Sunil Mirdha And 2 Ors vs The State Of Assam And Anr
2023 Latest Caselaw 1423 Gua

                                                                            Page No.# 1/7

GAHC010032072020




                                  IN THE GAUHATI HIGH COURT
                            (The High Court of Assam: Nagaland: Mizoram &
                                         Arunachal Pradesh)

                                              Crl. Rev. P. 55/2020


1:Sunil Mirdha and 2 Ors.
S/O Sri Harilal Mirdha, R/O Gatanga Tea Estate, Bhalukmora,
P.O.-Gatanga, P.S.-Jorhat, Dist-Jorhat (Assam), Pin-785616
2: Samim Ali
S/O Hasim Ali
R/O Gatanga Tea Estate
Bhalukmora
P.O.-Gatanga
P.S.-Jorhat
Dist-Jorhat (Assam)
Pin-785616
3: Bipul Kurmi
S/O Raja Kurmi
R/O Gatanga Tea Estate
Bhalukmora P.O.-Gatanga
P.S.-Jorhat
Dist-Jorhat (Assam)
Pin-78561

                                    ............................Appellants


                            VERSUS

1:The State of Assam and Anr.
Represented By The Public Prosecutor, Assam
2:Pritpal Singh
S/O Late Sukhdew Singh
Airforce Station
Rowriah
Jorhat Assam Pin-78500
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............................respondents.

BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Advocate for the Appellants : Mr. P.P. Dutta

Advocate for the Respondents : Mr. K.K. Das, (Addl. P.P.)

Date of Hearing : 03.01.2023

Date of Judgment : 05.04.2023.

JUDGMENT & ORDER (CAV)

1. Heard Mr. P.P. Dutta, learned counsel appearing on behalf of the appellants. Also heard

Mr. K.K. Das, learned Addl. P.P. for the State of Assam.

2. The petitioners Sri Sunil Mirdha, Sri Samim Ali and Bipul Kurmi are before this Court

with an application under Section 401 read with Section 397 of the Code of Criminal

Procedure, 1973 (Cr.P.C. for short). The petitioners are aggrieved by the judgment and order

dated 24.08.2016 passed by the learned Chief Judicial Magistrate, Jorhat in G.R. Case No.

1508/2011, convicting them under Section 380 of the Indian Penal Code (IPC for short) and

sentencing them to undergo simple imprisonment for 6(six) months and to pay a fine of Rs.

1,000/- with default stipulation. The petitioners are also aggrieved by the judgment and order

dated 13.12.2019 passed in Criminal Appeal No. 33/2016 passed by the learned Addl.

Sessions Judge, Jorhat dismissing the appeal preferred by the petitioners and upholding the

sentence passed by the learned Chief Judicial Magistrate, Jorhat.

3. The genesis of the case was that the petitioners who were casual labourers under the

MES Contractor were found carrying copper wire and metal piece (Rang) from the Technical Page No.# 3/7

Area of Air Force Station at Jorhat. On being checked by the Sentry at 16.15 hours on

01.10.2011 at MES exit gate, the petitioners were caught red handed carrying the above

mentioned articles. The metal piece carried by the petitioners weighed 3.250 Kgs, 3.750 Kgs

and 3.520 Kgs respectively. The FIR was lodged by the Flying Officer Sri Pritpal Singh. The

FIR was registered as Jorhat P.S. Case No. 710/2011, under Sections 380 IPC and the

Investigating Officer was entrusted with the investigation.

4. The learned counsel for the petitioners laid stress in his argument that the concurrent

decisions of both the trial Court and the Appellant Court are liable to be set aside. It is

submitted that the prosecution has failed to prove that the copper metal was removed from

the possession of the owner of the property for wrongful gain as it was not proved that the

Air Force authority at Jorhat was the owner of the stolen property. The search and seizure

was not conducted as per provisions of law. The prosecution has failed to examine other vital

witnesses cited in the charge-sheet. Both the courts failed to appreciate the statements of the

petitioners recorded under Section 313 Cr.P.C. The appellants were not given the benefit of

the probation of offenders Act or the benefit under Section 360 Cr.P.C and so on and so forth.

5. The Investigating Officer (I/O in short) embarked upon the Investigation and on

completion of investigation, charge-sheet was laid against the petitioners under Section 380

IPC. On commencement of trial, copies were furnished and charge was framed under Section

380 IPC. The petitioners abjured their guilt and claimed innocence. To substantiate its stance,

the prosecution adduced the evidence of 4(four) witnesses and the defence cross-examined

them to refute the charges.

6. The statements of the petitioners were recorded under Section 313 1(b) Cr.P.C. The Page No.# 4/7

petitioners denied their involvement in an evasive manner. The petitioners did not tender any

evidence in defence. The appeal was decided on following point:-

"(i) Whether the impugned judgment and order dated 24.08.2016 passed by the CJM,

Jorhat, Smti. Sharmila Bhuyan in G.R. Case No. 1508/2011 is sustainable in the law and facts

of the case?"

7. The trial Court decided this case on the following points:-

(i) "Whether the accused persons on 01.10.2011, at about 4.15 p.m., at M.E.S. gate

were found in possession of about 10.520 kgs of metal piece during check and thus

committed theft of the said articles from the possession of M.E.S. authority from the MES

camp, and thereby committed an offence punishable u/s 380 of the I.P.C.?"

8. It was held by the learned trial Court that the prosecution was fairly able to connect

the link between the accused lifting up the stolen articles, up to the recovery of the same

from the possession of the accused. There was a clear link between the theft and recovery of

the stolen articles from the possession of the accused and no snag was noticed. On the day

of the incident, the accused/petitioners were working inside the Air force station at MES camp

at Jorhat under a contractor. At about, 4.00 P.M., after finishing their work, the petitioners

came out and they were about to leave by the exit gate when the man on duty checked

them. PW-3, checked and found the accused/petitioners in possession of the goods belonging

to the Air Force Station. PW-3, immediately informed his superior officer, who informed the

local police at Rowriah police station, and came to the spot where the accused were found in

possession of the stolen goods. PW-1 and PW-2 saw the accused being in possession of the

stolen goods and the police had arrived at the place of occurrence and seized the stolen Page No.# 5/7

goods in presence of the witnesses. The accused were held guilty of charges under Section

380 IPC and were convicted under the aforesaid sections of law and sentenced to simple

imprisonment for six months and to pay a fine of Rs. 1,000/- each with default clause. The

learned Appellate Court re-appreciated the evidence on record and upheld the order of

conviction and sentence, dismissing the appeal preferred by the present petitioners.

9. Now, the question that falls for consideration before this Court is that whether there

was any illegality in the concurrent findings of sentence and order passed by the Trial Court

and the Appellate Court.

10. In the instant case, PW-1 Sri. Pritpal Singh is the informant and he stated that the

petitioners are casual workers under a contractor. On 01.10.2011, at about 4.00 P.M., after

the day's work when the appellants were about to leave, they were checked by the constable

Prodip Kumar, who caught them carrying metal pieces weighing approximately 10 Kgs valued

at Rs. 8,000/- approximately. Constable Prodip Kumar stated as PW-3 that on 01.10.2011,

while he was working at 10 Wing Ari Force, Rowriah as security at No. 1Exit Gate, he found

the petitioners carrying copper metal and he immediately informed the matter to the Air

Force police.

11. PW-2 Sri Tribhuban Sharma testified that on 01.10.2008, he was working as Assistant

Security Officer at Ari Force Station, Jorhat. On that day, at about 4.00 P.M., Prodip Kumar

(PW-3) brought the petitioners to the Guard room stating that the petitioners were caught

red handed at the gate carrying some copper metal. The petitioners were then handed over

to the police. This witness also proved his signature as Exhibit-2(1) on the seizure list. He

identified the seized articles in the Court as material Exihibit-1. The Investigating Officer Page No.# 6/7

(I/O), Rajen Bora has testified as PW-4 that on 02.10.2011, at 8.30 p.m. Pritpal Singh (PW-1)

lodged an FIR with the police at Rowriah outpost. GDE entry dated 01.10.2011 was registered

and the FIR was forwarded to the Jorhat Police station. The Investigation was conducted by

ASI Bolin Tai and he recorded the statements of the witnesses and prepared the sketch map

of the place of occurrence. After completion of preliminary investigation, the case diary was

handed over by Bolin Tai. After perusal of the case diary, he submitted charge-sheet against

the petitioners under Section 380 IPC. This witness identified the signature of ASI Bolin Tai as

Exhibit-2 and 3 on the seizure list. He proved his signature on the charge-sheet as Exhibit-

4(1). PW-4 has admitted that the investigation was basically conducted by Bolin Tai and he

(PW-4) submitted charge-sheet against the petitioners.

12. In this case at hand, the Guard (PW-3) who was on regular duty from 4.00 P.M. to 6.00

P.M., on a routine check-up identified the copper carried by the contractual workers. The plea

that was taken by the petitioners at this stage of revision, was not taken at the stage of trial.

The cross-examination of the witnesses does not reveal any contradiction. The plea taken by

the petitioners through their statements under Section 313 Cr.P.C was of total denial. The

petitioners have denied all the incriminating materials arising against them in a blanket

manner with answers as "yes" or "false" and "false evidence". They have not taken the plea

that the articles that were found in their possession does not belong to the Air Force

authority.

13. In view of my foregoing discussions, it is thereby held that no illegality or impropriety

could be detected in the findings of the learned Trial Court as well as in the findings of the

learned Appellate Court. It is hereby held that the judgment and order of the learned Trial

Court impugned by the present petitioners and the judgment and order of the Appellate Court Page No.# 7/7

dated 13.12.2019 upholding the judgment and order of the learned Trial Court were found to

be rightly passed. This Criminal Revision is devoid of merits. It is true that both the trial Court

and Appellate Court have not considered the grounds, if the petitioners could be released

under Section 360 of the Cr.P.C or under the probation of Offenders Act, 1958

14. It is submitted that during investigation, the accused persons were in custody for 14

days. Although, the revision is dismissed, the period of sentence of 6(six) months is scaled

down to the period of detention of the petitioners already undergone by them during

investigation. The sentence of payment of fine is however maintained. The petitioners are

directed to appear before the trial Court immediately and pay the fine.

15. With the above observation and direction, this petition stands disposed of.

Send back the LCR.

JUDGE

Comparing Assistant