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. 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 i