CRL.A Nos.1252, 1275 and 1276 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945 CRL.APPEAL NO. 1252 OF 2006** **AGAINST THE JUDGMENT DATED 29.06.2006 IN SC NO.58 OF 1998 OF THE ADDITIONAL ASSISTANT SESSIONS COURT, KOTTAYAM** ## **APPELLANTS/ACCUSED 9 & 10:** - **1 MANOJKUMAR, KATTAMKUNNEL HOUSE, 8TH MILE, KATTAMKUNNEL, VELLOOR KARA, PAMPADY.** - **2 SHIBU @ KUTTAN, PULLICKAL HOUSE 7TH MILE, GRAMATTOM BHAGOM, VELLOOR KARA,, PAMPADY. BY ADV S.MANU** ## **RESPONDENT/STATE:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 20.03.2024, ALONG WITH CRL.A.1275/2006, 1276/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA,** ## **1945** **CRL.APPEAL NO. 1275 OF 2006** **AGAINST THE JUDGMENT DATED 29.06.2006 IN SC NO.58 OF 1998 OF THE ADDITIONAL ASSISTANT SESSIONS COURT,KOTTAYAM** ## **APPELLANTS/ACCUSED 1, 3 & 6:** - **1 MANNYAPPANACHARI S/O. GOVINDANACHARI, GANAMATHIRATHIL VEEDU, PUZHAVATHU KARA, VAZHAPPALLY.** - **2 ANSARI, S/O. MOYDINKUNJU, PUTHUPARAMPIN HOUSE, ALLAMPARA BHAGOM, VAZHAPPALLY KIZHAKUKARA, CHANGANACHERRY.** - **3 PRADEEP @ SURESH, S/O. PURUSHOTHAMAN, KALARICKAL VEEDU,, KANNACHIRA BHAGOM,, VAKATHANAM.** **BY ADVS. SRI.P.RAVINDRA BABU SRI.M.P.MADHAVANKUTTY** ## **RESPONDENT/STATE:** **STATE OF KERALA, REP. BY C.I. OF POLICE, KANJIRAPPALLY, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** 3 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 ## **BY SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 20.03.2024, ALONG WITH CRL.A.1252/2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945 CRL.APPEAL NO. 1276 OF 2006** **AGAINST THE JUDGMENT DATED 29.06.2006 IN SC NO.58 OF 1998 OF THE ADDITIONAL ASSISTANT SESSIONS COURT, KOTTAYAM** ## **APPELLANTS/ACCUSED 5 & 7:** - **1 K.K.THOMAS @ SHAJI S/O. KURIAKOSE, KLAPURACKAL VEEDU, KURUSHUMOODU KARA,, CHETTIPUZHA.** - **2 SENOJ @ KOCHUCHERUKAN, S/O. THAPPAN, PADIYATHIL VEEDU, CHETTYPUZHA.** **BY ADVS. SRI.P.RAVINDRA BABU NANDAGOPAL S.KURUP SURESH BABU THOMAS ABHIRAM T.K.** ## **RESPONDENT/STATE:** **STATE OF KERALA, REP. BY C.I.OF POLICE, KANJIRAPPALLY, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 20.03.2024, ALONG WITH CRL.A.1252/2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal Nos.1252, 1275 and 1276 of 2006 ----------------------------------------------------------Dated this the 20[th] day of March, 2024** ## **JUDGMENT** S.C.No.58 of 1998 before the Additional Assistant Sessions Judge, Kottayam was instituted based on the final report filed in Crime No.172 of 1996 of Mundakkayam Police Station. Ext.P17 is the F.I.statement, based on which that crime was registered. Sri.Ganesan reached the Police Station at 9.45 p.m. on 21.08.1996 and gave Ext.P17 statement. The allegation was that five persons snatched a bag in his possession which contained 690 grams of gold ornaments and Rs.15,000/- and that they escaped in a jeep. In the investigation, accused Nos.1 to 11 were found responsible for committing dacoity and also receiving the stolen gold. 2. The trial was held before the Additional Sessions Judge, Kottayam on the accused denying the charge. The prosecution has examined PWs.1 to 30 and proved Exts.P1 to P32. MOs.1 to 16(b) were identified. At the close of the 6 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 prosecution evidence, the accused were questioned under Section 313(1)(b) of the Code. They denied all the incrementing circumstances appeared against them in evidence. No defence evidence was let in. The trial court, after considering the evidence, found accused Nos.3, 6, 7, 9 and 10 guilty of the offences punishable under Section 395 of the Indian Penal Code, 1860 (IPC). Accused Nos.1 and 5 were found guilty of the offence punishable under Section 412 of the IPC. Accused Nos.2, 4, 8 and 11 were acquitted of all the offences. Accused Nos.1, 3 and 6 filed Crl.Appeal No.1275 of 2006. Accused Nos.5 and 7 filed Crl.Appeal No.1276 of 2006 and accused Nos.9 and 10 filed Crl.Appeal No.1252 of 2006. Accused No.1 expired on 25.02.2016. A copy of the death certificate is placed on record. Since nobody has come forward to pursue his appeal and fine also forms part of the sentence, his appeal can only be consigned to the record room. I do so. 3. Heard the respective counsel appearing for the appellants and the learned Public Prosecutors. 7 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 4. The appellants are referred to hereunder as per their rank before the trial court for convenience. 5. The case of the prosecution was as follows: PW1 is the son and PW2 a nephew of PW29. As usual they along with the elder son of PW29, Sri.Ganesan were coming back home after closing their jewellery shop on 21.08.1996. A bag containing gold ornaments and money was in the possession of Sri.Ganesan. PW29 was not with them and at that time as he went to a nearby shop. When they reached CMS High School ground, Mundakkayam, accused Nos.3, 4, 6 and 7 approached them. Accused No.3 forcibly snatched away the bag from Sri.Ganesan after pushing him down. When PW1 intervened, accused No.6 brandished a sword, causing him injury to his right hand. Accused Nos.7 and 10 wrongfully restrained them in order to facilitate taking away of the stolen articles. The culprits escaped in the jeep bearing Reg.No.KL5C-2129 driven by accused No.9. The further allegation is that the other accused aided them to commit the offence and they have received the stolen articles. 8 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 6. The prosecution adduced both direct and circumstantial evidence to prove the charge. PWs.1 and 2 are the victims of the offence. PW29 is the owner of the stolen property. PW3 is a witness said to have seen the incident. Besides their evidence, the prosecution places reliance on the recovery of stolen articles; as either ornaments or ingots. 7. To substantiate that such a theft had taken place the prosecution banks upon, essentially, the evidence of PWs.1, 2, 3 and 29. A few articles recovered, especially the articles recovered based on the statement of accused No.5 were identified by PW29 as stolen ones and the prosecution falls upon that evidence to corroborate the direct evidence and also to implicate accused Nos.1 and 5 as the persons receiving stolen properties. I shall first consider the direct evidence tendered by the prosecution. 8. As stated, PW1 is the son and PW2 is the nephew of PW29. They along with Sri.Ganesan were coming back from their jewellery on the date of occurrence. When they reached near the CMS School, Mundakkayam, the incident had 9 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 occurred. PWs.1 and 2 deposed regarding the incident. But PW29 did not see the incident. The versions of PWs.1 and 2 regarding the incident are similar. They deposed that four persons approached them all of a sudden. First among them, who was identified as accused No.3, snatched the bag in the possession of Sri.Ganesan. He fell down. PW1 intervened and tried to get back the bag. Accused No.6 slashed a sword causing PW1 injury at his right hand. Accused Nos.7 and 10 assisted others and thereby facilitated accused No.3 to get away with the bag. The assailants together ran away and escaped in a jeep. It is their further version that on hearing their scream, the people from the neighbourhood assembled and PW1 was taken to the hospital. 9. PW29 deposed that on seeing PWs.1 and 2 and Sri.Ganesan coming alarmed, he knew about the incident. He along with Ganesan went in search of the assailants. They went several places in order to locate them; without any success. It was thereafter they went to the police station and Sri.Ganesan gave Ext.P17 F.I.statement in police narrating the 10 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 incident in detail. In Ext.P17 the details of the gold ornaments in the lost bag were stated. However, Sri.Ganesan could not be examined before the court since he expired by that time. 10. PW3 is a neighbouring shop owner. On hearing the cry of PWs.1 and 2 and Sri.Ganesan, he rushed to the spot. It is his version that the others in the neighbourhood also reached there. Sri.Ganesan fell into a pit on the ground, which was filled with rain water, and he along with others rescued him. At that time, they were told about the incident. PW3 maintained that he did not see the assailants who ran away from the scene and escaped in a jeep. It is his version that it was dark at that time and he could not identify them. Thus, the evidence of PW3 helped only to prove the fact that such an incident took place, but not to establish the identity of the assailants. What is therefore left to prove the identity of the assailants is the oral testimony of PWs.1 and 2 alone. 11. PW29 deposed before the court that he along with his children and nephew were on their way back from his jewellery and on that occasion the incident occurred. Although 11 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 he was not present at the time of occurrence, he knew immediately and went in search of the assailants. PWs.1 and 2 categorically deposed about the incident and on the same day Ext.P17 was launched by Sri.Ganesan. The reason for the delay of about 3 hours occurred in giving Ext.P17 statement is stated in it itself. That fact has been stated by PW29 in court as well. There is no reason to disbelieve the said version. PWs.1 and 2 are categoric in their version that four persons came and one among them snatched the bag from the possession of Sri.Ganesan and another inflicted injury to PW1 using a sword. The other two persons also joined in helping the person, who snatched the bag to get away with the stolen articles. 12. Having had anxious consideration of the said evidence, I find no reason to disbelieve them insofar as their version regarding the occurrence of the incident is concerned. When Ext.P17 coupled with other circumstances rendered sufficient corroboration, the finding of the trial court that such an incident occurred at about 6.45 p.m. on 21.08.1996 stands sound and there is no reason to interfere. 12 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 13. In order to establish the identity of the assailants, the evidence tendered by the prosecution is the oral testimonies of PWs.1 and 2 alone. The prosecution alleges that the stolen articles reached the possession of accused Nos.1 and 5 and they appropriated the same. No evidence is mooted by the prosecution as to how such articles reached their possession. Evidence of recovery under Section 27 of the Evidence Act, 1872 alone can therefore be relied on by the prosecution to prove the guilt of accused Nos.1 and 5. 14. PW1 identified accused Nos.3, 6, 7 and 10 as persons who attacked and stole away the bag. While PW1 stated describing the overt acts of those accused and identified them before the court, PW2 identified only accused No.3 before the court. Although he deposed that there were four persons to commit the act of theft and he could identify all of them, he specifically identified only accused No.3. He was stated to be the person who snatched away the bag from the possession of Sri.Ganesan. While the learned Public Prosecutor urges that the said evidence is convincing and 13 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 reliable in order to prove the complicity of those accused, the learned counsel for the appellants vehemently opposes the said submission. 15. The learned counsel for accused No.3 would submit that when there was no opportunity for PWs.1 and 2 to see any of the assailants after the incident except in court, their identification of the accused before the court cannot be relied on at all. It is submitted that the assailants were not persons familiar to PWs.1 and 2. No test identification parade was conducted. From their evidence, it is seen that they did not state to the police features of or even about the dress worn by the assailants. In the said circumstances, identification of accused Nos.3, 6, 7 and 10 by PWs.1 and 2 before the court cannot be given any importance. 16. The learned counsel places reliance in the above regard on **State of Kerala v. Unni [2018 (2) KLD 475]** and the judgment dated 15.03.2024 of the Apex Court in Crl.Appeal No.1607 of 2009 ( **Jafar v. State of Kerala** ). In **Unni** (supra) this Court observed that when the witness saw 14 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 the accused only for the first time in his life during the incident and for a short time and if he could not give any identifying features, the investigation ought to resort a test identification parade. It was, however, observed that each case will depend upon its own facts. In **Jafar** (surpa), a witness after the incident saw the accused in the police station, but no test identification parade was held. The Apex Court in such circumstances held that the identification of the accused before the court becomes doubtful. 17. The learned counsel also highlighted the version of PW3 that it was night at that time and he could not identify the assailants, who ran away from the scene. It is thus submitted that the incident was during night and therefore the identification by PWs.1 and 2 cannot be believed. The version of PWs.1 and 2 and also PW29 is that the incident was at 6.45 p.m. and it was not dark. PWs.1 and 2 specifically deposed the overt acts of each of the assailants. When the assailants attacked them and they had the opportunity to see the assailants from close quarters, it cannot be said that they 15 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 were not able to identify the assailants. It is true that they did not state any special features of the assailants before the police in order to identify them. It is seen that after the incident they had an opportunity to see the assailants in the police station. That evidence, of course, cannot be used for implicating the accused to the offence. At the same time, when PWs.1 and 2 had enough opportunity to see them, their identification of the assailants before the court can be acted upon, provided there is assurance about the reliability of their evidence. 18. Although PW1 claimed that accused Nos.3, 6, 7 and 10 were the persons in the group of assailants, his version concerning accused Nos.6, 7 and 10 were turned out to be contradictions to the statement given in police. The material omissions as to the overt acts of accused Nos.6, 7 and 10 are brought out through PW30, the investigating officer. When there is such a contradiction with respect to the identification of accused Nos.6, 7 and 10 by PW1 before the court, his sole testimony concerning identification of those accused, without 16 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 independent corroboration, cannot be acted upon. As stated, PW2 did not state the specific role of accused Nos.6, 7 and 10. What is stated unequivocally is only that it was accused No.3, who snatched away the bag. Similarly, PW3 did not identify any of the culprits. In the said circumstances, the evidence concerning identity of accused No.3 by PW1 gets corroboration from the evidence of PW2. Whereas, the version of PW1 concerning identity of accused Nos.6, 7 and 10 does not get assurance from any other evidence. I am of the view that the prosecution succeeded in establishing the identity of only accused No.3 and not accused Nos.6, 7 and 10. 19. At the instance of accused No.1, gold in the form of either ornaments or ingots, were recovered from the possession of PWs.7, 9, 11, 14 and 15. Exts.P2, P4, P6 and P7 are the mahazars for the recovery of various items of gold from those witnesses on the basis of the information revealed by accused No.1 to PW30, the investigating officer while in his custody. 20. The recoveries were effected based on the statement of accused No.1 from his residence, Chandrappas 17 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 Jewellery, Navaratna Jewellery, Bhima Jewellery, residence of one Sureshkumar, Anna Jewellery and Ragam Jewellery. Exts.P3, P2, P4, P5, P6, P7 and P8 are the respective mahazars for the recoveries. Except from the Ragam Jewellery, no ornament was recovered, but all were ingots. The ornaments recovered from Ragam Jewellery were indisputably the remade jewellery. Therefore, none of the said objects; either ornaments or gold ingots could be identified by PW29. 21. Further, none of the said witnesses admitted that they received the gold ornaments from accused No.1 knowingly or unknowingly to be the stolen ones. Their stand is either that they did not receive the gold from accused No.1 or they received on payment of sufficient consideration. Although they took a stand that they resisted the demand of PW30 to hand over the gold ornaments said to have been received from accused No.1, the same is not supported by any material. It is not in evidence that they made any complaint alleging illegal recovery of gold from their possession. They stated in court against the case of the prosecution that they 18 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 received gold from accused No.1 and it was that gold they had handed over to PW30. They testified so by totally resiling from their statements before the police. That makes them untrustworthy inasmuch as their assertion about nonacceptance of gold from accused No.1. Having gone through the entire evidence concerning recovery of gold based on the information furnished by accused No.1 to PW30, I am of the view that there is no reason to doubt that the said recoveries were effected only on the basis of the information gathered from accused No.1. 22. Similarly, recoveries were effected based on the statement of accused No.5 also. Ext.P11 is the mahazar for recovery of MO12 series from Muthoot Bankers, which are ornaments. PWs.18 and 19 are the witnesses to Ext.P11. Ext.P11(a) is the confession, based on which MO12 was recovered. 23. Ext.P13 is the mahazar for recovery of MO13 ornaments, which are three rings from the Jemini Jewellers. PWs.20 and 21 are the witness to the said recovery. 19 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 Ext.P13(a) is the statement that led to the recovery of MO13. MO14 is the gold recovered from one Jemini Jewellers based on the statement of accused No.5, which was proved by PW30 as Ext.P14(a). Ext.P14 is the mahazar for the recovery. PWs.22 and 23 are the witnesses to the said recovery. The aforesaid witnesses are employees of the respective institutions. While deposing before the court they did not identify the person so pledged. But, based on the registers they stated the name and details of the person pledged. Exts.P9 and P10 are the ledgers concerning pleading of ornaments in Muthoot Bankers. Exts.P19 and P19(a) are the registers maintained in Gemini Financiers. The names entered in the registers are different; in one it was Sri.Shaji Thomas and in the other Sri.Shaji. Pointing out the said difference as well as the failure of the staff of the said institutions to identify the accused as the person pledged the ornaments in their institutions, it is submitted by the learned counsel for accused No.5, Sri.Nandagopal S.Kurup, that the recovery cannot be related to accused No.5. 20 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 24. The learned counsel by placing reliance on **Ramanand @ Nandlal Bharti v. State of Uttar Pradesh [AIR 2022 SC 5273]** and **Shahaja @ Shahajan Ismail Mohd.Shaikh v. State of Maharashtra [AIR OnLine 2022 SC 1011]** contended that legal requirements of Section 27 of the Evidence Act were not complied with in the matter of the recoveries. Also, it is urged that the authorship of concealment is not established and for that reason also the evidence concerning the recovery would not become relevant under Section 27 of the Evidence Act. In this respect, the learned counsel places reliance on **Jahir Hussain v. State of Kerala and another [2022 (6) KHC 183]** and **Golden Satheesan @ Satheesan and others v. State of Kerala [2012 (1) KHC SN 27]** . 25. In **Ramanand** (supra) the Apex Court laid down the procedure to be followed for preparing a mahazar for recovery pursuant to the statement of the accused in custody under Section 27 of the Evidence Act. Such a procedure, especially recording of the statement of the accused in the 21 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 presence of witnesses, was not strictly followed in this case. but in the facts of this case, especially that the stolen ornaments were recovered from the custody of a few banking institutions and pledging of the same is born by records maintained in such institutions in the ordinary course of their business, lack of witnesses to recording of the disclosure statements would not discredit the evidence of recovery. At any rate, the recovery particularly of MOs.12, 13 and 14, which were identified by PW29 to be stolen ones, is relevant under Section 9 of the Evidence Act. 26. In this case, the statements of the 1[st] accused leading to the recoveries, namely, Exts.P2(a), P4(a), P5(a), P6(a) and P7(a) contain the statement indicating authorship of concealment. Of course, the statements of the 5[th] accused leading to the recovery of MOs.12, 13 and 14 and also other articles did not contain the authorship. However, the recovered articles, particularly, MOs.13, 14 and 15 are ornaments, which were identified by PW29 to be the stolen ones. The contention raised by the learned counsel for the 5[th] 22 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 accused is that when such a large quantity of ornaments were stolen, which do not have any specific identifying marks or features and no such marks or features have been stated in police, his identification before the court is quite doubtful. In this regard the learned Counsel for the 5[th] accused places reliance on **Jahir Hussain v. State of Kerala and another** **[2022 (6) KHC 183]** . It was held that the recovery of objects which are easily available in the market, not identifiable by the owners on a specific description, cannot be an incriminating material in a criminal trial. 27. I am unable to agree with the submission that identification of MOs 12, 13 and 14 by PW29 is unreliable. He is the owner of a jewellery. He, being a person involved in the business of gold ornaments, should have a special skill developed by experience in identifying the ornaments. It is in evidence that entire gold ornaments in the jewellery of PW29 were in the stolen bag. Total weight of the ornaments in it was 690 grams. When that was the whole quantity, it was not very difficult for PW29 to identify those ornaments, which 23 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 were kept for sale in his shop. His son, Ganesan gave in Ext.P17 a detailed description of the lost ornaments. But his evidence is not available since he expired. But the identification by PW29 as mentioned above cannot be discarded as unreliable. So, his identification of MOs.12, 13 and 14 can be acted upon to find that those articles were the ones stolen from his shop. From the above, it can be concluded that the articles stolen from his shop, particularly, MOs.12, 13 and 14 were recovered from the respective institutions, namely, Muthoot Bankers, Thoppil Bankers and Jemini Jewellers. 28. From the facts proved as aforesaid, it can be seen that accused No.5 was in possession of the said articles, which is a fact relevant under Section 8 of the Evidence Act. However, in order to convict him for an offence of receiving stolen property, it should further prove that he received those articles knowing them to be stolen. The presumption as under Illustration (a) to Section 114 of the Evidence Act available is that a man who is in possession of a stolen good soon after 24 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 the theft is either the thief or has received the good knowing it to be stolen, unless he can account for his possession. Illustration (a) to Section 114 has to be read along with the time factor. If several months have expired in the interval, the presumption cannot normally apply. In **Gulabchand v. State of M.P. [AIR 1995 SC 1598]** the recovery was within 3 or 4 days. In **Earubhadrappa v. State of Karnataka [AIR 1983 SC 446]** a period of one year was not treated as too long. It all therefore depends on the facts of each case. Here, the recoveries at the instance of the 5[th] accused were after ten months of the theft. Further, the recoveries are not strictly proven as relevant under Section 27 of the Evidence Act. 29. Section 412 of the IPC reads,- “412. Dishonestly receiving property stolen in the commission of a dacoity.- Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and 25 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 shall also be liable to fine.” 30. From what is stated above, I am of the view that evidence is deficient to prove beyond doubt that the 5[th] accused received the stolen articles knowing them to be stolen articles. Hence his conviction for the offence under Section 412 of the IPC is liable to be set aside. Insofar as the involvement of the jeep driver in commission of the offence, there is no evidence. No witness testified that the 9[th] accused was the driver of the jeep in which the robbers left the place and also that the jeep driver had involved in the robbery. Out of four robbers, identity of the 3[rd] accused alone has been proved beyond doubt. Also, involvement of four persons alone is proved. Hence, the offence committed is robbery and not dacoity. 31. Accordingly, conviction of the 3[rd] accused by the trial court is altered and he is convicted for the offence under Section 392 of the IPC. His sentence is confirmed. Accused Nos.5, 6, 7, 9 and 10 are acquitted of all the offences with which they were charged and they are set at liberty. 32. Appeals No.1252 of 2006 and 1276 of 2006 are 26 Crl.Appeal Nos.1252, 1275 and 1276 of 2006 allowed. Appeal No.1275 of 2006 is allowed in part as above. The 3[rd] accused shall surrender before the trial court for execution of the sentence within one month from today. 33. Order of the trial court concerning disposal of the properties is confirmed. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr