Jharkhand High Court
Bodha Yadav vs The State Of Jharkhand on 5 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 541 of 2013
1. Bodha Yadav, son of Jitu Yadav
2. Muneshwar Bhuiyan, son of Kaltu Bhuiyan,
Both resident of village - Lawagarh, P.O. & P.S. - Manika,
District - Latehar (Deleted Vide order dated 8.3.21)
... ... Petitioners
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. J.S. Singh, Adv.
: Ms. Swati Shalini, Amicus Curiae
For the Opp. Party : Ms. Vandana Bharti, Adv.
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Through Video Conferencing
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10/05.04.2021
Heard Mrs. Swati Shalini, learned Amicus Curiae appearing on
behalf of the petitioner along with Mr. J.S. Singh, learned counsel on
record for the petitioner.
1. Heard Mrs. Vandana Bharti, learned A.P.P. appearing on behalf of
the opposite party-State.
2. The present criminal revision application is directed against the
judgment dated 22.8.2000 passed in Criminal Appeal No. 168 of 1997 by
the learned Sessions Judge, Palamau at Daltonganj upholding the
judgment of conviction and sentence dated 12.9.1997 passed in R.P. Case
No. 74 of 1992, T.R. No. 282 of 1997, by the learned Railway Judicial
Magistrate, Daltonganj, whereby the petitioners were convicted under
Section 3 of the Railway Property (Unlawful Possession) Act, 1966
(hereinafter referred to as the aforesaid Act of 1966) and was directed to
undergo rigorous imprisonment for one year under the said Section.
3. During the pendency of the present revision petition, the petitioner
No. 2 Muneshwar Bhuiya expired and, accordingly, his name has been
deleted, vide order dated 8.3.2021. Accordingly, the present revision
petition is confined to the sole petitioner, namely, Bodha Yadav
(Petitioner no. 1).
Arguments on behalf of the petitioner no. 1
4. Learned Amicus submits that the impugned judgments are fit to be
set aside in view of the fact that while recording the confessional
statement of the petitioner no.1, the provisions of the Railway Protection
Force Crime Manual has not been satisfied, in as much as, the
confessional statement of the accused including Petitioner no. 1 was not
recorded in presence of two independent witnesses. She further does not
dispute the fact that the confessional statement was recorded before the
enquiry officer who is not a police officer and accordingly, the
Confessional Statement cannot be said to be inadmissible in law.
5. She has further submitted that there is no independent witness to
the seizure and the seizure had taken place in the morning at the railway
platform and there is no explanation as to why no independent witness
was sought for to the seizure. She submits that the seizure witness is
interested witness and therefore, the conviction of the Petitioner no. 1
cannot be sustained in the eyes of law. She refers to Clause 26 of the
Railway Protection Force Crime Manual. Learned Amicus has also relied
upon a judgment reported in 2017 SCC Online Bom 8147 passed in
Criminal Appeal No.45 of 2001 (Union of India Vs. Mohomad Harun)
decided on 01.09.2017.
6. Learned counsel for the petitioner Mr. J.S. Singh additionally
submits that admittedly, the present offence is the first offence of the
Petitioner no. 1 for which he has been convicted, the learned court below
has refused to give him the benefit of Section 360 of Cr.P.C. He has
further submitted that considering the facts and circumstances of this
case, the petitioner may also be granted some modification of sentence
due to the fact that in the year 1997 when the Petitioner no. 1 was
convicted, he was 35 years of age and the offence is of the year 1992 and
the present age of the Petitioner no. 1 is more than 59 years. Learned
counsel further submits that at the stage of trial, the Petitioner no. 1 had
remained in custody for 15 days and at the revisional stage, he has
remained in custody from 24.03.2013 to 11.07.2013 and thus, the custody
of the Petitioner no. 1 in relation to the present case is about 3 ½ months.
Learned counsel has submitted that around 29 years have passed from
the date of incident and therefore some sympathetic view may be taken
and sentence be modified to fine only. He refers to section 3(a) of The
Railway Property (unlawful Possession) Act, 1966 to submit that as per
Section 3 (a) of The Railway Property (Unlawful Possession ) Act, 1966,
when the offence is the first offence, it is open to the court to punish the
convict with imprisonment for a term which may extend to 5 years or
with fine or with both and in absence of special and adequate reasons to
be mentioned in the judgment of the court, the imprisonment shall not
be less than one year and such fine shall not be less than Rs.1,000/-.
Arguments on behalf of the opposite party-State
7. Learned counsel appearing on behalf of the opposite party-State
has submitted that considering the nature of offence, the petitioner is not
entitled to benefit of Section 360 of Cr.P.C. However, during the course
of argument, she does not dispute the fact that as per the provisions of
Section 3 of Railway Property (Unlawful Possession) Act, 1966, for the
first offence, there is a provision for imprisonment for a term which may
extend to 5 years, or with fine, or with both and in absence of special and
adequate reasons to be mentioned in the judgment of the court, such
imprisonment shall not be less than one year and such fine shall not be
less than Rs.1,000/-.
8. Judgment reserved.
(Anubha Rawat Choudhary, J.)
Saurav/Mukul
