Gopal Krishan Agrawala @ Pappu vs The State Of Jharkhand
2021 Latest Caselaw 4458 Jhar

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                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                             Cr. Revision No. 560 of 2003

                     Gopal Krishan Agrawala @ Pappu, son of Shri Ram Bharat
                     Agrawala, resident of Chhatatand Bazar, P.S. Kendua Dih,
                     District- Dhanbad.                ...     ...     Petitioner
                                         Versus
                     The State of Jharkhand        ...     ...         Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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07/29.11.2021

1. Heard Mr. Binod Kumar Jha, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Rajneesh Vardhan, learned counsel appearing on behalf of the opposite party-State.

3. The instant criminal revision application is directed against the judgment and order dated 04.06.2003 passed by the learned Additional District and Sessions Judge-III, Dhanbad in Cr. Appeal No. 23/1996, whereby the learned appellate court has dismissed the appeal preferred by the petitioner and upheld the judgment of conviction and order of sentence dated 15.02.1996 passed by the learned Special Judicial Magistrate, 1st Class, Eastern Railway, Dhanbad in R.P. Case No. 126/82, Trial No. 124/1996.

4. The learned trial court has convicted the petitioner for offence under Section 3(a) of the Railway Property (Unlawful Possession) Act [hereinafter referred to as the R.P. (U.P.) Act] and sentenced him to undergo rigorous imprisonment for one year under the same section.

Arguments on behalf of the petitioner

5. Learned counsel for the petitioner has confined his argument on the point of sentence.

6. The learned counsel has submitted that the incident is of the year 1982 and about 39 years have elapsed from the date of

the incident. The petitioner has been convicted for the offence under Section 3(a) of the R.P. (U.P.) Act and present offence is the first offence of the petitioner. Learned counsel has further submitted that the petitioner has remained in custody for a period from the date of surrender i.e., on 21.01.1983 and thereafter he was released on bail by the learned trial court on 24.02.1983 and during the pendency of the present revision also, he has remained in custody for a period of one month. Learned counsel submits that considering the fact that about 39 years have elapsed and the present age of the petitioner is more than 59 years, sentence of the petitioner be modified to fine.

7. Learned counsel for the petitioner has relied upon a judgment passed by this Court in Cr. Revision No. 183/2012 dated 19.07.2021 to submit that it is open to the court to punish the convict with imprisonment for a term which may extend to 5 years or with fine or with both. He submits that there is an option with this Court to punish the petitioner by imposing fine only. Learned counsel submits that considering the facts and circumstances of this case, fine amount may be imposed instead of sending the petitioner to jail after a long lapse of time.

Arguments on behalf of the opposite party-State

8. Learned counsel appearing on behalf of the State, on the other hand, has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below and the conviction as well as the sentence may be upheld. However, he submits that in case, this Court is inclined to modify the sentence, the fine amount may not be less than Rs. 25,000/-.

Findings of this Court

9. The prosecution case, in brief, is that on getting source informant that the accused persons have committed theft of

OHE copper wire in between Sindri Block and Rakhitpur Railway Station some days back and some part of stolen OHE copper wire were kept in bushes on the south side of the Sindri Marshalling Yard level crossing gate, which was likely to be disposed of soon by the accused persons. Consequently, the Railway Protection Force (R.P.F.) officers and staffs of Dhanbad R.P.F. Post made an ambush watch near said level crossing gate on 02.12.1982 and during such watch duty, the R.P.F. men arrested two persons, namely, Fatik Chand Dutta with 5 pieces of contact copper wire of OHE of Railways of approximate length of 10" each and Ashok Thakur in possession of 4 pieces of OHE contact copper wire of Railways of about 10" in length each at the spot while the other accused fled away from there, but two of them were identified by the R.P.F. men as Kailash Dubey and Sheonath Thakur. On being asked, the arrested persons confessed their guilt and further disclosed that some stolen OHE copper wire were taken away by one Gopal Krishna Agrawala alias Pappu (present petitioner) to his house. On the statement of Fatik chand Dutta, a further search was conducted in the house of the petitioner on 03.12.1982 by the R.P.F. men with the help of local police and upon search, they recovered two numbers of syphon pipes bearing railway mark, six pieces of contact copper wire each 10" in length and four pieces of anticrip/eatenary copper wire of OHE total about 24 ft. in length from the house of the petitioner. At the time of house search, the brothers of the petitioner, namely, Mohan Lal Agrawal, Suresh Kumar Agrawal and Binai Kumar Agrawal were present, but the petitioner was not present at that time. The R.P.F. men apprehended all the three brothers of the petitioner, who were present at the time of search and seized the recovered materials under a proper seizure list. On being asked, the arrested persons failed to account for their legal

possession over the recovered materials of railway administration. The R.P.F. men brought the arrested persons along with recovered materials to R.P.F. Post, Dhanbad, where the case was registered. After making enquiry, prosecution report was submitted against the accused persons.

10. It has been recorded in the learned trial court's judgment that originally there were 11 accused persons in the case, but on 11.06.1991, the trial of other accused persons were separated and in the instant case, only four accused persons were facing trial. The petitioner denied the charges levelled against them and claimed to be tried.

11. During the course of trial, altogether seven witnesses were examined on behalf of the prosecution; out of them, P.W.- 7 has been tendered by the prosecution. P.W.-1 was the then constable of R.P.F., Dhanbad. P.W.-2 was the then Inspector of C & T, Dhanbad. P.W.-3 was the then A.S.I. of R.P.F Post, Dhanbad. P.W.-4 was the then S.I. of R.P.F. Post, Dhanbad. P.W.-5 was the expert and P.W.-6 was the Enquiry Officer of the case. Out of the aforesaid witnesses, P.Ws.-1 to 4 had participated in the raid and they were eye-witnesses of the case.

12. Apart from the oral evidences, the prosecution exhibited Ext.-1 and 1/1, the signature of seizure list witnesses and signature of accused persons on the seizure lists as Ext.-2 series, written report submitted to the Inspector of R.P.F. Post, Dhanbad about the occurrence as Ext.-3, site plan as Ext.-5 prosecution report as Ext.-6 and expert opinion as Ext.-4 in support of its case.

13. P.W.-2 is the informant of the case, who has fully supported the case as narrated in the prosecution case above. He has proved the seizure lists, which were marked as Ext.-1 and 1/1 as well as the written report marked as Ext.-3. This witness has been cross-examined at length and it has been

recorded in the trial court's judgment that he stood the test of cross-examination and the learned trial court found no reason to disbelieve his evidence and recorded that P.W.-2 has fully supported the prosecution case.

14. P.Ws.-1, 3 and 4 have also fully supported the prosecution case, who had accompanied P.W.-2 at the time of raid. These witnesses were also cross-examined at length, but they stood the test of cross-examination. The learned trial court found that there were minor variances in their evidences, which deserved no discussion and accordingly, recorded that these witnesses have fully supported the prosecution case and corroborated the evidences of each other and P.W.-2 and the evidences of these witnesses found support from the seizure list (Ext.-1/1) also. The learned trial court recorded that on the basis of evidences, it is clear that some OHE wire and two syphon pipes having I.R.S. mark were recovered from the house of the petitioner.

15. It was the specific case of the defence, as is apparent from the trial court's judgment, that the materials were recovered from the house of Radha Krishna Agrawal who happens to the father of some of the accused persons, so these accused persons were not liable for such recovery. This aspect of the matter was specifically dealt with by the learned trial court, who recorded that the accused persons were living under the same roof with their father and it was the definite case of the prosecution that two co-accused disclosed that they along with Gopal Krishna Agrawal alias Pappu committed the theft of OHE copper wire of railways and some part of stolen articles were taken away by the petitioner to his house and on the basis of such statement, R.P.F. men went to the house of the petitioner and recovered the railways articles as disclosed by the two apprehended persons. The learned trial court was of the view that in such

circumstances, the petitioner is only liable and responsible for the recovery of syphon pipes bearing IRS mark and copper wire of OHE and none else. So far as the accused persons, namely, Mohan Lal Agrawal, Suresh Kumar Agrawal and Binai Kumar Agrawal are concerned, the learned trial court did not find any evidence against them and accordingly acquitted them for the alleged offence.

16. The learned trial court after appreciating the materials on record including that of the expert witness P.W.-5, who has stated that on 14.02.1983 he examined the recovered contact copper wire and found them to be railway property which is used in electric overhead equipment and the movement of the trains depend on it. This expert witness has been cross- examined at length and the trial court did not find any reason to disbelieve his statement. The learned trial court also recorded that two syphon pipes were also recovered from the house of the petitioner and P.W.-5 had stated that there was mark of railways on the recovered syphon pipes and the seizure list Ext.-1/1 also indicated that there was IRS mark on the recovered syphon pipes. The learned trial court recorded its finding that from the materials on record, it was clear that the materials recovered from the house of the petitioner are railways property and held that the prosecution has been able to prove the case against the petitioner beyond all reasonable doubts and held the petitioner guilty of offence under Section 3(a) of the R.P. (U.P.) Act and sentence him to undergo rigorous imprisonment for one year.

17. So far as the learned appellate court is concerned, it also considered the materials on record and held that P.Ws.-1 to 4 were the eye-witnesses to the occurrence and they had raided the house of the petitioner and seized the above articles from his house upon being disclosed by the co-accused that some

part of stolen property has been taken by the petitioner to his house. The learned appellate court also recorded that P.W.-5 had examined the seized articles and found the same to be railway property, which is used for railway electric overhead equipment. The learned appellate court also recorded that P.W.- 6 was the investigating officer of the case who found the incident true. The learned appellate court also considered that it is not in dispute that the properties were not seized in presence of the petitioner, but the fact remains that they were seized from the house of the petitioner, and the fact that the house was standing in the name of his father, had no bearing. The learned appellate court did not find any reason to interfere with the judgment of conviction and order of sentence passed by the learned trial court and accordingly, upheld the same.

18. This Court finds that there are concurrent findings recorded by the learned courts below based on appreciation of materials on record. No illegality or perversity, as such, has been pointed out by the learned counsel for the petitioner in the impugned judgments calling for any interference in revisional jurisdiction. Moreover, the petitioner has confined his argument on the point of sentence only.

On the point of sentence

19. It is not in dispute that the incident is of the year 1982 and about 39 years have elapsed from the date of the incident and the present offence is the first offence of the petitioner, the petitioner is said to have remained in custody for a period from the date of surrender on 21.01.1983 till 24.02.1983, when he was directed to be released and also during the pendency of the present revision petition for a period of about one month. It is further not in dispute that the present age of the petitioner is more than 59 years.

20. 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."

21. In the aforesaid judgment, the Hon'ble Supreme Court in the ultimate paragraph-6 of the report modified the sentence of the convict by imposing fine only as the case was covered under clause (a) of Section 3 of the R.P. (U.P.) Act.

22. Considering the fact that the petitioner has faced the rigors of criminal case for about 39 years, present age of the petitioner is more than 59 years, the present offence being the first offence of the petitioner and the present case falls under Section 3(a) of the R.P. (U.P.) Act, this Court is of the considered view that ends of justice would be served, if the sentence of the petitioner is modified by imposing fine instead of asking the petitioner to serve the remaining sentence. Accordingly, the sentence of the petitioner is hereby modified and sentenced with fine of Rs. 25,000/- to be deposited before the learned court below within a period of two months from the date of receipt of a copy of this judgment by the learned court below.

23. In case of non-deposit of the fine amount within the aforesaid timeframe, the bail bond furnished by the petitioner will be immediately cancelled and the petitioner would serve the sentence as awarded by the learned courts below. If the

aforesaid amount is deposited by the petitioner within stipulated timeframe, the petitioner as well as his bailors shall be discharged from their liabilities under the bail bond.

24. Accordingly, with the aforesaid findings and modification of sentence, the present criminal revision application is hereby disposed of.

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

26. Let the lower court records be immediately sent back to the learned court below.

27. Let a copy of this order be communicated to the learned curt below through 'E-mail/FAX'.

(Anubha Rawat Choudhary, J.) Mukul