The duty of the prosecution to prove beyond reasonable doubt the accused's conscious possession of stolen property and their knowledge of it being stolen in a dacoity.

1. This appeal is directed against the judgment of conviction dated 02.12.2009 and order of sentence dated 04.12.2009, passed by the Additional Sessions Judge, Gurgaon, vide which the accused/appellants were convicted for the offence punishable under Section 412 of the Indian Penal Code (hereinafter called as 'IPC') and sentenced them to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 5000/- each or in default of payment thereof, to further undergo RI for a period of two years. The accused/appellants were acquitted of the charges framed against them under Sections 395, 397 IPC and Section 25 of Arms Act. The brief facts as set out in para No. 2 of the judgment of trial Court, is reproduced as under:-

"On 01.09.2008 Ashok Kumar Inspector was present in the police station DLF, Gurgaon and he received information to this effect that dacoity has been committed in house No. S-13/22. Consequently, Ashok Kumar Inspector reached the spot and he met there Anshu Kharbanda. Complainant Anshu Kharbanda made a written complaint to him to this effect that he is resident of House No. S-13/22, DLF-III, Gurgaon and on the night he, his parents, his wife and his cousin went to sleep after taking the dinner. At about 3.30 a.m. (night) 7 or 8 persons entered the house after breaking the grill of the window. They tied the hands of his cousin who was sleeping in the room on the ground floor. Then they entered the room of his parents and also tied them. They then came up stairs armed with gun and knives. They also tied him and his wife and searched their house. They took away three gold chains. Two gold bangles, one gold coin, two rings (of gents), six mobiles and cash of about ` 55,000/-. Some other goods might have been taken away but the details of the same can be told after checking. It is alleged that age of the culprits was between 25 to 30 and they were with muffled faces. One of them was of the height of about 5'10" while others were also of the height of 5'6" etc. Out of these culprits two were armed with gun and remaining were armed with knives. They had put on pant and shirt. On this report of Anshu Kharbanda, endorsement was made by the inspector and was sent to the police station for registration of the case on the basis of which formal FIR was recorded and investigation was started. It transpired during the investigation that these accused were arrested in a criminal case of Shahadara to Delhi having FIR No. 268 of 2008 u/s. 399/402 IPC/ 25 of Arms Act and during investigation of that case Shahadara-Delhi, these accused made disclosure statement about the occurrence committed by them including the present occurrence. Then these accused were arrested in this case according to law. They refused to join the identification parade. On interrogation these accused made disclosure statements and got recovered the looted property. The same was taken into possession and was identified by the complainant etc. Some case property was also got transferred from Faridabad as police of Faridabad had got transferred some cash etc., from Delhi police. On completion of investigation, challan was put up."

2. On commitment, the accused were charge sheeted under Sections 395, 397, 412 IPC and Section 25 of Arms Act to which the accused/appellant pleaded not guilty and claimed trial.

3. In support of the case of prosecution, it examined P.W. 1 SI Hukam Singh; P.W. 2 ASI Subhash Chand; P.W. 3 Raj Kumar Kharbanda; P.W. 4 Lalit Kharbanda; P.W. 5 Complainant Anshu Kharbanda; P.W. 6 Seema Kharbanda; P.W. 7 SI Parmod Anand; P.W. 8 ASI Rajender Singh; P.W. 9 Om Parkash; P.W. 10 Akshra; P.W. 11 Pankaj Juneja; P.W. 12 Vijay Sandhuja; P.W. 13 Constable Baljinder Singh; P.W. 14 Inspector/SHO Devender Kumar; P.W. 15 Dr. Jyoti Utkar; P.W. 16 Girish Kumar, Draftsman; P.W. 17 HC Harish Kumar; P.W. 18 Constable Balram; P.W. 19 Constable Sukhvinder Singh; P.W. 20 Inspector Ashok Kumar; P.W. 21 HC Virender Singh; P.W. 22 Rajpal