of the office of the Indian Airlines. Significantly, none of these four witnesses who claimed to had seen the appellant to be one of the miscreants rushed to the police station to claim to had seen the incident. None of them chased the appellant who is said to had crossed the road to go to the opposite footpath to decamp. P.W.10 unquestionably had no knowledge beforehand that these four witnesses could be the eye-witnesses to the incident. P.W.10 does not say at what hour of 15th April, 2005 he examined these four witnesses. The question that legitimately arises is how P.W.10 came to know that these four persons were the persons who had seen the incident and identified the appellant. For, P.W.6 the de facto complainant does not claim that he had seen these four persons witnessing the incident. Nor does he say that he narrated the incident to these four persons. In the FIR the names of these four persons did not figure. None of the four persons claimed to had talk with the de facto complainant. Therefore, P.W.10''s, claim that sitting in front of the office of the Indian Airlines on 15th April, 2005 he examined these four persons is highly doubtful. Given the status of the witnesses a serious doubt has arisen as to whether these four persons were really the witnesses who could identify the appellant at the spot or could see the incident at all. P.W.10 does not say as to on what basis he came to know that these four persons saw the incident because neither P.W.6 says that these four witnesses were present and saw the incident not these four witnesses rushed to police station to claim that they were the eye-witnesses to the incident. It is not the claim of P.W.10 that he had long acquaintance with these four persons since before the incident. Argument - of Mr. Moitra, that these four persons have been made to be the witnesses at the instance of the police and they had no other option but to oblige the police as informers merits consideration. The foundation of the case with reference to Section 395/397 is claimed to have been laid by these four witnesses but the foundation is not a solid one because it could not be made clear through evidence as to how and on what basis P.W.10 came to know that P.W.2, P.W.3, P.W.4 and P.W.5 were the appropriate witnesses who had seen the incident. P.W. 10''s evidence is in such a fashion as if in anticipation of his arrival the four witnesses assembled together in front of the office of the Indian Airlines. Moreover P.W.3 was not on the footpath in front of the Indian Airlines. He was on the opposite side of the road where he had parked his vehicle. It is really astonishing that from the other side of the footpath he could notice that the appellant held out the butt of the revolver and robbed P.W.6 of his gold finger ring and necklace. The second aspect of the matter is that according to the learned Magistrate who held T.I. Parade of the witnesses on 22nd July, 2005 in respect of the appellant which was attended by P.W.3, P.W.4 and P.W.5 all the witnesses identified the appellant in the Presidency Jail on 22nd July, 2005 and then on 26th July, 2005 he again held T.I. Parade where the identifier was P.W.2, Naren Das. It is significant to note that occurrence took place on 14th April, 2005 P.W. 11, took charge of the accused in the police custody on 28th June, 2005 and T.I. Parade was held on 22nd July, 2005 and 26th July, 2005 and recovery was made on 2nd July, 2005, I ask myself does the identification of the appellant in the T.I. Parade by P.W. 2, P.W.3, P.W.4 and P.W.5 on 22nd July, 2005 and 26th July, 2005 more than three months after the incident have any value in the eye of law, particularly, when P.W. 10 failed to identify the appellant in the Court and categorically said that none of the miscreants was on the dock. T.I. Parade was held more than three months after the occurrence and twenty days after the alleged recovery. The suspicion has stuck deep when we compare evidence of P.W.2, P.W.3, P.W.4 and P.W.5 with the evidence of P.W.6. It. was the claim of P.W.6, the de facto complainant in the FIR, that he could be able to identify the suspects if he could see them again. Some descriptions of the suspects were given in the FIR but P.W. 6 was not taken to the T.I. Parade for the purpose of identification, and it is obvious because of the fact that by that time recovery was made. P.W. 6 says in his evidence in Court in very categorical terms that none of the miscreants who caused the incident of robbery was present in the Court room. It is not his evidence that he was unable to identify the miscreants. It is not his evidence that he fails to remember whether the appellant was one of the miscreants. In the context of clear evidence of P.W.6 that none of the miscreants was present in the Court room the claim of P.W.2, P.W.3, P.W.4 and P.W.5 that they say the appellant assaulting the victim with the butt of revolver and snatching the ornaments can hardly be believed to be true. Consequently, the claim of these four witnesses that they could be able to identify the appellant in the Presidency Jail during T.I. Parade is not believable particularly when T.I. Parade was held long after recovery and that too more than three months after the incident took place. Between P.W.2, P.W.3, P.W.4 and P.W.5 on the one hand and P.W.6 on the other it was more probable for P.W.6 to identify the appellant because the miscreants held out threat by pointing out revolver to him and robbed him off, while P.W. 2, P.W.3, P.W. 4 and P.W.5 did not near the miscreants nor did they rush to P.W.6.
8. Resultantly, there cannot be any conviction of the appellant u/s 392 of IPC and with respect to the charge u/s 395 IPC it has been stated in the FIR as also in evidence of P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6 that the number of miscreants were confined to 3/4. The formal FIR was registered against 3/4 unknown miscreants. It is P.W.3, who says that another boy was standing on the opposite side of the footpath near the Maruti van. Save and except the evidence of P.W.2, P.W.3, P.W.4 and P.W. 5 whose evidence is verily impeachable on the grounds as aforesaid, there is practically no evidence whatsoever to say that the appellant was noticed to be the miscreant to be charged with the offence u/s 392/395/397. The presence of the accused is necessary to punish him u/s 392 of IPC. It has to be proved that the accused must have committed the theft, meaning thereby his active participation in the commission of the offence would make him guilty of the offence punishable u/s 392 of IPC. It is not the evidence of P.W.2, P.W.3, P.W.4 and P.W.5 that the appellant was simply a member of the miscreants with no active role to play. Where evidence of these four witnesses is disbelieved vis-a-vis the evidence of P.W.6 and circumstances attenuating therewith, the appellant cannot be convicted u/s 392 IPC. Furthermore, the very charges u/s 395/397 IPC which were framed against the appellant was improper because at no point of investigation there could be detected with some amount of prima facie evidence that involvement of five persons or more was there in the commission of the offence. FIR was lodged against. 3/4 persons P.W.2, P.W.4 and P.W.5 have ruled out presence of five persons or more. P.W.6, de facto complainant confined the number of miscreants to 3/4. Chargesheet on that point does not reveal that there was involvement of more than 5 persons or more. Only P.W.3 whose evidence is bereft of creditworthiness says that on the other side of the footpath there was another person. This is uncorroborated piece of evidence. Charge u/s 397 of IPC also could not be brought home by the prosecution which is why the learned Magistrate recorded conviction u/s 392 IPC but evidence at all does not suggest that it was a case of 392 IPC because no convincing evidence is at all there to say it was the appellant who committed robbery. More importantly, no charge was framed u/s 411/412 of IPC against the appellant. In the circumstances, the learned Magistrate was not legally justified in recording conviction of the appellant u/s 392 of the IPC which the appellant was not charged with.
9. As to the manner of investigation there is serious question as to who actually investigated the case. Both P.W.10 and P.W.11 claimed to be the 10 of the case. It is not the evidence of P.W.11 that he took up investigation of the case consequent upon the transfer of P.W. 10 from the police station. P.W. 10 at the material point of time was attached to Bowbazar Police Station while P.W. 11 was at Lal Bazar. Startling it is that that both the police officers claimed to have recorded the statement of the appellant leading to recovery, both claimed to have examined the remaining witnesses, and both have claimed to have made entries in the case diary.
10. Be that as it may, let me see how far evidence of P.W.8 on the point of recovery is worthy of credence. According to P.W.8 his ''mistri'', Chintamoni brought one Gopal Tiwari to him. That Gopal Tiwari wanted to pledge his ornaments, and against one gold chain, one necklace with locket he lent Gopal Rs. 4000/-. This happened on 16th April, 2005. On 2nd July, 2005 police brought Gopal to his house and he brought out ornaments and made over to Gopal and then police arrested him. The question is if no evidence at all is found with respect to commission of robbery or dacoity against Gopal, how Gopal could be in possession of the ornaments which were allegedly made over to P.W.8. Investigation did not reveal as to who was the intermediary between Gopal and the author of robbery. It is not the evidence of P.W.8 in direct way that Gopal who was brought to him by Chintamoni was the same Gopal who was brought to him on 2nd July, 2005 by the police because there was no evidence of identification of Gopal by P.W.8. It was Chintamoni, who according to P.W.8 brought Gopal to him but Chintamoni has not been examined. P.W.10 was asked in cross-examination as to why in the face of possession of the ornaments by P.W.8 he was not made an accused and the reply of P.W.10 was that P.W.8 was not made accused for want of sufficient reasons. It was the specific defense case that a good number of gold ornaments were taken from the wife of the appellant and they were returned to the wife of the appellant. P.W.10 has not denied the suggestion forthwith but said that he does not know whether two gold chains, four finger rings studded with diamond, pokraj, moti and koral were returned to the wife of the accused Gopal Tiwari. Under what circumstances, seizure of gold ornaments was made from the wife of the appellant and the return of the same was again made to her is not clear. Learned Advocate for the appellant submitted that before the Trial Court it was submitted with reference to the documents that the appellant Gopal Tiwari was a candidate to the Parliamentary Election in 2001, that Gopal was an income tax assessee having PAN card, that he had life insurance policies in his name and also in the name of his family and that he had got medi-claim policies of a high amount in his name as also in the name of his wife. But those documents- were not admitted in evidence. It is submitted that in the circumstances, Gopal borrowing Rs. 4,000/- only on the ground of medical treatment of his wife by pledging ornaments is preposterous. It is further submitted that the appellant was not at all at Calcutta on 14th April, 2005 because on 13th April, 2005 the appellant withdrew Rs. 5,055/- through ATM at Nasik. These defense documents which were filed in the Trial Court along with written notes of arguments, however, were not admitted in evidence and therefore the learned Trial Court could not legally consider the documents though the learned Trial Court in its judgment has elaborately referred to all these documents. Further the appellant has stated in his examination u/s 313 Cr.PC that he has a stone crusher factory at Pakur in the district of Birbhum and he is a whole-seller of pulse at Hyderabad.
11. Be that as it may, the money receipt which the appellant allegedly executed in favour of P.W.8 (Exbt.11) is a peculiar one. Money receipt in commercial transaction is ordinarily in the form of an acknowledgement of certain sums of money with assurance of repayment by a certain time. Why money is borrowed by the borrower is not usually explained. Here the money receipt is a narrative one written by P.W. 8 himself in Hindi and signed by Gopal Tiwari in English. The content of the money receipt is that on account of illness of his wife he was in need of Rs. 4,000/-. He was keeping his ornaments with P.W.8 and had borrowed the money and after two months he would redeem the pledge. It is argued by the learned Advocate for the appellant that Gopal is a literate and educated man, and it is not clear as to what prompted P.W. 8 to scribe the alleged acknowledgement or money receipt'' and Gopal was made to sign the same only. This is a doubtful circumstance no doubt.
12. Now the question comes how far the recovery could be effected pursuant to the statement of the appellant strictly in terms of Section 27 of the Evidence Act. Before the learned Trial Court a four page statement of the appellant recorded by P.W. 11 was produced. It was a lengthy statement written in English said to be the statement of the appellant. The relevant portion is that he mortgaged the ornaments to P.W.8 of Bowbazar and took a loan of Rs. 4,000/-from him against those ornaments and that he does not know his postal address but can take the police there if he was taken to. This portion of the statement has been marked as Exbt.20. Learned Advocate for the appellant strenuously disputes the genuineness of the statement on the ground that considering the broad perspective of the cese Gopal pledging ornaments with P.W.8 is not above reproach. In the result the alleged statement loses its force and more particularly when alleged recovery was made more than two months after the incident. In this connection the learned Advocate for the appellant referred to a decision in Babuda v. State of Rajasthan 1992 SCC 862 where in a case u/s 302/307/380 and 460 of the IPC it was held that mere recovery of stolen-articles after a long time cannot be a clinching circumstance to hold the accused guilty when no other clinching evidence particularly about his presence in the house of the deceased at the time of occurrence available. Since there could not be any amount of evidence against the accused participating in the commission of the offence and since evidence of P.W.2, P.W.3, P.W.4 and P.W.5 are rejectable on the grounds as discussed in the body of the judgment the question would arise as to how stolen property could be in the possession of the accused. The question has assumed significance and importance for two reasons, namely, alleged recovery was made more than two and half months after the incident and secondly how P.W. 10 and P.W. 11 could be able to gather that it was the accused who had received the stolen articles and pledged the same with P.W.8 particularly when there is a gap and missing link between the author of robbery and the alleged possessor of stolen articles. Though the investigating agency is not required to disclose his source, it is not the evidence of P.W. 10 or P.W. 11 that pursuant to source information they could be able to know that the appellant had been in possession of these stolen articles. In absence of evidence of the appellant having committed robbery and in absence of evidence from the I.Os., as to how they could be able to know two and half months after the incident about the possession of stolen articles by the appellant it is difficult to hold that any possible charge u/s 411/412 though not was framed was maintainable. It is further submitted that P.W. 9 Munna Ojha, was made to be a witness to the seizure in the house of P.W. 8 at the behest of the police. The said witness says that at the material point of time he was passing along the road. P.W.9, denies that police recorded any statement of him. But the 10 says that a statement of P.W.9 was recorded. However, in the circumstances, it is not possible for the Appellate Court to convict the appellant u/s 411/412 of IPC. The learned Trial Court framed charges against the accused only u/s 395/397 of IPC but recorded conviction u/s 392 of IPC. No charge u/s 411/412 was framed. The story of recovery which falls short of probability and does not smack of reasonableness having regard to the totality of the facts and circumstances of the case as well as evidence on record. Evidence of P.W.2, P,W.3, P.W.4 andP.W.5 are wholly unreliable and cannot be acted upon. What is not reasonable is not probable, and what is not probable does not exist.
13. In the circumstances, the appeal succeeds. The judgment and order of the learned Trial Court is set aside. The appellant is found not guilty of the offence punishable u/s 392 of IPC and is acquitted of the charge and set at liberty.
A copy of the judgment shall be sent to the Superintendent, Presidency Correctional Home, Calcutta for information to the appellant. He be set free immediately.
14. A copy of the judgment and order be sent to the learned Additional Sessions Judge, Fast Track 3rd Court, City Sessions Court, Bichar Bhaban, Kolkata for information and necessary action.
