Sudhir Lugun Son Of Sri ... vs The State Of Jharkhand
2021 Latest Caselaw 3538 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                         Cr. Revision No. 678 of 2012

                Sudhir Lugun son of Sri Krishtopher Lugun,
                Resident of Village- Sinharjor, P.O. and Police station-
                Jaldega, District-Simdega           ...    ...  Petitioner

                                     -Versus-

                The State of Jharkhand           ...       ...       Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through: Video Conferencing

07/22.09.2021

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

2. Heard Mr. Manoj Kumar Mishra, learned counsel appearing on behalf of the opposite party-State.

3. This criminal revision application is directed against the judgment dated 17.07.2012 passed by the learned Principal Sessions Judge, Simdega in Cr. Appeal No. 35/2009, whereby the appeal filed by the petitioner has been dismissed by confirming the judgment of conviction and order of sentence dated 15.09.2009 passed by the learned Judicial Magistrate 1st Class, Simdega in G.R. No. 396/2007, T.R. No. 94/2009.

4. The learned trial court had convicted the petitioner under Section 47(a) of the Excise Act and Section 290 of the Indian Penal Code and had sentenced him to undergo rigorous imprisonment for two years with a fine of Rs. 1,000/- and in default of payment of fine, to undergo simple imprisonment for further one month under Section 47(a) of the Excise Act. The learned trial court had further sentenced the petitioner to pay a fine of Rs. 100/- only and in default of payment of fine, he was directed to undergo simple imprisonment for 15 days for offence under Section 290 of IPC.

Submissions on behalf of the petitioner

5. Learned counsel appearing on behalf of the petitioner, while assailing the impugned judgments, has submitted that altogether 12 witnesses were examined in the present case and the seizure witnesses i.e., P.Ws.-3 and 4 have turned hostile and even the independent witnesses i.e. P.Ws.-5 and 6 have turned hostile. He also submits that one of the members of raiding party i.e. P.W.-7 has also turned hostile. He submits that there were two investigating officers of the case and one of the investigating officers, who had initially taken up the investigation, has also not been examined before the learned court below. He submits that one of the members of raiding party i.e. P.W.-11 has simply stated that he was standing outside the house. The learned counsel further submits that at the time, when the seizure had taken place, though it was alleged to have been seized from his home, it was not seized in his presence. The learned counsel submits that considering the aforesaid aspects of the matter, it cannot be said that the prosecution has been able to prove the case against the petitioner beyond all reasonable doubts.

6. Without prejudice to the aforesaid submissions, the learned counsel for the petitioner submits that an affidavit has been filed by the State pursuant to order dated 01.09.2021 passed by this Court. He submits that as per the affidavit, apart from the present case, no other case has been ever filed against the petitioner. He also submits that it has been mentioned in Annexure-A to the affidavit that at present, the petitioner is residing at home and he is engaged in agricultural activity and also working as a labourer and is taking care of his family. The learned counsel submits that it has also come in Annexure-A to the affidavit that the petitioner has remained in custody from 30.12.2007 to 04.03.2008 during trial and from 29.08.2012 to 13.09.2012

during pendency of the present criminal revision application and the present offence is the first offence and the only offence of the petitioner. The learned counsel submits that considering the fact that the case was lodged in the year 2007 and about 14 years have elapsed from the date of incident and the petitioner has faced the rigours of criminal case for a long time, some sympathetic view may be taken in favour of the petitioner. He also submits that the sentence of the petitioner be modified and be limited to the period already undergone by him in judicial custody and fine amount may be enhanced.

Submission on behalf of the Opposite Party-State

7. Learned counsel appearing on behalf of the opposite party-

State, on the other hand, has opposed the prayer and has submitted that 27 cartoons of huge bottles of various foreign made liquor and about 50 cartoons of "Nirmal Jal" mineral water were recovered from the house of the petitioner and the seizure list was prepared and handed over to his wife. He has also submitted that there are concurrent findings recorded by the learned courts below after appreciating the materials on record and there is no scope for re-appreciating the materials on record and coming to a different finding in revisional jurisdiction of this Court.

8. So far as seizure is concerned, the learned counsel submits that the seizure list witnesses i.e., P.Ws.-3 and 4 have not denied their signatures on the seizure list and it is not in dispute that P.Ws.-5 and 6 who were independent witnesses have turned hostile and P.W.-7, who was one of the members of raiding party, has also turned hostile.

9. So far as the sentence is concerned, the learned counsel submits that there is substantial recovery from the house of the petitioner and he has been adequately punished and as

per Annexure-A filed by the State, the petitioner has remained in custody from 30.12.2007 to 04.03.2008 during trial and from 29.08.2012 to 13.09.2012 during pendency of the present criminal revision application. It is not in dispute that there is no other criminal case ever lodged or pending against the petitioner and the petitioner is doing his agricultural activity and is working as a labourer and is taking care of his family. The learned counsel submits that it is for the court to consider the sentence, but in case, this Court is inclined to modify the sentence of the petitioner, then the maximum punishment of fine amount as prescribed under Section 47(a) of Excise Act may be imposed against the petitioner, which is to the extent of Rs. 5,000/-.

Findings of this Court

10. After hearing the learned counsel for the parties, this Court finds that the prosecution case, which is based from the self- statement of the officer-in-charge of Bansjor Police Station, is that on 29.10.2007 at about 11:50 A.M., he along with other police party were on patrolling duty and meanwhile some of the villagers informed that the petitioner used to sell illegal liquor in his house. On this information, the informant along with other police force raided the house from where from about 27 cartoons of foreign made liquor and about 50 cartoons of mineral water "Nirmal Jal" were recovered, but the petitioner managed to flee. However, on demand, wife of the petitioner did not produce any chit of paper and all the recovered articles were seized and seizure list were prepared in presence of two independent witnesses, namely, Subhash Kachua and Luxman Nag. On the basis of self- statement, First Information Report was registered as Jaldega P.S. Case No. 34/2007 dated 30.10.2007 for offence under Sections 290 of IPC and Section 47(a) of the Excise

Act. The investigating was started and after completion of investigation, charge-sheet was submitted under Section 414/290 of IPC and Section 47(a) of Excise Act against the petitioner. However, the charge was framed only under Section 290 of IPC and Section 47(a) of the Excise Act.

11. During trial, the prosecution examined altogether 12 witnesses and also produced the seized liquor before the court below, which was marked as material exhibit. P.W.-1 Hawaldar Kausal Kumar was one of the members of raiding party. This witness has stated that on 29.10.2007, he along with S.I. Amarnath Officer-in-charge of Bansjore Police Station was on patrolling gasti and meanwhile on the basis of a confidential report, they raided in the house of the petitioner at Siharpur, where from 27-28 cartoons of illicit foreign made liquor and fifty cartoons of mineral water were recovered in presence of two independent witnesses. He further stated that on non-production of any chit of paper, all the recovered articles were seized and seizure list was prepared by Bada Babu. This witness has been fully cross- examined from the side of the defence and in his cross- examination, he has stated that the raiding and recovery was made in presence of two independent witnesses and a copy of the seizure list has also been given to the wife of the petitioner, as the petitioner was not present there. P.W.-2 A.S.I. Sukhram Nag is also a member of raiding party. This witness has fully supported the prosecution case and the evidence of this witness is fully corroborated with the evidence of P.W.-1.

12. So far as P.Ws.-3 and 4 are concerned, they were seizure list witnesses and declared hostile, although they did not dispute their signatures on the seizure list. So far as P.Ws. 5 and 6 are concerned, they were the people of locality and

independent witnesses and also declared hostile. P.W.-7 was one of the members of raiding party. He was also declared hostile. P.W.-8 is the investigating officer of the case. He stated that on 03.01.2008, he took the charge of investigation of the case and in course of investigation, he recorded the evidences of independent witnesses, namely, Luxman Nag, Egnesh Lugun and Lemrent Xess and also recorded the defence version of the accused-Sudhir Lugun. After completion of investigation, he submitted charge-sheet for offence under Section 290/414 of IPC and Section 47 (a) of the Excise Act. He further proved the formal F.I.R., self- written report of S.I. Amarnath, the forwarding endorsement and the registration endorsement as Exhibits-1, 2, 2/2 and 2/2 respectively. He also proved the seizure list as Ext.-3 in support of the prosecution case. He clearly proved the identification of the petitioner-Sudhir Lugun. P.W.-9 S.I. Amarnath is the informant of the case. He has fully supported the prosecution case and narrated the story in same version. During cross-examination, this witness has consistently stood upon his statement and also explained the brand name of the illicit liquor. He further denied the defence suggestion as to he has lodged the false case. P.W.10 A.S.I. Dhananjay Kumar Sanjay and P.W.-11 James Tirkey, both are the members of the raiding party and they have also fully supported the prosecution case. P.W.-12 S.I. Ratnesh Mohan Thakur was examined as a formal witness, who proved the material exhibits as follows: - Material Ext. M to M/145 - 46 bottles having of 180 ml Officer choice.

Materials Ext. M-1 to M1/23 - 24 bottles having 375 ml of 8:00 P.M.

Materials Ext. M-II to MII/11 - 12 bottles having 450 ml of A.C. Seke.

Materials Ext. M-III to MIII/63 - 64 bottles having 375 ml of Bagpiper Delux.

MNaterials Ext. M-IV to MIV/327 - 328 per having 180 ml of M.C. Dowele's No. 1 whiskey.

Materials Ext. M-V to MV/70-71 bottles having 375 ml of MC dowele's No.1 whiskey.

Material Ext. M-VI to MVI/10-11 bottles having 750 ml of old monk XXX Rum.

Materials Ext. M-VII to MVII/94-95 bottles having 180 ml old monk XXX Rum.

Material Ext. M-VIII to MVIII/12-13 bottles having 375 ml old monk XXX Rum.

Materials Ext. M-IX to MIX/23-24 bottles having 375 ml of 8:00 P.M.

Materials Ext. M-X to MX/9-24 bottles having 375 ml of Bagpiper whiskey.

Materials Ext. M-XI to M-Xi/7-8 bottles having 750 ml of Bagpiper whiskey.

13. After closure of prosecution evidences, the statement of the petitioner was recorded under Section 313 of Cr.P.C. and the defence plea was that he has been falsely implicated in the case.

14. The learned trial court after considering the materials on record and closely scrutinizing the evidences and considering the testimony of eye-witnesses, who happened to be the informant and other members of raiding party, found that their evidence were corroborating with each other and also with the materials exhibits and other documentary evidences and that the seized materials were also produced which were huge quantity of illicit english wine recovered from the house of the petitioner and accordingly, convicted the petitioner for offence under Section 290 of IPC and Section 47(a) of the Excise Act. The learned trial court sentenced the petitioner to undergo rigorous imprisonment for two years with a fine of Rs. 1,000/- and in default of payment of fine to undergo simple

imprisonment for a term of one month under Section 47(a) of the Excise Act. The learned trial court further sentenced the petitioner to pay a fine of Rs. 100/- and in default of payment of fine, he was directed to undergo simple imprisonment for 15 days for offence under Section 290 of IPC.

15. So far as learned appellate court is concerned, it also considered the materials on record and gave concurrent findings and upheld the judgment of conviction and order of sentence passed by the learned trial court.

16. This Court finds that both the learned courts below have recorded consistent and concurrent findings after properly considering the evidences on record and passed well- reasoned order. This Court is of the view that there is no scope for re-appreciation of evidences for interference in revisional jurisdiction and accordingly, the conviction of the petitioner under Sections 290 of IPC and Section 47(A) of the Excise Act passed by the learned trial court and upheld by the learned appellate court is affirmed.

17. So far as sentence is concerned, this Court finds that admittedly the present offence is the first offence of the petitioner and as per the affidavit filed by the State, he has remained in custody from 30.12.2007 to 04.03.2008 during trial and from 29.08.2012 to 13.09.2012 during pendency of the present criminal revision application i.e. for a total period of 02 months 21 days in connection with the present case. Considering the aforesaid facts and also the facts that the petitioner is at present engaged in agricultural activity and is a labourer and is taking care of his family and and the present case is of the year 2007 and about 14 years have elapsed from the date of incident and the petitioner has faced the rigrous of criminal case for a long time, the ends of

justice would be served, if the sentence of the petitioner is modified to some extent. The minimum sentence for the offence under Section 47(a) of the Excise Act is three months.

18. Accordingly, the sentence of the petitioner for the offence under Section 47(a) of the Excise Act is modified to Rigorous Imprisonment for three months with a fine of Rs. 5,000/- to be deposited by the petitioner within a period of two months from the date of communication of a copy of this order to the learned court below. This Court is not inclined to modify the sentence imposed under Section 290 of Indian Penal Code. Both the sentences would run concurrently.

19. In case, the fine amounts (Rs.5,000/- + Rs.100/-) are not deposited within the stipulated time frame, the petitioner would serve the sentences as imposed by the learned court below.

20. Accordingly, with the aforesaid modification in the sentence, the present criminal revision application is hereby disposed of.

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

22. Let the lower courts record be sent back to the court concerned.

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

(Anubha Rawat Choudhary, J.) Mukul