Ram Ratan Mistry vs The State Of Jharkhand
2021 Latest Caselaw 4342 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   Criminal Revision No.416 of 2003

          1. Ram Ratan Mistry, son of late Jodha Mistry, (Deleted vide
             order dated 23.11.2021)
          2. Raj Kumar Mistry, son of Ram Ratan Mistry
             Both resident of village - Awasane, P.S. Chainpur, District
             Palamau, Jharkhand                  ...     ...    Petitioners
                                 Versus
          The State of Jharkhand              ......       Opposite Party
                                 ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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          For the Petitioner      : Mr. D.K. Prasad, Adv.
                                  : Mr. Ajay Kumar Pathak, Adv.
          For the State           : Mr. Ashok Kumar, Adv.
                                  ---

04/23.11.2021      Heard Mr. D.K. Prasad, learned counsel appearing on

behalf of the petitioner along with Mr. Ajay Kumar Pathak, Advocate.

2. Heard Mr. Ashok Kumar, learned counsel appearing on behalf of the State.

3. At the outset, it has been submitted that the petitioner no.1 Ram Ratan Mistry, has expired during the pendency of the present case. Learned counsel for the State submits that a report to that effect has been received by this Court. This Court finds that no fine amount as such has been imposed against the petitioner no. 1 by the impugned order.

4. Considering the aforesaid fact, the petition filed by the petitioner Ram Ratan Mistry stands abetted.

5. Office is directed to delete the name of petitioner no.1 namely Ram Ratan Mistry from the cause title.

6. Learned counsel for the petitioner submits that the petitioner has been convicted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 in R.P.F Case No.5 of 1992, T.R. No.53 of 1996 by the learned Railway Judicial Magistrate, 1st Class Palamau at Daltonganj.

7. Learned counsel submits that the seizure witnesses had turned hostile and no stamp was found on the seized articles. He further submits that the value of seized articles as is reflecting in the appellate court's judgment itself, was only Rs.443/-. He submits that it has also come on record that the present offence is the first offence of the petitioner. Learned counsel has submitted that the alleged seizure was conducted in the house of Ram Ratan Mistry (deceased petitioner no.1) where Ram Ratan Mistry, Raj Kumar Mistry and Jalandhar Mistry were found melting iron and the seized property was alleged to be Railway property. The learned counsel submits that the present age of the petitioner is more than 65 years and at the time of conviction on 19.06.1996, the age of the petitioner was 45 years. He submits that the petitioner has faced the criminal case for more than 20 years and accordingly, some sympathetic view may be taken and the sentence of the petitioner be modified.

8. Learned counsel submits that as per Section 3 of Railway Property (Unlawful Possession) Act, 1966 for the first offence, there is provision for punishment of 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 one thousand rupees. The learned counsel submits that since the punishment under the aforesaid section itself indicates imprisonment or fine or both, therefore, there is no legal impediment in modifying the sentence to fine and it is not in dispute that the minimum fine specified under Section 3 is Rs.1,000/-.

9. The learned counsel appearing on behalf of the State, on the other hand, while opposing the prayer has submitted that there are concurrent findings recorded by the learned courts

below. Even if the seizure witnesses have turned hostile, but their signature in the seizure list is admitted. However, it is further not in dispute that the value of the seized railway property is to the extent of Rs.443/- only as recorded in the appellate court's judgment. He submits that the learned courts below have considered the materials on record and have returned concurrent findings convicting the petitioner under Section 3 (a) of Railway Property (Unlawful Possession) Act, 1966. However, it is not in dispute that the petitioner has faced the criminal case for more than 20 years as the incident itself is of the year 1992. So far as the modification of sentence is concerned, the learned counsel for the State has submitted that it is for the Court to pass appropriate order.

10. After hearing the learned counsel for the parties, this Court finds that as per the prosecution case, the Inspector, Railway Protection Force, Garhwa alongwith S.I of R.P.F, Garhwa and others conducted raid in the house of blacksmith of the village on 11.01.1992 and raided the house of the accused and all of them were found melting iron. Certain railway property valued at Rs.443/- were recovered from their possession. They were arrested on the spot and were brought before the Railway Judicial Magistrate and thereafter, the complaint was lodged.

11. After considering the materials on record, the accused were convicted and sentenced by the court of learned Railway Judicial Magistrate, Daltonganj on 19.09.1996 in R.P.F Case No.5 of 1992/T.R. No.53 of 1996 and sentenced to undergo rigorous imprisonment for one year and 3 months under Section 3 of the Railway Property (Unlawful Possession) Act, 1966. It has been recorded by the learned trial court that the present offence is the first offence of the petitioner and accordingly, the petitioner has been convicted under Section 3 (a) of Railway Property (Unlawful Possession) Act, 1966.

12. The learned appellate court also considered the evidences on record and upheld the conviction of the accused by recording its finding at para 4 which is quoted as under:

"4. I find that despite informing the learned Advocate of the appellants, he did not argue in this appeal and as such this appeal is being disposed of on its own merit. So far as the main ground taken in para D,G.H and I are concerned, I find that the learned Rly. Judicial Magistrate has come to the conclusion that recovered articles are the Rly. Properties and P.W.2 Expert has deposed in his evidence that all the recovered articles are the Rly. properties. I find that the defence has not been able to show that the recovered articles were purchased by them. No doubt two seizure list witnesses viz P.W.4 and 5 have turned hostile. However, I find that there are strong evidence that the house of the appellants were searched and the articles as stated in prosecution report were recovered from their possession. The defence witness no.1 has admitted in his evidence that the house of the accused persons were searched in his presence though he has deposed in his evidence that no articles belonging to Rly. was recovered from their houses. D.W.2 is one of the accused. He has also deposed in his evidence that Police had searched his house on 11.1.92 but no articles belonging to Railway was recovered from his possession. He has also admitted that his signature was obtained though it was obtained on blank paper. He has also admitted his signature which is Ext.6/1. He has further admitted the signature vide Ext.A on personal search list. Thus the search of the houses of accused/appellants is also admitted by them. I find that the evidence of P.W.s 1, 2 and 3 have not been demolished at all. All the seized materials have also been produced in the court which are material exts. I to I/4. Now a days nobody wants to depose against any accused due to a lot of reasons. I find that the learned Rly. Judicial Magistrate has committed no error in appreciating the defence witnesses. I find that the order of conviction and sentence passed by learned Rly. Judicial Magistrate is not arbitrary and perverse rather it is based on the material available on the record."

13. This Court finds that the judgments passed by the learned courts below are well reasoned judgments. There are concurrent findings that the seized articles were railway property based on the evidence of the expert (P.W-2) and the accused have furnished no explanation of their possession. The defence witness (accused -Ram Ratan Mistry) has admitted in his evidence that the house of the accused was searched.

Evidence of official witness, P.W.s 1, 2 and 3 have been found intact and corroborative to each other. All the seized materials have also been produced in the court which are material exhibits I to I/4. Seizure witnesses, though hostile, but have admitted their signature on the seizure list and the learned appellate court also recorded that now a days nobody wants to depose against any accused due to a lot of reasons. This Court is of considered view that there is enough material on record to prove the prosecution case beyond reasonable doubts and the learned courts below have rightly convicted the petitioner alongwith co-accused after appreciating the materials on record. This Court does not find any perversity or material irregularity calling for any interference in the conviction of the petitioner in revisional jurisdiction.

14. However, the monetary value of recovered railway property was only to the extent of Rs.443/-; the present offence is the first offence; 20 years has elapsed from the date of the occurrence; the present age of the petitioner is about 65 years. Taking into consideration the totality of facts and circumstances of this case and the fact that the petitioner has faced the criminal case for a period of more than 20 years and his present age, this Court is of the considered view that ends of justice would be served if the sentence of the petitioner is modified to some extent and is converted into fine. It has been submitted by the learned counsel for the petitioner that the petitioner has remained in custody for 23 days at the stage of trial and 11 days during the pendency of the present revision. Accordingly, the sentence is modified to fine of Rs.2,000/- to be deposited by the petitioner before the learned court below within a period of 3 months from the date of communication of this order. In case of non-deposit of the fine amount, the bail bond furnished by the petitioner is directed to be cancelled by the learned court below

and the petitioner would serve the sentence already imposed by the learned court below.

15. This criminal revision application is disposed of with aforesaid modification of sentence.

16. Pending interlocutory application, if any, is closed.

17. Let the lower court records be sent back to the court concerned.

18. Let this order be communicated to the learned court below through "E-mail/FAX".

(Anubha Rawat Choudhary, J.) Saurav/