Jharkhand High Court
Binay Kumar Gupta @ Binay Mahto vs The State Of Jharkhand on 2 July, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 790 of 2013
Binay Kumar Gupta @ Binay Mahto, son of late Ramkeshwar
Prasad, resident of Bishnupur (Ramnagar) P.O. & P.S.
Sadar, District Hazaribagh. ... ... Petitioner
Versus
The State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Avishek Prasad, Advocate
For the State : Mr. Ravi Prakash, Advocate
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Through: Video Conferencing
11/02.07.2021
1. Heard Mr. Avishek Prasad, learned counsel appearing on
behalf of the petitioner.
2. Heard Mr. Ravi Prakash, learned counsel appearing on
behalf of opposite party-State.
3. This revision application is directed against the order
dated 18.07.2013 passed by learned 3rd Additional Sessions
Judge, Hazaribagh in Cr. Appeal No. 33 of 2013, by which the
appeal filed by the petitioner was dismissed, which was
preferred against the judgment dated 30.01.2013 passed by the
learned Sub-Divisional Judicial Magistrate, Hazaribagh in
connection with G.R. Case No. 2766 of 2011 (T.R. Case No.
1077/2013) arising out of Chauparan P.S Case No. 83/2011,
wherein the petitioner has been convicted for the offence under
Section 394/34 of the Indian Penal Code and sentenced to
undergo rigorous imprisonment for a period of three years with
a fine of Rs. 10,000/- and in default of payment of fine, the
petitioner has to serve the sentence of simple imprisonment of
six months.
Arguments of the petitioner
4. Learned counsel for the petitioner, at the outset, submits
that similarly situated co-accused, namely, Deepak Yadav had
approached this Court against the impugned judgment in Cr.
Revision No. 375/2013 which was disposed of vide order dated
13.12.2019 and this Court was pleased to modify the sentence of
Deepak Yadav by finding from the records that the incident
was of the year 2011 and about 9 years had elapsed and the
petitioner must have suffered the rigors of litigation for the last
9 years and also remained in custody for 601 days. The learned
counsel submits that as the case of the petitioner is similarly
situated, therefore similar relief may also be granted to the
petitioner.
5. The learned counsel for the petitioner has submitted that
there is merit in the present case as well. During the course of
hearing, he submits that Deepak Yadav was apprehended on
the spot and it is alleged that the petitioner along with co-
accused was handed over the bag of money and they ran away
with the looted money in a motorcycle.
6. The learned counsel submits that so far as the evidence of
P.W.-1 is concerned, he has stated categorically in his cross-
examination that he had gone police station to identify the
petitioner twice and accordingly, the learned counsel submits
that identification of the petitioner by P.W.-1 cannot be relied
upon. He has further submitted that P.W.-1 who is the
informant has sufficiently improved his version in support of
the F.I.R. The learned counsel submits that in view of the
aforesaid facts and circumstances, the petitioner is entitled to
benefit of doubt and the prosecution has not been able to prove
the case beyond all reasonable doubt against the petitioner. He
submits that for the ends of justice, the impugned judgments of
conviction and sentence are fit to be set-aside.
Arguments of the opposite party-State
7. The learned counsel for the opposite party-State, on the
other hand, has submitted that so far as the case of co-accused,
namely, Deepak Yadav is concerned, it was specifically argued
by the learned counsel for the petitioner of that case that
Deepak Yadav had never misused the privilege of bail and he
was not involved in any offence and there was no criminal
antecedent against him. He submits that the Co-ordinate Bench
of this Court , interalia, considered this aspect of the matter and
granted relief to Deepak Yadav.
8. The learned counsel has referred to the affidavit dated
01.07.2021 to submit that the present petitioner has altogether
four criminal cases whose list has been given at Annexure-A
including one case which was Dhanbad P.S. Case No. 116/2009
dated 13.09.2009 under Section 364(A) of the Indian Penal Code
and the same was referred to in the case-diary, where the
confessional statement of the petitioner was recorded in
connection with the present case. He submits that accordingly
the case of the petitioner is different from that of Deepak Yadav
and the present petitioner does not deserve any sympathetic
view of this Court. The petitioner has been involved in a
number of serious cases, whose details are as under: -
(i) Chauparan P.S. Case No. 90/2011 dated 19.09.2011 under
Section 25(1-b)a/26/35 of the Arms Act.
(ii) Katkamsandi P.S. Case No. 35/2018 dated 26.01.2018
under Section 392 of IPC.
(iii) Dhanbad P.S. Case No. 116/2009 dated 13.09.2009 under
Section 364(A) of IPC.
9. On merits, the learned counsel for the opposite party-
State has opposed the prayer and submitted that there are
consistent findings recorded by the learned courts below after
considering all the materials on record. So far as identification
of the petitioner in TIP is concerned, he submits that the
evidence of the eye-witness P.W.-3 is also to be seen, who was
admittedly there at the place of occurrence. This witness has
identified the petitioner and he has specifically stated that he
was never taken to police station to identify the petitioner at
any point of time. He submits that the learned courts below
have found the evidence of P.W.-3 fully reliable. He also
submits that there is no scope for re-appreciation of evidences
by this Court in revisional jurisdiction and come to a different
finding. He submits that the impugned judgments passed by
the learned courts below are based on concurrent finding and
due appreciation of evidences on record. No perversity,
irregularity or illegality, as such, has been pointed out by the
learned counsel for the petitioner and therefore, the impugned
judgments of conviction and sentence do not call for any
interference.
Findings of this Court
10. The prosecution case, in brief, is that the present case has
been registered under Section 394 of the Indian Penal Code on
the basis of a written report of Kedar Thakur (P.W-1) against
the petitioner and others. It has been stated in the FIR that the
informant was working as Cashier in Singhrawan Petrol Pump.
It has been alleged that on the date of occurrence at about 11:15
hours, the informant along with the staff Gautam Ray (P.W-3)
were going to deposit three days sale proceeds of petrol pump
amounting to Rs. 7,12,800 keeping in a black bag in Singhrawan
State Bank. In the way, one person came from backside and
snatched the same bag containing the money and fled away
along with his two associates on Pulsar motorcycle. The
informant raised alarm and due to haste one of the miscreants
could not board on the said motorcycle, but the other two
managed to flee away from there with the looted money of the
informant. The informant and others wanted to catch the
accused, but they pointed pistol upon them and assaulted the
informant by the butt of the pistol, due to which, he sustained
injury. In the meantime, the bank choukidar caught one of the
miscreants and handed over him to police along with the pistol.
The apprehended accused disclosed his name as Deepak Yadav
and he further disclosed the name of his two associates who
took away the looted money as Binoy Mahto (petitioner) and
Sahdeo Saw. On the basis of the written report a case was
registered on 19.09.2011 against all the three accused persons.
11. The learned trial court recorded its finding from
paragraph-8 onwards of its judgment. It has been recorded that
altogether 11 witnesses have been examined out of them
witness Nos. 1 and 3 are the eye-witnesses of the alleged
offence who have fully supported the prosecution case. P.W.-2
is the person who had met Kedar Thakur (P.W.-1 and the
informant of the case) at the police station in an injured
condition and has also stated that on the statements made by
Kedar Tharkur, Indradeo Thakur had written the FIR and P.W-
2 was cross-examined only from the side of co-accused Deepak
Yadav and no cross-examination was done from the side of
Binay Mahto and Shankar Yadav. It has been recorded that
P.Ws. 4, 5, 6, 7 and 8 were members of police party who had
reached the place of occurrence upon receiving the information
and they were told that accused Deepak Yadav was caught
along with revolver and when the police party reached the
place of occurrence, they arrested Deepak Yadav with revolver
and took him into the police station. P.W.-10 (the Magistrate)
deposed that the informant Kedar Thakur had identified the
Shankar Yadav in Test Identification Parade and the witness
Gautam Ray (P.W-3) had identified Shakar Yadav as well as
Binay Mahto (present petitioner) in TIP. Eye-witness P.W.-3
has identified the petitioner and he has specifically stated that
he was never taken to police station to identify the petitioner at
any point of time. The learned courts below have found the
evidence of P.W.-3 fully reliable.
12. The learned trial court after scrutinizing all the evidences
on record held that the prosecution has been able to prove the
case against the accused beyond all reasonable doubt and
convicted Deepak Yadav for offence under Section 394 of the
Indian Penal Code and co-accused, Shankar Yadav and Binay
Mahto (present petitioner) for offence under Section 394/34 of
the IPC.
13. Considering the aforesaid aspects of the matter, this
Court finds that the identification of the petitioner that he had
looted away the money is not only based on the evidence of
P.W.-1, but also on the evidence of P.W.-3 who was present at
the spot and the learned courts below have found that his
evidence is fully reliable.
14. The learned appellate court also carefully scrutinized the
evidences on record and held that the petitioner along with the
other co-accused in furtherance of common intention
committed robbery by snatching the bag containing the sale
proceeds of the petrol pump amounting to Rs. 7,12,800/- from
the informant.
15. This Court further finds that the learned courts below
have scrutinized the evidences on record and have returned
concurrent findings. There is no scope for re-appreciation of
evidences on record and coming to a different finding in
revisional jurisdiction in absence of any perversity. The learned
counsel for the petitioner has failed to point out any illegality,
irregularity or perversity in the impugned judgement of
conviction calling for any interference.
16. Considering the aforesaid facts and circumstances of this
case, there is no merit in this revision petition.
17. So far as the sentence is concerned, this Court is not
inclined to give any relief to the petitioner. Before the Co-
ordinate Bench of this Court, it was submitted that Deepak
Yadav had no criminal antecedent and while giving relief to
Deepak Yadav on the point of sentence, this aspect was also
considered.
18. The State has brought on record that the petitioner is
involved in a number of criminal cases. In such circumstances
the petitioner does not deserve any sympathetic view of this
Court. His case cannot be said to be in same footing so far as
point of sentence is concerned. Accordingly, the prayer for
modification of sentence is also rejected.
19. Bail bond furnished by the petitioner is cancelled.
20. Interim order, if any, stands vacated.
21. Pending interlocutory applications, if any, are closed.
22. Let the lower courts report be immediate sent back to the
court concerned.
23. Let a copy of this order be communicated to the learned
court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Mukul
