Manoj Kumar Kasera vs The State Of Jharkhand
2021 Latest Caselaw 3263 Jhar

                                                          1



                          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     Cr. Revision No.449 of 2012
                                                --------

1. Manoj Kumar Kasera, son of Asarfi Lal Kasera

2. Bhola Sao, son of late Bhagwan Saw

3. Hamid Ansari @ Abdul Hamid Ansari, son of Late Abdul Rahim Ansari All resident of Chhattabad, P.O. & P.S. Katran Dist. Dhanbad ....... Petitioners

-Versus -

                The State of Jharkhand                                 .....    Opposite Party

                 CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
                                           .....
                For the Petitioners      :  Ms. Jasvindar Mazumdar, Advocate

For the Opp. Party State : Mr. Shiv Shankar Kumar, Advocate

Through Video Conferencing .......

6/ 06.09.2021 Heard Ms. Jasvindar Mazumdar, learned counsel appearing on behalf of

the petitioners.

2. Heard Mr. Shiv Shankar Kumar, learned counsel appearing on behalf of

opposite party-State.

3. This criminal revision is directed against the judgment dated 29.5.2012

passed by learned Sessions Judge, Bokaro in Cr. Appeal No. 20 of 2012, arising

out of G.R. Case No. 1518 of 2007 (T.R. NO. 95 of 2012), whereby the learned

Sessions Judge has affirmed the judgment of conviction and order of sentence

dated 12th January, 2012 passed by learned Judicial Magistrate, 1st Class, Bokaro

in G.R. Case No. 1518 of 2007, corresponding to T.R. No. 95 of 2012. Learned

Judicial Magistrate, 1st Class, Bokaro has convicted the petitioners under

Sections 414 and 120B of the Indian Penal Code and sentenced them to undergo

R.I. for 2 years under Section 414 I.P.C. and fine of Rs. 3,000/- each and in

default of payment of fine, further directed the petitioners to undergo simple

imprisonment for 3 months. The learned trial court has also passed sentence

under Section 120B IPC against all the accused persons to undergo R.I. for one

year. All the sentences have been directed to run concurrently.

Arguments of the petitioners

4. Learned counsel for the petitioners, while assailing the impugned

judgments, submits that there are three petitioners before this Court, who have

been convicted for offence under Section 414 of the Indian Penal code and have

been punished for two years rigorous imprisonment with fine of Rs. 3,000/- each

with default clause. They have also been convicted for offence under Section 120-

B of IPC for a period of rigorous imprisonment of one year. She submits that on

the spot, petitioner Nos.-2 and 3 who were the driver and khalasi respectively,

were arrested and the petitioner No.-1 has been made accused on account of the

fact that the seized goods and vehicle belonged to him. She submits that seizure

witnesses have not been examined before the learned court below and accordingly,

seizure has not been proved. She also submits that there were altogether four

prosecution witnesses; out of them, three were the members of the raiding party

and fourth one was the Investigating Officer of the case (P.W.-3). She submits that

the petitioner No.-1 had produced certain documents as Ext.-A, B and C to show

that the goods were purchased and were being transported by way of sale. It has

also come in evidence that the petitioner No.-1 was having a factory. The learned

counsel has also submitted that there is no corresponding theft report and in

absence of theft report, the conviction of the petitioners under Section 414 of IPC

is ex-facie perverse and cannot be sustained in the eyes of law.

Arguments of the opposite party-State

5. The learned counsel for the opposite party-State, while opposing the prayer,

has submitted that the petitioner No.-1 did not have any license to deal with the

metal brass, which was seized and even if, the document produced by the

petitioner No.-1 is taken into consideration, 100 Kgs of brass scrap remained

unaccounted. He submits that Ext.-A and C were marked with objection. He also

submits that it was the case of the defence that the goods were sold to one

Bishwanath Haldar, but said Bishwanath Haldar has not been examined before the

learned court below. He has also submitted merely because there is no theft report,

the same does not make the impugned judgments perverse. He has also submitted

that so far as the seizure witnesses are concerned, their non-examination is not

fatal, as the other witnesses have fully supported the seizure and also the arrest of

petitioner Nos. 2 and 3 on the spot. The learned counsel, at the end, submits that

there is no illegality of perversity in the impugned judgments passed by the

learned courts below calling for any interference in the present case.

Findings of the Court

6. As per the prosecution case, the informant ASI namely Shashi Bhusan

Choudhary has given written report before police stating that on 27.10.2007, he

received secret information by telephonic message that one sumo victa bearing

no. JH10 K8488 was coming towards Dhanbad and carrying theft coper wire and

brass scrap running towards Purulia. On the basis of the secret information,

Sanha entry was made and ASI Basudev Topo, ASI Satyanarayan Prasad and

police force, Hawaldar Sultan Ansari no.888, Anuranjan no.1149, Ujwal Mahto

no.969, Otho Pradeep 671, Akhileshwar Badaeek and driver of the jeep bearing

no.BR 20 B 3498 driver Kapileshwer Singh proceeded towards the place of

occurrence. When they reached near Sangaldih, the aforesaid vehicle was found

going towards Purulia speedily and when they tried to stop the vehicle, it fled

away towards Purulia. Thereafter the vehicle was chased and stopped in

Pindrajora bazaar near Tiwary hotel and altogether 6 bags, full of copper wire

and bras scrap, which belonged to Asarfi Kasera and Manoj Kasera, who were

residents of Dhanbad were seized. The apprehended persons disclosed their

name as Abdul Hamid and Bhola Sao. Upon seeing the police personnel,

Suryakant Singh Choudhary and Vivekanand Banerjee came on the spot and in

presence of these two independent witnesses, one bag kept in front of seat and

three bags in the middle of the vehicle and two bags at the back seat were seized.

The driver of the vehicle told that they have always been carrying illegal copper

wire to Purulia and at Purulia in of Bhopal Singh garage, Vishwanath Haldar

received all the bags. In presence of these two witnesses, weighing of 200 KG

of copper wire along with 200 KG of bras scrap were found and in total 400 KG

of metal scrap of copper and brass were seized. The driver of the vehicle did not

produce any chit of paper and disclosed the owner, namely Asarfi Kasera, who

purchased theft materials from BCCL and other places and collected to Dhanbad

and then sent to Purulia. The seizure list was prepared and one was handed over

to Abdual Hamid, in which, he put his signature. Both the apprehended persons

disclosed that the seized vehicle belonged to Manoj Kasera and Asarfi Kasera

and Asrafi Kasera was loading and sending to Maa Tara Material Industry and

the owner of Maa Tara Industry was Vishwanath Haldhar.

7. On the basis of the written report, the case was registered and charge-

sheet was submitted by the police under Sections 414/ 120B/34 of the IPC and

cognizance was also taken under the aforesaid sections and charges were framed

and read over to the accused facing trial, to which, they pleaded not guilty and

claimed to be tried.

8. At the stage of prosecution evidences, altogether four witnesses were

examined and the investigating officer of the case was not examined. The

prosecution witnesses proved Ext.-1 written report; Ext.-1/1 endorsement of

written report; Ext-2 Seizure list; Ext.-3 confessional statement of accused

Manoj Kasera; Ext.-4 memo of arrest of accused Hamid Ansari and memo of

arrest of accused Bhola Sao. The defence did not lead any oral evidence, but

filing documents were exhibited from the side of the defence, which are Ext-A,

the original purchased bill dated. 10.09.2007, marked with objection, Ext- B, the

original purchased bill dated 17.09.2007 and Ext.-C, the original sale deed dated

27.10.2007, marked with objection.

9. PW - 1 was the member of raiding party and he supported the manner of

occurrence and also identified the accused persons. He has been cross-examined

and suggestion was given to him that the seized articles were purchased by the

accused persons namely Manoj Kasera from Maa Tara Metal Industry, Bhupad

Traders and Ganpat Metal. PW - 2 was also the member of the raiding party and

he fully supported the prosecution case and claimed to identify the accused

persons. PW - 3 was the informant of the case, who has fully supported the

written report and also disclosed the manner, in which, the vehicle Tata Sumo

was seized with loaded scrap of copper and brass. He also deposed that at that

time, the driver of Tata Sumo did not show any paper regarding the seized

articles. PW - 4 was also the member of raiding party, who has supported the

prosecution case and identified the accused persons. These witnesses have been

fully cross-examined from the side of defence and supplementary charge-sheet

was submitted by these witnesses under Sections 414/120B of the IPC.

10. The learned trial court found that the oral and documentary evidences

have proved the case of prosecution and the defence has not denied the seizure

of articles recovered from the accused persons, rather the accused person namely

Manoj Kasera has adduced evidence as defence and claimed that the seized

material belonged to him and also filed Exts. A, B & C in support of his claim.

Thus it was not in dispute that 200 KG of copper wire and along with scrap and

200 KG brass scrap were recovered from the possession of the accused persons.

11. The learned trial court scrutinized the defence documents and was of the

view that the claim of the accused persons Manoj Kasera was falsified by his

own documents. The learned trial court recorded that Ext. A showed that 300

KG copper wire was purchased by Manoj Kasera, Ext. B showed that only 100

KG of brass was purchased by him and Ext. C showed that only 200 KG copper

wire scrap and 200 Kg brass scrap were sold. Learned Trial Court recorded that

purchase of only 100 KG of brass scrap was shown and sale of 200 KG brass

scrap was claimed and purchase of 300 KG of copper wire was shown and sale

of 200 KG of copper wire was shown. Thus, it was held that the accused

persons have not been able to disclosed the difference of 100 KG brass scrap

recovered from the possession of the accused. The learned trial court held that

Exts. A, B & C were forged and fabricated and not tallied with seized copper

scraps and brass scraps and the trial court also recorded that the accused persons

were involved in conspiracy to commit these offences. Considering the

aforesaid facts and materials on record, learned trial court ultimately convicted

the accused persons for the offence under Sections 414/120B of IPC and

sentenced them accordingly.

12. At the appellate stage, the appellate court also scrutinized the materials on

record and also considered the cross-examination of PW - 3, who had stated

that after taking the charge of investigation, he conducted raid on 12.02.2008

and 27.03.2008 in the house of Manoj Kasera and Asarfi Lal Kashera and both

of them were arrested and no license was produced regarding trading in brass

scraps and during investigation, he came to know that Manoj Kashera was

proprietor of Maa Tara Metal Industry dealing in manufacturing of copper wire.

The supplementary charge-sheet was submitted against Manoj Kashera and

Ashrafit Lal Kashera. The learned appellate court scrutinized the evidences on

record and carefully considered the defence exhibits in particular, i.e. Exts. A, B

& C and recorded as follows:

"Through Ext. A and B, the appellants / accused persons claimed to be bonafide purchasers of the scrap and through Extc. C the seized articles are invoice of sale to Bishwanath Halder were the consignment was purportedly being supplied. These documents have been produced much later to the seizure during trial at the time of defence evidence. These cannot be accepted for the reason that firstly after the seizure and arrest no valid document was produced by the appellants. In normal circumstances commercial goods are transported with valid papers of its challan, invoice, tax payment receipts. It was incumbent on the persons who were apprehended on spot, to produce the documents at the time of the seizure. The production of the invoice at a belated stage are an indication of it being manufactured. Secondly, the proprietor namely Maa Tara Metal Industry absconded after the seizure and did not come forward with all these documents after the incident. Thirdly, there are discrepancies in the invoice which do not fully explain the total

seized goods. Exhibit A & B do not explain the purchase of 100 KG brass scrap.

13. The learned appellate court also consider the conduct of the accused

which amounted to admission as one of the incriminating circumstances was no

explanation was put forward on behalf of the defence regarding absconding and

delay in production of the documents. The learned appellate court recorded that

accused Bhola Sao and Hamid Ansari were apprehended on the spot with copper

and brass scrap kept in the Bolero jeep and they attempted to escape, but they

were intercepted by the police party on chase and no document could be

produced by them with regard to the seized articles at the time of being

apprehended and later documents purported to be invoice of the seized

consignment was produced and exhibited during trial. These documents were

also exhibited during the trial and the production of the documents at belated

stage could not fully explain the seized articles. So far as Abdul Ansari is

concerned, he was found to be driver of the vehicle and Bhola Sao was on the

jeep and nothing more was brought against these two persons. The learned

appellate court was of the view that the prosecution has been able to prove the

case under Section 414 IPC against Bhola Sao and Hamid Ansari @ Abdul

Hamid Ansari. So far as other two persons namely Manoj Kasera and Ashrfi

Kasera are concerned, learned appellate court recorded that it was established

that the vehicle from whom stolen scraps were seized, belonged to Manoj

Kasera, who had produced the documents to show that he was the bonafide

purchaser of the seized materials, which was being transported to Bishwanath

Haldar, to whom it was sold. The learned appellate court found that the

prosecution had succeeded to prove the constructive possession of the seized

articles from whose seized vehicle against Manoj Kasera. It was recorded that

the possession has not been denied and claim over the seized articles was made,

but the claim was not supported by valid papers and found that the charge was

proved against Manoj Kasera for offence under Section 414 of IPC. So far as

Asarfi Lal Kasera is concerned, learned appellate court recorded that nothing

was seized from his possession nor the vehicle from which the stolen articles

were seized belonged to him and the statement of co-accused made before the

police could not be relied upon to convict him. In such circumstances, learned

appellate court set-aside the conviction of Asharfi Lal Kasera and allowed the

appeal preferred by him. Thus, the appellate court dismissed the appeal filed by

Manoj Kumar Kasera, Bishwanth Haldhar and Hamid Ansari.

14. This Court finds that the learned courts below have scrutinized the

materials on record and have convicted the present petitioners by recording the

concurrent findings against them. This Court is also of the view that the

petitioner Manoj Kumar Kasera was the owner of the vehicle from where the

copper wires/scrap and scrap brass were seized weighing total of 400 KGs and

he claimed the seized articles and tried to substantiate the same by documentary

evidences as Exts. A, B & C to show that the same were purchased by him and

was sold to Bishwanath Haldar. However, the Exts. A, B & C were disbelieved

by both the courts below by citing reasons not only on delay in production of

such documents but also that even if these documents were accepted as valid, the

same did not fully explained the purchase and sale of seized articles. Further the

conduct of Manoj Kumar Kasera was also taken into account to disbelieve his

explanation regarding the seized articles. So far as petitioner No.2 Bhola Sao

and petitioner No.3 Hamid Ansari are concerned, it was not in dispute that the

goods were seized from their possession while they were in the vehicle, and the

vehicle was belonging to Manoj Kumar Kasera. The conduct these two persons

were also taken into consideration. When the police party approached them, they

ran away and they were apprehended upon chase and when the goods were

found in the vehicle there was no documents much less any valid documents in

connection with the seized goods.

15. So far as the argument of the petitioner that in absence of a theft report, no

prosecution under Section 414 of Indian Penal Code could have been made, the

same is also fit to be rejected. Section 414 and 26 of Indian Penal Code read as

under:

"26. "Reason to believe"- A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise.

414. Assisting in concealment of stolen property- Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

16. The basic ingredients of Section 414 of IPC are as follows:

(i) That the property in question is a stolen property,

(ii) The accused assisted in concealing or disposing of or making away with such property,

(iii) He did the act under (ii) voluntarily, and

(iv) He knew or had reason to believe that the property was stolen property.

This Court is of the considered view that in order to establish an offence

under Section 414, it is not necessary to establish the person from whom theft is

committed, when it was committed, how it was committed and who committed

it. It has been held by the Hon'ble Supreme Court in the judgment reported in

AIR 1964 SC 170 that Section 414 of Indian Penal Code makes it an offence for

a person to assist voluntarily in stealing or disposing of or making away with

property, which he knows or has reason to believe to be a stolen property. It is

not necessary for a person to be convicted under Section 414 of Indian Penal

Code that another person must be traced out and convicted for an offence of

committing theft. The prosecution has simply to establish that the property

recovered is a stolen property and the accused provided help in its concealment

and disposal.

17. This Court is of the considered view that in the facts and circumstances of

this case, there are sufficient materials on record and sufficient circumstances to

convict the petitioners under Section 414 of Indian Penal Code, even if no theft

report in connection with the seized goods was ever exhibited before the learned

court below.

18. Considering the aforesaid facts and circumstances of the case, this Court

finds that the conviction of the petitioner under Section 414 / 120 IPC is

supported by evidence on record. There is no illegality or perversity or material

irregularity in the impugned Judgments of conviction and accordingly the same

do not call for any interference. The impugned judgements convicting the

petitioners are well reasoned judgements which do not call for any interference

in revisional jurisdiction.

19. There is no merit in this revision application and the same is accordingly

dismissed.

20. Interim order, if any, stands vacated.

21. Bail bond furnished by the petitioner is cancelled.

22. Pending interlocutory application, if any, is dismissed as not pressed.

23. Office is directed to send back the lower court records to the court

concerned.

24. Let this order be communicated to the learned court below through

FAX/E-mail.

(Anubha Rawat Choudhary, J.) R.Kumar