Jharkhand High Court
Shambhu Rajak Son Of Late Kamal ... vs The State Of Jharkhand on 10 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 370 of 2012
With
I.A. No. 6247 of 2021
1. Shambhu Rajak son of Late Kamal Rajak;
2. Kanai Rajak son of Late Kamal Rajak;
3. Sunil Rajak son of Late Khiru Rajak
All R/o Dusadhpara Station Road, P.O.: Sahibgunj, P.S.:
Sahibgunj, Town: Sahibgunj, District: Sahibgunj
... ... Petitioners
-Versus-
1. The State of Jharkhand
2. Md. Firoz Alam S/o Md. Mustafa, R/o Mazahartola, P.O.:
Sahibgunj, P.S.: Sahibgunj, Town: Sahibgunj, District:
Sahibgunj ...... Opposite Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Pankaj Kumar, Adv.
For the O.P. No.2 : Mr. Javed Sultan, Adv.
For the State : Mr. Saket Kumar, A.P.
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14/10.01.2022 Heard Mr. Pankaj Kumar, learned counsel appearing
on behalf of the petitioners.
2. Heard Mr. Javed Sultan, learned counsel appearing on
behalf of the Opposite Party No.2 and Mr. Saket Kumar,
learned A.P.P. appearing on behalf of the State.
3. The present criminal revision petition has been filed
against the Judgment dated 16.02.2012 passed by learned
Sessions Judge, Sahibgunj in Criminal Appeal No.33/2010
whereby the appeal has been dismissed. The petitioners were
convicted by the court of the learned Additional Chief Judicial
Magistrate, Sahibgunj in P.C.R Case No.03/2004
corresponding to T.R. No.03/2010 under Sections 379 and 461
of the Indian Penal Code and were sentenced to undergo
Simple Imprisonment for two years under Section 379 of the
Indian Penal Code and Simple Imprisonment for one year
under Section 461 of the Indian Penal Code. Both the sentences
were directed to run concurrently.
4. The interlocutory application being I.A. No. 6247 of
2021 has been filed for taking the additional documents i.e.
photocopy of the certified copy of Judgment dated 11.06.2015
passed in P.C.R. No.48 of 2003/ T.R. No.04/2015 (Firoz Alam
Vs. Kanhai Rajak and others) by the learned Judicial
Magistrate, 1st Class, Sahibganj and photocopy of the certified
copy of the Judgment dated 18.04.2018 passed by the learned
Sr. Civil Judge-1, Sahibganj in Title Eviction Suit No.16 of 2003
(Md. Afroz Alam Vs. Sudha Devi and others) as evidence
under Section 391 of Cr.P.C. which according to the learned
counsel for the petitioners have direct bearing upon the just
decision of the present case. It has been prayed that the
aforesaid two judgments passed in P.C.R. No.48 of 2003 and
Title Eviction Suit No.16 of 2003 may be taken as additional
evidence in the present case as the said two judgments were
delivered much after the judgments passed by the learned
courts below in the present case.
5. While advancing the arguments with regard to the
interlocutory application, the learned counsel submitted that
the dispute involved in the P.C.R. Case No.48 of 2003 and Title
Eviction Suit No.16 of 2003 were between the same parties. In
P.C.R. No.48 of 2003, the complainant was Firoz Alam, who is
the complainant in the present case also, and the accused
persons were Shambhu Rajak, Kanai Rajak, Sunil Rajak and
Jatla Miyan and in the present case, Shambhu Rajak, Kanai
Rajak and Sunil Rajak are the convicts and the petitioners
before this Court. He further submitted that in P.C.R. No.48 of
2003, the date of incident was 12.03.2003 and in the present
case, the date of incident is 05.01.2004, but the dispute was
almost similar in connection with the premises involved in the
present case. The learned counsel further submitted that so far,
the Title Eviction Suit No.16 of 2003 is concerned, the same
was filed by Afroz Alam who is the brother of the complainant
of the present case and defendants were Sudha Devi wife of
Late Kamal Rajak; Kanhai Rajak S/o Late Kamal Rajak;
Shambhu Rajak S/o Late Kamal Rajak; Sunita Devi D/o Late
Kamal Rajak and wife of Sunil Rajak; Fulo Devi D/o Late
Kamal Rajak and wife of Mahendra Rajak. The said suit was
dismissed on contest. He further submitted that in the said
suit, the same premise as involved in the present case was the
subject matter of dispute.
6. The learned counsel appearing on behalf of the
Opposite Party no.2 opposed the interlocutory application for
adducing additional evidence. He submitted that the date of
incident in connection with P.C.R. Case No.48 of 2003 is
different from that of the present case and the parties in Title
Eviction Suit No.16 of 2003 are also different, in as much as,
the complainant was not a party in the title eviction suit. He
further submitted that otherwise also, the decision in the title
suit has got no bearing in the present case.
7. After hearing the learned counsel for the parties in I.A.
No.6247 of 2021, this Court finds that so far as P.C.R. Case
No.48 of 2003 is concerned, there is no doubt that the said
complaint case was also filed by the complainant of the
present case and out of the four accused persons in the said
case, the name of Shambhu Rajak, Kanai Rajak and Sunil Rajak
are common, but apparently, the date of incident in the said
case was 12.03.2003 and that in the present case was
05.01.2004. In the said case, the charges under Sections 323 and
379/34 of the Indian Penal Code were framed and the
allegation was with regard to theft of gold ear top (karnful)
from the possession of the mother of the complainant, but the
mother of the complainant did not support the prosecution
case and the learned court below acquitted the accused
persons from the charge under Section 379/34 of the Indian
Penal Code on account of inconsistent evidence, but so far as
the offence under Section 323 of the Indian Penal Code is
concerned, the accused persons were convicted. This Court is
of the considered view that the P.C.R No.48 of 2003 relates to
totally different incident and has no bearing in the present
case. Merely because the complainant of the present case had
earlier also filed a case against the accused of the present case,
the same does not reflect any false implication of the
petitioners. So far as the judgment and decree in Title Eviction
Suit No.16 of 2003 is concerned, in the said case, the
complainant of the present case was neither a party, nor a
witness and apparently the said case was filed by the brother
of the present complainant.
8. In view of the aforesaid circumstances, this Court is of
the considered view that prima facie the judgment passed in
Title Eviction Suit No.16 of 2003 and P.C.R. Case No.48 of 2003
have no bearing in the present case and accordingly, the
application filed for adducing additional evidence vide I.A.
No.6247 of 2021 is hereby dismissed.
9. Learned counsel appearing on behalf of the petitioners
while advancing his arguments in the criminal revision
application on merits submitted that the premises-in-question
belongs to the accused persons and there is only one room
shop in existence at the place of occurrence and the witnesses
examined on behalf of the complainant had specifically stated
that the shop-in-question was purchased by the complainant,
although it was stated by the other witnesses that towards the
backside of the shop, accused Kamal Rajak was living with his
family. It was the specific case of the defence that there was
only one room shop which was in possession of the accused
persons, for which the defence had referred to Para-24 of
Exhibit-A/1. Learned counsel also submitted that at best the
dispute was purely civil dispute between the parties and
accordingly, the petitioners could not have been convicted for
the alleged offences, once the petitioners claimed the shop
itself, there is no question of theft of any item from the shop.
Learned counsel further submitted that the impugned orders
are perverse and cannot be sustained in the eyes of law and
accordingly, the same are fit to be set aside.
10. The learned A.P.P. appearing on behalf of the State, on
the other hand, submitted that there are concurrent findings
recorded by the learned courts below after considering the
materials on record and the complainant was found to be in
possession of the shop and the present case has nothing to do
with any title dispute between the parties or between the
brother of the present complainant and the family of the
accused persons.
11. After hearing the learned counsel for the parties, this
Court finds that the case of the complainant was that he has a
shop of cycle rikshaw repairing in which he invested capital of
Rs.2,00,000/-. On 05.01.2004 at about 08.30 pm, the accused
persons namely, Kamal Rajak, Shambhu Rajak, Sunil Rajak
and Kanai Rajak alongwith 5 other unknown persons entered
into his shop by breaking the lock of the shutter and when the
complainant resisted, the said accused persons with intent to
kill the complainant approached towards him and tried to
catch him, but the complainant saved his life and entered in
the house of Saukat Ali and remained there. On the next
morning, when the complainant went to his shop, he saw that
all the accused persons had broken the lock and had looted the
articles kept in the shop valued @ Rs.2,00,000/- with intent to
commit dacoity on account of which the complainant suffered
a loss of Rs.2,00,000/-. It was also stated that the complainant
went to the police station to lodge F.I.R., but he was directed to
file complaint case in the court and thereafter, complainant
filed the case. The complaint was filed under Section 395 of
Indian Penal Code against four accused persons, the charge
was framed under Sections 380 and 461 of Indian Penal Code
and during pendency of the trial, Kamal Rajak died and
accordingly, the case proceeded against the present
petitioners.
12. The Complainant examined altogether four witnesses.
C.W.-1 is Nepali Yadav, C.W.-2 is Raju Paswan, C.W.-3 is
Akash Paswan and C.W.-4 is the Complainant himself. After
closure of the prosecution evidence, the accused persons were
examined under Section 313 of Cr.P.C. wherein they denied
the allegations. The accused persons did not examine any
defence witness, but they filed certified copy of deposition of
Complaint Witness No.1 Nepali Yadav in P.C.R. Case No.48 of
2003 and also certified copy of deposition of Complainant in
P.C.R. Case No.48 of 2003. The aforesaid two documents were
marked as Exhibits.- A and A/1 respectively. The complainant
who was examined as C.W.-4 fully supported the prosecution
case and stated that on 05.01.2004 at about 08.30 pm, when he
was returning from Kasai Mohalla saw gathering near his
shop. He further stated that Kanai Rajak was breaking the lock
of shutter of his shop and Shambhu Rajak, Sunil Rajak and
Kamal Rajak and other persons were standing there and after
breaking the lock, the accused persons removed body of
rikshaw, frame, dala and other articles from the shop and
when he raised alarm, he was beaten by the accused persons
by fist and slaps. Upon hearing alarm, Nepali Yadav, Amjad
Khan and Sita Ram (deceased) and Saukat, all came to the spot
and witnessed the occurrence. On the next day, he went to the
police station, but the police refused to lodge the case and
accordingly, he filed the complaint case. Nepali Yadav has
been examined as C.W.-1 who has fully supported the
prosecution case. He stated that he knew both the parties and
on the date of occurrence i.e. 05.01.2004 at about 08.30 pm and
the place of occurrence is the shop of Firoz Alam
(complainant). He further stated that his house was situated
near the shop of Firoz Alam and on the date and time of
occurrence, he heard the sound of breaking the shutter of cycle
rikshaw shop of the complainant. When the complainant Firoz
Alam came to the place of occurrence and resisted, then the
accused persons threatened him of dire consequences and
tried to catch him, but the complainant succeeded in fleeing
away. He further stated that the shop belongs to Firoz Alam,
which was purchased by him from the mother of one Ashok.
He claimed to identify the accused persons in the court. C.W.-
2 and C.W.-3 are also independent witnesses who have fully
supported the prosecution case.
13. The learned trial court considered the evidences of
both the prosecution and defence and rejected the plea raised
by the defence that there were two rooms at the place of
occurrence and considered the evidences of the defence and
recorded its findings at Para-13 of the impugned judgment
which read as follows:
"13. I have considered the rival submission of both the
parties and have minutely perused the record.
The defence has relied wholly upon the contention that
the shop in question belongs to the accused persons and
there is only one room (shop) in existence at the place of
occurrence. The witnesses examined on behalf of the
complainant have specifically stated in their evidence that
land upon which the shop is situated purchased by the
complainant (Firoz Alam). Although it has been stated by
other witnesses that towards back of the shop accused Kamal
Rajal lives with his family. The defence counsel has given
much stress that there was only one room (shop) which is in
possession of the accused persons is clear from perusal of
para 24, Ext- A/1. But from perusal of para - 23 of Ext -
A/1 it is also clear that there was two rooms and vide para -
24 it becomes also clear that out of two rooms one room
came in possession of the accused after the first incident for
which the complainant has filed one another case in the
court of S.D.J.M., i.e. P.C.R Case No.48/03 accordingly the
contention of the learned counsel of the accused finds no
place. So far as the ownership with regard to the shop is
concerned neither of the party has filed any chit of paper
with regard of ownership but the witnesses examined on
behalf of the complainant have fully supported that shop
belongs to Md. Firoz Alam (complainant)."
14. The learned trial court after considering the materials
on record convicted the petitioners under Sections 379 and 461
of Indian Penal Code and sentenced them accordingly. The
learned trial court held that all the witnesses except C.W.-4 are
independent witnesses and their testimonies are corroborative
to each other and nothing has been brought to render their
testimonies incredible. The learned trial court held that the
complainant has succeeded to prove the case against the
accused persons beyond all reasonable doubts. While
sentencing, the learned trial court recorded that although there
is no history of previous conviction available in the records,
but the accused persons have committed offence of serious
nature and was of the view that no lenient view can be taken
in awarding sentence and sentenced them accordingly.
15. So far as the appellate court is concerned, the appellate
court also considered the evidences on record and recorded its
findings at Para-17 and 18 which read as follows:
"17. From perusal of the evidence, it establishes that
prosecution/complainant has been able to prove that at the
time of incident Md Firoz Alam was running the shop in
question and in the said shop Rickshaw and Cycle material
and others goods etc. were kept inside the said shop and it
was closed with shutter and it was in possession of Md
Firoz Alam and witnesses have supported the same and the
accused persons had broken the lock and opened shutter and
removed the articles without consent of Md Firoz Alam and
the said offence was committed with intention to stolen of
articles dishonestly. And there is credible material and
evidence of prosecution witnesses which establishes that
accused persons were present at the spot when the theft was
committed and I find the prosecution has been above to
bring home the charge U/s 379 I.P.C. read with Section 461
IPC in the present case in hand.
18. As such there is evidence available on the record
and it is clear that there was no darkness and witnesses have
identified the accused persons in light of generator and
identified the same in the dock of this court and at the time,
date and place of occurrence in question same have been
supported and corroborated by the witnesses and it has also
been supported that accused persons had broken the lock and
opened shutter and removed the articles and as such P.Ws
have supported the prosecution version and there is
supporting evidence and witnesses have whispered about the
role and overt act attributed by the accused persons namely
Kamal Rajak, Kanhai Rajak, Shambhu Rajak and Sunil
Rajak who were armed with deadly weapon in their hands
and as such prosecution case therefore has been proved by
the evidence of eye witnesses and I therefore see substance in
the contention of the ld counsel appearing on behalf of the
state and there is iota of evidence on record to give and
inkling of the fact that there was dispute in between the
complainant and accused persons and there was strained
relation since before the incident and from the evidence it
establishes that Md Firoz Alam was in possession of the said
shop in question and he was running his shop of Rickshaw,
cycle material which was collected inside the said shop and
the same was removed by the accused persons with the
purpose to disposes Md Firoz Alam and witnesses also
whispered and supported that there was enmity and some
altercation took place at the time of incident and accused
persons had extended threatening to Md Firoz Alam and
P.Ws have given supporting evidence on oath regarding the
occurrence in question as well as role and overt act as
attributed by the accused persons named above and it has
also been supported that the alleged incident took place at
8.30 pm on 5.1.04 and at the time of incident bulb was
burning/lightening through generator. As such there was
sufficient light to identify the face of the accused persons as
such the very genesis and motive behind the occurrence in
question stands proved."
16. The learned appellate court upheld the conviction and
sentence of the petitioners.
17. Considering the totality of the facts and circumstances
of the present case, this Court finds that both the learned
courts below have scrutinized the materials on record and
have considered the respective arguments of the parties and
have also considered the evidence adduced from the side of
the defence and has clearly held that the complainant of the
present case was in possession of the suit premises in which he
was running a bicycle repairing shop and the offence was
committed by the petitioners. The learned counsel for the
petitioners has not been able to show any perversity or
material irregularity or illegality in the impugned judgments
of conviction and in such circumstances, there is no reason to
interfere with the impugned judgments of conviction of the
petitioners.
18. So far as the sentence is concerned, this Court finds
that vide order dated 20.09.2021, the learned counsel for the
State was directed to file an affidavit regarding criminal
antecedent of the petitioners, both past and present, and also
their social investigation report conducted by the Probation
Officer of the concerned district. Pursuant to said order, an
affidavit has been filed by the State wherein it has been clearly
mentioned that there is no criminal antecedent of the
petitioners. So far as social investigation report is concerned,
the same is annexed as Annexure-A to the affidavit being
letter dated 30.09.2021 wherein it has been stated that the
petitioners live peacefully with the people of the
neighborhood and have good conduct in the society and they
are all self-employed and have some income through pension
and they are hard working people who are leading their lives.
19. This Court finds that the petitioners were directed to
be enlarged on bail by virtue of order dated 03.01.2013 and
surrender certificate was filed on 30.10.2012 and thus, the
petitioners have remained in custody for more than two
months during the pendency of the present case. It further
appears that the case was instituted in the year 2004 and about
18 years have elapsed from the date of the incident. The
petitioners have faced the criminal case for a long time and
accordingly, the sentence of the petitioners is required to be
modified to some extent.
20. Accordingly, the sentence of the petitioners for the
offence under Section 379 of the Indian Penal Code is reduced
to Simple Imprisonment for six months with a fine of
Rs.2,500/- each and the sentence of the petitioners for the
offence under Section 461 of the Indian Penal Code is also
reduced to Simple Imprisonment for six months with a fine of
Rs.2,500/- each. Both the sentences shall run concurrently and
the period of custody undergone by them shall be set off as
per law.
21. The entire fine amount is to be deposited by the
petitioners before the learned court below within a period of
three months from the date of communication of this
judgment to the learned court below. In case of non-deposit of
the fine amount within the aforesaid stipulated time frame, the
petitioners would serve the sentence as awarded by the
learned courts below.
22. The present criminal revision application is hereby
disposed of with the aforesaid modification of sentence.
23. Bail bonds furnished by the petitioners are cancelled.
24. Pending interlocutory application, if any, is closed.
25. let the lower court records be sent back to the court
concerned.
26. Let this order be communicated to the learned court
below through FAX/Email.
(Anubha Rawat Choudhary, J.)
Saurav/
