Bhupati Bouri Son Of Late Golak ... vs The State Of Jharkhand
2021 Latest Caselaw 4793 Jhar

                                              1

           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                               Cr. Revision No. 760 of 2003

         1. Bhupati Bouri son of late Golak Bouri
         2. Raju Bouri, son of Nunu Bouri
            Both residents of village Amdangal, Narma, Basti, P.S. Nirsa,
            District-Dhanbad          ...     ...     ...   Petitioners
                                Versus
         The State of Jharkhand             ...     ...   Opposite Party
                                 ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

For the Petitioners : Mr. P.K. Mukhopadhyay, Advocate Mr. Ashish Kumar, Advocate For the Opp. Party : Ms. Nehala Sharmin, A.P.P.

5/14.12.2021

1. Learned counsel for the petitioners Mr. P.K.

Mukhopadhyay, is present along with Mr. Ashish Kumar, Advocate.

2. Learned counsel for the State Ms. Nehala Sharmin, is also present.

3. This petition has been filed against the judgment dated 21st May, 2003 passed in Cr. Appeal No. 32 of 2001, by learned Additional Sessions Judge-XIII, Dhanbad, whereby the judgment passed by the learned trial court has been affirmed.

4. The learned trial court convicted the petitioners vide judgment of conviction and order of sentence dated 27.02.2001, passed by learned Judicial Magistrate (Railways) Dhanbad in R.P. Case No. 132 of 1997, corresponding to Session Trial No. 1621 of 2001, whereby the petitioners have been convicted for offence under Sections 3(a) of Railways Property (Unlawful Possession ) Act, 1966 [hereinafter referred to as RP(UP) Act] and sentenced them to undergo rigorous imprisonment for a period of one year.

5. The learned counsel for the petitioners has submitted that the impugned judgements are perverse and are fit to be set aside, in as much as, one of the witnesses could not be cross-

examined on account of his death. The learned counsel has further submitted that only one piece of CST 9 plate each from the two petitioners was alleged to have been recovered and considering the fact that they have suffered the criminal case right from 1997 and the present offence is the first offence of the petitioners, some sympathetic view may be taken in this case and sentence be modified. He further submits that fine can also be imposed instead of sending the petitioners to jail again.

6. The learned counsel for the State, on the other hand, has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below which do not call for any interference. The learned counsel has also submitted that as per Section 3 (a) of The Railway Property (Unlawful Possession) Act, the minimum sentence is one year which has been imposed against the petitioners and accordingly, the sentence also does not call for any interference. However, it is not in dispute that the incident is of the year 1997 and the present offence is the first offence of the petitioners.

7. After hearing the learned counsel for the parties this court finds that as per the prosecution case on 30.09.1997 the complainant who happens to be the Sub-Inspector of the Railway Protection Force, Sitarampur got secret information that two unknown miscreants have stolen away railway CST-9 plate and have kept them in a bush by north side of the railway track which is about 25 yard from KM No. 238/30 and same will be removed during evening hours. Consequently, a raiding party was constituted and at 18.30 hrs. an ambush was laid and raiding party found two persons each having one railway CST -9 plate on their head. The Articles were seized and seizure list was prepared in presence of available witnesses. The accused persons disclosed their names as

Bhupati Bauri and Raju Bauri, i.e the present petitioners. Upon inquiry, prosecution report was submitted and the learned Magistrate took cognizance of the offence under Section 3(a) of RP (UP) Act.

8. The prosecution examined altogether 5 witnesses. P.W. 1 is the complainant. He has fully supported the prosecution case and stated that on 30.09.1997 at the time of raid, he was accompanied with A.S.I. Bharat Singh, constable P.K. Rai. and Naik A. Murmu and one CST-9 plate each were recovered from the petitioners. He has exhibited seizure list as Exhibit-I. He has stated that the petitioners did not produce any paper to show that they were in lawful possession of the railway property. The written report was marked as Exhibit-2, Seized materials were produced and exhibited as material exhibit-I and I/1. This witness has been fully cross examined. The persons accompanying P.W. 1 Bharat Singh was examined as P.W. 2 who also fully supported the prosecution case. He has proved his signature on the seizure list, Exhibit I and Exhibit I/1. P.W. 3 is a railway traffic inspector who has stated that the seized articles were railway articles and he had inspected the seized property. His examination report has been exhibited as Exhibit-3. However, during the cross examination he stated that there was no mark of railways on the seized property. The other person accompanying the informant was Pankaj Kumar Rai who has been examined as P.W. 4. He has also fully supported the prosecution case and exhibited his signature on the seizure list. Shyam Narayan Raut is the A.S.I. of Railway Protection Force and he has been examined as P.W. 5. He has stated that he has investigated the case and submitted the prosecution report. He proved the site plan as Exhibit-4 and prosecution report as Exhibit-5. This witness was not cross examined by the defence before charge although opportunity was given to the defence for cross examination before charge.

However, this witness has not been produced for cross examination after framing of charge and reason for his absence has been disclosed by P.W-4. P.W. 4 has stated that P.W. 5 had died during firing on 30.03.2000 and therefore P.W. 5 could not appear again for cross examination after framing of charge. In such circumstances, the learned trial court held that the evidence of P.W. 5 was admissible and this view of the learned trial court was upheld by the learned appellate court by referring to Section 33 of the Evidence Act. The petitioners were in simple denial while recording their statements under Section 313 of the Cr. P.C. and did not lead any defence evidence. Learned trial court considered the evidences on record and found that prosecution witnesses have fully supported the case and the raid was conducted under the leadership of P.W. 1 accompanied by P.W. 2 and P.W. 4. Learned trial court also recorded that P.W. 1 proved the seizure list, written report as well as material exhibit. P.W. 2 also supported the case and proved his signature on the seizure list. P.W. 3 is an expert who has examined the seized articles and gave his report as Exhibit-3. P.W. 4 is also a seizure list witness who proved his signature on the seizure list. P.W. 5 is the enquiry officer of the case who proved site plan Exhibit- 4, and prosecution report examined, Exhibit-5. and found that P.W. 5 could not be produced for cross examination after framing of charge as he had expired on 30.03.2000 after giving evidence before charge. Accordingly, the evidence of P.W. 5 was also considered. Learned trial court in para-8 has considered the point as to whether the prosecution has been able to prove that the seized materials exhibit-I and I/1 were railway properties and after considering the materials on record was of the view that the seized articles were railway properties. The learned trial court also considered whether the seized materials were recovered from the possession of the

petitioners or not and after considering the materials was of the view that P.W. 1, P.W. 2 and P.W. 4 have clearly stated that Material Exhibit-I and Exhibit I/1 were recovered from the possession of the petitioners on the alleged date, time and place of occurrence.

9. After considering all the materials on record and also arguments of both the parties the learned trial court concluded that the prosecution has been able to prove the case against the petitioners beyond all reasonable doubt and held the petitioners guilty of offence under Section 3 (a) of RP (UP) Act and convicted them accordingly. The learned trial court refused to grant the benefit of Probation of Offenders Act to the petitioners considering the nature of allegation and also recorded the submission of the defence that the offence was their first offence and sentenced the petitioners to undergo rigorous imprisonment for a period of one year each under Section 3(a) of RP (UP) Act.

10.The learned Appellate court also considered the materials on record and upheld the conviction of the petitioners for the offence under Section 3 (a) of RP (UP) Act. The learned appellate court refused to interfere with the judgment of conviction and sentence passed by the learned Magistrate.

11.This court finds that both the learned courts below have given concurrent finding of fact on the point of raid and seizure of railway property of one CST-9 plate each from the petitioners. The raiding team has fully supported the prosecution case and the expert has given evidence on the point that the seized articles were railway property. P.W. 5 was the Investigating Officer belonging to Railway Protection Force who was examined before charge and the defence did not cross examine him before charge although opportunity was given to the defence for cross examination before charge and this witness could not be produced for cross examination after charge as he

had died by that time.

12. This court finds that the learned courts below have rightly relied upon the evidence of P.W. 5 by referring to Section 33 of the Indian Evidence Act as the condition precedent for applicability of section 33 of the Indian Evidence Act is fully satisfied in the present case. Even otherwise, the other witnesses have fully supported the prosecution case and conviction of the petitioners would still be sustained irrespective of the evidence of P.W. 5. There are concurrent findings recorded by the learned courts below while convicting the petitioners under Section 3 (a) of the RP (UP) Act. This court is of the considered view that in absence of any perversity, illegality or material irregularity, no interference is called for in the impugned judgments of conviction of the petitioners.

13.The Hon'ble Supreme Court in the case of Nirmal Lal Gupta v.

State of Orissa reported in 1995 Supp (2) SCC 713 has considered the manner of sentencing as provided under clause

(a) of Section 3 of the aforesaid Act and the issue was whether the convicts could be released under the provisions of Probation of Offenders Act and be released on probation. It has observed as under:

"3. ................. The controversy is on the point whether the appellant could plead for release on probation. The High Court has taken the view that when there is a minimum period of imprisonment prescribed that would not get substituted by an order of release on probation.

4. Our attention may now be focussed on the provision of the section itself. As is evident, it has two clauses. Clause (a) operates to award punishment for the first offence. Clause (b) operates to award punishment for the second or subsequent offence. Both are worded differently. Whereas for clause (a) the maximum term of imprisonment which can be imposed can be upto 5 years, the minimum term of imprisonment imposable is upto one year, and there is a mandate that it shall not be for a period less than one year unless and until for some special and adequate reasons to be mentioned in the judgment of the court, a lesser period of

imprisonment had been awarded. It is in this way that the sentence of imprisonment is compartmentalised. The other alternate punishment is imposition of fine. Whereas there is no maximum limit of the fine imposable, but which can in no event be excessive and unreasonable, there is, on the same analogy, a minimum of Rs 1000 fine imposable, unless and until for special and adequate reasons to be mentioned in the judgment of the court, the fine imposed was less than one thousand rupees. This too has its own compartment. Clause (a) gives a choice to the court to either award imprisonment or impose fine, or both. It is the choice of the court which determines whether imprisonment alone should be awarded or fine alone be imposed or both should be awarded. It is thus obvious that it is not obligatory on the court to always award imprisonment as a punishment. Once it is so understood it is difficult to comprehend that a minimum sentence alone thereunder is imposable to which the Probation of Offenders Act would not be applicable. (emphasis supplied)

5. The above result is also achieved when clause (a) is compared with clause (b). For the second or subsequent offence the court is obligated to award imprisonment for a term which may extend to five years and also impose fine. The awardable imprisonment however cannot be less than two years and such fine cannot be less than two thousand rupees, unless for special and adequate reasons, to be mentioned in the judgment of the court, the imprisonment of less than two years is imposed and a fine less than Rs 2000 is imposed. Here there is a compulsion to impose both kinds of sentences, unless the court exercises discretion to do away with imposing any punishment. The limited distinction in the two clauses is prominent."

14.This Court finds that it is not in dispute that the present case is the first conviction of the petitioners. The petitioners were apprehended on the spot and taken into custody on 01.10.1997 and were directed to release on bail vide order dated 06.10.1997 and after the appellate court's judgment the petitioners surrendered on 12.08.2003 and were released on bail pursuant to the order dated 28.08.2003 passed by this court at the stage of this revision petition. Thus, the petitioners have remained in custody for about one month.

15. It is not in dispute that the present offence is the first offence of the petitioners. From perusal of lower court records it appears that it has been recorded that value of the two

numbers of CST-9 plate was Rs. 300/-. The present age of the petitioner No. 1 is about 68 years and petitioner No. 2 is about 45 years. The petitioners have faced the rigors of the criminal case for about 23 years from the date of occurrence.

16.Considering the totality of the facts and circumstances of this case, this Court is of the considered view that the ends of justice would be served, if the sentence of the petitioners is modified by imposing fine instead of asking the petitioners to serve the sentence. Accordingly, sentence of the petitioners is hereby modified and they are sentenced with only fine of Rs.25,000/- each to be deposited before the learned trial court within a period of three months from the date of receipt of a copy of this judgement by the learned trial court. In case of non-deposit of the fine amount within the aforesaid time- frame, bail bond furnished by the petitioners will be cancelled by the learned court below and the petitioners would serve the sentence as awarded by the learned court below.

17.If the aforesaid fine amount is deposited by the petitioners within stipulated time-frame, they will be discharged from their liability under the bail bond.

18.Accordingly, with the aforesaid findings and modification of the sentence of the petitioners, this criminal revision petition is hereby disposed of.

19.Pending interlocutory applications, if any, are closed.

20.Let the Lower Court Records be sent back to the court concerned.

21.Let this order be communicated to the learned court below through 'FAX/e-mail'.

(Anubha Rawat Choudhary, J.) Binit