Jharkhand High Court

Rajendra Kumar vs The State Of Jharkhand on 1 November, 2021

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                Cr. Rev. No. 824 of 2012

                 Rajendra Kumar, son of Banbari Mandal, Resident of
                 Baludaga, P.O. & P.S. - Jharia, District - Dhanbad
                                                          ...    ...    Petitioner
                                       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. Shekhar Prasad Sinha, Advocate For the Opp. Party : Mr. Shekhar Sinha, Advocate

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07/01.11.2021 Heard Mr. Shekhar Prasad Sinha, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Shekhar Sinha, learned counsel appearing on behalf of the opposite party.

3. The present criminal revision is directed against the judgment dated 28.07.2012 passed in Criminal Appeal No.124/2012 by the learned Additional Sessions Judge - I - cum - Spl. Judge, C.B.I., Dhanbad whereby the appeal has been dismissed. The petitioner was convicted vide judgment and order of sentence dated 29.03.2012 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in connection with Ghanuadih (Jharia) P.S. Case No.151/2010 dated 04.05.2010 corresponding to G.R. No.1588/10, T.R. No.492/2012 convicting the petitioner for offence under Section 379 of Indian Penal Code and sentencing him to undergo simple imprisonment for 2 ½ years with fine of Rs.2,000/-. In default of payment of fine, the petitioner has been directed to undergo simple imprisonment for two months. However, learned trial court acquitted the petitioner for offence under Section 411 of Indian Penal Code.

4. Learned counsel for the petitioner during the course of arguments has confined his argument on the point of sentence. He submits that a counter-affidavit has been filed in the present case pursuant to an order of this Court dated 23.09.2021 clearly

mentioning that the petitioner does not have any other case against him apart from the present case. Learned counsel further submits that although the petitioner was charged for offence under Section 379 as well as Section 411 of Indian Penal Code and the allegation was relating to theft of iron scrap from C.K. Siding belonging to BCCL, but the petitioner was ultimately acquitted for offence under Section 411 of Indian Penal Code. Learned counsel further submits that the present case is of 04.05.2010 and more than 11 years have elapsed from the incident and accordingly, some sympathetic view may be taken. He further submits that the petitioner having no other criminal case, may not be again sent behind the bars after such a long gap. He submits that the petitioner has faced the criminal case for long time and has remained in custody for a total period of 3 months and 10 days.

5. Learned counsel appearing on behalf of the opposite party - State, on the other hand, submits that it is not in dispute that the petitioner does not have any other criminal case as per the affidavit filed by the State and also that the petitioner has remained in custody for 3 months 10 days in connection with the present case, but the fact remains that the petitioner was immediately apprehended. Learned counsel also submits that learned courts below have scrutinized the materials on record and have given concurrent findings and so far as conviction is concerned, there is no scope for re-appreciation of materials on record and coming to a different finding. So far as sentence is concerned, learned counsel submits that it is for the Court to pass appropriate order and in case, this Court is inclined to modify the sentence, sufficient fine amount may be imposed.

6. After hearing the learned counsel for the parties and going through the materials on record, this Court finds that the criminal case is based on a written report dated 03.05.2010 by the informant and one constable, who were on duty in C.K.

Siding from 13.00 hours to 21.00 hours in the second shift and at about 20.30 hours, when both of them went towards tripler, they found that 5 to 7 persons were carrying iron scraps by cutting it and all the persons by seeing both of them, started fleeing away from there, but the informant along with his other associate could apprehend one person along with theft articles and rest of thieves fled away from the place of occurrence and the apprehended person disclosed his name as the present petitioner. Thereafter, seizure list of theft articles & others things was prepared and it was the case of the prosecution that the informant produced the apprehended person alongwith seized articles i.e., iron scraps, one mobile set and instrument of cutting iron scrap.

7. After investigation, the case was registered under Section 379/411 Indian Penal Code and charge sheet was submitted on 30.06.2010 under the said Sections and cognizance was also taken under the same Sections.

8. Altogether five witnesses were examined in the case including the informant P.W.1 as well as the person in duty. Investigation Officer of the case was also examined as P.W.3. Apart from other witnesses, the prosecution produced following documentary evidence as exhibit and also the material exhibits which were seized articles:

1. Seizure list as a Ext.1.

2. Signature of R. Md. Azhar Khan on the seizure list as Ext.1/1.

3. Written report as a Ext.2.

4. Endorsement in written report regarding forwarding to Jharia P.S. Case as a Ext.2/1.

5. Endorsement in written report regarding registration of Jharia P.S. Case No.151/10 as a Ext.2/2.

6. Signature of Prakash Kindo, S.I. of police cum officer in charge Jharia P.S. as a Ext.3.

7. Signature of Prakash Kindo, S.I of Police cum Officer in charge, Jharia P.S as a Ext.3/1.

8. Arrest Memo as a Ext.4.

The prosecution has also produced some material exhibits as follows:

      (i)      200 k.g old iron as a Material Ext.I
      (ii)     Hexsa blade and two blades as a Material Ext. II, II/1 and
               II/2.
      (iii)    One mobile set as a Material Ext. III.

9. The defence has also examined one defence witness as D.W.1.

10. P.W. 1, P.W. 3 and P.W. 5 have fully supported the prosecution case. P.W.2 did not support the prosecution case and was declared hostile. So far as P.W. 4 is concerned, he has exhibited the materials exhibits, which were seized articles. The defence witness has deposed that when the petitioner was apprehended, this witness was at his home.

11. After going through the materials on record and after hearing the learned counsel for the parties, the learned trial court recorded its finding at para 15 which is quoted as under:

"15. It appears from perusal of the case record that accused Rajendra Kumar has been facing trial for the offences punishable u/s 379/411 of IPC. The informant is constable of CISF and he was deputed at patrolling at the time of occurrence along with other and as per case during patrolling informant caught red handed the accused Rajendra Kumar while taking away the iron scraps and seizure list was prepared at the place of occurrence of recovered theft articles i.e 200 kg. Iron scraps, Hexsa blade (instrument to cut the iron scraps), blade of Hexsa and one mobile set and seizure list was prepared. The informant consistently supported these facts and date and time of occurrence of this case in his evidence. P.W.1 Jeorge Lepcha who is also constable of CISF and who also happens to be present at the place of occurrence at the time of occurrence and supported the case of prosecution and apprehending the accused on the spot along with aforesaid seized articles consistently. The investigating officer of this case P.W.3 also supported the case of prosecution and he also stated that he recorded the statement of P.W.2 Shyam Narain Beldar (hostile witness) and who supported the case of prosecution during investigation. Seizure list i.e. Ext. 1 of this case shows that aforesaid materials exts were seized at the place of occurrence C.K.

Siding on 3.5.10 about 20.30 hours P.W.4 brought material exts of this case and the articles which are seized in connection with this case have been produced by the prosecution side which are marked in this as a material Exts. Even the defence witness admitted the arrest of accused Rajendra Kumar by the constable of C.I.S.F in his evidence on the date of occurrence."

12. The learned trial court found that there was consistent evidence of the prosecution witnesses and they have been able to prove the charge punishable under Section 379 of Indian Penal Code and the ingredients of offence under Section 411 Indian Penal Code could not be proved. Accordingly, the petitioner was acquitted for offence under Section 411 IPC and was convicted under Section 379 of Indian Penal Code to undergo imprisonment for 2 ½ years with fine of Rs.2,000/- along with default clause.

13. The learned appellate court also considered the evidences on record and upheld the conviction as well as sentence of the petitioner for offence under Section 379 Indian Penal Code. The appellate court held that the witnesses have supported the prosecution case and the materials exhibits were proved in the court. The learned appellate court upheld the conviction as well as the sentence of the petitioner.

14. Considering the materials on record and after going through the impugned judgments, this Court finds that the impugned judgments are well reasoned judgments and no perversity as such has been pointed out by the learned counsel appearing on behalf of the petitioner and has confined his arguments on the point of sentence. There being no perversity in the impugned judgments of conviction, the conviction of the petitioner is upheld.

15. So far as sentence is concerned, it is not in dispute that the petitioner has remained in custody for a period of 3 months 10 days and more than 11 years have elapsed from the date of incident. It is further not in dispute that as per the counter-

affidavit filed by the State, the petitioner does not have any other case against him and apart from the present case.

16. This Court is of the considered view that ends of justice would be served if the sentence of the petitioner is modified and the fine amount is enhanced. Accordingly, the sentence of the petitioner is hereby modified and is limited to the period of custody already undergone by him in jail in connection with the present case and the fine amount is enhanced to Rs.25,000/- to be deposited by the petitioner before the learned court below within a period of six months from the date of communication of this Judgment. In case, the amount is not deposited within the aforesaid time frame, the bail bond furnished by the petitioner will be immediately cancelled by the learned court below and the petitioner would serve the sentence as already awarded by the learned court below.