Krishna Singh vs The State Of Jharkhand
2021 Latest Caselaw 4433 Jhar

                                                      Cr. Rev. No.378 of 2001




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
            Criminal Revision No. 378 of 2001

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(Against the judgment dated 27th July, 2001 passed in Cr. Appeal No. 232 of 1989 by learned Sessions Judge, Chatra)

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Krishna Singh, son of late Ram Chandra Singh, resident of village- Bhogtadih, P.S.- Hunterganj, District- Chatra .... .... .... Petitioner Versus The State of Jharkhand .... .... .... Opposite Party

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     CORAM        : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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            For the Petitioner       : Mr. A. N. Deo, Advocate
            For the State            : Mr. Rajneesh Vardhan, Addl. PP
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By Court:         Heard the parties through video conferencing.

2. This criminal revision has been directed against the judgment dated 27th July, 2001 passed in Cr. Appeal No. 232 of 1989 by learned Sessions Judge, Chatra whereby and whereunder the learned appellate court below has dismissed the appeal of the revision petitioner on contest upon finding no merit in the same.

3. The brief facts of the case is that when the informant was coming to his house along with his double barrel gun and fourteen live cartridges and six used cartridges, the revision-petitioner along with two unknown persons intercepted him and one of the associates of the revision- petitioner fired at him of course the same did not hit the informant and the revision-petitioner snatched away the double barrel gun and cartridges from the informant and also relieved him of a wrist watch and cash amount of Rs. 510/- from his pocket. During the trial, the charges for the offences punishable under Section 394/411 of Indian Penal Code was framed against the appellant and learned Magistrate found the revision- petitioner guilty of the offences punishable under Section 392 of Indian Penal Code and sentenced him in Rigorous Imprisonment for two years but found the revision-petitioner not guilty for the offence punishable under Section 411 of Indian Penal Code and acquitted the said revision

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petitioner of the offence punishable under Section 411 of Indian Penal Code.

4. In support of its case, the prosecution altogether examined 10 witnesses and proved documents, which were marked as Exhibits and also took the material objects but no witnesses has been examined on behalf of the defence. The informant P.W.-7 categorically stated about the appellant along with two accomplices having intercepted and snatching away his double barrel gun and cartridges after putting him in fear of death as well as the wrist watch and cash amount of Rs. 510/- were also robbed by the appellant. Nothing has been elicited in the cross- examination of the PW7 to discard or disbelieve his testimony. His testimony appears to be trustworthy and reliable. Besides the son of the informant who was examined as P.W.-10 also testified to have been threatened soon before the occurrence, by the appellant and appellant also enquired about whereabouts of the informant from the P.W.-10. The Investigating Officer of this case who was examined as P.W.8, testified about the recovery of the looted double barrel gun no. 3456 and cartridges near the house of the appellant and he also prepared the seizure list, which was marked as Exhibit 2. Taking into consideration the said evidence in the record, learned lower appellate court confirmed the judgment of conviction and sentence by the impugned judgment.

5. It is submitted by Mr. A. N. Deo, learned counsel for revision- petitioner that the impugned judgment of conviction and sentence passed against the revision-petitioner, is not based on the material available in the record. It is further submitted that in view of the acquittal of the revision-petitioner of the charge under Section 411 of Indian Penal Code, the trial court ought not have convicted the revision-petitioner under Section 392 of Indian Penal Code. It is next submitted that in the absence of any evidence of previous conviction, the revision-petitioner ought to have given the benefit of the provision of Probation of Offender's Act 1958 and Section 360 of the Code of Criminal Procedure. Mr. A. N. Deo, learned counsel for the revision-petitioner relied upon the judgment of the Hon'ble Supreme Court of India in the case of Sunder Singh vs. State of Rajasthan reported in AIR 1988 SC 2136 wherein in the facts of that

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case, where the convict was aged 76 years, Hon'ble Supreme Court of India, in view of the advanced age, sentenced the appellant of that case to the period already undergone but it is not forthcoming from the judgment of Sundar Singh as to for how much time, the appellant has been in custody in that case. Mr. A.N. Deo, learned counsel for the revision petitioner next relied upon the judgment of Hon'ble Supreme Court of India in the case of K. Ramakrishnan Unnithan vs. State of Kerala dated 18.03.1999 in Cr. Appeal No. 64 of 1992 reported in 1999 AIR SCW 1113 where; in the facts of that case where the incident was of the year 1985 and the accused was on bail and underwent sentence for about four years, he was sentenced to the period already undergone. It is next submitted that revision-petitioner of this case is aged about 65 years and he has been in custody since 27.05.2021 during the pendency of this revision application and during the trial also, he was also in custody for a considerable period of time of about six months and he is facing rigors of criminal trial since the year 1986, hence, the revision-petitioner be sentenced for the period already undergone by him, in case his conviction is sustained.

6. Mr. Rajneesh Vardhan, learned Addl. PP on the other hand defends the impugned judgment passed by learned lower appellate court and submits that besides the P.Ws- 7, 8 and 10, the P.W.-5, though of course a hearsay witness, has also stated about having heard the revision- petitioner snatching away the gun of the informant. It is next submitted by learned Addl. PP that since there is concurrent finding of facts by both the learned trial court as well as the lower appellate court in the absence of any glaring mis-appreciation of the evidence by either of the courts below, the revision petition is devoid of any merit, hence, it is submitted that the same be dismissed.

7. Having heard submissions made at the Bar and after carefully going through the materials in the record, so far as the contention of the revision petitioner that the learned trial court ought to have acquitted the revision petitioner of the offence punishable under sections 392 of the Indian Penal Code only because he acquitted the revision petitioner of the charge for the offence punishable under section 411 of the Indian Penal Code is

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concerned, it is pertinent to mention here that the ingredients for the offence punishable under Section 411 of Indian Penal Code are entirely different from the ingredients for the offence punishable under Section 392 Indian Penal Code. So merely because the trial court acquitted the revision-petitioner in the absence of evidence in the record, regarding the ingredients of the offence punishable under Section 411 of Indian Penal Code and for that reason, certainly, the trial court was not expected to acquit the revision petitioner for the offence punishable under section 392 of the Indian Penal Code when unquestionably evidence regarding the ingredients of the said offence has been brought on record and hence the trial court has rightly not acquitted the revision-petitioner for the offence punishable under Section 392 Indian Penal Code as the evidence in the record establishes each of the ingredients of the offence punishable under Section 392 Indian Penal Code.

8. As already indicated above, the testimonies of P.Ws 7, 8 and 10 have not been demolished in any manner in their respective cross- examination and P.Ws 7 and 10 have well stood the cross-examination and their evidences appears to be trustworthy and reliable and they have stated about each of the ingredients to establish the charge for the offence punishable under Section 392 Indian Penal Code, accordingly, this court finds that there is no justification to interfere with the conviction of the revision-petitioner so far as the offence punishable under Section 392 of Indian Penal Code is concerned and the conviction of the revision petitioner for the said offence is made by the learned two courts below is confirmed.

9. So far as the contention of the revision-petitioner regarding giving benefit of Probation of Offender's Act 1958 is concerned, it is pertinent to mention here that keeping in view the nature of offence of looting gun and cartridges after firing at the victim, this court is of the considered view that this is not a fit case where the benefit of Section 4 of Probation of Offender's Act, 1958 is to be given to the revision-petitioner. So far as contention of the revision-petitioner regarding giving benefit under Section 360 of Code of Criminal Procedure is concerned, this court has already confirmed the conviction of the revision-petitioner for the offence

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punishable under Section 392 of Indian Penal Code, which provides Rigorous Imprisonment for a term, which may extend to ten years, so provision of Section 360 of Code of Criminal Procedure is not applicable where the conviction is for an offence with imprisonment for a term, which is more than seven years.

10. So far as the sentence is concerned, keeping in view that the petitioner is facing the rigors of the trial since the year 1986 and he is an old person of 65 years, the sentence is modified by reducing the substantial sentence from Rigorous Imprisonment of two years to Rigorous Imprisonment of one year and fine of Rs. 10,000/- and in default of payment of fine, to undergo Simple Imprisonment for three months. It is further ordered that in case, the revision-petitioner deposits the fine amount, the 50% of the same shall be paid to the informant of the case.

11. The revision petition is disposed of with modification in the sentence only and in view of the disposal of this revision, the interlocutory application, if any, also stands disposed of.

12. Let a copy of this judgment be sent to the Court concerned forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th of November, 2021 AFR/ Smita-Pappu